C.D.L., Inc. v. East Dundee Fire Protection District

624 N.E.2d 5, 252 Ill. App. 3d 835, 191 Ill. Dec. 509
CourtAppellate Court of Illinois
DecidedNovember 23, 1993
Docket2-92-0958
StatusPublished
Cited by8 cases

This text of 624 N.E.2d 5 (C.D.L., Inc. v. East Dundee Fire Protection District) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
C.D.L., Inc. v. East Dundee Fire Protection District, 624 N.E.2d 5, 252 Ill. App. 3d 835, 191 Ill. Dec. 509 (Ill. Ct. App. 1993).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiff, C.D.L., Inc., n/k/a Cafe Du Louvre, Inc., owned a building at 16 East Main Street in East Dundee. Plaintiff, John Granados, operated his Cha-Cha-Cha Mexican Restaurant in C.D.L.’s building. At approximately 9:30 a.m. on February 1, 1990, a fire truck (Engine 44) owned and operated by defendant, East Dundee Fire Protection District, responded to an emergency call. While en route, Engine 44’s brakes failed, causing it to crash into that portion of C.D.L.’s building in which Mr. Granados’ restaurant was located. Subsequently, plaintiffs filed separate complaints sounding in negligence, which were eventually consolidated. The case was tried before a jury, which returned a $94,521.64 verdict in plaintiffs’ favor. This timely appeal followed.

On appeal, defendant raises five issues, namely: (1) whether defendant was shielded from liability under section 5 — 106 of the Local Governmental and Governmental Employees Tort Immunity Act (Act) (HI. Rev. Stat. 1989, ch. 85, par. 5 — 106); (2) whether plaintiff failed to prove defendant had actual or constructive notice of the defective brakes under section 3 — 102(a) of the Act (111. Rev. Stat. 1989, ch. 85, par. 3 — 102(a)), and defendant proved it had an inspection system which entitled it to immunity of section 3 — 102(b)(2) of the Act (111. Rev. Stat. 1989, ch. 85, par. 3 — 102(b)(2)); (3) whether various evidentiary rulings by the trial court were in error; (4) whether the trial court erred in allowing a mechanic to testify as an expert witness on fire truck inspections and to testify that his employer, American Airlines, conducted regular “tear-down” inspections on its trucks; and (5) whether the trial court erred in admitting evidence that the right front brake drum of Engine 44 leaked brake fluid one year prior to the instant accident.

Prior to discussing the facts of this case, it is useful to outline the important elements of its procedural history.

In October 1990, C.D.L., Inc., filed its complaint. In November 1990, John Granados filed his complaint. The two actions were consolidated.

In January 1991, defendant filed a motion to strike and dismiss plaintiffs’ claims, asserting that plaintiffs failed to state a cause of action. Defendant asserted that, pursuant to section 5 — 106 of the Act, it could only be held liable for its willful and wanton conduct since, at the time of the crash, Engine 44 was responding to an emergency call. Since plaintiffs alleged mere negligence with regard to the inspection, maintenance and repair of Engine 44 (and since plaintiffs did not deny that Engine 44 was responding to an emergency call), defendant maintained that dismissal was in order.

Plaintiffs responded to defendant’s motion to strike and dismiss, contending that section 5 — 106 of the Act concerned only a public entity’s negligent operation of a motor vehicle, thus rendering section 5 — 106 inapplicable, since plaintiffs did not allege negligent operation, and that, in light of section 5 — 103 of the Act, defendant remained accountable for negligence by reason of the condition of its motor vehicle. On July 8, 1991, the trial court denied defendant’s motion to strike and dismiss.

Subsequently, defendant filed an answer to the complaint and put forward an affirmative defense which referenced section 5 — 106 of the Act. Plaintiffs moved to strike all such references to section 5 — 106 and to strike defendant’s affirmative defense. Plaintiffs’ motion was granted in part and denied in part. All references to section 5 — 106 of the Act within defendant’s answer were stricken. The trial court let defendant’s affirmative defense stand. The trial court stated that plaintiffs should initiate some type of substantive motion, i.e., a motion for summary judgment, prior to trial so as to finalize the issue of the defendant’s tort immunity, or lack thereof, for purposes of appellate review. On December 20, 1991, plaintiffs filed a motion for partial summary judgment, arguing that defendant could not rely on a section 5 — 106 defense. On January 24, 1992, the trial court granted plaintiffs’ motion for partial summary judgment and, on the same date, granted defendant leave to file an affirmative defense based upon section 3 — 102 of the Act. On January 22, 1992, defendant filed its response to plaintiffs’ motion for summary judgment.

Prior to trial, plaintiffs filed a motion in limine to bar defendant from introducing or making any reference to the National Fire Protection Association standards regarding weekly inspection and preventive maintenance. Over defendant’s objection and after considerable argument on the issue, the trial court granted plaintiffs’ motion in limine. Defendant made no offer of proof on this issue.

At trial, the following evidence was adduced. Lieutenant Steven Hardy testified regarding the defendant’s vehicle inspection system. At all relevant times, defendant had in place an established system which was to be followed by defendant’s personnel. All vehicles underwent weekly checks, weekly road tests, and daily “rig checks.”

Lieutenant Hardy also stated that defendant’s five vehicles were thoroughly examined each week by the officer on duty, who inspected all of a vehicle’s system. For example, all fluid levels, connections and tire pressures were checked. Headlights, turn signals and other accessories were tested. The inspection included a check for any fluid leaks. An extensive checklist was completed for each weekly inspection. Admitted into evidence were 52 checklists from weekly inspections of Engine 44 taken in the year prior to the subject accident. Weather permitting, defendant’s vehicles were road tested once a week. The road test normally lasted 15 minutes, wherein the vehicle was driven approximately six miles through the streets of East Dundee.

Chief Mark Rakow testified that the daily check is not a formal inspection, like the weekly check. An officer on duty checks to see that the vehicles are “plugged in” to their battery chargers and that the floodlights used in fire fighting are folly charged. He further stated, “You basically walk around [the vehicles] making sure that the Scott tanks, which are air tanks that you wear on your back, are there and ready to go. And again [you check to see that there are] no obvious leaks or things falling off the engine or whatnot.”

On cross-examination, Chief Rakow admitted that defendant had no set procedure for periodically removing Engine 44’s tires and inspecting its braking system. He further conceded that, in the 10-year period preceding the accident, Engine 44’s braking system had never been examined. To his knowledge, Engine 44’s braking system was comprised of parts originally installed when the vehicle was manufactured in 1968.

Evidence indicated that there was no set procedure regarding the internal inspection of Engine 44’s brake system. In the 10-year period preceding the crash, Engine 44’s brakes had never been dismantled and the component parts examined for failed or failing parts. Similarly, there was no general procedure where, on a periodic basis, department vehicles were taken in to repair facilities and overhauled.

According to Chief Rakow, Engine 44 was a fire truck with a Ford chassis. It was manufactured in the late 1960’s.

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Bluebook (online)
624 N.E.2d 5, 252 Ill. App. 3d 835, 191 Ill. Dec. 509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cdl-inc-v-east-dundee-fire-protection-district-illappct-1993.