However, neither Globe nor Mr. Dietrich owed a duty to protect
Stepco from the criminal acts of third parties. Kosin v. Shero, 360
N.E.2da 572, 574 (Ill. App. Ct. 1977) (holding that a landlord had
no duty to protect his tenants from arsonists); Trice v. Chicago
Housing Auth., 302 N.E.2d 207, 208-9 (Ill. App. Ct. 1973)
(upholding dismissal of case against defendant landlord where
plaintiff was injured by a non-party who threw a rock off a balcony
onto plaintiff and plaintiff “alleged no facts of a contractual or
statutory duty imposed on defendant to specially design its
buildings to prevent injuries caused by criminally veckless acts of
third persons”). It is not reasonably foreseeable nor likely that
a tenant will be burned out of a suburban commercial property by
arsonists, nor is it fair to place a burden on landlords to make
buildings so fire-resistant that they will not burn even when
flammable liquids are deliberately set alight in a woodworking
shop. Where, as here, third party arsonists set the fire which
injured the plaintiff, the defendants’ only duty was that of
reasonable care.

Ohio cannot show that either Globe or Mr. Dietrich breached
this duty of reasonable care. A building owner “has a duty to
correct dangerous conditions of which he knows or reasonably should
know.” Liberty Mut. Fire Ins. Co. v. Hayes Mech., Inc., No. oo-
3843, 2001 U.S. Dist. LEXIS 1077, at *3 (N.D. Ill. Feb. 6, 2001)

(Moran, J.). The possibility that the doorway to the shed addition


that the fire wall which was allegedly compromised by the shed
addition was only rated to withstand fire for three to four hours.
Contrary to Ohio’s argument, this is not simply a battle of experts
which must be decided by a jury. No reasonable jury could find that
in such a conflagration, a fire wall with a three-to-four-hour
rating would have prevented the fire from destroying Stepco’s
property over the course of twelve hours. As Ohio cannot prove any
of the elements of negligence, the motion for summary judgment is

GRANTED.

ENTER ORDER

Elaine E. Bucklo
United States District Judge

Dated: October } , 2003


wood-framed shed addition compromised the cinder~block-and-brick
“fire wall” which separated the two halves of the main structure by
providing an alternate path by which fire could spread from one
half of the building to the other.

In order to prove a cause of action for negligence in
Illinois, a plaintiff must prove facts that establish (1) the
existence of a duty owed by the defendant to the plaintiff, (2) a
breach of that duty, and (3) and injury proximately resulting from
that breach. Petrauskas v. Wexenthaller Realty Management Inc., 542
N.E.2d 902, 905 (Ill. App. Ct. 1989). Whether a duty was owed is a
question of law for the court to determine. Id. Reasonable
foreseeability is the primary factor in evaluating whether a duty
exists, but the court must also consider the likelihood of injury,
the magnitude of the burden to guard against the injury, and the
consequence of placing that burden on the defendant. Id.

Both Globe and Dietrich did have a duty to Stepco to maintain
the portions of the building under their respective control in a
reasonably safe condition. Kelly v. City Nat’l Bank & Trust Co.,
109 N.E.2d 206, 208 (Ill. App. Ct. 1952) (“{I]t is well established
that in the absence of an agreement the tenant has the duty to keep
the demised premises in proper and fit repair”); Sollars v.
Blayney, 176 N.B.2d 477, 479-80 (Ill. App. Ct. 1961) (“Where the
landlord retains control over premises used in common by tenants,

he owes them a duty to keep premises in reasonable condition”).


compromised the integrity of the fire wall was never brought to the
attention of the defendants, and it is unreasonable to expect that
individuals with no training in fire science should (or could) have
realized it themselves. The building was thoroughly inspected by
the local fire department on an annual basis during the period of
Mr. Dietrich’s ownership, and no official ever issued a citation
for a safety violation or made any mention of the breach in the
fire wall. It was entirely reasonable for the defendants to rely on
the assurances of these government authorities that their efforts
. to maintain the building safely were successful.

The only evidence Ohio offers in support of the defendants’
negligence is the testimony of its expert, Richard Bidwell. Mr.
Bidwell testified in his deposition that he believed that this
building needed a fire wall. However, he further testified that he
was not sure whether any applicable building code required such a
wall in this particular building, that he is not an expert on
building codes, and that he would defer to others at his company on
the question of whether the fire wall was actually required by law.
Even if an applicable code did require such a wall, an “ordinance
violation does not constitute negligence per se, and therefore a
defendant may prevail ... by showing that he or she acted

“a

reasonably under the circumstances.” Carey v. Lazzara, Inc., 661
N.E.2d 413, 416 (Ill. App. Ct. 1996). As discussed above, the

actions of both defendants were reasonable.



United States District Court, Northern District of Illinois

pAameoisiend Judge Elaine E. Bucklo Sitting Judge if Other
a Mlagistrate Judge . than Assigned Judge
CASE NUMBER 02 C 816 DATE 10/1/2003
CASE Ohio Casualty Group vs. Dietrich, et al.
TITLE

[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

q@ oa Filed motion of [ use listing in “Motion” box above.]

(2) im) Brief in support of motion due

(3) ia] Answer brief to motion due___._ Reply to answer brief due__.

(4) qd Ruling/Hearing on___set for at

(5) Oo Status hearing{held/continued to] [set for/re-set for] on___setfor__—at_
(6) o Pretrial conference[held/continued to] [set for/re-set for] on set for__—at_
7) a Trial[set for/re-set for]on__at

(8) qo (Bench/Jury trial] [Hearing] held/continued to__at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to}

GFRCP4(m) CLocal Rule 41.1 OO FRCP41(a)(1) CM FRCP41(a)(2).

(10) Ml [Otherdocketentry] Defendants’ motion for summary judgment is granted. Accordingly, judgment
is entered in favor of defendants and against plaintiff. Any pending motion in this case is terminated as
moot. All schedules including pretrial conference set for 12/5/03 and trial set for 1/6/04 are vacated.

(1) [For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document::.

2 Number

No notices required.

nyrmber of notices

V | Notices mailed by judge’s staf®.

Notified counsel by teleplione.

Docketing to mail notices.

Y | Mail AO 450 form tung LOM

Ml

Copy to judge/magistrate judge.

dlate mailed notice
courtroom

MPI deputy’s
initials

MPI

central Clerk’s Office railing deputy



Finally, even if the defendants breached their duty of
reasonable care, Ohio cannot show causation. In order to establish
proximate causation of an injury, a plaintiff must be able to show
that injury was:

the natural and probable result of the negligent act or

omission and be of such a character as an ordinarily prudent

person ought to have foreseen it as likely to occur as a

result of the negligence. ... The intervention of independent

concurrent or intervening forces will not break causal

connection if the intervention of such forces was itself

probable or foreseeable.”
Kalata v. Anheuser-Busch Cos., Inc., 581 N.E.2d 656, 661-62 (Ill.
1991). While it is natural and probable that a fire might travel
through a break in a fire wall, the actions of the arsonists in the
present case represent an improbable and unforeseeable intervening
force that an ordinarily prudent person would not have seen as
likely to occur.

Furthermore, while the plaintiff's and defendants’ experts
offer conflicting testimony as to whether an unbreached fire wall
might have mitigated Stepco’s injuries, there is uncontroverted
testimony from firefighters on the scene that the fire burned for
twelve hours and that flames reached fifty feet into the air. Three
firefighters who responded to the alarm, as well as the defendants’
expert, who first visited the site only hours after the fire,
testified that a fire wall would not have protected Stepco. Ohio’s

own expert, who only visited the scene three months after the fire

and after a portion of the building had been demolished, testified



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

OHIO CASUALTY GROUP, as subrogee of
STEPCO CORPORATION,
Plaintiff,

No. 02 C 816

)
)
)
)
)
v. )
)
JAMES DIETRICH and GLOBE CUSTOM )
WOODWORK, INC.,

Defendant. )

MEMORANDUM OPINION AND ORDER DOCKETED
I. OCT 2 2003

In 1987, defendant James Dietrich, a citizen of Illinois,
purchased a building and land located at 115 Elizabeth Drive in
Arlington Heights, Cook County, Illinois. At the time of the events
in question, approximately half of the building was leased to
defendant Globe Custom Woodwork, Inc. (“Globe”), an Illinois
corporation, and used as a woodworking shop, while the other half
was leased to Stepco Corporation (“Stepco”), an Illinois
corporation, and used as a storage facility. The main portions of
the L-shaped building were constructed from cinder block, brick,
and steel, but the Globe portion featured a metal-clad, wood-framed
shed addition located in the interior corner of the L. The main
portions of the building were built in 1967 and the addition in
1970. On June 11, 2000, two arsonists entered the Globe portion of

the structure, doused it with a flammable liquid, and set it on


fire. Despite the efforts of ten fire departments, the fire burned
for twelve hours, virtually destroying the entire building and its
contents.

Stepco’s property was insured by plaintiff Ohio Casualty Group
(“Ohio”), an Ohio corporation. Following the fire, Ohio paid
approximately $350,000 in compensation to Stepco for its losses. On
February 1, 2002, Ohio filed this suit alleging that the
defendants’ negligence led to the damage to its insured and seeking
damages to recover its losses. The defendants now move for summary
judgment. I grant the motion.

II.

This court has jurisdiction over the case pursuant to the
federal diversity statute, 28 U.S.C. § 1332. On a motion for
summary judgment, I evaluate all admissible evidence in the light
most favorable to the non-moving party and grant the motion only if
the case presents no genuine issue of material fact. Popovits v.
Circuit City Stores, Inc., 185 F.3d 726, 731 (7th Cir. 1999);
Waldridge v. American Hoechst Corp., 24 F.3d 918, 920 (7th Cir.
1994). The parties agree that JIllinois substantive law is
applicable to the case.

Ohio’s allegation, in a nutshell, is that the damages
sustained by Stepco were proximately caused by the defendants
negligent failure to provide proper fire control measures. The only

specific problem complained of is that the overhead doorway to the