# Dyback v. Weber

> Appellate Court of Illinois · July 5, 1985 · 134 Ill. App. 3d 426

URL: https://www.frixlaw.com/law-library/cases/9725796

## Case

- **Full name:** CLAUDETTE DYBACK, Plaintiff and Counterdefendant-Appellant, v. ARTHUR J. WEBER Et Al., Defendants and Counterplaintiffs-Appellees
- **Court:** Appellate Court of Illinois
- **Decided:** July 5, 1985
- **Citations:** 134 Ill. App. 3d 426; 89 Ill. Dec. 363; 480 N.E.2d 845; 1985 Ill. App. LEXIS 2122
- **Precedential status:** Published
- **Opinion:** Dissent by Reinhard
- **Judges:** Unverzagt, Reinhard
- **Cited by:** 6 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9725796

## Opinion text

JUSTICE REINHARD, dissenting in part:
While I agree with the majority decision to affirm the trial court’s directed verdict of count I, I disagree with its reversal of count II and its application of the doctrine of res ipsa loquitur. The plaintiff has failed to establish the second element required to infer negligence based upon circumstantial evidence. She did not put forth any evidence to establish that defendants controlled or managed the instrumentality which caused the fire. (See Lynch v. Precision Machine Shop, Ltd. (1982), 93 Ill. 2d 266 , 443 N.E.2d 569 .) In fact, there is no proof as to the cause of the fire. Recently, this court held that the doctrine of res ipsa loquitur is inapplicable where the origin and cause of the fire are unknown and the fire could have occurred without negligence on the part of anyone. Allstate Insurance Co. v. Winnebago County Fire Association, Inc. (1985), 131 Ill. App. 3d 225, 233-34 , 475 N.E.2d 230 .
To avoid this rule, the majority appears to expand the meaning of control. It reasons that control of the area where the fire occurred fulfills the second element of res ipsa loquitur where the cause of the fire is unknown. One view is that control of the area is not probative evidence of control of the offending instrumentality. Smith v. Little (Tex. App. 1981), 626 S.W.2d 906, 908 .
Decisive here, however, is that the plaintiff’s evidence did not even establish that defendants had control of the premises during nonworking hours, when the fire occurred. While the plaintiff testified that she gave defendants a key and “discussed” with them that they would have responsibility for the premises until the house was reconstructed, this is not sufficient to put control of the premises in defendants during nonworking hours. In my opinion, defendants were not under a duty here to plaintiff to anticipate or guard against injury occurring on the premises during a period of time when they did not have control over the premises. The majority here applies the doctrine of res ipsa loquitur past the point for which it was designed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9725796. Public record. Not legal advice.