{
  "id": 3512877,
  "name": "JULIAN B. VENEZKY et al., Plaintiffs-Appellants, v. CENTRAL ILLINOIS LIGHT COMPANY, Defendant-Appellee",
  "name_abbreviation": "Venezky v. Central Illinois Light Co.",
  "decision_date": "1988-04-28",
  "docket_number": "No. 3\u201487\u20140650",
  "first_page": "612",
  "last_page": "614",
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    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T19:02:50.417384+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "JULIAN B. VENEZKY et al., Plaintiffs-Appellants, v. CENTRAL ILLINOIS LIGHT COMPANY, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE INGLIS\ndelivered the opinion of the court:\nPlaintiffs, Julian and Madeline Venezky, appeal from a judgment of the circuit court of Peoria County granting defendant\u2019s motion to dismiss. Pursuant to an order entered by the supreme court on February 22, 1988, the three justices of the Appellate Court for the Second District who are deciding this case were assigned to sit as justices of the Appellate Court for the Third District. On appeal, plaintiffs argue that the motion to dismiss was improperly granted because defendant had a duty to use reasonable care, defendant did not raise affirmative matter as required by section 2 \u2014 619(aX9) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619(aX9)), and the affidavit filed in support of the defendant\u2019s motion to dismiss did not comply with Supreme Court Rule 191(a) (107 Ill. 2d R. 191(a)). We reverse and remand for further proceedings.\nOn January 22, 1985, plaintiffs resided at 468 East High Point Road in Peoria, Illinois. On that day, the gas meter and regulator at their home malfunctioned, stopping the supply of natural gas to their furnace. The water pipes in the Venezky home froze and burst. The gas meter was repaired, but when the house was reheated, the pipes leaked, causing $9,494.07 worth of property damage. On September 17, 1986, plaintiffs filed a complaint against defendant, Central Illinois Light Company (CILCO), alleging that CILCO had a duty to use reasonable care in installing, maintaining, and repairing the meter regulator. The complaint also alleged that CILCO\u2019s negligence caused the damage to the Venezkys\u2019 house. The complaint contained a second count which contended that CILCO was liable on a res ipsa loquitur theory.\nCILCO filed a motion to dismiss, arguing that neither count I nor count II of plaintiffs\u2019 complaint stated a cause of action. The motion was denied as to both counts. The defendant then filed a second motion to dismiss, using section 2 \u2014 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619). This motion was similar to the first motion to dismiss, alleging that CILCO did not have a duty to provide uninterrupted service and that the theory of res ipsa loquitur did not apply in this case. The motion was supported by an affidavit which stated that CILCO performs random testing of gas meters and detailed possible reasons for a gas meter\u2019s malfunction. After plaintiffs\u2019 motion to strike CILCO\u2019s motion to dismiss was denied, the trial court granted the defendant\u2019s motion to dismiss with prejudice. This appeal ensued.\nPlaintiffs contend that CILCO\u2019s motion to dismiss was improperly granted because it did not raise \u201caffirmative matter\u201d defeating the claim as required by section 2 \u2014 619(aX9). A motion to dismiss under section 2 \u2014 619(aX9) alleges that the complaint must be dismissed because of \u201caffirmative matter avoiding the legal effect of or defeating the claim.\u201d (Ill. Rev. Stat. 1985, ch. 110, par. 2 \u2014 619(aX9).) The affirmative matter \u201cmust be something more than an assertion that the complaint fails to plead sufficient facts to state a cause of action [citation], or evidence offered to controvert a well-pleaded fact in the complaint.\u201d (Stone v. McCarthy (1987), 158 Ill. App. 3d 569, 576.) A motion to dismiss concedes all well-pleaded facts in the complaint. (158 Ill. App. 3d at 576.) If the affirmative matter is merely evidence contesting facts alleged in the complaint, use of section 2\u2014 619 is inappropriate. (Inland Real Estate Corp. v. Lyons Savings & Loan (1987), 153 Ill. App. 3d 848, 854.) We further note that defendant\u2019s motion to dismiss for failure to state a cause of action was denied before the motion involved in this appeal was filed, and defendant has not raised an issue concerning the trial court\u2019s action with respect to that motion. Therefore, we will focus our attention solely on the question of whether sufficient affirmative matters to defeat plaintiffs\u2019 claim were brought forth.\nThe major thrust of defendant\u2019s argument surrounds its tariff and the affidavit filed in support of the motion to dismiss. CILCO argues that, under its tariff, it cannot be held responsible for damages caused by interruptions in service unless the interruption is caused by fault on its part. CILCO then argues that because it presented an affidavit which has the statement of a CILCO employee concerning the procedures used in testing gas meters and regulators it has produced affirmative matter to defeat a claim. We disagree. The core issue of the complaint is whether the malfunction of the gas meter and improper reheating of the house were caused by CILCO\u2019s negligence in installing, maintaining, and repairing the meter. The affidavit in support of CILCO\u2019s motion merely sets forth the procedures used in testing gas meters and an employee\u2019s opinion as to why the machinery might have malfunctioned. The trial court originally found that plaintiffs\u2019 complaint stated a cause of action. This affidavit merely contradicts the plaintiffs\u2019 allegation of negligence in installation, maintenance, and repair. Therefore, we conclude that the defendant did not present any affirmative matter which would warrant dismissal.\nFor the above reasons, the judgment of the circuit court of Peoria County is reversed, and the cause is remanded for further proceedings.\nReversed and remanded.\nLINDBERG, P.J., and NASH, J., concur.",
        "type": "majority",
        "author": "JUSTICE INGLIS"
      }
    ],
    "attorneys": [
      "James M. Voelker and Gary D. Nelson, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellants.",
      "Mary Ellyn R. Hogan, of Central Illinois Light Company, and Timothy W. Kirk, both of Peoria, for appellee."
    ],
    "corrections": "",
    "head_matter": "JULIAN B. VENEZKY et al., Plaintiffs-Appellants, v. CENTRAL ILLINOIS LIGHT COMPANY, Defendant-Appellee.\nThird District\nNo. 3\u201487\u20140650\nOpinion filed April 28, 1988.\nJames M. Voelker and Gary D. Nelson, both of Heyl, Royster, Voelker & Allen, of Peoria, for appellants.\nMary Ellyn R. Hogan, of Central Illinois Light Company, and Timothy W. Kirk, both of Peoria, for appellee."
  },
  "file_name": "0612-01",
  "first_page_order": 634,
  "last_page_order": 636
}