*1 sponsibility death patient’s and thus had the opportunity re- defendant’s ject position.
A trial court’s decision to grant
deny
a motion for new trial
will not be disturbed
a clear
absent
abuse
discretion. Reidelberger
Highland
v.
Body
Inc.
Shop,
(1981),
Ill. 2d
268; Smith
v.
Perlmutter
John O. Butler Co.
Ill. App.
Laff
621,
findWe the trial court did denying not abuse its discretion in plaintiff’s motion for a new trial.
Judgment affirmed. CERDA, JJ.,
TULLY and concur. DINKINS, Roy WILMA JEAN Indiv. Lee Adm’r Estate of Dinkins, Deceased, EBBERSTEN, Plaintiff-Appellant, Defendant- v. CARL (Central
Appellee Light Company, Defendant). Illinois
Fourth District No. 4 — 91—0928 17, 1992. Opinion September filed *2 COOK,J., dissenting. Benson, Wasser, Jay
Fredric of Feldman Springfield, & of and A. Hel- ler, Richmond, Ltd., Chicago, Heller & appellant. for Kendall, Peoria, Heyl, Allen,
Karen L. Royster, ap- Voelker & pellee.
JUSTICE STEIGMANN opinion delivered the court: Plaintiff, Dinkins, Wilma acting individually Jean and as admin- husband, istrator of the her Dinkins, estate of late Lee Roy sued Carl (defendant) Ebbersten Light Central Illinois Company (CILCO) plaintiff’s after husband on was electrocuted while working defendant’s farm. counts, Plaintiff’s consisted seven complaint with the four first directed the latter counts at defendant and three at CILCO. CILCO’s motion to through dismiss counts V VII granted, is not The trial appealing ruling. court granted for summary judgment defendant’s motions on I count (based (Ill. the Structural Work Act Rev. ch. Stat. par. 60 et seq.)), through and counts II (alleging negligence). IV Plaintiff appeals from that only part of the order granting summary judg- ment on the negligence against counts affirm. Ebbersten. We
I. Facts In July husband, defendant hired Lee Roy Dinkins, to bin paint on defendant’s Defendant farm. Dinkins had met on prior making several occasions this agree- *3 ment, including at least one when occasion defendant witnessed Dinkins painting grain another bin on another farm. Defendant and bin, Dinkins that Dinkins the agreed grain but did not paint set a or date for time Sometime the three performance. within accident, weeks met preceding the Dinkins with defendant on his farm defendant, to over job. According nothing look the to was dis- cussed the jobsite. about August
On Dinkins arrived on to defendant’s farm paint his bin. grain Dinkins had not informed defendant previously that he would start the that Dinkins was painting job day. assisted by electrocution, no Terry Although Frazier. one witnessed Dinkins’ neither disputes it occurred when a he was party carry- ladder ing came grain into contact with some lines near the bin.
John H. coroner of Swearingen, deputy Logan County, investi- gated Swearingen the accident. took photographs Ebbersten farm in an to attempt photo- document scene. Several overhead addition, also a graphs employee. were taken CILCO (A took with Swearingen tape several measurements a measure. Swearingen, sketch the scene (not scale) drawn which objects grain shows the around bin one an- relationship other, is attached as an appendix.) truck in the machine shed drive- parked pickup
Dinkins had debris, tire, Metal way grain which ran to the east bin. to the barrel, among and various metal some weeds objects lay Swearingen height north of the estimated the grain bin. no the debris path through
weeds be four five feet. There was weeds; however, near the and there was a north of debris path To of the metal bin was a grain machine shed. the immediate west grain sat tall weeds. To the south of the auger, among which also grain Road 300. Piles of metal debris and Logan County bin was rolled fencing among immediately adjacent metal some weeds lay bin, and the grain grain county south in between the bin road. Farther south of the bulldozer parked operable debris belonging walking defendant. There was no between the path grain open yard. bin and the bulldozer. South of the bulldozer was
Swearingen estimated grain distance between the bin and the electrical wires was 15 to 20 feet. He further estimated that the distance and the between bulldozer electric wires was 10 feet. he Finally, grain estimated that the distance between the bin and the north side of the 8 to approximately bulldozer feet.
Swearingen testified that while someone could have walked be- tween the bin, bulldozer and the one would have to walk over the debris located there. testified that Swearingen path easiest from the east side of the bin to the west side of the bin would have been to south go of the bulldozer. also testified that Swearingen ground level,” south of the although bulldozer was “pretty sloping very gradually downhill The ground toward road. was “fairly smooth,” not lumpy, “appeared to have been mowed regularly.” The day of the sunny accident was all and not day exceptionally windy.
Terry working Frazier was near the truck pickup mixing paint and making preparations at the time the accident Frazier happened. was not watching times, Dinkins at all he but believed Dinkins gotten bin, off the ladder on picked the east side of the the ladder and headed then up, south. Frazier heard Dinkins scream, so he up looked a flash. Frazier Dinkins hold- saw saw *4 ing the ladder upright the air. He then saw Dinkins and the lad- der fall the ground. to Dinkins did not Frazier went respond when over to him.
A employee CILCO measured the distances the wires between and the ground. wire, 7,200 of elec- top energized with volts tricity, wire, was feet 6 ground. inches above the The bottom ground
which was the wire, or neutral was 17 feet 4 inches above the ground. Dinkins had used a 20-foot 3-inch Swearingen ladder. found a burn mark 11 ladder, Vz inches from the of top the appar- the of ently point contact with Therefore, the electrical wire. Swearingen estimated that Dinkins the approxi- lifted ladder mately 14V2 off ground inches the in order it to contact make that point with the line. Swearingen weight estimated the to ladder be pounds.
In defendant’s deposition, he stated he was of aware the bin, debris grain around the and that either he or placed his son it there. They planned use the salvage metal as material. Defend- ant also testified that he was aware of the power lines prior the accident, but not did know whether they were insulated. Defendant did not the mention debris or the power lines Dinkins before he started the job. Defendant assumed that Dinkins would use the same ladder to paint grain bin on his farm that defendant saw paint Dinkins use However, bin other farm. defendant never saw Dinkins handle move the ladder at the pre- vious site. Defendant did not know Dinkins on defendant’s property until he arrived at scene shortly accident after Dinkins had been electrocuted.
In July defendant filed a motion to dismiss pursuant sections 2—615 and 2—619 of the Code Civil (Code) Procedure (Ill. Rev. 2—615, Stat. ch. pars. 9). The trial court 2— 6 1 arguments heard on that motion in October 1990 and denied it. In September 1991, defendant then filed a motion for summary judg pursuant (Ill. ment to section 2—1005 Code Rev. Stat. ch. par. 1005). 19, 1991, On granted November the court 2 — that motion explained through as follows II regarding counts V:
“All are premised upon three Counts identical theories of liability tort negligence. based on Illinois has the Re- adopted (Second), Again, statement Torts and 343A. consider- §343 ing everthing Court, Court (1) finds: dan- before [sic] ger of common as electricity knowledge, stated Genaust Illinois Power 465]; Co. [v. it (2) is also common will knowledge metal conduct elec- ‘a tricity; (3) business invitee has for his own responsibility must held to safety equally be aware all obvi- ous premises (is) and normal hazards incident as possessor (5) nothing hidden; land.’ Plain- (4) Genaust. debris to alleged could have removed decedent] tiff's all, clear After path just easily as Defendant. Plaintiff’s *5 was, ac- work; (6) Defendant of the charge decedent] clear the debris affidavit, requested never cording to his was to com- the work didn’t even know when Defendant and Defend- duty upon to enforce mence; seeking Plaintiff is (7) law; (8) light than called for greater by is ant which here, theory the distraction presented circumstances peculiar based, ap- it would is, inapplicable in the Court’s opinion, Every- speculation. conjecture to a extent on pear, large genu- is no considered, that there the Court determines thing is entitled fact and Defendant ine issue of material II, III and So Ordered.” as to Counts IV. summary judgment Analysis II. Judgment
A. Summary granted pleadings, is when Summary judgment properly material no issue of genuine and affidavits show that depositions, a mat judgment entitled to moving fact exists and the is party v. Vuletich 1989, 110, par. 1005(c); ter of ch. (Ill. law. Rev. Stat. 2 — 417, 421, Corp. (1987), United States Steel 117 Ill. 2d 512 N.E.2d 1223, this summary judgment, an order for reviewing and all of court must all of the facts revealed in the record consider in order to determine whether a grounds alleged by parties v. Navistar Interna (Gardner genuine issue material fact exists. 242, 247, Transportation Corp. (1991), tional 213 Ill. 3d App. 1107, judgment for must party moving summary (Gardner, show, law, to judgment. matter of that it is entitled as a review, 250, On this court 213 Ill. 571 N.E.2d App. v. de novo. Har Shull granting summary reviews the judgment ristown 819, 824, 585 N.E.2d Township (1992), App. 1164,1167. Negligence
B. negligence, plain To an cause of action for adequate state of a (1) duty tiff out that establish the existence must set facts (2) owed the defendant to the defendant breached by plaintiff, injury. of an (3) cause duty, proximate that breach was (Ward K mart 132, 140, 554 N.E.2d Corp. Medical Center (1987), Hospital Kirk v. Michael Reese & 387, 395-96.) questions Ill. 2d “While proxi and whether breach duty whether a has been breached of a matters, the existence are factual mately injury caused must determined courts as a matter of law.” Watkins v. Mt. Utility Carmel Public Co. 12.
1. Duty
Duty
question
of law for the court to
determine
asking
whether plaintiff and defendant stood in a
to one an-
relationship
other such that the
imposes upon
law
obligation
defendant an
reasonable conduct
benefit. (Ward,
*6
554
226; Kirk,
525,
513
at 396.)
N.E.2d
determined,
is
Duty
part,
in
the reasonable
by
foreseeability of in-
(Ward, 136
jury.
140,
Ill. 2d at
554 N.E.2d at
“Other consider-
ations
include
likelihood of injury,
magnitude
of the burden
against
of guarding
it and the consequences of placing that burden
upon
defendant.”
Ill.
136
2d
In duty, we first address the relationship between Dinkins and defendant. Plaintiff argues that Dinkins was a business invitee of Longnecker defendant. In v. Illinois Power Co. (1978), 64 634, 638-39, Ill. App. 709, 713, the court wrote the following on when a becomes person a business invitee:
“A is person invitee business on the of another if premises (1) invitation, he enters or by express implied (2) entry his connected with the possessor’s business or with an activity the possessor conducts or permits to on be conducted premises, and (3) there is a mutuality or an benefit advan- tage the possessor. to an independent Generally[,] [Citation.] contractor and his doing who are work employees upon the in premises the interest of the well their possessor own, as as are possessor.” business invitees of the facts the present case establish that Dinkins was clearly defendant’s invitee. Once business defendant contracted with bin, Dinkins for defendant painting duty owed Dinkins a warn him of any dangers reasonably known or discoverable by However, responsibility defendant. business invitee has a for “[a] his own be safety must held aware all obvi- equally ous and normal hazards the possessor incident premises 456, the land.” Illinois 469, Genaust v. Power Co. Watkins, see also N.E.2d at 12-13. (62 472),
In Genaust Ill. 2d at 343 N.E.2d at the Illinois Supreme (Second) Court section 343 of the Restatement adopted invitees, which of land to Torts, liability possessors regarding states as follows: to or Known Conditions Dangerous
Ҥ343. Possessor by Discoverable harm physical subject liability A of land is possessor if, only but on the land by to his invitees a condition caused if, he dis- of reasonable care would the exercise
(a) knows an un- condition, realize that it involves and should cover invitees, risk of harm to such reasonable or realize the will not discover expect they should (b) it, and against fail to themselves protect or will danger, them against care to protect fails to exercise reasonable (c) §343, at 215-16 Torts danger.” (Second) Restatement (1965). §61, at 419 ed. Keeton, (5th Prosser & Keeton on Torts
See also W. 1984) (discussing liability). landowner the focus is on duty, of defendant’s determining scope 230.) “The Ill. 2d (Ward, defendant. reference to
scope of defendant’s is not defined A ma negligence or lack thereof. The focus must be defendant. foreseen in concern is could have jor whether defendant original.) (Ward, Ill. 2d at (Emphasis jury plaintiff.” v. Brennan Cunis citing *7 of a However, legal duty requires 308 N.E.2d creation 617.) “[t]he Cunis, Ill. 2d at occurrence.” more than a mere possibility 376, 308 at 619. pre- and the debris argues power
Plaintiff that both the lines farm which dangers sented foreseeable on defendant’s about Ward, In the court wrote duty plaintiff. defendant owed a to warn the following: law, occupier’s duty
“Under the common the landowner’s in a premises care to maintain his was to use reasonable condition. However, the common reasonably safe even under law, if a condition on his dangerous he chose to maintain to adequate warning it that an premises, generally was held ‘reasonably the condition invitees would suffice to render all from dangers safe.’ He did not have to remove actually in origi- in premises liability.” (Emphasis his order to avoid nal.) at 141-42, 136 Ill. at 554 N.E.2d 227. obvious, dangers. In
However, constitute not hidden power lines Genaust, a power arced from injured electricity was when plaintiff (Genaust,
line the to antenna he installing. at Ill. 2d the affirming judgment appellate the court sustaining the dismissal of plaintiff’s complaint, supreme the court concluded that a duty did not exist “it because is not objec- tively expect person, knowing reasonable a danger the electricity wires, if metal should contact electrical attempt install metal tower and antenna such close proximity electri- (Genaust, cal wires.” The at court added following: the is common knowledge electricity is so is dangerous,
“[I]t
it also common knowledge
line or wire carrying elec-
***
tricity
dangerous.
is
A business invitee has a responsibil-
ity for
own safety
must
held
be equally aware
of all the obvious and normal hazards
incident
the prem-
Genaust,
ises
possessor
as the
the land.”
2d at
472.
In Watkins,
Oil
codefendant Hocking
Company hired
an independent
to process
contractor
crude oil stored in two large
operated by Hocking.
tanks
storage
The
tanks were constructed
near an
power
uninsulated
line which had
approxi-
been erected
mately
years earlier
the defendant
A
by
utility.
catwalk con-
the
nected
two tanks
access to
provided
tops
tanks.
Plaintiff
an electrical shock and fell from the
received
catwalk when
with
he
gauging pole
working
aluminum
which
came into
Watkins,
power
contact with
line
utility.
owned
165 Ill.
App. 3d
had a duty lines, Watkins from the protect power despite their obvious danger, Hocking because could anticipate harm created the oil constructing storage tanks too near lines. (Watkins, However, considering alleged against utility the counts company, ap- no pellate plaintiff by court concluded that there was owed to following: the utility. holding, In so the court wrote the “That might upon storage holding someone these tanks 14-foot work pole angled away such that would contact pole above conceivably wires in the occur’ clearly ‘might category electrical Watkins, rather than the category.” reasonable’ ‘objectively 14. App. 3d at *8 Icenogle Myers 239, 3d
In 167 Ill. 521 N.E.2d App. 163, using he was plaintiff injured applicator was when the wand (Icenogle, 7,200-volt line. 167 paint power bin contacted a
987 granted The trial court 164.) 240, N.E.2d at at 521 Ill. 3d App. defendants, utility (Il- filed judgment summary motions for Ill. 3d App. landowner, (Icenogle, Myers. Power) and the linois for the affirming summary judgment In 165.) at at 521 N.E.2d indi- “there was no evidence that landowner, court determined this in- would on the structure that painting cating was aware Myers the wire.” in contact with come might that long volve a wand Icenogle, at 166. 244, 521 N.E.2d Ill. 3d at App. 659, 559 Estate Martin In re Ill. 3d App. for a wrongful death an action brought aluminum pole a 20-foot electrocuted when
farm who was worker uninsulated came into contact with to clean a feed using he was bin (Martin, at App. 202 Ill. lines 13 feet above bin. power at of the bin standing top 1126.) worker the inside of the material from time, pole scrape using (Martin, In re- Ill. 3d at App. bin. cooperative, the electrical in favor of versing summary judgment following: this court wrote lo- properly the wires are conclude the test whether
“We and cir- the condition relates to whether cated or insulated come into might that people indicate cumstances test, this lines. with Together the transmission contact with it reason- objectively whether judge foreseeability by we occur, injury not an an whether injury to expect able (Martin, App. occur.” might conceivably Watkins, Martin, utility turned on the fact in contrast Martin, (See installed the lines the bin was constructed. after However, court did this App. 3d at in the acci- note that “the and use of the structure type [involved Martin, must be considered.” dent] at 1129. the debris lines or alleged power
Plaintiff has not the pres defendant knew of danger. Although a hidden presented debris, presented neither ence of lines as as the power well (Second) Restatement (See risk of harm to Dinkins. unreasonable expected should defendant have §343(a) (1965).) Torts Nor dan lines’ obvious power Dinkins not discover or realize Accord §343(b) (1965).) (Second) Restatement of Torts ger. (See lines does Dinkins defendant’s failure warn ingly, Dinkins. not constitute a breach of defendant’s *9 2. Distraction Theory Plaintiff next the argues “distraction theory” by claiming that presence the of the bulldozer and other debris created a dis for traction Dinkins as he moved ladder the via best available route to the side of west the The bin. distraction is an theory to exception imposes section 343 and a duty a landowner upon even for known or dangers. obvious The distraction theory is defined in the (Second) Restatement of Torts as follows: Dangers Known or Obvious
“§343A. A(1) possessor of land is not liable to his for invitees physi- cal harm caused to them or on activity condition the land danger whose is known to them, or obvious unless the possessor anticipate should the harm despite such knowledge or (Restatement obviousness.” of (Second) §343A, Torts 218 (1965).)
Comments e to 343A section (Second) Restatement dis- / cuss the distraction further as theory follows:
“e. In the case, an invitee ordinary who enters land is enti- nothing tled to knowledge more than the of conditions and dangers he will if encounter he comes. If he the knows actual conditions, and on, the activities carried dangers the in- either, volved in he is free make intelligent to choice as to advantage whether the gained sufficient to be is justify him in incurring remaining the risk on by entering or the land. the possessor of land may reasonably assume that he will of protect ordinary care, himself the exercise or voluntarily that he the if he will assume risk harm does in not succeed so. doing Reasonable care the the part possessor therefore not ordinarily require does precautions, or even warning, which are known to the against dangers visitor, or so to him that he obvious be dis- may expected cover them.
* * * are, however, There in possessor cases which the land /. can the anticipate dangerous and should that condition will its cause harm to the known physical notwithstanding invitee *** danger. or obvious Such reason to harm to the from known or expect visitor dangers arise, possessor where the example, obvious may may invitee’s be dis- expect has reason attention obvious, tracted, is or so that he not discover what will will discovered, himself protect he or fail forget has what possessor also arise where against may it. Such reason will encoun- expect proceed invitee has reason man reasonable because to a danger ter known or obvious outweigh so advantages doing in his position is danger fact risk. In such cases apparent determining obvious, whether important is known, or or negligence, charged contributory is to with invitee not, however, It is (See D.) of risk. assumption §§466 possessor, determining conclusive the circumstances.” he has under whether acted e, f, 219- §343A, Comments (Second) Restatement Torts *10 20 (1965). in sev- recognized applied
The has and distraction been theory Ward, injured In while plaintiff eral cases in this State. the entered the a mirror of defendant’s store. Ward carrying large out department. “Home Center” a side door to the store’s building via door, dark painted the exit two concrete posts, On both sides of 19 brown, high, apart, five feet three feet and approximately stood building. Upon exiting, plaintiff, the inches from the outside wall of distracted of mirror ran into one the con- he was by carrying, 224-25. 136-38, crete at 554 N.E.2d at posts. 2d foresee supreme The court that defendant could held object one of he had its customers would block his vision with (Ward, 136 purchased post. in the store and fail to see the concrete Ill. 2d at evi 157, 234.) supported by 554 N.E.2d at This result was door, dence of of the doorway, type the physical layout door, by one of landscaping testimony on outside Ward, 136 154, N.E.2d (See 233.) store’s salesclerks. Ill. 2d at 554 at held Ward that the record contained sufficient evidence The court leaving to conclude a mirror particu carried a customer lar exit of the store constituted a distraction. foreseeable Advertising v. American National Bank & Trust Co. National
In
Co.
14,
313,
149 Ill. 2d
decedent was
plaintiff’s
594 N.E.2d
electrocuted
he came into
electrical lines next to a
when
contact with
direction,
billboard.
with power
The billboard ran
a north and south
lines at the
inches in from
eight
north end of the billboard suspended
the end of
24 to
inches above the
approximately
the billboard and
along
billboard. Two feet from the
a
ran
the back of
top,
catwalk
billboard.
nailed to the
“two-by-six
The catwalk consisted
boards
National,
(American
structure.”
at
at
Ill. 2d
before the
shortly
Evidence before the trial court indicated that
accident,
victim was
the necessity
distracted
of care for his
on
footing
catwalk;
the rotten boards of
result,
as a
he did not
American National Bank &
notice the power line near his
(See
head.
Trust
v.Co. National
Co.
Advertising
(1990), 205
348,
Ill.
3d
National,
1057,
see also American
N.E.2d
at
The trial court granted summary judgment
defendant,
for the
reversed,
the appellate
court
and the supreme
affirmed,
finding
court
that defendant had
to anticipate
reason
“that
a worker
might
distracted by having to watch where to place his
feet, and
would not
consequently
be aware
the pres-
remember
(American National,
ence of the
electric wires.”
149 Ill. 2d at
at
held
court
that American National
duty
owed a
this distraction. Ameri-
of reasonable care to the decedent
because
National,
can
Upon exiting
lavatory,
plaintiff stepped
ground
down onto the
looked
up
ascertain whether
construction materials were being
off a
thrown
balcony
lavatory.
above
near
As plaintiff was
looking up, he took two
from the
before he
steps
lavatory
stepped
into
one
several
tire ruts in the ground. Plaintiff stumbled in a rut
Deibert,
and injured his back.
240.
The supreme
court held that
defendant owed
care, agreeing with
contention that he became distracted
defendant,
upon exiting
lavatory
general
and that
contractor
this project, was aware that
materials off
throwing
workers
been
*11
balcony
buildings
a
on one or
at
site. The
two
under construction
that
court
acknowledged that
the rut —the condition
the land which
(Deibert,
438,
caused plaintiff’s
obvious.
Finally, (1992), App. 225 Ill. 3d father trim a tree. plaintiff injured helping was while granted summary The trial for judgment, court defendant’s motion finding plaintiffs duty. that had failed to the existence establish (Crider, appeal, at On plain- Ill. 3d at 588 N.E.2d App. for to the exception tiff as an theory distraction asserted the affirmed, noting court The dangers. appellate or known obvious National), were no al unlike there American Deibert and Ward (and that he momen or distracted plaintiff was or evidence legations Crider, 225 Ill. App. danger involved. forgot tarily N.E.2d at 442. judg summary to a motion responding
Although must, stage, she preliminary her case at that not prove ment need elements support facts to nevertheless, evidentiary some present 571 N.E.2d (Gardner, App. 3d of her claim. record, do facts, affidavits through
If evidentiary
provided
en
defendant
pleadings,
raised by
claims
support plaintiff’s
not
Oil Co.
Alexander v. Standard
to summary judgment.
titled
578, 582.
809, 814, 423 N.E.2d
App.
four
suggests
theory, plaintiff
of her distraction
support
wind,
lines, and
sun,
(3) the
(2)
possible
(1)
distractions:
these, defendant
south of the bin. Of
(4) the debris
bulldozer
for the
and the bull
held accountable
debris
conceivably
only
could
National,
Ward, Deibert,
in American
dispositive
dozer.
As
whether defendant
theory
the distraction
was
question
applying
danger,
if
he
that even Dinkins knew
expect
reason
danger
and encounter the
during
distracted
the work
likely be
National, 149 Ill. 2d at
American
due to that
See
distraction.
Deibert,
243-44;
439-40,
Citing App. 458 N.E.2d plaintiff argues that circumstantial evidence sufficient to establish of However, the elements her negligence claim. that case still requires some facts plaintiff provide support which would the inference she asks us to draw. certain “Circumstantial proof cir evidence is the facts
cumstances
from
other connected facts
which the
infer
jury may
which usually and
follow
to the
according
common
(Pace,
experience
added.)
of mankind.”
119 Ill.
(Emphasis
App.
3d at
circumstantial that proved pavement evidence slick and an absence skid at the marks scene of the accident. These supported rea- facts sonable inference that driving negligently. (See defendant was Pace, bar, In the case at plaintiff presented has no facts that would support inference that Dinkins control, was distracted by within defendant’s nor anything that defendant could foresee such a distraction. emphasize again We is that foreseeability objectively expect, which is reasonable to National, American might not what merely (See occur. conceivably Without facts to her support claim, cannot summary defeat defendant’s motion for judg- ment. from mere presumption negligence happening “No arises v. Lopatkiewicz an accident.” Whitman 152 Ill. App. 3d 332, 338, 504 N.E.2d 246.
III. Conclusion stated, granting For the reasons we affirm the trial court’s summary in favor defendant. judgment
Affirmed.
KNECHT, J., concurs. *13 COOK, dissenting:
JUSTICE I would reverse the trial granting court’s order defendant sum- judgment on II mary through counts IV of complaint, and remand for further proceedings.
It was once held that
reasonable care
owed
owner or occupier of land to those
lawfully
premises
did not
under
circumstances extend
known or obvious conditions. That
(Ward
K
rule is no longer
the law in
Corp. mart
Illinois.
132, 145,
136 Ill. 2d
A
possessor of
can be
land
liable, even for physical harm caused
a known
condition,
or obvious
if he should have
anticipated
harm
knowledge
such
or ob-
despite
viousness. (Restatement
(Second)
Torts
see
(1965);
§343A
Ward
The effect of
is to
allow
jury
many
decide
cases which previously would
been re-
have
against
solved
plaintiff by
court. “Whether in fact the condition
*14
itself served as
notice
adequate
presence
of its
or whether additional
precautions were required
satisfy
the defendant’s
are
duty
ques-
properly
tions
left
the trier of
(Ward,
156,
fact.”
“ ‘A limitation is duty proper dangers always for those which are outside the defendant’s of but al- scope duty, dangers are not obvious ” (Ward, 146, 294, found there.’ ways 136 Note, Assumption Risk and Danger the Obvious quoting Torts— of Primary Assumption Risk?, Rule. or Secondary 18 & Land Water of Ward L. Rev. in (1983).) recently applied an electrocu- American National Bank & Trust Co. National Adver- case, tion v. Co.
tising 318. Ameri- (1992), In can National defendant was the lessee and had a billboard painted. contracted employer with decedent’s have billboard back, its along consisting billboard had a walkrail high-voltage boards located feet its A line top. about two from end, one angles, eight crossed billboard about inches from right American National 24 to 30 first top sign. inches above the obvious, to considered line was deter- power open whether 343A of the Restate- could fit within section defendant mine whether unaware they were workers had testified ment. Because some a question there was held American National line’s power presence, Na- (American and obvious. danger open of fact whether question that 320.) Despite tional, Ill. 2d at grounds other whether went on consider fact the court supreme defendants. in favor of entered summary judgment defeat the would Genaust considered whether First, however, American National 465, an- 456, 343 N.E.2d Power Co. v. Illinois to warn of could never have rule that a landowner nounced a distin- American National line, it did not. power concluding the landlord there on the basis guished Genaust arcing electricity danger discovered the “could not have nor un- property on its lines ‘which were neither power from original.) (Genaust, in (Emphasis der its control.’ expect a Further, employer found that an court antennae to be installing expertise worker with power metal near installing equipment of the hazards of aware National, 149 Ill. 2d at (American lines.” Edison Co. (Cf. Carroll Commonwealth his case attempts distinguish (rejecting plaintiff’s N.E.2d 645 Genaust, experience expertise
from finding plaintiff’s degree determinative, of no finding significance an electrician not Farms, whereas Genaust power lines were located on Babson they the landowner’s control because power beyond lines were case it would present were not on the property).) landowner’s of these danger appear easily defendant could have discovered Nor has it lines, property. if off his they slightly even were anything decedent been established defendant believed *15 in training formal or knowl- more than a with no self-taught painter Ward, was To to extent Genaust edge electricity. paraphrase did not state an rule that a landowner previously thought to absolute line, that of a power under circumstances a to warn have Illinois. at rule is not in the law 229;Deibert, Ill. 566 at 245. 141 2d at National
In there American determining duty, whether was come into it that a worker would considered whether was foreseeable line, it worker contact with the whether was foreseeable power on defend- distracted, would the burden would be heavy be and how National, (American ant to workers line. protect against power National it was at at In American Ill. 2d found to objectively reasonable that a expect worker could come into AVz to 5 power contact with a line that hung only feet above the walkrail. in Similarly, the present case it is persons foreseeable that using more equipment than 20 feet in height in a farm lot will encoun- power ter a line located 20 feet 6 ground inches above the the edge at American National of the property. it was held to reasonable ex- pect a worker might having be distracted to watch where to place his feet walking while Similarly walkrail. in this case it is expect reasonable to the decedent would walking be distracted through weeds, near if debris, not through carrying while 20-foot ladder upright.
The grass and weeds where the ladder fell are shorter than other area, in the grass but still tall enough holes, ruts, conceal or small items debris. The majority opinion states that to the according tes- H. timony Swearingen, John coroner of deputy Logan County, and photographs, area south of the bulldozer “was well mowed and clear of any impediments.” (234 Ill. App. Swearingen actually said the area was vegetation, “covered with grass, weeds and so and forth mowed appeared regu- have been So I larly. say vegetation was six approximately inches Although may tall.” the area have been mowed it does regularly, not been appear have The photographs mowed recently. (particularly Nos. show the ladder 24) lying grass and weeds six to about eight tall, inches south grass of the bulldozer. Some of the weeds gone ground to seed. The somewhat point appears un- shallow, even. Swearingen vegetation-covered testified there was a alongside ditch lines roadway. power along were northern ditch, edge where the midpoint ladder landed when it fell. The grass at the southeast comer of the along bulldozer and its side, ladder, east where decedent with the apparently ap- headed Deibert, pears five tall. In plaintiff, about feet who not carrying places: up, not look to check for the anything, “could both materials; down, possibility of him- flying protect construction self from tripping (Deibert, a rut.” Ill. 2d no Decedent’s task in this case was easier. certainly There is no reason a landowner should not be held lia- policy why although ble caused lines on his by power property, for accidents should why companies there are reasons not be liable. policy utility (See, e.g., Utility v. Mt. Carmel Co. Watkins Public it realities make unre- (economic their warning or insulate utility companies post signs alistic that Na- American lines, miles).) may which amount to thousands *16 against tional held that workers protecting the landowner’s burden have might heavy not have been line would power —defendant line, walkrail, relocate utility or demanded shortened of the burden magnitude the hazard. The warned least workers appear case also does not present in the guarding against injury moved, could have the landowner could have been great debris —the line, or at relocate the temporarily that the utility demanded The decedent of the hazard. least the landowner could have warned care to a of reasonable duty landowner this case owed defendant the invitee. Duty,
II. Proximate Cause Breach Of finding on its summary judgment The trial court based its adopts posi- there was no The also a fall-back duty. majority opinion her tion, that if there issues of fact did not sustain even were summary judgment. burden of to defendant’s motion for responding a its of care is a generally Whether defendant has breached question question of fact for the as is the whether breach jury, injury. (Deibert, cause proximate Proximate cause a of law only question becomes are such that there can be only undisputed when the facts are not but no as to the infer- judgment persons difference of reasonable Louis Products Co. (Durbin Slag v. St. ences to from be drawn them. 340, 357, If is con- what tained in the constituted all of the pleadings affidavits would have evidence the court and such there would be upon before evidence left to direct nothing go to a and the court would be jury, required (Fooden verdict, then a entered. summary judgment should be Board Colleges Governors State & Universities 580, 587, in this case does not so evidence overwhelmingly contrary favor the movant that a verdict could never II stand. should denied counts Summary judgment have been through IV. Genaust
The trial court that an invitee quoted proposition must normal hazards be held to as aware of all obvious and equally however, remembered, as is the possessor of the land. It must be decedent, defendant more times than hav- had been on this lot many on occa- ing erected the in 1972. It is that defendant grain likely bin sion had and the equipment maneuvered farm between bin re- power lines. The trial noted that decedent could have court also moved as defendant. any alleged path just easily debris clear a conclude, justification so I see no for a court Perhaps jury would but decision in this making case. is no There indication decedent bulldozer, could have moved the which was operable. Defendant ap parently equipment available for mowing grass weeds, but *17 there showing is no that decedent such had If equipment. dece dent had moved debris he would have have asked defendant for permission, and where the debris Decedent should moved. room to from an lower ladder to a horizontal upright position be bin, fore he walked around the but it is not clear that a reasonable person, bin, engaged painting done have that. In easily Deibert could have avoided accident stopping be falling That, however, fore he for up looked debris. something consider, not the court. jury (Deibert, 245.) In American National the court held there were jury questions obvious, whether the lines were open and whether precautions, defendant took whether any safety precautions those were its The adequate satisfy reasonable care. jury consider, also to on the issue of plaintiff’s negligence, whether the American National as a experience sign decedent’s and his painter, ordinary care, use of him to would have caused avoid accident. jury should decide those issues this case as well. I dissent. respectfully
DuQUOIN BANK, Plaintiff-Appellant, NATIONAL VERGENNES
EQUIPMENT, INC., Defendant-Appellee. District 5 — 91—0015
Fifth No. 17, 1992. Opinion September filed