*1 claim- make clear that award was for full suffered he continued ant, problems a broken the attendant namely, nose and the em- this contention experience Thus, thereafter. consider we ployer be without merit.
Affirmed.
BARRY, WOODWARD, and P.J., McNAMARA, McCullough, jj., concur. Cross-Appellant, RENKEN,
FRANCES M. Plaintiff-Appellee Defendant-Appellant NORTHERN COMPANY, ILLINOIS WATER Cross-Appellee.
Fourth District No. 4 — 89—0155 Opinion 16, 1990. January filed Rehearing December denied 1989. *2 STEIGMANN, J., concurring. specially Raccuglia Associates,
Anthony C. & of (Cynthia Raccuglia, Peru M. of counsel), for appellant. Gomien,
Roger Gomien, of Rigazio, Morris, B. & appellee. Root for JUSTICE LUND delivered the the court: This appeal by defendant Northern Illinois Water from Company an order the circuit court of by Livingston County, directing defendant $8,162.50 to pay plaintiff’s to attorney. The attorney fees order was pursuant to that section 5 — 201 of the (Act) Public Utilities Act Rev. 201) Stat. which entitles plaintiffs who recover civil damages under section 5 — 201 to attorney fees. cross-appeals Plaintiff from the in her judgment favor in the amount of $17,183.70, contending the not have jury should been to allowed negligence. reduce the verdict because of comparative 16, 1985, Pontiac, Illinois, a crossing On December while street hole, into a hole and fell. The stepped evidently, existed be- the covering grade cause water valve was lower than even of the city walking street. Plaintiff in the available marked crosswalk Plaintiff of Pontiac. against City area. filed a initially complaint Later, an defendant. Subse- brought defendant was as additional for claim of Pontiac quently, plaintiff against City settled her $15,000. $5,000 fee, pursuant as his attorney Plaintiff’s received he contingency arrangement plaintiff. fee had with defendant, complaint alleged for claim viola- against As on Act, tion the violation defendant of section 5—201 of by rule. 5—201 (ICC) pro- of an Illinois Commerce Commission Section vides follows:
“In or do, permit case cause to be done public utility shall any act, thing or de- prohibited, be done matter or forbidden any act, matter or unlawful, any clared to or omit to do be shall this Act or thing provisions to be either required any done Commission, rule, issued regulation, order or decision of the any Act, shall liable to public utility of this authority loss, dam- persons affected all corporations thereby or therefrom, and if the resulting caused or ages thereby or wilful, the court court that the act or omission was shall find damages award damages, in addition the actual may An action way punishment. sake of example *3 loss, brought in may for such or be damage recover person corporation. circuit court or by any or cor- damages any person In of every recovery case Section, shall provisions plaintiff under the this poration fee to be fixed by attorney’s be entitled to reasonable of the costs court, and collected as fee shall be taxed which in the case. any shall in manner provided as in this Section recovery
No provided.” in this Act penalties of the recovery by affect a the State 111 n , (I 1987, 201.) Rev. Stat. ch. ll. 600.240, is which states: The rule ICC involved hydrant pro inspection “Each a valve and utility shall establish in con good operating hydrants kept and shall gram. Valves hy and annually. at least Valves inspected dition and should be replaced. or repaired to be shall be inoperable drants found not paved level and grade at covers shall be maintained Valve shall be performed and all maintenance over. Each inspection Ill. record card.” 83 hydrant the valve or noted on properly (1985). Adm. Code §600.240 in a verdict jury to trial and resulted proceeded
The matter and to comparative negligence, instructed as jury The plaintiff. was 747 The injury. of the responsibility assessed with 40% plaintiff $17,183.70 determination of jury’s judgment represented $15,000 Because of the settle liability. defendant’s 60% share of Pontiac, pay was ordered to only ment with the defendant City Subse $2,183.70 damages plaintiff. additional as its share of the verdict, attorney of the asked for quently, plaintiff because favorable fees under section a statement for services 5 — 201 submitted $14,212.50. the amount trial an award of court allowed $8,162.50 spent based on the amount of time actually preparing trying against the case defendant. Defendant is not from the appealing award of is from the damages, appealing only attorney but order for However, fees, fees. attacking attorney defendant contends section 5 — 201 applicable was not under the facts of this case. Defend fee, ant also contends the of the if a fee assessment computation reasonable, have, proper, least, was not and should at been limited the contingency arrangement fee between her plaintiff and attorney.
If the facts in this cause cannot sustain a
judgment
01,
ordered,
5—
then the attorney
section,
fees
on the
must
2
be reversed. Section 5 — 201 is for practical
identical to what
purposes
was section 73 of the
1983,
Public Utilities Act
Ill.
Stat.
(formerly Rev.
ch.
par. 77). Barthel v. Illinois
Central
Co.
Gulf R.R.
213,
74 Ill. 2d
323,
384 N.E.2d
the question of the
of the
applicability
defense of contributory negligence to causes under section 73 of the
Act was
It
recognized
addressed. was
that a violation of a statute to
protect human life or
property
prima
evidence of negligence.
facie
(Barthel,
219,
74 Ill.
at
However,
384 N.E.2d at
it
326.)
must be
shown that the violation proximately caused the
injury,
that the
statute
to protect
was intended
a class
to which the
belongs
from the kind of injury
220,
suffered.
74
at
(Barthel,
Ill. 2d
326.)
Section 5 — 201 differs from the
statute
it
ordinary
because
ex
pressly
Thus,
creates a cause of action.
negli
violation establishes
gence
law,
as a matter of
in contrast to the prima
evidence rule.
facie
(Barthel,
Basically, contributory negligence disappeared and reappeared 748
comparative negligence (1981), with the of Alvis v. Ribar 85 1, Ill. 2d 421 886. N.E.2d
It is apparent the evidence indicated fell because plaintiff So, of a hole around the water valve cause was covering. proximate ge 5—201, established. The then is whether section remaining question to with Ill. incorporation regulation (83 of ICC 600.240 Adm. ther (1985)), Code was intended to the class to which protect §600.240 plaintiff belonged. The argument coupled thrust defendant’s 600.240, valve con regulate was intended water valves, maintenance to use of those rather
struction and facilitate the than from or mainte general public faulty construction correct, nance. If defendant is then was not in a plaintiff protected cases are defendant’s following support posi class. The submitted 930; (1982), tion: v. Lance 107 Ill. 3d 437 N.E.2d App. Ozment 725; v. 75 Ill. 3d 393 City Chicago (1979), App. Warchol N.E.2d 656; Ill. Galayda (1980), App. v. Penman 80 3d Auto 102 Ill. Transport App. Sheehan Janesville N.E.2d 131. All of these cases involved incidents similar to ordinance the difference between ordi explained violations. Justice Underwood stating that the nance violations and Public Utilities Act violations while the latter negligence, former are evidence of only prima facie Barthel, creates cause of action.” 74 Ill. 2d at “expressly at 326. N.E.2d those under 21 prohibiting years
Ozment involved an ordinance em- underaged from the sale of alcohol. The age employment involving alcohol to a hotel room. delivering molested while ployee sexually was was not evi- The decision held the violation of ordinance appellate Warchol, In existing duty under the facts. negligence dence negligence allowed as evidence of when maintain sidewalks was not fence walking pipe adjoining while on a injured the minor was certain stair requiring In a violation of an ordinance Galayda, walk. plaintiff not allowed as evidence of when construction was fire, faulty stairway. in a and he did not use the injured of defendant’s viola- Sheehan, was not allowed to use evidence plaintiff lane to swerved out of his tion of a ordinance when parking hit the truck. ordinance automobile and defendant avoid another than vehicles. moving local residents rather was held to facilitate the the class” requirement, the “member of illustrating Except us. deciding the issue before helpful are not particularly cited cases regula- of the ICC purpose to the argument relating Defendant’s service, protecting pe- rather than of water insuring quality tion *5 destrian, regulation a more issue. If the presents challenging valves, then, argua- the sole the of water purpose assuring usability would not be a member of the class. bly,plaintiff protected (Ill. Plaintiff section 8 — 101 of the Act Rev. Stat. ch. argues 111 n , section 32 of the Act Rev. Stat. 101), formerly 8 — par. 111 n , the 32), “promote safety, ch. utilities to requires public *** patrons,” suggests health of its all Administrative Code [and] are authorized section 8 — 101. Defendant provisions by argues regulation implementing 600.240 was for the adopted purposes Act, 5— 2 01 of the and was section 8 — 101 of only authorized the Act.
The importance implementing of the difference between and autho- rizing recognizes general is more when one nature of sec- apparent VIII, tion the first section under article entitled “Service Obli- 8— Conditions,” and which gations provides: furnish, shall
“Every public utility provide and maintain such instrumentalities, service facilities equipment and as shall pro- health, mote the comfort safety, and convenience of its patrons, employees and and as shall in all public respects be adequate, efficient, just and reasonable.
All rules and made regulations by public utility affecting or pertaining charges to its or service to the shall public just be and reasonable.
Every shall, notice, public utility upon reasonable furnish to all persons may apply who therefor and be reasonably entitled thereto, service, suitable facilities and without discrimination and without Ill. Rev. Stat. delay.” par. 8 — 101. recognize regulations We ICC have different functions. Electric utility regulations for the might solely purpose be suf- guaranteeing thus, user, ficient other power, protecting regulations while might lines, regulate intending the location of the general pub- lic. utilities controlled might by regulations pressure Water be available, in fire The loca- aiding protection. the user and protecting tion both users and fire and condition of shutoff valves could affect There is minimizing areas affected shutdowns. protection by by repair to be terminology, no 600.240 its question regulation appears, than hydrants and condition of valves and availability directed at could conceiv- general of the The words which safety public. only are: “Valve covers protection general public read as ably be regula- of the grade Can this small shall be maintained level.” of the as to extend the class from the users protected tion read so be extending to the general public? recognize We public utility for the crea- allows general public of the protection regulation regulation of the when a violation as a matter of law negligence tion of proved. at the protection could well be aimed level grade or road highway level in a grade above extending A valve valve. traffic. A valve below vehicular damage by subject easy would be or road materials dirt. with surplus level well be covered grade might could obsta- time, grade level At the same valves above and below that, regardless are pedestrians. cles for vehicles and We aware Act, a common law protected by was in a class whether the installation above or well rest might upon action for a strict construction argument there is an grade below level. While *6 600.240, the crea- of 201, regulation because coupled of section 5— and should conclude the section liability, tion of we absolute case, we find of this and under the facts apply be read as class. of the protected that she is a member class, it not necessary is as to protected
In of our decision light Ry. & Western Churchill in determine whether Norfolk 929, 933, 136-37, is precedent 383 N.E.2d Co. 73 Ill. 2d cre causing personal injury, if of section all violations holding for limiting no The court Churchill in found basis ate a cause of action. services, specifically and rates and public utility to issues of liability held: statutory clarity ju of and the twin forces impelled by are
“We actions, arising that personal to conclude precedent dicial at rail safety rules on public the ICG’s out of violation 73 of the Public cognizable are crossings, road 933.) at at (Churchill, 73 Ill. 2d Act.” Utilities obviously of a regulation involved violation While Churchill can be argument an recognize public, we general of the protection in results 5 — 201 which of section it violation any holds made the Act. of action under creates a cause personal injury under section damages cause of action for had a valid Since plaintiff fee to be fixed attorney’s is “entitled to a reasonable 5— she 2 5—201.) enda Rev. Stat. court.” Def the trial court was un is that the fee fixed argument nt’s second fee of one- contingent high and should be limited to reasonably $2,183.70. the net recovery third of computation on a $8,162.50 based allowed an award
The court originally sub- had attorney hour. Plaintiff’s per of 65.3 hours $125 court de- However, the trial $14,212.50. totalling mitted a statement against the case solely prosecuting related leted the activities City of Pontiac. The court accepted attorney’s suggested hourly rate of per hour, fee all attorney representing awarded $125 the time spent preparing the case trying against defendant. Plain- tiff’s attorney $5,000 had previously received as his fee contingency from the $15,000 settlement of with the of Pontiac. Defendant City argues this award not reasonable on the type case involved.
There are few guiding
in our
principles
appellate decisions
to what a reasonable
fee
attorney
should be in cases where a statute
permits such an
award.
Federal
has
more to
system
considerably
matter,
say about the
area of
particularly
rights
civil
cases.
Defendant has based its argument on two Federal civil rights cases
from the Seventh Circuit Court of
In
Appeals.
v. Flynn (7th
Kirchoff
1986),
Cir.
786 F.2d
the court of
reversed
appeals
an award of
fees
attorney
based exclusively on a
figure
40%
obtained from the con
fee
tingency
arrangement between attorney and client. The court
stated the district court was within its discretion in accepting the con
tingency fee as a
proper
reasonable
However,
fee.
the district
court had
simply
read the fine
print
the fee provision. The court
remanded the cause for further consideration.
a typical
Kirchoff
tort lawsuit where the Federal foundation was mere
dressing:
window
“The [plaintiffs] sued to redress some of the
known,
oldest torts
not to
challenge accepted wisdom or to explore uncharted seas.” (Kirchoff,
“The use contingent fees can coexist with a recognition that courts must compensate counsel who produce non-monetary benefits, and compensation for such benefits is presump- tively based on the number of hours it took to produce the bene- *** fits. The use of contingent fees is appropriate in cases that enforce old precedents and allow effective compensation as a percentage the total recovery. Neither approach governs all cases, but there is no conflict. necessary The objective in all cases is the same: to award the plaintiff’s counsel the market rate for the services reasonably required produce to the victory. ‘The market’ uses different methods of calculating compensa- different tion in kinds of cases.
To sum the district up: judge was entitled to the at- compute fee in torneys’ this case as a percentage of the total award.” Kirchoff, 786 at F.2d 328.
752 F.2d case, 1987), Cir. (7th v. Argento
In the second Lenard fee contingency agree the effect of a again discussed the court ment: a clear has now made both the Court
“Although Supreme on the award ceiling not a place contract does fee contingent judgment exceed the may that the award fees and attorney’s contract, the rela ***, of such a terms the existence and relief and the ob sought by counsel between fees tionship decision on judge’s tained, continue relevant to district be a reasonable only a fee to The statute allows large how award. counsel large competent This a fee to induce enough fee. means 808 F.2d case, (Lenard, no plaintiff’s larger.” to handle the but 1247.) at cases, rely arbitrarily not to the courts are these Federal
Summarizing
a rea-
determining
the standard
arrangement as
contingency
on a
the contractual
Rather, the courts are
consider
fee.
attorney
sonable
in their
as but one factor
and client
attorney
between
arrangement
fee
represents
fee
contingency
In
instances where
those
determination.
involved,
contin-
of case
type
for the
remuneration
the standard
the final award.
serve as
gency may adequately
fee
Farm Insurance Co.
Plaintiff cites Keller
State
argument
his
for sustain
support
Ill.
3d
App.
$8,000.
general
trial
award of some
Keller follows the
ing the
court’s
Keller,
the trial
court held
guidelines
appellate
outlined above.
in a
contingency
arrangement
on the
fee
situa
arbitrarily
court
relied
unreasonably
type
in an
small award for
tion where that resulted
(Keller, 180 Ill.
Plaintiff argues, on cross-appeal, that there should not
abe
setoff based on comparative negligence. The position is taken that the
court,
supreme
by adopting comparative negligence (Alvis v. Ribar
(1981), 85
Ill. 2d
753 arising under to cases applied defenses contributory negligence posi Plaintiff’s 222, 384 N.E.2d at Barthel, 74 Ill. 2d at (See Act. tion is without merit. of rehear 17, 1981, modified on denial filed on April
Alvis was 4, Vegich McDougal Simon’s in ing on June 1981. Justice 918, filed on 461, was (1981), Hartmann 84 Ill. 2d 419 N.E.2d Co. 31, it out that causes of actions Vegich, March 1981. In was pointed acts, thus differ of wilful Act were not limited violations Law Rev. Stat. (Ill. them from of the Child Labor entiating violations 1979, 48, (Ill. the Structural Work Act through 31.22), ch. 31.1 pars. 1979, 48, “An Act to through 69), protect Rev. Stat. ch. pars. (Ill. from ***.” Rev. Stat. general public workers and the v. Union Electric Co. through 314.8.) ch. 314.1 Simmons pars. 946, 953, specifi Ill. 473 N.E.2d Justice Simon (1984), 104 2d in negligence proper held that was not Structural cally comparative cases, Act cited and the wilfulness standard. In our Vegich Work 440, 444, in opinion Knyal v. Illinois Power Co. 169 Ill. App. 639, 642, Act, which involved the stated: we “Nothing we have stated is intended to make the sta- possible tus of the injured party trespasser as a immaterial on the ques- tion of whether party’s presence premises on the was fore- seeable or party guilty contributory whether was negligence comparative purposes.” is still a in cases
Comparative negligence proper public utility defense Act, because a violation of the" creating liability, necessarily while that exists in cases where liability wilful and does not the strict require ruling wilfulness is of the statute. The trial on compara- court’s tive must be affirmed.
Affirmed.
KNECHT, P.J., concurs. STEIGMANN,
JUSTICE
specially concurring:
I agree
"case,
with the result
I
by
reached
this
but
majority
do not
with the
agree
given
reasons
to reach that
majority
result.
I
Specifically,
incorrectly
believe the
has
construed the
majority
case,
statute at issue in this
of the Public Utilities Act
5 — 201
Rev. Stat.
in an
201), by engaging
analysis
5 —
Supreme
that has been foreclosed
a decision of the Illinois
Court.
The defendant
case
argues
coupled
this
section (83
(1985)),
600.240 of the ICC
Ill. Adm. Code §600.240
and maintenance to fa
regulate
intended
water valve construction
valves,
rather than to general pub
cilitate
use of those
lic
ob
majority opinion
from
construction or maintenance.
faulty
*9
correct, then
not in a
plaintiff
that
if the defendant is
was
serves
know,
not correct
however,
class. We
that the defendant is
protected
in
v.
Supreme
because of the decision of the Illinois
Court Churchill
(1978),
& Western
Co.
73 Ill. 2d
“Defendant
seeks to
the
assert-
in
does not
to
ing
apply
that the
section 73
statutory remedy
It
the
Act
actions.
contends that
Public Utilities
personal injury
utilities,
public
is
at
and
regulating
directed
rates
services
that,
a
provide
and
section 73 is intended to
rem-
consequently,
overcharging
preferential
for such abuses as
rates and
edy
crossings.
any
not for
at railroad
fail to find
safety violations
We
for this contention.
substantiation whatsoever
***
clarity
statutory
the twin forces of
impelled by
areWe
actions,
to
judicial precedent
personal injury
conclude
at
of the
rules on
arising
public safety
out
the violation
ICG’s
the
are
73 of
Public
crossings,
cognizable
railroad
under section
Churchill,
136-37,
Act.”
Act
in
Stat.
is
discussed Churchill
Rev.
is at issue
purposes
for all
identical to the section 5 — 201 that
practical
decision, I
in this case.
in view of the Churchill
cannot
Accordingly,
the
opinion leading
the
the
agree
lengthy analysis
majority
with
600.240,
with
should
coupled
that section
conclusion
this
because
the facts of
case
to the
plaintiff
be read
apply
3d at 750.
191 Ill. App.
of the
class.”
protected
“she is a member
because, even if the
I
the
disagree
majority’s opinion
further
us, I
issue
before
primary
case had not
resolved
already
Churchill
aof
“pro
plaintiff
the determination of whether
conclude
addresses,
unnecessary
is
class,”
tected
which the majority
decision in Barthel
my reading
Supreme
on
Illinois
Court
tion 73 court dis- doing supreme of the Public Utilities Act. In tinguished designed protect section 73 from the statutes ordinary stat- by pointing regard human life or out that with such property recover, proxi- utes a in order to must show the violation plaintiff, caused his and that the statute was intended to mately injury class to belongs which he from the kind of that he suffered. The court distinguished following section 73 the way: Act, however,
“Section 73 of Public Utilities differs from statute in that it creates a cause of ordinary expressly *10 action. The provision declares that a which unequivocally utility violates the Act or implementing regulations shall be liable *** damages resulting injuries. agree We plaintiffs is with the statutory provision incompatible ordinary rule that violation of a statute is merely prima neg evidence of facie however, not ligence. agree, We do the statute imposes Barthel, liability public strict on utilities.” 74 Ill. 2d at N.E.2d at 326-27.
I language indicating read this as that a must show that belongs he to a class and that he suffered from the kind of an that the statute at issue only was intended when that stat protect ute one of the ordinary designed statutes human life or when, here, not property; the statute itself creates a expressly statutes, cause of action. regard With their violation is ordinary only prima negligence, evidence of and the defendant may pre facie vail that he A by showing acted under the circumstances. reasonably charged defendant with a violation section 73 of the Utilities Public Act, Act, of that may prevail by showing now section 5 — 201 he acted circumstances. reasonably