Tinder v. Illinois Power Co., Inc.
758 N.E.2d 483
Ill. App. Ct.
2001
Check Treatment

*1 of a physical problem, was aware but when he became aware Thus, disputed. true nature of his ailment we find a issue of material fact exists. light holding, of our we need plaintiffs’ arguments not address (1) defendant’s injury concealment of delayed discovery David’s injury and should toll the statute of limitations and the trial finding

court’s as precluded to fraudulent concealment amendment of plaintiffs’ complaint within statute of limitations.

III. CONCLUSION Accordingly, we reverse the trial judgment and court’s remand for further proceedings opinion. consistent

Reversed and remanded. MYERSCOUGH, JJ.,

McCULLOUGH and concur. TINDER, KAREN as Tinder, Adm’x the Estate of William L. Plaintiff- Appellant, COMPANY, INC., v. ILLINOIS POWER n/k/a

Defendant-Appellee. Fourth District No. 4 — 00—0916 Argued April 24, Opinion filed October 2001. *2 Joseph Ginzkey (argued), Hayes, A. McCarron and James P. both of Ham mer, Miles, Ginzkey, Bloomington, appellant. Cox & for

Christopher Nyweide (argued), Livingston, Barger, L. Brandt & Schroe- der, Bloomington, appellee. for

JUSTICE opinion COOK delivered the of the court: In July plaintiff, Tinder, complaint Karen filed a one-count Company, Inc., defendant Illinois Power now known as Illinois (Illinois Power), alleging injury that Illinois for Power was liable decedent, Tinder, pursuant and the death of William L. to the (740 (West 1994)). Wrongful Death Act ILCS The trial court 180/2.1 granted concluding to Illinois that Illinois Power had no to insulate its lines and had no further power protect ap- decedent under the circumstances of this case. Plaintiff peals. We affirm.

I. BACKGROUND Danville, garage Decedent a detached owned residence alley. July attempted on the On and Donald Delva decedent (CB) garage. to take down citizens band antenna attached to the Decedent was electrocuted when the antenna contacted overhead power lines owned Illinois Power.

Illinois Power’s lines were alley garage. located behind the clearly highest The fines were visible and unobstructed. The fine was primary an uninsulated fine. Below that fine were three volt 120/240 fines. Illinois Power that denies those fines were insulated. The affida- DeWitt, however, vit engineer, of William an electrical that states he examined the fines after the incident power and “the 120/240 degraded insulating [were] covered material.” purposes For appeal, we assume that is correct. DeWitt Delva testified that he and decedent they discussed how needed to keep away power alley the antenna fines in the because it dangerous would be the antenna hit the fines. Decedent and son, Tinder, his William D. approximately had erected the antenna year antenna, tall, earlier. Decedent believed the 51 or 52 feet had to higher be located than the improve reception. fines to Tinder and decedent alley talked about the electrical fines in the and the fact those lines should be avoided because if the antenna “even slipped, [gotten] one of us could have hurt.” Tinder testified he and they decedent understood that could be electrocuted shocked or they raising going that was the reason avoided the antenna east to west. neighbors alley, Taylors, garage across the owned a

had burned in Their garage was about 15 feet from garage. decedent’s The fire high reached as as the and Il- fines, linois Power sent a serviceman they to look at the who said did *3 replaced. not need to be anything change Illinois Power did not do the during condition of the the five years before the incident. complaint alleged

Plaintiffs that Illinois failed properly Power insulate, guard, protect, fines; repair and maintain the failed to the fire; garage policies regarding fines after the violated its own internal wire; inspection repair damaged permitted and of insulated the insula- burned; worn, rotten, tion to provide adequate become or failed to warnings damaged of insulated wire.

II. ANALYSIS purpose try question of not to of is McKenzie, Ferguson fact but to determine whether one exists. v. No. 2001). ap slip op. (January Summary judgment at 3 is on propriate only pleadings, depositions, where “the and admissions file, affidavits, together any, with the show that there is no to a moving party issue as to material fact and that the is entitled 1005(c) (West 1998). judgment as a matter of law.” 735 ILCS 5/2 — is novo. appeal grant summary judgment, an from the of review de at Ferguson, slip op. question of law particular case is exists

Whether Ill. 2d Corp., the v. K mart by to be determined court. Ward (1990). Among the factors that are relevant 554 N.E.2d foreseeability injury, to the existence of a are the reasonable injury, magnitude guarding the likelihood the of the burden of it, consequences placing that burden on defendant. and the Ward, 140-41, Foreseeability 136 Ill. 2d at 226-27. sense, important, retrospect, but it is not determinative. In a almost everything Foreseeability extent means that some foreseeable. might objectively expect, merely which it is reasonable to not what conceivably occur. v. 62 Ill. 2d Genaust objectively expect not reasonable to “[I]t is person, knowing if metal contact should to install a metal tower and antenna in Genaust, to electrical wires.” 62 Ill. 2d at liability 343 N.E.2d at 471. Genaust sustained the dismissal of a strict antenna. plaintiff injured installing count where a was a CB foreseeability, plaintiff argues On the issue of “the evidence actually indicates Illinois Power knew that uninsulated inadequately insulated lines caused at least seven deaths and injuries past years.” argument in the five Plaintiffs is based on her supplemental request 7,No. “any which asked for and all documents regarding injuries resulting fatalities or to humans lines owned or controlled ILLINOIS past [five] POWER within the years.” response individuals, Illinois Power’s listed the names of seven along deaths, with the dates and their descrip- locations of and a brief (three tion of ladders, the incident involved three involved CB anten- line). nas, and one a flagpole; five were said to the primary involve argument argument: Plaintiffs is a “cause in fact” the accidents would not happened fully have if the lines had been insulated. “Cause arguments, however, fact” analysis add little to the negligence, duty, proximate If cause. a child asks her mother to drive her the outside, two blocks to school because it doing is cold and while so the mother’s ice, car slides into another car on the the child could be said to be the “cause” of the hap accident. The accident would not have pened if the child had not however, with the child request. Nothing wrong, made the was A

making request. more accurate state ment in present might case be the seven deaths were caused improper objects use tall metal close to live electrical wires. See Lee *4 v. Chicago Authority, 432, 455, 493, Transit Ill. 2d 152 605 N.E.2d 502 (1992) (“legal policy cause” is a decision that far a limits how legal that, defendant’s responsibility should be extended for conduct harm). fact, in caused the

610

It a duty supply electricity community is not breach of to to a that, time, knowing likely. over electrocution is The benefits of electric ity outweigh disadvantages. Perhaps by insulating and maintain ing every power prevent any line in the State of could fur Illinois we electrocution, doing ther deaths so involve a but burden of magnitude consequences some It a public. to the is not breach of in duty public unlikely to use uninsulated wires areas where the to Co., in Utility come contact with them. Watkins v. Mt. Carmel Public (1988) (lines 493, 498-99, 10, 14 App. parallel 165 Ill. 3d 519 N.E.2d to road, 13 feet a connecting many years from catwalk tanks installed erected). after the had lines been electricity

“With the advance of civilization has become a neces sity, and in order to it useful man it make must be carried from Illinois, place place.” Merlo v. Public Service Co. Northern 381 300, 312-13, governing Ill. 45 N.E.2d Restrictions must, handling electricity in view of its commercial and domestic importance, engaged in the be reasonable. Persons transmission Merlo, electricity safety public. are not of the 381 Ill. at insurers (holding duty 45 N.E.2d at 673 there was a to insulate working lines in close cranes). to a street where men were with suggested Merlo there to insulate lines “where the was public likely to come contact with them.” 381 Ill. at 673; Clinton v. Commonwealth Edison cf. 1064, 1068, (“[e'Jlectricity 3d 344 N.E.2d is an inher regarded ently dangerous deadly force which should be high degree engaged supplying of care those the business of li energy”). utility Merlo took a more restrictive view of Clinton, ability than and Genaust took an even more restrictive view. anticipate persons, “knowing Utilities need not [will] if metal should contact electrical to electrical install a metal tower and antenna In re Estate wires.” 343 N.E.2d (1990) (“[o]ne Martin, inconsistent”); Watkins, might find Genaust and Merlo cf. inconsistent). (Genaust at 14 and Merlo not possibility make “Economic realities unrealistic in many which in companies might insulate all of their Ill. to thousands of miles.” stances amount landowner, against dismissing (upholding 519 N.E.2d at 14 counts widespread utility). utility operates Because a counts miles, area, it does not seem with lines over thousands particular has a to insulate for a court to declare that

611 may contrary. while another court declare the There should be a a single question rule on such a basic and that rule should come from case, Watkins, In in body expertise with more than a court. as plaintiffs alleged company policies that stated and National Electric Safety imposed Code sections a duty upon utility. Again, defendant as Watkins, plaintiffs have not been able show violation of these provisions. 499, App. 165 Ill. 3d at 519 N.E.2d at cf. Addison, Village 344, 350, Schmall v. 171 Ill. App. 3d of (1988) 258, (proof 262-63 compliance regulations with codes and only tending considered evidence to show due care and is not conclusive of question negligence). the

This court has reversed a summary judgment utility for a in a case utility where the located uninsulated lines 13 feet above and nearly existing over the center of an feed bin that had to be accessed Martin, from top. App. 664, the 202 Ill. 3d at 559 N.E.2d at 1128. We distinguished Icenogle Myers, 239, v. 167 Ill. 3d 521 N.E.2d 163 (1988), as a case “wherein the right- lines were located over a public of-way and grain Martin, were not over the bin.” 3d at 664, 559 N.E.2d at 1128-29. We concluded “the Merlo case and its progeny are more to the facts in this case than the Genaust case and progeny.” Martin, its 559 N.E.2d at supreme The granted petition court appeal for leave to Martin, but the case upon was then dismissed stipulation the parties. Assuming good law, Martin is distinguishable it is present case, where the lines were located public right-of-way, over a did not interfere with the private property, use of and had been in place long before the CB antenna was erected.

Plaintiff cites other argues cases that she support her view. Schmall, an electrician was killed helping light while he was install pole power line, near a when a crane operated by employee another Schmall, contacted the line. 171 Ill. App. 3d at 525 N.E.2d at 260. The Schmall court reversed utility, citing for the the Merlo rule a duty “persons might owes where added.) come contact with or (Emphasis wires.” Schmall, Ill. App. 171 citing 525 N.E.2d at Ill. at interesting 674. It is that Schmall does not mention disagree Genaust. We with Schmall. The test is not what might conceivably occur, but objectively expect. what is reasonable to Genaust, 62 Ill. 2d at Again, N.E.2d at 471. “it is not objectively reasonable to expect person, knowing electricity if metal should contact

install a metal tower and antenna in to electrical wires.” 343 N.E.2d at 471. Ploense, the

Plaintiff also cites which held that whether of the accident was a had a to insulate its wires at location reasonably it foreseeable that question, including factual whether was proximity of the wires. Ploense v. persons might reasonably come into Illinois Power question, contributory negligence but is mat

(holding is a fact law). Ploense, however, longer good predated ter of Genaust and is no law. dispute may whether the lines were ever insulated be one they the lines were “insulated” or whether were

semantics —whether ‘ ’’ ‘weatherproofed. in the transmission and distribution of “Practically all wire used two-ply three-ply braid weather is insulated with covering. purpose protecting is for the it proof This purpose protecting for the atmospheric conditions and is not *6 it 381 Ill. at persons coming in contact with from shock.” 313, 45 N.E.2d at 673. originally if Power did not have argues

Plaintiff that even lines, them it had a duty these once it chose to insulate to insulate assuming plaintiff is nonnegligent manner. Even duty to do so Il facts, however, part on the any correct on the how did conduct decedent? Plaintiff could not linois Power contribute to the death of all, supplied having duty if Illinois no to insulate complain was, It held that a say, only that effective. has been insulation 50% gave a weatherproof covering duty has a to warn v. Il was not insulation. German deceptive appearance of insulation linois case, however, recognized that it is clear that decedent present result in electrocu

touching the electric lines with the antenna could touching power and tion, attempted to avoid decedent him. coating protect the lines to relying not on on decedent was

III. CONCLUSION concluding that Illinois Power judgment, trial court’s We affirm the duty further power lines and had no duty had no to insulate its case, granting of this under the circumstances protect decedent Power. summary judgment to Illinois

Affirmed.

STEIGMANN, P.J., concurs. MYERSCOUGH, dissenting:

JUSTICE court’s upon the trial case comes to us respectfully I dissent. This granting majority favor of Illinois Power. The duty “[i]t states that is not a breach of supply electricity to a com that, munity knowing time, over likely.” electrocution is “ ‘[ejconomic agree. 3d at 610.1 The majority further notes that reali ties make unrealistic the possibility utility companies might fines, insulate all of their in many which instances amount to ” thousands of miles.’ 325 Ill. quoting However, I agree. 14. also when a company undertakes power fines, to insulate its then it must in nonnegligent do so manner.

Here, Illinois Plaintiff, Power denies that the fines were insulated. however, maintains that the fines were insulated. In support po- of her sition, plaintiff presented an an engineer affidavit who examined the fines and found that the fines were covered degraded insulating Summary judgment material. only pleadings, where “the depositions, file, together admissions on affidavits, with the any, show that there is no issue as to 1005(c) (West 1998). any material fact.” 735 ILCS A question of 5/2 — fact remains as to whether Illinois Power in fact insulated the and, thereby, assumed to maintain those insulated fines. Therefore, summary judgment I, proper. therefore, not respectfully dissent. *7 AUTOMATION,

MAGNUM INC., PRESS Plaintiff and Counter defendant-Appellant, v. CORPORATION, THOMAS AND BETTS Defendant Counterplaintiff-Appellee.

Fourth District No. 4 — 01—0062 Opinion filed November