APPEAL from the Circuit Court of St. Clair County; the Hon.
WILLIAM P. FLEMING, Judge, presiding.
MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:
This is an appeal by plaintiff, Ben Genaust, from the dismissal by the circuit court of St. Clair County of five counts (numbered II through VI) of his second amended complaint, in which plaintiff claimed injuries sustained when an electrical current arced from uninsulated power lines of defendant Illinois Power Company to a metal antenna manufactured by defendant Hy-Gain Electronics Corporation, sold to plaintiff by defendant Lurtz Electric Company, which plaintiff was installing on top of a metal tower manufactured by Rohn Tower Manufacturing Company and sold by defendant Lurtz Electric Company, on the premises of defendant Hubert Plumbing and Heating Co., Inc.
The first count (Count I) of said complaint charged defendant Illinois Power Company with negligence in the location, failure to insulate, and failure to warn of dangers from its wires. That count is not involved in this appeal.
The facts, as taken from the pleadings, are that the plaintiff prior to March 3, 1969, entered into an oral contract with defendant Hubert Plumbing and Heating Company in which he agreed to furnish and install an antenna on Hubert's premises in Belleville, Illinois.
To perform the contract, the plaintiff thereafter purchased a galvanized steel tower and antenna from defendant Lurtz Electric Company of Belleville. The tower was manufactured by defendant Rohn Tower Manufacturing Co. The antenna was manufactured by defendant Hy-Gain Electronics Corporation.
On March 3, 1969, while the plaintiff was installing the tower and antenna on Hubert's premises, the antenna came close to, but did not touch, certain uninsulated power wires of the defendant Illinois Power Co. The wires "passed close to the building on the premises of Hubert" where the antenna was being installed. An electric current arced from the power lines to the antenna, and the electric current struck the plaintiff, causing him serious injury.
The second count against Illinois Power Company is based upon strict liability in tort for unreasonably dangerous products. The plaintiff alleges that the product sold by this defendant, i.e., electricity, was in an unreasonably dangerous condition in that the wires carrying the electricity were uninsulated and located so close to the ground and adjacent building as to create an unreasonable risk of harm. This count also alleged that said defendant failed to warn the public of the uninsulated condition of the wires and of the danger of electricity arcing from them.
The third count is against defendant Hy-Gain Electronics Corporation. The fourth count is against Rohn Tower Manufacturing Co. The fifth count is directed against the seller Lurtz Electric Company. These three counts are all based upon a strict liability in tort theory. The basis of these claims is that the seller (Lurtz) and the manufacturers (Hy-Gain and Rohn) delivered to the defendant the tower and antenna in an unreasonably dangerous condition in that they failed to have adequate warnings or labels on or accompanying the products or their packaging, informing the plaintiff and others of the dangers of using, installing, or bringing these products in close proximity to power lines, and that these products could cause an electric spark to be arced to them from a power wire if brought within a certain distance from such wire.
Count VI is directed against Hubert Plumbing and Heating Company. This is the party in possession of the premises on which the tower and antenna were being installed at the time of the injury. The plaintiff alleges that Hubert knew or should have known that the Illinois Power Company wires passed in close proximity to the building and that the wires were not properly and sufficiently insulated. The plaintiff also alleges that Hubert was negligent in three instances; failing to warn, ordering the installation in such position as to be dangerously close to the power wires thereby creating an unreasonable risk of harm to the plaintiff, and failing to provide the plaintiff with a safe place to work.
In support of Count II plaintiff relies upon Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, in which our Supreme Court approved the application of strict liability in tort as set forth in the Restatement of Torts (Second), section 402A, by stating:
"We note that the views herein expressed coincide with the position taken in section 402A of the American Law Institute's revised Restatement of the Law of Torts approved in May 1964:
`(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
`(a) the seller is engaged in the business of selling such a product, and
`(b) it is expected to reach the user or consumer in the condition in which it is sold.
`(2) The rule stated in subsection (1) applies although
`(a) the seller has exercised all possible care in the preparation and sale of his product, and
`(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller'." 32 ...