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Troszynski v. Commonwealth Edison Co.

OPINION FILED OCTOBER 7, 1976.

JOHN TROSZYNSKI, PLAINTIFF-APPELLEE,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JACQUES F. HEILINGOETTER, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

After a jury trial in the circuit court of Cook County, plaintiff, John Troszynski, recovered a verdict from defendant, Commonwealth Edison Company, in the sum of $75,000. The suit, based solely on a theory of products liability, arose when plaintiff, on June 15, 1969, was severely burned upon contacting a live, uninsulated electrical wire contained within defendant's meterbox located in plaintiff's backyard. The trial judge entered judgment on the verdict and defendant appeals, contending that the case should have been decided in its favor as a matter of law.

On September 14, 1968, plaintiff became the resident-owner of a two-story, two-apartment building located in the city of Berwyn. Defendant's meterbox, approximately four feet above the ground, is attached to the rear wall of the building. The meterbox contains two 240-volt single-phase electric meters known as a dual watt-hour meter installation. This assemblage is connected to overhead suspended electrical wires by a metal pipe. The meterbox itself is approximately 12x20 inches with two 4x7 inch glass windows on the front cover. The glass itself is slightly larger than the metal openings and is held in place by four S-shaped spring tension clips inside the box. Thus the meterbox would have to be opened in order to replace the glass. The left window of the meterbox was cracked prior to plaintiff's residency and had not been replaced or repaired at the time of the accident. Plaintiff's wife reportedly had informed defendant of the crack in the glass.

The meter reader who serviced plaintiff's meter prior to the accident testified that unless a glass window was actually broken he would not file a report to defendant to have it replaced. He stated that if the glass were merely cracked, but still in place, he would do nothing about it.

The cover itself is fastened to the body of the box by a wire which is sealed together and imprinted with the year in which it was sealed. Thus the seal must be broken to open the box. The seal on the present meterbox had the year 1968 inscribed on it. In addition to the name of the manufacturing company, the cover of the meterbox had the following words imprinted on it:

"DO NOT BREAK SEAL NO FUSES INSIDE PROPERTY OF ELECTRIC COMPANY"

Inside the meterbox were two electric meters, at the bottom of which were terminals and terminal screws. An insulated terminal cover fit over these screws. Four uninsulated electric cables ran from the underside of each meter into a meter block, which was constructed out of nonconductive metal. Junction terminals and terminal screws located on the meter block connected these four cables from the meter to the meterbox. There existed approximately 1 3/4-inch clearance between the junction terminals on the meter block and the inside of the box cover, and the junction terminals were about 1 to 1 1/2 inches below each of the window spaces in the box cover.

On June 15, 1969, plaintiff and his two children were in the backyard of the apartment building. Immediately after having hosed the garden beneath the meterbox, plaintiff began throwing a tennis ball with his seven-year-old son. The boy threw the ball over plaintiff's head, striking the already cracked glass window on the meterbox five or six yards away. The glass broke and fell into the meterbox while the ball bounced away. Plaintiff's 16-year-old daughter moved quickly to the meterbox. She removed a ring from her finger and reached out to retrieve the glass from the box. At that instant plaintiff grabbed her arm, testifying that he did not want his daughter to get hurt. He explained that he did not wish her to cut herself. Plaintiff then voluntarily thrust his own left hand through the glassless window and downward into the meterbox. At this time, he was standing in the recently watered garden. As plaintiff slipped his hand down toward the glass, he received a severe electrical shock and was unable to remove his hand. He directed his daughter to enter the basement and turn off the electrical power within the house. When the action had no effect, plaintiff pushed against the wall with his foot for leverage and eventually freed his hand from the meterbox and the electrical current. Plaintiff remained conscious during the entire incident and made certain that no one touched him, fearing that they would "get electrocuted." Plaintiff sustained such severe injuries to his left hand and wrist that he had to undergo nine operations.

Plaintiff's expert witness, Alva Todd, a consulting engineer and president of the Midwest College of Engineering, made a visual examination of the electric meters and meterbox in question without breaking the seal on the cover of the box. Over defendant's objection, Todd reconstructed the accident. He stated that it appeared plaintiff had contacted the two uninsulated line terminals on the left side within the meterbox. He doubted that standing in damp soil had made any difference. Todd further testified that the accident could easily have been averted through printed warnings, insulation, or a slight modification of the structure of the box itself. He stated that the line terminals could have been insulated by a phenolic barrier costing less than a dime or by rubber. A metallic barrier also could have been installed inside the box immediately below the window opening edge that could have prevented a person from reaching the live terminals inside. Todd explained the difference between plaintiff's "A base meter" and a second type called a "socket meter." The socket meter has no external wiring and plugs into a socket containing the live wires, thus reducing the possibility of injury upon contact. According to Todd, in 1968 the A base meter could have been converted into a socket meter. At the time of the occurrence, of the approximately 2 1/2 million meters in operation owned by defendant, slightly over one million were the A base type. No warning appeared on the meterbox except a tiny "240 volts" which appeared on the meter itself when viewed through the window.

Plaintiff, 55 years of age, had a European high school education and worked as a shipping clerk and loader for a steel company at the time of the occurrence. He had a normal, though obviously unsophisticated, grasp of the concept and dangers of electricity. He was aware of the fact that electricity could burn, shock, or kill, and that it could be transmitted through the human body.

• 1 Defendant contends that the trial court should have entered judgment in its favor in this product strict liability action as a matter of law. It specifically asserts that the meterbox was not being used for the purpose for which it was intended or for which it was reasonably foreseeable that it may be used; that plaintiff assumed the risk of injury through his actions; that plaintiff's injury did not result from an unreasonably dangerous or unsafe condition of the meterbox; that the injury was caused by a misuse of the meterbox; that judgment notwithstanding the verdict should have been entered in favor of defendant; and that the verdict was against the manifest weight of the evidence.

In Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182, our Supreme Court established the duty of a manufacturer to produce a product reasonably fit for its intended use. (See Restatement (Second) of Torts § 402A (1964).) In Suvada, the court held that a plaintiff must prove that his injury resulted from a condition of the product, that the condition was an unreasonably dangerous one, and that the condition existed at the time it left the manufacturer's control.

Defendant insists that as a matter of law the meterbox was not in an unreasonably dangerous condition at the time of the accident. Suvada made Illinois one of the 12 States which defines products liability in the context of section 402A of the Restatement (Second) of Torts. (See Clary v. Fifth Avenue Chrysler Center, Inc. (Alaska 1969), 454 P.2d 244.) Thus comment i to section 402A is instructive in defining "unreasonably dangerous" in Illinois:

"The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with ordinary knowledge common ...


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