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Burke v. Illinois Power Co.

OPINION FILED JANUARY 18, 1978.

KEVIN J. BURKE, PLAINTIFF-APPELLEE,

v.

ILLINOIS POWER COMPANY ET AL., DEFENDANTS. — (FMC CORPORATION, DEFENDANT-APPELLANT AND CROSS-DEFENDANT-APPELLANT; LIBBY-OWENS-FORD COMPANY, DEFENDANT-APPELLANT AND CROSS-PLAINTIFF-APPELLEE; ILLINOIS POWER COMPANY, DEFENDANT-APPELLANT, CROSS-DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLANT; METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, THIRD-PARTY DEFENDANT-APPELLEE AND CROSS-PLAINTIFF-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. P.A. SORRENTINO, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 27, 1978.

On July 20, 1970, plaintiff Kevin Burke sustained crippling injuries when the boom of a crane under which he was working contacted live overhead electrical wires. Plaintiff was employed at the time as a laborer for the Metropolitan Sanitary District of Greater Chicago (hereinafter "the sanitary district.") Plaintiff sued to recover damages for the injuries against three defendants: Illinois Power Company (hereinafter "the power company"), which owned and maintained the power lines on a negligence theory; FMC Corporation, the crane manufacturer on a strict products liability theory; and Libby-Owens-Ford Company (hereinafter "LOF"), alleging violation of the Structural Work Act. Following a jury trial, plaintiff recovered a verdict against all three defendants for $2,500,000.

A number of cross actions and third-party actions also were decided. The power company had sued the sanitary district on a theory of common law indemnity. The latter sued FMC on the same theory. FMC brought indemnity actions against LOF and the sanitary district. LOF had sued FMC and the power company, also on an indemnity theory. The trial court directed verdicts in favor of the sanitary district on its cross-claim against FMC as well as on FMC's action against the sanitary district, and in favor of LOF on its cross-claim against FMC. The jury rendered verdicts in favor of LOF on its cross-claim against the power company and in favor of the sanitary district on the power company's third-party action. The jury answered several special interrogatories and made specific findings that the power company had been actively negligent while the sanitary district had been passively negligent. The trial court entered judgments in accordance with the verdicts.

The three defendants appeal from the judgment entered in favor of plaintiff. The power company also appeals from the adverse judgment in its third-party action against the sanitary district and from the judgment for LOF in its cross-claim against the power company. FMC appeals from the judgments against it rendered in favor of LOF and the sanitary district.

The site of the accident, known as the Blackhawk Beach Project, was owned by LOF and was located adjacent to Route 71, a highway near Ottawa, Illinois. It was on the south bank of the Illinois River. On the other side of the river, LOF owned a glass manufacturing plant which produced large amounts of waste material known as silica dust, a fine micron-sized, sand substance. This substance was piped under the river and dumped into lagoons located on approximately 73 acres of the project site. Between the lagoons and the highway was an eight-foot cyclone fence with east and west gates. LOF and the power company had keys to the gates and, during the project, the sanitary district also had keys.

The silica dust which filled the lagoons created a problem for LOF. When the dust dried, it was blown about by the wind causing discomfort to neighbors. In 1969 an LOF employee learned of the sanitary district's use of a processed waste called sludge in reclaiming soil. After an unsuccessful preliminary test, the sanitary district eventually demonstrated to LOF that the conversion was feasible. The two parties thereupon agreed to the reclamation project on a large scale.

The sludge was to be shipped on the river to the site by barge. A pipeline system was constructed between the dock and the lagoons consisting of heavy steel pipe 16 inches in diameter and 20 feet long. The pipe was laid under the highway through an LOF spillway to a manifold which accommodated the four-inch aluminum pipe system laid throughout the lagoon area to distribute the sludge.

Since 1942 the power company had owned and maintained electrical lines on this land pursuant to an easement granted by LOF's predecessor in title. Twelve thousand volt (12kv) lines carried on poles stretch east and west a few feet south of the highway. A telephone line was carried on these poles beneath the electrical lines. Pole 62, the corner pole at the east gate, carried a single three phase electrical line known as line 3403. This was a 34,500 volt line which extended south from the east gate between two lagoons. It was 35 feet above the ground and was the line which was struck by the boom of the crane.

The crane involved in the accident was utilized in constructing the pipeline and remained on the site throughout the entire project. Sludge was delivered from November 1969 until May 1970. After delivery of the sludge to the project was completed, the sanitary district, on July 13, 1970, began dismantling the pipeline. This task was carried out by sanitary district employees. Only two LOF employees were connected with the project. One was concerned with pollution and environmental aspects; the other LOF employee was responsible for engineering aspects.

On July 20, 1970, the sanitary district employees by use of the crane were to load the 16-inch pipes onto a flatbed truck bound for Chicago. The sections of pipe were to be lifted individually by the crane over the cyclone fence onto the truck on the other side of the fence. Eight sanitary district employees were present: a supervisor, crane operator, a truck driver, three pipefitters and two laborers. Richard Gallimore, who had been in charge of the project, was not present during July. Gerald Woodward, a pipefitter who had acted as a signalman during the previous week, also was absent. John Casey, the crane operator with 10 years' experience, testified that the crane had been difficult to start that morning. The crane eventually was started and the first lift occurred at 9 a.m. As the pipe was lifted toward the fence, three men guided it by holding onto an end and walking it. Casey raised the boom from its initial 40-degree angle from the ground to a 70-degree angle so as to clear the fence. The boom either touched line 3403 or came in close enough proximity to it that electricity surged down into the steel pipe. A ball of flame shot out of one end killing the pipefitter guiding that end. The two laborers who were guiding the other end of the pipe, plaintiff and Robert Boaz, suffered severe injuries from their contact with the pipe.

When the electrical jolt and the flash hit the plaintiff, he immediately fell to the ground in a semiconscious state, with his body shaking and jumping off of the ground. He was frothing at the mouth, ears, eyes and nose and his body was violently convulsing. His eyes were described as appearing to be "coming out of his head." Plaintiff's steel rimmed glasses had burned a hole through his nose from one eye to the other. Shortly thereafter, when plaintiff began to regain consciousness, he attempted to get up but was unable to move either his hands or feet. His hands were bent down with the skin peeled all the way down to the fingernails. His clothes and body were badly burned and he began screaming continuously as a result of the excruciating pain.

An ambulance was summoned which transported the charred body to Ryburn Community Hospital where plaintiff was immediately given an IV narcotic to relieve his intense pain. Plaintiff was alert and cooperative even though his injuries were extensive. He had superficial burns on the facial area, third degree burns on the anterior chest, a third degree burn of the left elbow, and a right hand which had been so completely burned from the wrist downward that it had no feeling. He was unable to move these fingers. Both feet were hot and severely burned, with a massive tissue loss including most of the toes. Plaintiff received emergency treatment, and by the next morning his feet had cooled although they and his right hand remained avascular.

Plaintiff was transferred to the Cook County Burn Unit the day after the accident where he remained for over four months until early December 1970. He received antibiotic treatment and the doctors attempted to save his burned limbs. Eight days after his arrival, it became necessary to amputate his right hand and forearm. The first week of August both legs were amputated as well and on August 21 the stumps were closed with some skin grafting of the other burned areas of the body. His left elbow had been burned badly enough to expose the bone into the joint. The attending physicians attempted to repair the damage through plastic surgery and full thickness skin grafts requiring a number of operations. In early August, the plaintiff underwent an extensive debridement of his elbow and on September 17 a skin graft was performed. Throughout his hospitalization, plaintiff required dressing changes on each extremity two or three times daily which took two to three hours to accomplish. Plaintiff was in considerable pain which could not be completely relieved by narcotics. Sedation was regulated to prevent addition to the drugs.

As a result of the accident, plaintiff required four operations to remove cataracts from each eye rendering him industrially blind. He must wear thick corrective glasses and cannot use contact lenses since he cannot control them with his hooked prosthetic right hand. A year after the accident all of his teeth had to be extracted because of the difficulty of dental hygiene while hospitalized. Burke uses prosthetic legs, but after 10 minutes of use develops pains in the stumps. The stumps ache, ulcerate and drain occasionally. He understandably has considerable trouble in negotiating wet or uneven surfaces and cannot get up under his own power having fallen on a wet surface. He also has a prosthetic right hand and arm, but has difficulty in holding cups or in performing simple tasks.

At the time of the accident, plaintiff was married and the father of one daughter. The marriage since has terminated. Following his army discharge and education, he became a laborer earning approximately $9000 in 1969. Plaintiff will require medical care for the fitting and maintenance of his prosthetic devices and for skin breakdown and irritation for the remainder of his life. The devices must be replaced every five years. Plaintiff has been unable to find employment.

The trial covered three months, and the parties presented over 50 witnesses. We will attempt to highlight the testimony essential to an understanding of the issues.

Power company employees testified that it was company policy to report any sightings of cranes working near or under power lines and to warn of the potential danger of coming into contact with those lines. The power company phased out foot patrol of its lines in the 1960's and relied upon monthly aerial surveillance of its transmission lines. Power company aircraft and vehicles were equipped with radios; employees were instructed to report promptly any situations which could be deemed hazardous. The employees also were told to stop and warn anyone involved in the hazardous situation because the average layman could not tell a telephone line from a high-voltage line. Between 1962 and 1970, the power company received reports of 12 accidents in which a crane boom contacted its transmission lines. One of its pilots testified that he reported between 10 to 20 sightings of cranes working dangerously close to the power lines each year.

A number of power company employees testified that they had seen the crane working near power lines at the Blackhawk Beach Project prior to this accident. Robert Hunter, an aerial surveillance pilot, filed an official report in September 1969 that a crane was working in the vicinity of line 3403 between poles 60 and 61. This report was found in the power company's files, but Hunter's supervisors stated that they had not received the report and therefore no action was taken on it. Hunter again observed the crane two months later. Larry Caulder, a serviceman for the power company, testified that three days before the accident he had observed the crane as he drove by on a service call. Although he thought he should stop and warn the workmen, he did not report his observation to the power company. Caulder's vehicle was equipped with a two-way radio and he had a key to the east gate. John Messaglia, the power company's district manager, did stop in the fall of 1969 when he saw the crane close to the lower 12 kv line. He informed an unidentified man that the line was energized. He did not warn the man of the dangers of line 3403, did not disclose precautions the power company could have taken, and did not report the incident to the power company. Earl Lasco, a forester with the ...


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