APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
P. COMAN, Judge, presiding.
MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:
The plaintiff in this case appeals from the granting of a summary judgment for the defendant who was sued for the negligent installation of an electric wire, plaintiff's decedent having been electrocuted when scaffolding either touched or came near the wire. We agree with the plaintiff that issues of fact exist and reverse and remand for trial.
The accident occurred during the construction of the Fox Valley shopping center. Inland-Robbins Construction Company (Inland) was awarded the general contract for the construction of the Marshall Field building, the mall area and the site work, which included such items as water lines, sewer lines, parking lots and general landscaping. Ragnar Benson, the decedent's employer, was awarded the general contract for the construction of the Sears Building.
The construction work began in 1973. At that time Inland engaged the defendant, Utility Dynamics Corporation (Utility), to erect a temporary electrical service, tapping onto the main Commonwealth Edison line, the line running in an east-west direction to the job site. Some months later, Ragnar Benson engaged Utility to install a second line (the Ragnar Benson line) from the east-west line to the Ragnar Benson staging area (office and storage area). While the line was to run generally from southwest to northeast, it had to be installed at an angle because there was a pond south of the staging area. At the time this second line was installed, there was no construction near the line; however, the line did run within 10 to 18 feet of the planned automotive center. At the time the line was installed the location of the automotive center was shown on blueprints which were available at the building site for inspection by anyone. According to Mr. Spencer, the president of Utility, the line was 28 feet above the ground.
This second line consisted of a bare, uninsulated 7200-volt wire. This wire was less expensive than normal 120-volt household service, although the latter would have served Ragnar Benson's needs equally well. According to Mr. Spencer, 120 volts would have been much safer; in fact, with that wire there was no risk.
On August 28, 1974, the decedent assisted a co-worker in moving scaffold towers which were approximately 27 feet in height to the automotive center. The towers were moved by lift truck. The decedent's job was to walk along the lift truck and hold the towers so that they did not fall from the truck. As the truck passed near the Ragnar Benson line, the tower either touched the line or the current arched over to the tower; Cantu was killed instantly. There was some deposition testimony indicating the tower had tilted because the ground was uneven.
The trial judge, after considering various affidavits and depositions, granted summary judgment to the defendant on the grounds that:
1. this was a provision of temporary electrical service;
2. all the standards of the code were followed at the time of the erection of the temporary service;
3. the location of the wire was really determined by Ragnar Benson not Utility.
On appeal, the defendant also urges that the judgment was proper because the decision as to the type of line to be used was made by Ragnar Benson; that Utility had no duty to maintain the line as the conditions of the site changed; that at the time it was installed, it was safe and it was not placed near any structure under construction. We find that these arguments are all part of one major issue: whether the defendant owed a non-delegable duty to the plaintiff or whether it could shift all of its responsibility to Ragnar Benson.
1 In determining whether the defendant has carried its burden of showing that no issue of fact exists (Leon v. Max E. Miller & Son, Inc. (1974), 23 Ill. App.3d 694, 320 N.E.2d 256, appeal denied (1975), 57 Ill.2d 608), it is not necessary to set forth all of the deposition evidence. We will, however, set forth in the body of this opinion such additional factual information as is relevant without intending to suggest that only those facts set forth can be considered material.
Summary judgment provides a means of disposing of cases with dispatch, but it is a drastic method and should only be allowed when the right of the party to invoke that drastic method is free from doubt. (Interlake, Inc. v. Harris Trust and Savings Bank (1978), 57 Ill. App.3d 524, 373 N.E.2d 413, appeal denied; Harris Trust Savings Bank v. Joanna-Western Mills Co. (1977), 53 Ill. App.3d 542, 368 N.E.2d 629.) It is to be awarded with caution so as not to preempt the right of a trial by jury or the right to present fully the factual basis for a claim where a material dispute may exist. (Borus v. Yellow Cab Co. (1977), 52 Ill. App.3d 194, 367 N.E.2d 277; Interlake, Inc. v. Harris Trust and Savings Bank (1978), 57 Ill. App.3d 524, 373 N.E.2d 413, appeal denied (1978), 71 Ill.2d 608.) Furthermore, the issue of negligence is ordinarily and preeminently a question of fact for the jury to decide. (Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E.2d 836; Hays v. Place (1953), 350 Ill. App. 504, 113 N.E.2d 178; Bartels v. McGarvey (1945), 327 Ill. App. 206, 63 N.E.2d 617; 28 Ill. L. & Prac. Negligence §§ 262, 264 (1957).) As stated by Justice Scheineman in Hays v. Place (1953), 350 Ill. App. 504, 509, 113 N.E.2d 178, 180, "Jurors are supposed to be competent in everything pertaining to the ordinary and common knowledge of mankind. [Citation.] For this reason, they set the standard of care, except where the standard is fixed by law. Hence, whether conduct established by the evidence amounts to due care, or is negligence, is normally a question for the jury." And as we ...