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Bitner v. Central Illinois Light Co.

OPINION FILED AUGUST 8, 1979.

F. JOAN BITNER, ADM'X OF THE ESTATE OF MILO BITNER, DECEASED, PLAINTIFF-APPELLANT,

v.

CENTRAL ILLINOIS LIGHT COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Peoria County; the Hon. ALBERT PUCCI, Judge, presiding. MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 2, 1979.

The plaintiff, F. Joan Bitner, administratrix of the estate of Milo Bitner, deceased, brought this action against the defendant, Central Illinois Light Company, hereinafter referred to as Cilco, based upon an accident which resulted in her husband's death on August 22, 1972. Plaintiff's decedent, Milo Bitner, was painting a storage tank on the premises owned by his employer, Standard Oil Company, on August 22, 1972. Bitner had installed the storage tank himself in March of 1972. He was aware of the presence of Cilco's electrical distribution wires and discussed them with his supervisor prior to installing the storage tank. Bitner was told to paint the tank by his supervisor, and such a job was within the normal scope of his work. He had climbed a wooden ladder which he leaned against the 20-foot-high storage tank. During his painting, Bitner somehow made contact with the defendant's high voltage distribution lines and was electrocuted. He ultimately fell from the tank to the ground. He was later pronounced dead on arrival at a local hospital. The deposition of Perry Camp, Jr., an 11-year-old boy, who was present at the scene, revealed that the witness remembered that he saw the decedent climb the ladder to gain access to the upper portion of the storage tank. He remembered nothing else until he heard a crackling sound and turned and saw the decedent lying on the electrical wires.

The plaintiff's complaint contained 10 counts which may be categorized as follows:

COUNT I. Wrongful death action based upon negligence.

COUNT II. Wrongful death action based upon wilful and wanton conduct.

COUNT III. Wrongful death action based upon res ipsa loquitur.

COUNT IV. Wrongful death action based upon a negligent violation of the Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 77).

COUNT V. Wrongful death action based upon a wilful and wanton violation of the Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 77).

COUNT VI. Survival action based upon negligence.

COUNT VII. Survival action based upon wilful and wanton conduct.

COUNT VIII. Survival action based upon res ipsa loquitur.

COUNT IX. Survival action based upon a negligent violation of the Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 77).

COUNT X. Survival action based upon a wilful and wanton violation of the Public Utilities Act (Ill. Rev. Stat. 1973, ch. 111 2/3, par. 77).

Counts I, III, VI, and VIII alleged that the decedent was in the exercise of ordinary care and that the defendant was negligent in ...


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