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Elgin Airport Inn v. Commonwealth Edison Co.





APPEAL from the Circuit Court of Kane County; the Hon. MARVIN D. DUNN, Judge, presiding.


Elgin Airport Inn, Inc., brought an action against Commonwealth Edison Company for damage to the plaintiff's air conditioning equipment caused by low voltage electricity. The complaint was in four counts. Count I was based on the theory of res ipsa loquitur, count II on ordinary negligence, count III on violation of section 32 of "An Act concerning public utilities" (Ill. Rev. Stat. 1977, ch. 111 2/3, par. 32) which requires the utility company to furnish "such service instrumentalities, equipment and facilities as shall promote the safety, health, comfort and convenience of its patrons, employees, and public and as shall be in all respects adequate, efficient, just and reasonable." Count IV was based on strict liability for damage done to the plaintiff's property by Commonwealth Edison Company in furnishing an unreasonably dangerous product — low-voltage electricity.

After a bench trial, the trial court found in favor of the defendant on each of the four counts of the complaint and rendered judgment accordingly.

It appears from the testimony that on November 3, 1976, while Commonwealth Edison Company was engaged in the routine testing of the line which serviced Elgin Airport Inn, the plaintiff's service was switched to an alternate line and then switched back to the regular line. Due to a broken casting in the switching mechanism, one circuit failed to close when the current was switched back to the regular lines and this caused single phase electrical current to be transmitted to the plaintiff's premises which, because of the low voltage, burned out several of the air conditioning motors. The testimony of James Gordon, Commonwealth Edison's employee, was that the casting which failed was not readily discernible and the defect would not be ascertained by the usual inspection. The switching mechanism containing the defective part had been tested some five times over as many years and found to be in good operating condition. In fact, this switch had been tested a little more than a month before the incident in question when it was cleaned. No defect was observed at that time. The line was switched to an alternate line at 5:37 p.m. on the day in question and the abnormal condition of low voltage was not discovered until 5:42 p.m., when it was immediately corrected by switching back to the original line. From the testimony on both sides it would appear certain that the plaintiff's air conditioning equipment was damaged by receiving abnormally low voltage during this five-minute interval.

It is clear that under the circumstances there was not sufficient evidence to sustain the allegation of negligence under count II. So far as appears from the testimony, Commonwealth Edison had taken precautions to avoid a breakdown in service by testing the line in question at reasonable intervals, considering the thousands of lines to be tested, and this particular line had been in satisfactory condition a month or so before the switching failure occurred. While a five-minute delay in switching off the defective current was long enough to do considerable damage, it does not seem an inordinately long time to discover and correct a defect in a complicated and extensive transmission system. The defective part was not apparent to visual observation, and we cannot say on the basis of the evidence adduced that Commonwealth Edison was negligent in not discovering this small defect before the incident occurred.

• 1 As to the count based on res ipsa loquitur, there is no inference of negligence arising from the occurrence itself because the cause of the failure is definitely known. We do not have to speculate as to the immediate cause as is necessary where res ipsa loquitur is properly invoked. (See O'Rourke v. Marshall Field & Co. (1923), 307 Ill. 197.) Since the exact circumstances of the failure and exact cause are known, we are not justified in ascribing negligence to the defendant on the basis that the defendant had exclusive control of the instrumentality or device and the accident could not have occurred without some negligence on its part. Here, since we know the exact facts, we must test defendant's negligence with reference to those known facts rather than under the fault-oriented inferences of res ipsa loquitur. While the theory that res ipsa loquitur disappears as soon as there is an allegation of specific negligence (O'Rourke v. Marshall Field & Co., (1923), 307 Ill. 197; Bollenbach v. Bloomenthal (1930), 341 Ill. 539) was repudiated in Metz v. Central Illinois Electric & Gas Co. (1965), 32 Ill.2d 446, in the case before us the explanation of the failure as being due to an imperceptible break in a small casting which impaired the switching mechanism was clear and convincing and was not disputed by the plaintiff. Under these circumstances, there being a logical, undisputed explanation for the failure, the inference of negligence arising out of a lack of any satisfactory explanation is not valid and res ipsa loquitur has no place. (See Prosser, Torts § 40, at 233-34, (4th ed. 1971).) In this case, we cannot discard the actual facts in order to invoke an alternate theory of liability under which negligence is assumed from the implications of the result.

• 2, 3 Nor do we see any foundation for liability under the Public Utilities Act. Section 32 of that Act, invoked by the plaintiff, states a general public policy whereby public utilities are held to a high standard of public service, but we do not think it was designed to redress, by way of civil damages, a temporary deficiency in service to an individual caused by equipment failure in the ordinary course of operations. This section of the Public Utilities Act relates to the safety, health and convenience of the public and we agree with the trial court's finding that there was no violation of this statute under the circumstances disclosed by the testimony.

This leaves for consideration count IV of the complaint, founded on strict liability. In Suvada v. White Motor Co. (1965), 32 Ill.2d 612, the supreme court announced the basis of strict liability in tort and adopted the doctrine which coincided with the view expressed in section 402A of the Restatement (Second) of Torts (1965). That section provides:

"(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 product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. * * *."

Thus, it is necessary in establishing strict liability to show that the offending thing or substance is a "product" and that it was in a defective condition making it unreasonably dangerous to the user when it left the control of the manufacturer or supplier. Because electricity is intangible, it has consistently been argued by strict liability defendants in cases involving injury by electricity that the intangible force of electrical current is not a "product" within the meaning of section 402A and, indeed, no Illinois decision we are aware of had expressly recognized it as such until the case of Dubin v. Michael Reese Hospital & Medical Center (1979), 74 Ill. App.3d 932. In Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, our supreme court assumed "arguendo" that electricity was a product but even so held strict liability did not apply in that case because (a) the electricity was still in the manufacturer's control when the accident occurred and (b) the electricity was not in any way "defective" even if it conceded that the wires carrying it were too close to the ground. In the Dubin case, the plaintiffs alleged they had been exposed to X rays by the defendant, that such X-ray radiation was not in a reasonably safe condition for its intended purpose and that the defendant had failed to warn them of the dangerous tendency of such radiation to cause tumors and other abnormalities in human beings. In the course of reaching a conclusion as to whether or not strict liability is applicable to X radiation, the court considered whether electricity was a "product" within the meaning of section 402A and expressly held that it was. The court pointed out that electricity had been held by our supreme court to be "`a valuable commodity, bought and sold like other personal property. It may be transported from place to place. While it is intangible, it is no less personal property and is within the larceny statute.' (Menagas, 367 Ill. 330, at 338.)" (Dubin, 74 Ill. App.3d 932, 941.) It is contended by the defendant here that the pronouncement in Dubin was obiter dicta inasmuch as whether or not electricity is a product was not the ultimate issue before the court. However, it seems a logical necessity to the holding that X radiation is a product, since X radiation is derived from electricity. Our neighboring states of Indiana, Michigan and Wisconsin also have considered the question whether strict liability is applicable to claims for injuries or deaths by electricity. (See Petroski v. Northern Indiana Public Service Co. (Ind. App. 1976), 354 N.E.2d 736; Williams v. Detroit Edison Co. (1975), 63 Mich. App. 559, 234 N.W.2d 702; Ransome v. Wisconsin Electric Power Co. (1979), 87 Wis.2d 605, 275 N.W.2d 641.) In none of these cases did the court reject the concept of strict liability on the basis that electricity was not a "product." While the Williams opinion stated that "[e]lectricity is a service rather than a `good,'" (Williams, 63 Mich. App. 559, 564, 234 N.W.2d 702, 705), it held that "the doctrine of implied warranty in tort applies to a `products' liability case involving electricity" (Williams, 63 Mich. App. 559, 565, 234 N.W.2d 702, 706), and rejected liability on the ground, not that the electricity was not a product but that it had not been released into the stream of commerce when the injury occurred. Petroski specifically recognized that electricity is a product for strict liability purposes but like Williams and Genaust held that strict liability did not apply because the electricity had not been put into the stream of commerce but was still in the utility high voltage wires when the accident occurred. Ransome specifically recognized that electricity is a product under section 402A and held the utility company liable for the injury done when its high-voltage electricity entered into a home due to a missing insulator and broken fuse on its transmission line. This was clearly a strict liability case since the damage which permitted the high voltage to enter the plaintiff's home had been caused by a previous electrical storm and specific negligence was not involved.

As noted in the Dubin case, most of the decisions involving injury or damage by electricity have not expressly considered or have not rested their decision on whether it was a product but have found reasons for their decisions not requiring that determination. In the case before us, however, that question is of the essence for, unlike the cases involving contact with high voltage lines where the electricity is still within the control of the utility company, we are faced here with injury done to the consumer's property by electrical current after it was delivered to the consumer. That the electrical current actually delivered to the consumer was not in the form required for normal usage and was dangerous to its appliances is clearly established by the evidence, thus is clear that if the electricity which damaged the plaintiff's appliances was a "product," it was a product in "a defective condition unreasonably dangerous to the user or consumer or to his property." Section 402A(1) Restatement (Second) of Torts(1965).

• 4 Having in mind that electrical energy is artificially manufactured, can be measured, bought and sold, changed in quantity or quality, delivered wherever desired and has been held by our supreme court to be personal property whose unlawful asportation is larceny, we are of the opinion that it is a product within the meaning of section 402A. It is manufactured and is sold by the manufacturer to the general public and we see no reason not to regard it as a product. It is, of course, not conceded by the defendant utility that the electrical energy it supplied in this instance was defective. It was admitted, however, by the defendant that the single-phase current was unreasonably dangerous to the plaintiff's appliances in the form in which it was delivered to the premises and that it was not in the expected and required three-phase condition expected and required for proper operation of the air conditioning appliances. There is agreement by ...

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