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Nelson v. Commonwealth Edison Co.





Appeal from the Circuit Court of Winnebago County; the Hon. John E. Sype, Judge, presiding.


On October 14, 1981, Warren Nelson, a 10-year-old boy, was playing in Sabrooke Playground in Rockford, Illinois. High voltage electrical power lines run in an east-west direction over the middle of the park and are at least 30 feet high. The park land is owned by Commonwealth Edison but leased and controlled by the Rockford Park District. Young Nelson, either by himself or with a playmate, apparently had discovered a piece or spool of copper wire and one of the youths tossed it high into the air while Nelson held on to one end of the wire. An electric current either arced from nearby power lines to the copper wire or the wire actually contacted the power lines, causing plaintiff to receive serious electrical burns.

Linda Tatum, mother and next friend of Warren Nelson, filed a five-count complaint predicated upon theories of negligence, strict liability, and wilful and wanton misconduct. Count I was premised upon negligence and directed at Commonwealth Edison. It alleged, in addition to the foregoing facts which we have set forth, that the defendants knew that children habitually frequented the Sabrooke Playground, that the park was directly underneath electrical power transmission lines, and that said power lines over the Sabrooke Playground constituted a dangerous condition. It further alleged that defendants knew or should have known that a young child such as the plaintiff would not appreciate the dangers of the said power lines, and it was the duty of the defendants to remedy the described dangerous conditions or to otherwise take any necessary steps to protect children from injury that might result therefrom. Count I further alleged that the cost of providing warning signs was slight when compared to the risk of injury to young children. The count also included charges, inter alia, that Edison was negligent in failing to warn plaintiff of the dangers of the nearby electrical lines, failing to properly insulate those particular lines to prevent arcing of electrical current, failing to maintain the power lines in a good and safe condition, and in permitting a public park to exist under such dangerous wires. Count II was directed against the park district and made overlapping allegations of negligence.

Count III advanced a strict liability in tort claim against Edison, alleging that the power company's electricity and its lines were defective and unreasonably dangerous in certain designated respects, and that as a direct and proximate result of the condition of the electricity in the power lines, plaintiff was injured. Counts IV and V alleged wanton and wilful misconduct on the part of both Edison and the park district.

Defendants filed a motion to strike and dismiss plaintiff's complaint and plaintiff responded. A hearing was held on January 13, 1983, and resulted in the granting of defendants' motion to dismiss with prejudice all five counts of plaintiff's complaint. At the hearing, it was stipulated that the transmission lines were at least 30 feet above the ground.

Plaintiff thereafter filed a motion for leave to file an amended complaint, attaching a copy of a proposed amended pleading thereto. Counts I and II of the proposed amended complaint contained the additional allegation that at the time in question the minor plaintiff, together with another boy of approximately the same age, was playing with a metal spool wrapped with a very long length of bare copper wire of approximately one pound in weight. They were unraveling the copper wire from the spool by taking turns throwing the spool into the air while plaintiff held the copper wire with one hand. It further alleged that the power transmission lines carried approximately 69,000 volts of electrical current and were located approximately 30 feet from the ground. In amended count III, plaintiff abandoned her theory based upon strict liability in tort and sought to hold the utility company liable on the grounds that the maintenance of high voltage wires through a public playground constituted an inherently dangerous enterprise for which Edison was absolutely liable. Noting that the amended complaint still failed to state a cause of action, the trial court denied the motion. The instant appeal followed that ruling.

On appeal plaintiff first contends that the trial court erred in holding that counts I and II of his amended complaint failed to state a cause of action. The trial judge's dismissal was based upon his conclusion that, as a matter of law, it was not reasonably foreseeable that a child would throw a heavy copper wire spool close enough to the park's elevated power lines to cause injury. Because the occurrence itself was unforeseeable, the defendants had not assumed the type of unreasonable risk for which liability would attach. Plaintiff first argues that Illinois courts> have regarded foreseeability solely as a factual issue to be determined by the jury as part of its proximate cause decision. The factor of foreseeability is an appropriate consideration for a court only as a means of precluding liability where the injury was too remote, a result of an intervening cause, or not reasonably anticipated by the ordinary person. (See Ney v. Yellow Cab Co. (1954), 2 Ill.2d 74; Neering v. Illinois Central R.R. Co. (1943), 383 Ill. 366.) Since the facts of the instant case were not so extreme that a jury could never conclude that the consequences were reasonably foreseeable, the plaintiff reasons that the judge exceeded his authority by dismissing plaintiff's complaint as a matter of law. See Winnett v. Winnett (1974), 57 Ill.2d 7, 13.

Plaintiff also maintains that the trial judge's analysis of the merits of the foreseeability issue was faulty. He urges that the trial court misunderstood the requirements of proximate cause by finding that it was necessary that the exact method or precise manner in which the injury occurred be reasonably foreseeable.

A review of the record does confirm that in dismissing counts I and II of the complaint, the trial judge stated in substance that where property was set aside as a public playground the park district and the utility company would be held to recognize that certain rights for children exist in the use of the premises that are far greater than would be permitted in other areas not so set aside, and that under the pleadings it would be reasonably foreseeable that a child might do something that would involve activity off the ground such as flying a kite or model aircraft tethered with a control wire, without appreciating the danger of such activity. The trial court concluded, however, that throwing a wire in the air was not like throwing a football or baseball, and found that it was not reasonably foreseeable that a child of relatively tender years would throw a wire 30 feet or more in the air. On this basis, the judge dismissed counts I and II of the complaint as not stating causes of action.

In dismissing the plaintiff's complaint, the trial judge obviously focused upon the particular manner in which the plaintiff was injured. However, plaintiffs argue that the "foreseeability" requirement does not refer to the method of injury. (Blue v. St. Claire Country Club (1955), 7 Ill.2d 359, 364; Del Raso v. Elgin, Joliet & Eastern Ry. Co. (1967), 84 Ill. App.2d 344, 362; Ray v. Cock Robin, Inc. (1973), 10 Ill. App.3d 276, 285, aff'd (1974), 57 Ill.2d 19; Fugate v. Sears, Roebuck & Co. (1973), 12 Ill. App.3d 656, 669; Restatement (Second) of Torts sec. 435(1) (1965).) Plaintiff argues that as long as the resulting event was foreseeable, the manner in which it occurred was irrelevant. The trial judge was consequently mistaken in considering the particular means by which the plaintiff was injured, even under the guise of making a foreseeability determination.

Defendants' counterargument consists of an assertion that foreseeability is an element of the court's duty determination as well as an element of the jury's proximate cause decision. (Ortiz v. City of Chicago (1979), 79 Ill. App.3d 902, 907.) According to the defendants, when the trial judge concluded that plaintiff's injury was not reasonably foreseeable, he had properly determined, as a matter of law, that defendants owed no duty to protect plaintiff from such an unusual occurrence. (See Cunis v. Brennan (1974), 56 Ill.2d 372; Mieher v. Brown (1973), 54 Ill.2d 539; Restatement (Second) of Torts sec. 435(2) (1965).) And when the issue is expressed in terms of duty rather than proximate cause, attention should be focused on the nature and limits of defendants' obligations rather than on a chain of events, which beg to be confused with actual cause. (Newmark v. Hartman (1982), 109 Ill. App.3d 379, 382.) Thus, the defendants conclude that the court's determination of the existence and scope of defendants' duty to plaintiff, that is, whether the parties stood in such a relationship to another that the law imposed a duty upon one for the other's benefit, was a legal issue appropriately resolved by the court. Cunis v. Brennan (1974), 56 Ill.2d 372, 374; Mieher v. Brown (1973), 54 Ill.2d 539, 541.

The parties' divergent views regarding the proper role of "foreseeability" in negligence claims is understandable considering the somewhat contradictory precedent on this issue. More recent precedent, however, indicates that Illinois courts> have become willing to treat "foreseeability" as a factor in both the court's duty determination and the jury's proximate cause determination. (Bloomingdale State Bank v. Capitol Bank (1983), 116 Ill. App.3d 132, 134; Ortiz v. City of Chicago (1979), 79 Ill. App.3d 902, 907; Laflin v. Estate of Mills (1977), 53 Ill. App.3d 29, 33.) Consequently, the defendants' contention that "foreseeability" is solely a consideration in the jury's proximate cause analysis is incorrect. See Cunis v. Brennan (1974), 56 Ill.2d 372, 375; Barnes v. Washington (1973), 56 Ill.2d 22, 29; Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 375.

Despite these more recent cases, the appropriate role to be played by this "foreseeability" factor, especially in the context of the court's duty determination, is still not entirely clear. Perhaps the most disruptive influence on what the appellate courts> have perceived as guiding precedent has been the supreme court's opinion in Cunis v. Brennan (1974), 56 Ill.2d 372. In Cunis, an automobile collision threw plaintiff, a passenger in a car, 30 feet onto a public parkway, where his leg was impaled by a municipal drain pipe. The court dismissed plaintiff's complaint on the basis that he had failed to establish that the defendant was under a duty to guard against such an unforeseeable occurrence. In so ruling, the court assimilated the factor of "reasonable foreseeability" into its determination of legal duty, thereby permitting courts> to dismiss, as a matter of law, negligence complaints arising out of occurrences which were "freakish or fantastic" or "tragically bizarre." See also Mieher v. Brown (1973), 54 Ill.2d 539; Barnes v. Washington (1973), 56 Ill.2d 22.

From an analytical perspective, the Cunis decision seems to meld into one what had previously appeared to be two distinct problems in negligence theory — the unforeseen plaintiff problem and the problem of the foreseeable injury resulting from unforeseen means. The Illinois Supreme Court began its opinion by relying primarily upon the time-honored case of Palsgraf v. Long Island R.R. Co. (1928), 248 N.Y. 449, 162 N.E. 99, in which Justice Cardozo eloquently devised a formula for imposing a limitation of foreseeability upon the particular persons to whom a defendant owed a duty of care. The Cunis court proceeded to use the Palsgraf reasoning to limit the defendant's liability to the particular plaintiff because of the manner in which that plaintiff was injured. As Justice Goldenhersh observed in his dissenting opinion, if the same plaintiff had been injured by the city drainpipe while walking along the parkway, he would have had a valid negligence claim since a municipality clearly owes a duty to exercise reasonable care in maintaining its parkways for use by a class of persons who themselves demonstrate ordinary care; it was only the bizarre manner in which plaintiff was injured which made his harm "unforeseeable." Thus, in a sense, the injured party in Cunis was treated like an unforeseeable plaintiff because of the unforeseen manner in ...

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