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Del Muro v. Commonwealth Edison Co.

OPINION FILED MAY 21, 1984.

FRANK DEL MURO III, ADM'R OF THE ESTATE OF FRANK DEL MURO IV, DECEASED, PLAINTIFF-APPELLANT,

v.

COMMONWEALTH EDISON COMPANY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Mary Ann McMorrow, Judge, presiding.

JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Plaintiff, Frank Del Muro III, administrator of the estate of Frank Del Muro IV, deceased, appeals from a judgment notwithstanding the verdict which vacated a jury award of punitive damages against defendant, Commonwealth Edison Company. On appeal, plaintiff raises the issue whether the trial court applied the correct legal standard in determining that there was insufficient evidence of wilful conduct by the defendant to support the jury award of punitive damages under the Public Utilities Act (Ill. Rev. Stat. 1981, ch. 111 2/3, par. 77). Defendant raises the issue whether plaintiff's consent to a remittitur and the trial court's issuance of a satisfaction of the compensatory damages claim precludes plaintiff's appeal of the punitive damages issue.

Plaintiff's third amended complaint sought compensatory damages for a wrongful death negligence action and a survival negligence action. In addition, plaintiff sought punitive damages for a "wilful" violation of the Public Utilities Act. Ill. Rev. Stat. 1981, ch. 111 2/3, par. 77.

Testimony at trial revealed that on June 22, 1977, seven-year-old Frank Del Muro IV was electrocuted when he climbed on top of a Commonwealth Edison transformer inside a substation adjacent to a public park, South Park, in Des Plaines, Illinois. The substation, a gravel-covered rectangular enclosure, measured approximately 60 by 120 feet. The enclosure was surrounded by a 6 foot 3 inch high cyclone fence. On top of the entire fence three strands of barbed wire were strung from 1 1/2-foot-long metal supports called "bayonets." The bayonets were angled outward. Warning signs were posted around the substation. The only gate in the fence was securely locked.

Inside the enclosure there were two transformers of between nine to 12 feet in height. Also, there were circuit breaker and switching gear boxes. On the top of each transformer "live" bushings connected high voltage wires to the transformer. An eight-foot ladder was kept inside the substation, out of sight, to enable the substation operator to reach certain controls near the top of the transformers.

Decedent's six-year-old cousin, Jerry Shepardson, testified that he and "Frankie" were playing in the Del Muro backyard when Frankie said that he was going to take Jerry to his "fort." Frankie took his cousin to the substation enclosure. When they arrived Frankie climbed over the fence and jumped to the ground inside the enclosure. Jerry was afraid to jump from the top of the fence, so Frankie got a ladder which was leaning against a box next to the transformer and placed the ladder against the fence. Jerry then was able to climb up the fence and climb down the ladder on the other side. Jerry testified that at the spot where the boys climbed over the fence (the east side of the enclosure) two strands of the barbed wire were missing and the third strand was hanging below the top of the fence.

Once inside the enclosure, Jerry started throwing rocks. Frankie said that he was going to use the ladder to climb to the top of the transformer to watch a baseball game. A few seconds after Jerry saw him climb the ladder, Jerry heard a noise "like a fire cracker." Without looking to see what happened, Jerry ran crying to the Del Muro home and told Frankie's mother that Frankie was hurt. Shortly thereafter, paramedics from the Des Plaines Fire Department arrived, broke the lock on the substation and removed Frankie, who was conscious, from the top of the transformer. Frankie suffered burns over 60% of his body. Two months later he died from his injuries.

Jerry testified that he had seen the broken barbed wire in the same condition as it existed on the day of the occurrence 10 months earlier in July 1976. A friend and neighbor of the Del Muro family, Valeria Meitus, also testified that she had noticed that on the east portion of the fence two strands of barbed wire were missing and the third strand was hanging down along the fence. She testified that she first noticed this condition when she moved to the area in July 1976. A park district employee, Lonnie Warnecke, who cut grass and trimmed bushes within the park, testified that he had noticed the "sagging" condition of the barbed wire prior to the accident. He did not specify when he noticed it.

A police officer who arrived at the scene of the accident testified that the wire and the bayonets along the east side of the fence were rusty and deteriorated.

Plaintiff presented the testimony of a professor of electrical engineering, Dr. Ralph Armington, as an expert witness. Dr. Armington testified that the substation in question was the normal type of installation still used throughout the Chicago area and, as constructed, the substation was adequately protected under the Public Utilities Act. He testified, however, that in his opinion the broken condition of the barbed wire atop the fence and the presence of the ladder stored but not locked up within the substation resulted in the premises being inadequately maintained in violation of General Order 160 of the Illinois Commerce Commission. General Order 160 sets forth general safety regulations for public utility equipment. In reaching his opinion Dr. Armington admitted that he relied on Jerry Shepard's testimony that the condition existed for 10 months and concluded that Edison employees simply did not observe this condition.

Both plaintiff and defendant presented testimony by numerous Commonwealth Edison employees. Warren Weiler, who was division superintendent of substations at the time of the accident, testified that safety was the "number one" concern of Commonwealth Edison and it was the duty of all employees to be responsible for the safety of the public. He testified that the substation was designed to prevent children from getting into it. Weiler visited the substation at South Park the day after the accident. He described the fence as being in a state of disrepair and in need of immediate attention. He testified that it was the duty of the substation operator to put the ladder under the switch gear box, out of sight, when he was finished using it.

George Harper was the crew leader of the maintenance personnel assigned to regularly inspect the substation in question. He, too, testified that safety was a primary concern of Commonwealth Edison. He described the various safety measures taken by Edison. Substation crew leaders and mechanics were required to attend weekly safety meetings at which various topics, including the maintenance of a substation's fence, were discussed. Larger company meetings were held several times a year. Additionally, the company's protective services department inspected each substation once every two to four months and prepared a security report for each substation. The safety department and safety committee distributed safety literature to Edison personnel at least monthly. All substation operators and maintenance crew were required to systematically inspect the entire enclosure whenever they visited a substation. Any employee who noticed an unsafe condition was authorized to fix it immediately if he had the necessary equipment and if not, the employee was to file immediately a maintenance order for a repair crew.

Edison records revealed that in the 16 months prior to the accident, Edison employees visited the substation on over thirty occasions. Harper testified that he last visited the substation before the accident on April 28, 1977. At that time he did not see a break in the barbed wire above the fence. Harper testified that the only repair to the fence of which he was aware was made two years before the accident in question. Harper discovered a child inside the enclosure who had gained access by climbing under the fence to retrieve a ball. Harper filled the hole and strung barbed wire along the bottom of the fence. Frequently Edison personnel would find balls and other items inside the substation, indicating that children were successfully being kept out of the enclosure.

Charles B. Clark, the substation operator for the South Park substation, testified that he periodically walked around the entire enclosure to check the equipment and the fencing. He made 15 visits to the substation in the year prior to the accident. He last inspected the site on June 6, 1977, 16 days before the accident. He never saw any broken wire or any other condition of disrepair on or around the fence.

Three members of the protective services section, Charles Clifford, Russell Domke and William Elke, testified for defendant. They testified that after their periodic inspections of a substation, members of their section were required to fill out a written report on the condition of the substation which specifically asked if the fencing was adequate and in good repair. All security inspection reports for the substation in question showed the fencing to be in good repair. Clifford testified that he last visited the substation before the accident on April 29, 1977. At that time the broken and sagging condition of the barbed wire had not existed. He also stated that he inspected approximately eight substations on any given day. Domke last inspected the site on February 15, 1977. He testified that the barbed wire and fence were not in the condition found on June 22, because if they had been it would have been reported. Elke testified that on the average the inspection of a substation would last only five minutes.

George Warren, an employee of Edison who did not work at the South Park substation but lived approximately 600 feet from the substation, testified that he could see most of the enclosure from his home. He also walked up to it on many occasions. He testified that he ...


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