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Nat'l Bank of Bloomington v. Lexington

OPINION FILED DECEMBER 4, 1985.

NATIONAL BANK OF BLOOMINGTON, ADM'R OF THE ESTATE OF JOHN HOMAN, DECEASED, PLAINTIFF-APPELLANT,

v.

THE CITY OF LEXINGTON, DEFENDANT-APPELLEE (CHARLES LOWERY, DEFENDANT).



Appeal from the Circuit Court of McLean County; the Hon. Luther H. Dearborn, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 9, 1986.

Plaintiff appeals from the order of the circuit court granting summary judgment to the defendant, city of Lexington, in an action for the wrongful death of John Homan. The trial court entered a finding pursuant to Supreme Court Rule 304(a) (103 Ill.2d R. 304(a)). The action pends in the trial court as to another defendant.

The cause of action upon appeal alleges that the city was engaged in an "intrinsically" dangerous or ultrahazardous activity when it procured an independent contractor, Charles Lowery, to take down a tree situated on city property. A second count against the city alleging liability under a theory of respondeat superior was dismissed by plaintiff.

Initially, the city challenged this count of the complaint by a motion to dismiss on the ground that under the circumstances the felling of the tree was not an ultrahazardous activity. The trial court denied the motion, and its order made a finding that the cutting of the tree constituted an ultrahazardous activity.

Subsequently the city moved for summary judgment by alleging that the decedent's activities just prior to his death amounted to participation in an ultrahazardous activity and that plaintiff was barred from recovery on the basis of such participation. No authority was cited in support of the motion. The trial court granted the motion for summary judgment upon the authority of a pending circuit court case in McLean County. The order granting summary judgment included the following findings:

"1. That plaintiff's decedent was at the scene of the incident to get the wood from the tree being cut down and just prior to his being struck by the falling tree he was voluntarily assisting defendant Lowery in the tree felling and removal operation.

2. That absolute liability by means of the inherently dangerous doctrine has not been applied by the Illinois case law to a volunteer participating in an ultrahazardous activity who was doing so for his own independent benefit and purpose. See Kroutil et al. v. Wisegarber et al., McLean County case number 83-L-117."

The city filed a motion for reconsideration of the order but that motion was denied. No cross-appeal has been filed.

Depositions filed with the motion for summary judgment disclose that Charles Lowery entered into a contract with the city to cut down several trees and to trim some 40 trees. Lowery had performed such services for the city over the course of 12 years and had been engaged in the cutting of trees for 31 years. In general terms, a city employee would instruct Lowery when trees needed to be trimmed or taken down, but the city would have no further association with the work until completed by Lowery.

The tree concerned had been topped two days before the injury to Homan, leaving a trunk about 26 feet tall. Homan had observed the work and obtained permission to take wood which had been cut for his personal use. On the day of the injury Homan came to the tree site with Michael Cotter to obtain more wood. This meeting was not prearranged, but Homan came when he saw that work was being done. Lowery's two children, Michael and Dorothy, were assisting him.

When the notching of the tree was completed, a rope was tied to the trunk to control the direction of the fall. The street had been blocked off. The rope was affixed to Lowery's car to pull the trunk over, but Homan offered his truck, and it was used to pull or control the trunk. Upon the event, only part of the trunk split and fell and one-half remained standing. As Lowery cut the fallen portion into sections Homan and Cotter removed them for firewood.

At that point, Lowery told Homan to stand back while he went to the tree to cut the base of the standing trunk with his chain saw. At this time he did not observe either Homan or Cotter, but next saw them when the tree was falling toward Homan. Lowery testified that the last time he warned them Homan and Cotter were standing in the street.

Lowery's daughter, Dorothy, testified that as her father was sawing the tree trunk Homan and Cotter were picking up firewood. She testified that on two occasions she called to Homan to move back but that he continued picking up firewood until the tree trunk began to fall. Cotter testified that within the last minute prior to ...


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