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Carroll v. Commonwealth Edison Co.

OPINION FILED SEPTEMBER 22, 1986.

JOHN CARROLL, PLAINTIFF-APPELLANT,

v.

COMMONWEALTH EDISON COMPANY ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.

PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:

The plaintiff, John Carroll, appeals from the orders of the circuit court of Cook County granting summary judgment in favor of the defendants, Babson Farms, Inc., and Lester's of Minnesota, Inc.

On August 27, 1981, John Carroll was hired by Babson Farms, Inc. (Babson Farms), to install lightning rods on a newly constructed shed at a farm owned by Babson Farms located near the intersection of Teman Road and Miller Road in DeKalb County, Illinois. During the course of his attempt to install the lightning rods, Mr. Carroll was electrocuted by an active overhead power line containing high voltages of electricity. As a result of the accident, Mr. Carroll sustained severe injuries.

In October 1981 Mr. Carroll brought suit against Babson Farms, the owner of the shed, Lester's of Minnesota, Inc. (Lester's), the builder of the shed, and Commonwealth Edison Company (Commonwealth Edison), the installer, inspector and maintainer of the power lines. In count I of his complaint, Mr. Carroll alleged that Babson Farms was negligent and careless in erecting the shed in dangerous proximity to electric power lines, and in failing to warn the plaintiff of the dangerous condition. In count II, Mr. Carroll alleged that Lester's negligently and carelessly planned the construction of the shed without regard to the electrical wires, constructed the shed in close proximity to the wires, and failed to warn the plaintiff of the dangerous condition thereby created. In count III, Mr. Carroll charged Commonwealth Edison with various negligent and careless conduct including installing wires without proper inspection, failure to make periodic inspections, and failure to warn the plaintiff of a dangerous condition.

Commonwealth Edison filed an answer denying the allegations in count III of the complaint on January 4, 1982. On February 1, 1982, Mr. Carroll sought and was granted leave to file an amended count I of his complaint, alleging additional negligent and careless conduct against Babson Farms. Thereafter, Babson Farms moved to strike and dismiss count I, and on August 19, 1982, this motion was granted.

Subsequently, Mr. Carroll filed a second amended complaint against Babson Farms, Lester's, and Commonwealth Edison on May 4, 1983. Again, Babson Farms filed a motion to strike and dismiss count I of the now second amended complaint, and Commonwealth Edison again filed its answer. Babson Farms also moved for summary judgment, attaching the deposition of the plaintiff, John Carroll, and photographs of the scene of the occurrence. This motion was denied on July 2, 1984, but in April 1985 Babson Farms filed a motion for reconsideration, and on November 15, 1985, following a hearing, the trial court granted the motion, and, subsequently, summary judgment was then entered in favor of Babson Farms on count I of the plaintiff's second amended complaint.

Lester's also moved for summary judgment based on count II of the plaintiff's second amended complaint, and on March 22, 1985, the motion was granted. Attached to Lester's motion for summary judgment was the deposition testimony of Mr. Larry Lembrich, the territory manager for Lester's.

Thereafter, Mr. Carroll filed a motion to vacate the trial court's order granting summary judgment in favor of Lester's. Attached to the motion was the deposition testimony of Mr. Robert Hohmann, manager of Babson Farms. The trial court denied Mr. Carroll's motion on September 20, 1985. Mr. Carroll's claim against Commonwealth Edison was also settled, and count III of the second amended complaint was dismissed on September 18, 1985.

As stated previously, the motions for summary judgment filed by Babson Farms and Lester's included several depositions and photographs which were attached as exhibits pursuant to Supreme Court Rule 191(a) (87 Ill.2d R. 191(a)). The deposition testimony revealed that, at the time of the accident, Mr. Carroll had been self-employed as a lightning-rod installer for approximately four years. He stated that he drove around in his pickup truck looking for buildings that needed lightning rods, and upon finding such a building, he would solicit the owner of that building for work. Mr. Carroll testified that when he installed the lightning rods on the shed located on Babson Farms, the wires were not hidden or concealed from view. He also stated that he was aware that power lines carried electric current, and that such a fact was a matter of common knowledge. During his deposition, Mr. Carroll examined a photograph of the shed and identified the power line that he saw while he was working on the roof.

Mr. Larry Lembrich testified that he had met with Mr. Robert Hohmann in early May 1982 at the site where the shed was to be erected. According to Mr. Lembrich, he and Mr. Hohmann "staked out" the building site and Mr. Hohmann was "quite specific" as to where the shed was to be built, the height of the shed, the length of the shed, and the direction in which the shed was to face. Following the "stake out," Mr. Lembrich drew the building to scale on engineering blueprint paper and sent the scale drawings to Mr. Hohmann. According to Mr. Lembrich, Mr. Hohmann did not ask Mr. Lembrich to alter the drawings. Mr. Hohmann's deposition testimony, which was attached to the plaintiff's motion to vacate the trial court's order granting summary judgment in favor of Lester's, was essentially the same as that put forth by Mr. Lembrich.

• 1 The plaintiff's primary argument on appeal is that the trial court erred in granting summary judgment in favor of Babson Farms. We disagree.

In Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465, the Illinois Supreme Court held that the danger of electrocution by touching or arcing electrical wires is common knowledge to all persons of ordinary intelligence and experience, and, accordingly, there is no duty to warn an invitee on one's property that such a danger exists. In Genaust, during the installation of a galvanized-steel tower and antenna on the landowner's property, the plaintiff was electrocuted when the antenna came in close proximity to uninsulated power lines. Following the accident, the plaintiff brought suit against the landowner and the utility company. On appeal, the supreme court affirmed the trial court's dismissal of the plaintiff's suit against both defendants stating:

"[W]e note that count VI fails to allege that the wires in question were either hidden or concealed. As it is common knowledge that electricity is dangerous, so is it also common knowledge that any line or wire carrying electricity is dangerous. The potential risk of installing metal equipment in close proximity to power wires is apparent. A business invitee has a responsibility for his own safety and must be held to be equally aware of all the obvious and normal hazards incident to the premises as the possessor of the land." 62 Ill.2d 456, 469, 343 N.E.2d 465.

In urging this court to reverse the trial court's ruling granting summary judgment in favor of Babson Farms, the plaintiff argues that the trial court erred in holding that Genaust is controlling. It is the plaintiff's contention that Genaust is factually distinguishable, since the plaintiff in Genaust was an electrical contractor, and thus, could reasonably be expected to fully recognize and appreciate the danger of possible electrical arcing between the power line and the metal pole. On the other hand, the plaintiff argues that since he was not an electrical ...


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