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01/11/88 Donald Wayne Watkins Et Al v. Mt. Carmel Public Utility

January 11, 1988

DONALD WAYNE WATKINS ET AL., PLAINTIFFS-APPELLANTS

v.

MT. CARMEL PUBLIC UTILITY COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

519 N.E.2d 10, 165 Ill. App. 3d 493, 116 Ill. Dec. 420 1988.IL.16

Appeal from the Circuit Court of Wabash County; the Hon. Robert M. Keenan, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE WELCH delivered the opinion of the court. HARRISON, P.J., concurs. JUSTICE KARNS, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH

Plaintiffs, Donald Wayne Watkins and his wife Kathleen Watkins, commenced this action to recover for personal injuries suffered by Donald Wayne Watkins as a result of an electric shock and subsequent fall. Plaintiffs named as defendants Hocking Oil Company, the landowner (hereinafter Hocking), and Mt. Carmel Public Utility Company (hereinafter Utility). The circuit court of Wabash County entered an order on April 4, 1986, dismissing with prejudice plaintiffs' second amended complaint with respect to defendant Hocking. On November 5, 1986, the court dismissed with prejudice plaintiffs' fourth amended complaint with respect to defendant Utility. Plaintiffs appeal both orders.

Defendant Hocking hired plaintiff Donald Watkins as an independent contractor to process crude oil stored in two large tanks operated by Hocking. The storage tanks were constructed near an uninsulated power line which had been erected approximately 40 years earlier by defendant Utility. A catwalk connects the tanks and provides access to the top of the tanks. On January 20, 1983, plaintiff received an electric shock and fell from the catwalk when the aluminum gauging pole with which he was working came into contact with the power line owned by Utility. Plaintiffs filed an original complaint and a series of amended complaints alleging that the losses suffered by plaintiffs were the result of negligent acts or omissions of the defendants. The circuit court dismissed each complaint for failing to allege facts sufficient to state a cause of action against either defendant. In particular, the circuit court ruled that the plaintiffs failed to allege facts sufficient to establish a duty owed to plaintiffs by defendants. On appeal, plaintiffs argue that the rulings of the circuit court were erroneous.

Illinois is a fact-pleading State, requiring that plaintiffs allege facts sufficient to bring a claim within the scope of a legally recognized cause of action. (People ex rel. Fahner v. Carriage Way West, Inc. (1981), 88 Ill. 2d 300, 308, 430 N.E.2d 1005, 1008-09.) If the well-pleaded facts and the inferences drawn therefrom do not bring a claim within the scope of a legally recognized cause of action, dismissal is proper (Teter v. Clemens (1986), 112 Ill. 2d 252, 256-57, 492 N.E.2d 1340, 1342); however, no cause of action should be dismissed on pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recovery. Johnson v. World Color Press, Inc. (1986), 147 Ill. App. 3d 746, 748, 498 N.E.2d 575, 576; Ewing v. Liberty Mutual Insurance Co. (1985), 130 Ill. App. 3d 716, 718, 474 N.E.2d 949, 951.

In order to state a cause of action for negligence, the allegations of the complaint must establish the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from that breach. (Durr v. Stille (1985), 139 Ill. App. 3d 226, 229, 487 N.E.2d 382, 383.) While the questions of whether a duty has been breached and whether the breach proximately caused an injury are factual matters, the existence of a duty must be determined by the courts as a matter of law. (Zimmerman v. Netemeyer (1984), 122 Ill. App. 3d 1042, 1044-45, 462 N.E.2d 502, 505.) Concerning the existence of a duty, our supreme court followed the language of Prosser (W. Prosser, Torts § 37 (4th ed. 1971)) and stated that "[whether] under the facts of a case such a relationship exists between two parties as to require that a legal obligation be imposed upon one for the benefit of another is a question of law to be determined by the court." (Barnes v. Washington (1973), 56 Ill. 2d 22, 26, 305 N.E.2d 535, 538.) In accordance with this language, the circuit court in the instant case ruled that after three attempts the plaintiffs had failed to state a cause of action against defendant Hocking and that after five attempts the plaintiffs had failed to state a cause of action against defendant Utility.

Beginning with defendant Hocking, it is plaintiffs' contention that defendant Hocking is liable for the injuries sustained by plaintiff Donald Watkins while an invitee on Hocking's land. According to the Restatement (Second) of Torts, section 343, the law regarding the liability of possessors of land to invitees is as follows:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." (Restatement (Second) of ...


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