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03/09/88 William D. Icenogle, v. Frank L. Myers Et Al.

March 9, 1988





521 N.E.2d 163, 167 Ill. App. 3d 239, 118 Ill. Dec. 95 1988.IL.320

Appeal from the Circuit Court of McDonough County; the Hon. William D. Henderson, Judge, presiding.


PRESIDING JUSTICE GREEN delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.


On March 24, 1986, William D. Icenogle filed a four-count complaint in the circuit court of McDonough County against Frank L. Myers and Illinois Power Company (Illinois Power). Plaintiff filed an amended complaint May 30, 1986, after the court granted Illinois Power's motion to dismiss count IV. Counts I, II, and III were dismissed on Myers' motion July 24, 1986. Thereafter, plaintiff filed a second-amended complaint August 15, 1986. On February 23, 1987, Myers moved for summary judgment on the first three counts pursuant to section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005). Illinois Power filed its motion for summary judgment as to count IV February 25, 1987. The trial court granted both motions May 14, 1987. Plaintiff appeals, contending the trial court erred in finding defendants had no legal duty. We affirm.

Plaintiff was an employee of William Woerly, a contractor who was hired to paint several buildings owned by Myers, including the metal grain storage bin. He was injured September 18, 1985, when part of a wand applicator used to paint that bin came into contact with a 7,200-volt power line controlled by Illinois Power. Plaintiff makes no claim of error in regard to the summary judgment as to count I, which alleged a cause of action against Myers based on the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, pars. 60 through 69). Count II of the complaint as amended alleged Myers failed to exercise reasonable care as required by section 2 of the Premises Liability Act (Ill. Rev. Stat., 1984 Supp., ch. 80, par. 302), in that he failed to warn the power lines were not insulated, failed to notify workers to request line protectors, built the storage bin too close to the power lines, failed to advise persons of "the hazards of the power lines," and failed to disclose hidden defects in the property. Count III alleged Myers breached the common law duty of ordinary care owed to a business invitee, but is otherwise identical to count II.

Count IV of the complaint alleged Illinois Power negligently constructed its lines too close to the bin, failed to insulate or properly maintain the lines, failed to notify persons near its lines to request line protectors or that they should request line protectors, and failed to properly inspect when it knew or should have known its lines were within 15 feet of a building "accessible to pedestrians," in violation of section 305.20 of the Illinois Administrative Code (Code) (83 Ill. Adm. Code 305.20 (Supp. 1986)), in which the Illinois Commerce Commission incorporated by reference certain portions of the National Electrical Safety Code relating to power line clearances. See National Electrical Safety Code (Institute of Electrical and Electronic Engineers (1984 ed.)) (NESC as approved July 15, 1983, by the American National Standards Institute).

Myers' motion for summary judgment asserted no genuine issue of material fact existed as Myers had no duty, under either the Premises Liability Act or common law negligence principles, to protect plaintiff from the obvious danger posed by the presence of the wires. Attached to Myers' motion were statements made to an agent of Illinois Power by plaintiff and his employer, William Woerly. Also submitted was a diagram of the accident site made October 2, 1985.

Illinois Power's motion for summary judgment claimed the company had no duty to warn plaintiff of an obvious danger and that, as a matter of law, only a 10-foot clearance between the roof and wires was required by the NESC because the building was not "accessible to pedestrians" under the NESC definition. Attached to the motion were excerpts from the depositions of plaintiff, Woerly, and Myers. Also attached was an affidavit by William Bloch of Illinois Power, stating the closest point between the wires and the crown of the roof on the date of the occurrence measured 12 feet.

Plaintiff filed a response in opposition to Illinois Power's motion, attaching a photograph of the storage bin, which showed a ladderlike progression of rungs mounted on the cone-shaped roof. Also submitted was the photographer's affidavit authenticating the photographs. In granting the motions for summary judgment, the trial court found no genuine issue of material fact existed and that "[neither] defendant has breached any legal duty owed the Plaintiff."

Summary judgment should be granted only when the pleadings, depositions, and admissions, together with any affidavits, show there is no genuine issue as to a material fact, and that the movant is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c); see Fooden v. Board of Governors (1971), 48 Ill. 2d 580, 272 N.E.2d 497, cert. denied (1972), 408 U.S. 943, 33 L. Ed. 2d 766, 92 S. Ct. 2847.) The court has a duty to construe evidence strongly against movant and liberally in favor of opponent. Stringer v. Zacheis (1982), 105 Ill. App. 3d 521, 522, 434 N.E.2d 50, 52.

Plaintiff's deposition shows Woerly employed plaintiff to paint several buildings on the Myers property, including the storage bin. Plaintiff used a fiberglass ladder supplied by Woerly to climb to the roof. From there, plaintiff reached the top of the bin by means of the ladder mounted on the roof. Plaintiff stated he used the spray wand paint applicator for the first time on the bin. He had previously read the instructions to the applicator, which cautioned against contact with electrical equipment. Plaintiff stated he saw the wires and said he knew there could be current running through them. He could not recall what happened between the time he began painting on the top of the roof and the time he regained consciousness on the ground.

Woerly testified at his deposition a metal ladder was permanently attached to the roof of the bin. He stated he warned plaintiff twice from his observation point on the ground about getting too close to the wires. Either the paint hose attached to the wand or the wand itself came into contact with ...

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