APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
523 N.E.2d 639, 169 Ill. App. 3d 440, 119 Ill. Dec. 883 1988.IL.687
Appeal from the Circuit Court of Champaign County; the Hon. Creed D. Tucker, Judge, presiding.
PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On July 1, 1986, plaintiff Jarrett A. Knyal brought suit in the circuit court of Champaign County against defendant Illinois Power Company seeking to recover compensatory damages for injuries he received on October 28, 1985, when he came into contact with an electric power line owned and operated by defendant. The original count of the complaint charged defendant with negligence and a later-filed count was brought pursuant to section 5-201 of the Public Utilities Act (Act) (Ill. Rev. Stat. 1985, ch. 111 2/3, par. 5-201) which charged defendant with a violation of the rules of the Illinois Commerce Commission . Upon separate motions by defendant, the counts were dismissed in bar of action. A dispute over whether plaintiff's attempt to appeal was timely has been resolved by the supreme court by a supervisory order directing us to hear the appeal. We reverse.
The first count of the complaint alleged plaintiff was on the roof of a fraternity house near the University of Illinois campus in Champaign at the time of his injury. The count alleged defendant had negligently placed its wire too close to the building thus proximately causing his injury. The motion to dismiss that count was brought pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619) and alleged any cause of action claimed by plaintiff was defeated by the affirmative fact plaintiff was a trespasser on the roof at the time of his injury. The motion to dismiss was supported by the evidence and discovery deposition of Michael J. O'Donnell.
In the deposition, O'Donnell testified: (1) at the time of plaintiff's injury, he and plaintiff were in Champaign for homecoming weekend; (2) at about 7 p.m., October 27, 1985, the two began consuming alcoholic beverages and between 12:30 and 1 a.m. they went to the fraternity house previously described; (3) a party not open to the public was in session in the basement, and a friend obtained permission for them to attend the party; (4) subsequently, plaintiff and O'Donnell decided to steal a fraternity banner which was hanging from the front of the roof of the building; (5) without obtaining permission from anyone, the two went to the back of the building and climbed up to the roof, which was flat; (6) plaintiff untied the banner from the roof and attempted to throw it down, but it caught on defendant's utility line; and (7) when plaintiff attempted to reach the banner with a stick of lumber, O'Donnell saw a flash of light, and plaintiff fell from the roof.
Defendant maintains O'Donnell's deposition establishes, as a matter of law, plaintiff was a trespasser, because in climbing the roof to steal the fraternity banner, plaintiff clearly exceeded any express or implied invitation he had to enter the premises of the fraternity. For reasons we will explain, we need not decide whether the record conclusively shows plaintiff was a trespasser.
The parties do not dispute the general rule of law that an owner or occupier of premises has no duty to exercise ordinary care to prevent injury to a trespasser on the premises. The only duty owed to such a person is to refrain from wilful or wanton misconduct. (Grimwood v. Tabor Grain Co. (1985), 130 Ill. App. 3d 708, 474 N.E.2d 920.) The parties also agree section 3 of the Premises Liability Act (Ill. Rev. Stat. 1985, ch. 80, par. 303) retains the foregoing common law principle. Plaintiff disagrees with the position of defendant, accepted by the circuit court, that a person or entity, such as defendant, who is not an owner or an occupier of the premises where the trespass takes place is also relieved of a duty to use ordinary care so as not to injure the trespasser.
All Illinois precedent cited arises from cases decided more than half a century ago. Plaintiff relies upon the case of Johnson v. City of St. Charles (1916), 200 Ill. App. 184. There, a judgment in favor of the estate of a minor against a city operating a municipal electric system was upheld in a negligence action. The minor had run into a field belonging to a third party and was electrocuted by a fallen wire which was a part of the city's electrical system. The court stated that whether the boy was a trespasser was immaterial because, in any event, the boy was not trespassing on the premises of the negligent defendant.
Defendant relies primarily on Gherra v. Central Illinois Public Service Co. (1918), 212 Ill. App. 48, where allegations that a minor had climbed a tree on land of another and had been electrocuted when he came in contact with the power line of an electric utility, which had negligently left its wires uninsulated, was held to fail to state a cause of action. The court noted the minor was a trespasser, and his injury was his own fault. The court then stated the defendant had no reason to anticipate a person would climb the tree and, accordingly, the dangerous wire was not the proximate cause of the boy's death.
Defendant also relies on Deming v. City of Chicago (1926), 321 Ill. 341, 151 N.E. 886, Austin v. Public Service Co. (1921), 299 Ill. 112, 132 N.E. 458, Commonwealth Electric Co. v. Melville (1904), 210 Ill. 70, 70 N.E. 1052, and Martens v. Public Service Co. (1920, 219 Ill. App. 160. In all of those cases, a person was injured by coming into contact with a wire, alleged to be negligently maintained. The courts indicated the question of whether the person who had been injured was a trespasser on the premises where the injury occurred was significant. In some of the cases, the party charged with negligence was not the owner or occupier of the premises. However, in all cases, the court held the injured party had not been a trespasser.
The position propounded by the defendant and accepted by the circuit court is contrary to that taken by the Restatement (Second) of Torts in its section 386. There, the privilege against liability to trespassers for negligence in the maintenance on land of a "structure or other artificial condition" which a person "should recognize as involving an unreasonable risk of harm to others" is limited to "the possessor of [the] land or a ...