APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
Edison Corporation, Defendant)
524 N.E.2d 994, 170 Ill. App. 3d 990, 120 Ill. Dec. 812 1988.IL.762
Appeal from the Circuit Court of Cook County; the Hon. Willard J. Lassers, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. STAMOS* and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Plaintiff appeals the trial court's order granting summary judgment in favor of defendant City of Sycamore, arguing that questions of fact exist for a jury to decide. We reverse and remand this cause for trial.
Plaintiff's decedent, Keith Claudy, an employee of AAA Tree Service, was electrocuted when he came into contact with electrical power lines while cutting down a tree located in the City of Sycamore. At the time of Claudy's death, the Department of Public Works of the City of Sycamore was responsible for trimming and removing trees owned by the city. Russell "Babe" Worden, superintendent of public works, testified at his deposition as to the procedure used to remove trees. Each year employees of the department of public works determined which trees were dead and would mark them for removal. If a tree designated for removal was able to "free-fall," i.e., fall to the ground without striking another object, the department of public works removed the tree; if there were obstructions to a free fall, such as power lines or a house, the city hired AAA Tree Service or another independent contractor to remove the trees.
Although AAA had been removing trees for the city for approximately five years at the time of Claudy's death, no written contract was used between the parties; rather, a bid was submitted for each job and payment was made as the tree service completed its tasks.
At the time of Claudy's death, the city's policy with regard to trimming and removing trees near electrical wires was to contact Commonwealth Edison Company and have the electrical wires dropped to the ground or taken out of service before beginning work. Although the deposition testimony is not clear, it is suggested that this policy was limited to the city's own workers and did not apply to AAA Tree Service. Under such policy, Worden decided whether to bring in Commonwealth Edison if city workers were removing or trimming a tree near electrical wires. Larry Jones, the owner of AAA Tree Service, deposed that it was his responsibility to contact Commonwealth Edison if in his judgment power lines needed to be shut down in an area in which AAA was working.
In his deposition, Jones testified that Worden visited the jobsites on a regular basis to check the progress of the work being performed when AAA was doing work for the city. Jones also stated that Worden was not present "in a supervisory way" but was present to oversee that "everything was alright and that [AAA Tree Service] had no problems." Jones further testified that no one from the city had ever supervised his tree-trimming operations, and noted that although the city was aware of the time frame within which AAA would do a particular job, it was not aware of the times and locations for the purpose of supervision. However, when Worden made inspections of the jobsite, he had the power to stop work or fire employees of AAA Tree Service if he felt a job was not being done properly.
In July of 1979 the city took action to remove a tree because it was hollow and dying. Because of the size of the tree, described as "very tall," "65 to 70 feet high," "large," and approximately nine feet in diameter, and because it was not a "free-fall," as power lines were in the way, AAA Tree Service was retained by the city to remove it. The electrical wires were clearly visible and were located three to four feet from the closest limb of the tree.
Jones acknowledged that he knew the electrical wires were dangerous, but stated that he felt "that particular tree . . . could have been removed with no problems." He also acknowledged that it was his responsibility to call the power company if the limbs were too close to the wires.
At the time of the accident, Claudy was acting as the "climber" of the crew, and, after climbing the tree, was using a power saw to shear off its branches. He was tied into the tree by a "saddle," which was made of rope and forms a harness around the body of the climber. He was wearing boots with cleats to dig into the tree to facilitate his climb. The accident occurred when Claudy was attempting to trim the limb closest to the electrical wires. No one saw Claudy come into contact with the wires, but Jones heard "the ...