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06/20/88 Ralph Schmall, Indiv. and v. the Village of Addison Et

June 20, 1988

RALPH SCHMALL, INDI

v.

AND AS ADM'R OF THE ESTATE OF RALPH C. SCHMALL, JR., DECEASED, ET AL., PLAINTIFFS-APPELLANTS,

v.

THE VILLAGE OF ADDISON ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

525 N.E.2d 258, 171 Ill. App. 3d 344, 121 Ill. Dec. 452 1988.IL.975

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Ralph Schmall, Sr., filed this wrongful death action against, inter alia, Commonwealth Edison Company (Edison) and the Village of Addison (Village) seeking recovery for the electrocution death of Ralph Schmall, Jr. Meade Electric Company (Meade), decedent's employer, was made a third-party defendant. The circuit court of Du Page County granted summary judgment for Edison, and also dismissed, on the Village's motion, claims filed on behalf of decedent's brother and sisters. On appeal, plaintiff argues (1) that the trial court erred in striking an expert's affidavit filed in opposition to the motion for summary judgment; (2) that even without the affidavit, a question of fact remains of whether Edison was negligent in maintaining its power lines; and (3) that a decedent's siblings may recover damages for loss of society in a wrongful death action. We find that both the grant of summary judgment for Edison and the dismissal of the siblings' claims were improper, and, accordingly, we reverse.

Plaintiff's amended complaint alleged that Ralph Schmall, Jr., an apprentice electrician employed by Meade, died of electrocution when the boom of a crane operated by another Meade employee came in contact with a high voltage Edison transmission line. At the time of the accident, decedent was helping a Meade crew install a light pole for the Village near the Edison lines. The count of the complaint directed against Edison alleged that Edison was negligent in permitting its high voltage wires to remain unguarded, unprotected, and uninsulated; in failing to provide adequate warning of the high voltage, and the danger of operating a crane in close proximity to the wires; in failing to de-energize the wire, and in failing to move the wire higher or underground or to divert current from the location of the accident.

Plaintiff also alleged that the manner in which Edison installed and maintained the wire violated the requirements of certain rules for construction of electric power and communication lines, commonly known as General Order 160 of the Illinois Commerce Commission (General Order 160). In particular, plaintiff alleged that Edison violated General Order 160's requirement to maintain lines in a condition as would enable it to furnish safe, adequate and dependable service, and failed to correct the unsafe condition posed by the Meade crane being in close proximity to the power line; that Edison failed to provide adequate ground clearance or guards for the line so as to prevent accidental contact; and that Edison failed to install and maintain the lines so as to reduce the hazard to life as far as practicable.

Count IV of the amended complaint alleged that the Village was similarly negligent, and also alleged that decedent's parents, his brother and his sisters all suffered pecuniary loss as a result of decedent's death. Plaintiff admitted in answers to interrogatories, however, that the siblings were not financially dependent on decedent. The interrogatory answers, filed December 7, 1983, state that decedent's brother was then 22 years old and that his sisters were 22 and 19 years old.

Edison based its motion for summary judgment on the deposition testimony of plaintiff's expert, Donald Miller. Miller testified that the Edison lines in question consisted of an uninsulated primary line carrying 7,200 volts of electricity, and an insulated secondary line carrying 240 volts. The primary line was 34 1/2 feet above the ground, exceeding the minimum height requirements of General Order 160. Miller testified that General Order 160 did not require insulation of the primary line at the location of the accident other than by air space and that, under the circumstances presented, Edison's only obligation under General Order 160 was to keep the primary line above the vertical elevation requirements. After Miller opined that the Edison lines were probably in place before the light poles were positioned, the following colloquy occurred:

"Q. Under that factual situation, do you have an opinion, based upon a reasonable degree of engineering certainty, as to whether the Commonwealth Edison Company in this case, the Schmall case, violated any recognized standards, federal, state, regulation or any recognized engineering principle dealing with the transmission and distribution of power? Do you have an opinion?

A. I have an opinion.

Q. What is your opinion?

A. I have not uncovered any ...


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