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08/09/88 John E. Fliszar, v. Commonwealth Edison

August 9, 1988






PONTIKES (1986), 151 ILL. APP. 3D 116, 502 N.E.2D 1186, AS FOLLOWS:


527 N.E.2d 1016, 173 Ill. App. 3d 770, 123 Ill. Dec. 378 1988.IL.1244

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.


JUSTICE SCARIANO delivered the opinion of the court. HARTMAN, P.J., and EGAN, J., concur.


Plaintiff brings this action against Commonwealth Edison for negligence and strict liability in tort; Althoff Electric for negligent inspection and maintenance of an electrical distribution panel; Peterson Electric Co. for improper design of the panel; and Paulmarc Electric Co. for its negligent installation. The trial court granted defendant Commonwealth Edison's motion to dismiss it from the suit pursuant to section 2-615 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615).

Plaintiff, employed as chief electrical engineer by Cotter & Company, was injured on June 12, 1984, when an explosion occurred in an electrical distribution panel on which he was working. Sometime prior to the date of the accident, Cotter had purchased the 1,600 amp., 277-480 volt electrical distribution panel from defendant Peterson Electric Co., and had it installed on Cotter's premises by defendant Paulmarc Electric Co., where it was maintained and repaired by defendant Althoff Electric, Inc.

The accident occurred when a latch bar came loose from the right electrical panel door and made contact with the transformers within the distribution panel, causing an electrical short circuit and explosion, as a result of which plaintiff suffered severe, permanent, and disabling burns and disfigurement to his body, limbs, and nervous system.

Plaintiff's negligence and strict liability claims against Peterson, Paulmarc and Althoff remain pending in the trial court and are not involved in this suit. In dismissing plaintiff's claims against Edison, the trial Judge stated, "I don't find the duty exists." This appeal followed. The issue on appeal, therefore, is whether the trial Judge erred in dismissing the negligence and strict liability counts of plaintiff's complaint against Commonwealth Edison. I

"A motion to dismiss a complaint for failure to state a cause of action attacks the legal sufficiency, as opposed to the factual sufficiency, of a complaint. [Citation.] The facts pleaded in the complaint are significant only insofar as they are necessary to state the elements of a claim upon which relief may be granted. A plaintiff is not required to prove his case in the pleading stage; rather, he must merely allege sufficient facts to state all the elements which are necessary to constitute his cause of action . . .. It is only where no state of facts proved under the pleading would entitle plaintiff to recovery that a motion to dismiss should be granted under section 2 -- 615. [Citation.] In sum, it is not enough merely to inform the defendant of the nature of the claim; the pleading must also provide a factual premise underlying the claim." Claire Associates v. Pontikes (1986), 151 Ill. App. 3d 116, 123, 502 N.E.2d 1186.

To be legally sufficient, a complaint for negligence must set forth facts which establish the existence of a duty owed by defendant to plaintiff, a breach of that duty, and an injury proximately resulting from this breach. (Mieher v. Brown (1973), 54 Ill. 2d 539, 541, 301 N.E.2d 307; see generally M. Polelle & B. Ottley, Illinois Tort Law ch. 16 (1985).) The determination of whether a duty exists is an issue of law to be determined by the court. Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 217, 517 N.E.2d 656.

Plaintiff alleges that Commonwealth Edison had a duty to exercise reasonable care and caution in the operation, management, maintenance and control of its transformer equipment so as to avoid injury to persons on premises serviced by Edison. His complaint further alleges that Edison breached this duty by failing to supply high line or backup high line fuses, or to test, inspect, maintain, or repair the high line fuses on the transformer. However, plaintiff cites no authority to buttress his theory that Edison has any duty at all to supply fuses of any kind on its transformers.

Plaintiff maintains that defendant contorts the allegations of his negligence count into allegations of a duty on Edison's part to be responsible for someone else's equipment; but, according to the plaintiff's complaint filed in this case, the latch on the door of the electrical distribution panel located within the customer's building became loose and came into contact with the transformers within the panel, thereby causing a short circuit and the resultant explosion. Plaintiff is attempting to establish that Edison has the duty to stop somehow the flow of electricity into a customer's building whenever any electrical equipment inside the building malfunctions. Defendant maintains that its liability does not extend to injuries or damages caused by equipment owned by its customers.

As we have previously noted, the determination of the existence of a duty is an issue of law to be determined by the court. (Simmons v. Aldi-Brenner Co. (1987), 162 Ill. App. 3d 238, 241, 515 N.E.2d 403.) The court in that case said:

"In determining whether the law imposes a duty, foreseeability of possible harm alone is not the test, for in retrospect almost every occurrence may appear to be foreseeable. The likelihood of injury from the existence of a condition, the magnitude of guarding against it, and the consequences of placing the burden upon the defendant must be taken into account." 162 Ill. App. 3d at 241-42.

In another case involving a negligence claim against the electric company, this court said that a ruling that the electric company should be required to use insulated wire in a specific circumstance would be tantamount to requiring defendants and all who are engaged in the business of supplying electrical service to insulate all of their lines. The court considered public policy questions and social requirements and concluded, "The minimal risk of injury does not justify the imposition of such a heavy burden on the electrical business nor on the ...

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