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08/24/89 Patrick O'rourke, Adm'r of v. Charles Oehler

August 24, 1989

PATRICK O'ROURKE, ADM'R OF THE ESTATE OF JOHN E. O'ROURKE, DECEASED, PLAINTIFF-APPELLANT

v.

CHARLES OEHLER, JR., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

543 N.E.2d 546, 187 Ill. App. 3d 572, 135 Ill. Dec. 163 1989.IL.1303

Appeal from the Circuit Court of McLean County; the Hon. Ronald C. Dozier, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

This case involves a claim for damages premised on the death of decedent John E. O'Rourke (O'Rourke). O'Rourke was allegedly electrocuted as a result of a ladder which he was using coming into contact with electrical wires while he was performing work preliminary to the painting of outbuildings on a farm owned by defendant Ilene E. Risser and occupied by defendant Charles Oehler, Jr. At the time O'Rourke was fatally injured, he was employed by the McLean County Service Company with which Risser had contracted for the painting of the outbuildings on her farm. Plaintiff Patrick O'Rourke, the administrator of O'Rourke's estate, appeals the entry of summary judgment in favor of defendants on all counts of his complaint.

Evidence concerning the circumstances of O'Rourke's death is contained in depositions of Oehler and Risser.

At his deposition, Oehler testified Risser owns the farm which he leases and that she pays for the maintenance of the house and buildings on the premises. Risser arranged for the painting work which O'Rourke was performing when he was killed.

On the morning O'Rourke began stripping the old paint from the outbuildings, Oehler loaned him a 100-foot-long drop cord which was designed for outdoor use. Oehler stated he told O'Rourke before he started on the job, "e careful. . . . You can see them wires up there, this and that . . .." According to Oehler, O'Rourke responded, "I know they are there."

The wiring in the area in which O'Rourke was allegedly electrocuted was installed almost 50 years ago by an individual whom Oehler's father hired for the job. About seven or eight years prior to the fatal accident, a portion of the wiring on the premises other than the wires in question was replaced in conjunction with the building of a new home on the property. Also during the time that Oehler leased the property, some overhead insulated wires were installed on the premises in connection with the installation of a vapor light.

When O'Rourke was killed, the wires which allegedly caused his electrocution were "corroded, they were green like copper does." Oehler stated he discussed the wires with O'Rourke on the Monday that he commenced work on the premises; he did not discuss the wires with O'Rourke on the following Thursday, which was the day O'Rourke was killed. Oehler stated he gave O'Rourke no warnings or instructions with respect to anything other than the wires.

During the three days prior to O'Rourke's death, Oehler had observed him using a water stripper and getting himself wet in the process. It was raining on the day O'Rourke was killed. At approximately 11 a.m. on that day, Oehler looked out through a window of his house and saw an aluminum ladder, which O'Rourke had been using, leaning against the wires and touching the ground. The ladder was farther away from the barn on which O'Rourke had been working than it should have been, which caused Oehler to suspect something was amiss. He immediately went outside and saw O'Rourke's body lying on the ground on its back. The left foot was on the ladder, which was hooked to the uppermost of two power lines. When he first discovered O'Rourke's body, Oehler noticed no arcing or sparking where the ladder touched the wire.

Oehler acknowledged he had no need for light in the buildings to which the wires in question provided electricity and could have gotten along without power in those buildings. Since Oehler started living on the property in 1948, no one from the power company had checked the wiring beyond the meter. Oehler acknowledged he knew that the wires in the vicinity where O'Rourke was killed were uninsulated, but that he did not inform O'Rourke of this fact.

According to Oehler, Risser was not present when O'Rourke was working around the wires. Oehler admitted he saw O'Rourke placing the aluminum ladder against the barn in order to repair and maintain it on the day he was killed.

On cross-examination, Oehler stated that at the point at which the uninsulated wires entered the barn on which O'Rourke was working at the time of his death, the top wire was 17 feet 2 inches from the ground, and the second wire was 10 inches below the top wire. Also on cross-examination, Oehler stated that on O'Rourke's third day on the job, he said to him, "e careful with all that," and that he specifically mentioned the wires to O'Rourke at that time. To this O'Rourke responded, "he knew it." Oehler stated O'Rourke could not have asked him to turn off the power to the outbuildings because O'Rourke needed the power to run the pressure washer which he was using. In addition to the ladder, some of the other tools which O'Rourke was using, such as his washer, were metal. Oehler estimated that when he discovered O'Rourke's body, the aluminum ladder was 10 to 12 feet directly west of the barn on which he had been working.

In her deposition, Risser testified she owns the farm on which Oehler resides. Oehler leases the farm from Risser on a 50-50 share crop basis. Risser has always been responsible for the maintenance of the buildings on the farm and the expenses thereof. Risser arranged to have the buildings on the farm stripped and painted during the summer of 1982 by McLean County Service Company. Risser was not present when McLean County Service Company inspected the buildings in order to prepare an estimate for the work and was not present while O'Rourke was working on the farm prior to his death. She did, however, know when the paint-stripping work was being done because Oehler, who is her brother, calls her almost every day.

Prior to O'Rourke's death, Risser was aware of the existence of the wires which allegedly caused him to be electrocuted. No one had ever suggested that the wires be insulated or raised.

Risser further testified that if she had been informed by Oehler that McLean County Service Company's work was damaging the farm buildings or machinery, she probably would have gone to the farm and stopped the work. Risser acknowledged that after McLean County Service Company gave its original estimate, she caused the estimate to be reduced by stating she did not want the roofs of the buildings painted. She did not inquire of McLean County Service Company as to how the work was going to be done or what equipment was going to be used. Also, Risser did not own the ladder involved in the accident. Risser stated she had no knowledge as to the color or condition of the wires in the area where O'Rourke was killed.

Risser further testified that during the spring preceding O'Rourke's death, a Mr. Clawson did some work on the farm which was apparently necessitated by a severe storm. At that time, Clawson asked Oehler if Risser would consider replacing some wires which were bare. Oehler related this inquiry to Risser, and Risser immediately called Clawson and told him to replace the wires because, "anybody tells me to do something, I do it." Risser stated Clawson gave her no reason as to why the wires needed to be replaced. She did not know which wires Clawson specifically had in mind.

Count I of plaintiff's complaint, directed to Oehler, alleges Oehler breached his duty to use due care with ...


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