APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
547 N.E.2d 1376, 191 Ill. App. 3d 744, 138 Ill. Dec. 755 1989.IL.1945
Appeal from the Circuit Court of Livingston County; the Hon. Harold J. Frobish, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. KNECHT, P.J., concurs. JUSTICE STEIGMANN, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
This appeal is by defendant Northern Illinois Water Company from an order by the circuit court of Livingston County, directing defendant to pay $8,162.50 to plaintiff's attorney. The attorney fees order was pursuant to that part of section 5-201 of the Public Utilities Act (Act) (Ill. Rev. Stat. 1987, ch. 111 2/3, par. 5-201) which entitles plaintiffs who recover civil damages under section 5-201 to attorney fees. Plaintiff cross-appeals from the judgment in her favor in the amount of $17,183.70, contending that the jury should not have been allowed to reduce the verdict because of comparative negligence.
On December 16, 1985, while crossing a street in Pontiac, Illinois, plaintiff stepped into a hole and fell. The hole, evidently, existed because a water valve covering was lower than the even grade of the city street. Plaintiff was not walking in the available marked crosswalk area. Plaintiff initially filed a complaint against the City of Pontiac. Later, defendant was brought in as an additional defendant. Subsequently, plaintiff settled her claim against the City of Pontiac for $15,000. Plaintiff's attorney received $5,000 as his fee, pursuant to the contingency fee arrangement he had with plaintiff.
As for the claim against defendant, the complaint alleged a violation by defendant of section 5 -- 201 of the Act, based on the violation of an Illinois Commerce Commission rule. Section 5 -- 201 provides as follows:
"In case any public utility shall do, cause to be done or permit to be done any act, matter or thing prohibited, forbidden or declared to be unlawful, or shall omit to do any act, matter or thing required to be done either by any provisions of this Act or any rule, regulation, order or decision of the Commission, issued under authority of this Act, the public utility shall be liable to the persons or corporations affected thereby for all loss, damages or injury caused thereby or resulting therefrom, and if the court shall find that the act or omission was wilful, the court may in addition to the actual damages, award damages for the sake of example and by the way of punishment. An action to recover for such loss, damage or injury may be brought in the circuit court by any person or corporation.
In every case of a recovery of damages by any person or corporation under the provisions of this Section, the plaintiff shall be entitled to a reasonable attorney's fee to be fixed by the court, which fee shall be taxed and collected as part of the costs in the case.
"Each utility shall establish a valve and hydrant inspection program. Valves and hydrants shall be kept in good operating condition and should be inspected at least annually. Valves and hydrants found to be inoperable shall be repaired or replaced. Valve covers shall be maintained at grade level and not paved over. Each inspection and all maintenance performed shall be properly noted on the valve or hydrant record card." 83 Ill. Adm. Code § 600.240 (1985).
The matter proceeded to trial and resulted in a jury verdict for plaintiff. The jury was instructed as to comparative negligence, and assessed plaintiff with 40% of the responsibility for the injury. The judgment of $17,183.70 represented the jury's determination of defendant's 60% share of the liability. Because of the $15,000 settlement with the City of Pontiac, defendant was only ordered to pay the additional $2,183.70 as its share of the damages to plaintiff. Subsequently, because of the favorable verdict, plaintiff asked for attorney fees under section 5 -- 201 and submitted a statement for services in the amount of $14,212.50. The trial court allowed an award of $8,162.50 based on the amount of time actually spent preparing and trying the case against defendant. Defendant is not appealing from the award of damages, but is appealing only from the order for attorney fees. However, in attacking the attorney fees, defendant contends that section 5 -- 201 was not applicable under the facts of this case. Defendant also contends the computation of the fee, if a fee assessment was proper, was not reasonable, and should have, at least, been limited by the contingency fee arrangement between plaintiff and her attorney.
If the facts in this cause cannot sustain a judgment under section 5-201, then the attorney fees ordered, based on the section, must be reversed. Section 5-201 is for practical purposes identical to what was section 73 of the Public Utilities Act (formerly Ill. Rev. Stat. 1983, ch. 111 2/3, par. 77). In Barthel v. Illinois Central Gulf R.R. Co. (1978), 74 Ill. 2d 213, 384 N.E.2d 323, the question of the applicability of the defense of contributory negligence to causes under section 73 of the Act was addressed. It was recognized that a violation of a statute to protect human life or property is prima facie evidence of negligence. (Barthel, 74 Ill. 2d at 219, 384 N.E.2d at 326.) However, it must be shown that the violation proximately caused the injury, and that the statute was intended to protect a class to which the plaintiff belongs from the kind of injury suffered. (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326.) Section 5-201 differs from the ordinary statute because it expressly creates a cause of action. Thus, the violation establishes negligence as a matter of law, in contrast to the prima facie evidence rule. (Barthel, 74 Ill. 2d at 220, 384 N.E.2d at 326.) The supreme court noted that in contrast to the Structural Work Act (see Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69), the Coal Mining Act (see Ill. Rev. Stat. 1987, ch. 96 1/2, pars. 251 through 3901), and the Child Labor Law (see Ill. Rev. Stat. 1987, ch. 48, pars. 31.1 through 31.22), which imposed strict liability, the Act does not entail the social policies requiring strict liability. (Barthel, 74 Ill. 2d at 221-22, 384 N.E.2d at 327.) Contributory negligence was upheld as a proper defense in Public Utilities Act cases by the Barthel decision.
Basically, contributory negligence disappeared and reappeared as comparative negligence with the opinion of Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886.
It is apparent that the evidence indicated plaintiff fell because of a hole around the water valve covering. So, proximate cause was established. The remaining question then is whether section 5 -- 201, together with the incorporation of ICC regulation 600.240 (83 Ill. Adm. Code § 600.240 (1985)), was intended to protect the class to which plaintiff belonged.
The thrust of defendant's argument is that section 5 -- 201, coupled with regulation 600.240, was intended to regulate water valve construction and maintenance to facilitate the use of those valves, rather than protect the general public from faulty construction or maintenance. If defendant is correct, then plaintiff was not in a protected class. The following cases are submitted to support defendant's position: Ozment v. Lance (1982), 107 Ill. App. 3d 348, 437 N.E.2d 930; Warchol v. City of Chicago (1979), 75 Ill. App. 3d 289, 393 N.E.2d 725; Galayda v. Penman (1980), 80 Ill. App. 3d 423, 399 N.E.2d 656; Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, 430 N.E.2d 131. All of these cases involved incidents similar to ordinance violations. Justice Underwood explained the difference between ordinance violations ...