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03/21/94 PATTI TURGEON v. COMMONWEALTH EDISON

March 21, 1994

PATTI TURGEON, INDIV. AND AS SPECIAL ADM'R OF THE ESTATE OF WILLIAM G. HARRINGTON, DECEASED, PLAINTIFF-APPELLANT,
v.
COMMONWEALTH EDISON COMPANY AND THE CITY OF WAUKEGAN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Lake County. No. 90-L-1338. Honorable Bernard E. Drew., Jr., Judge, Presiding.

Rehearing Denied and Released for Publication April 18, 1994. Petition for Leave to Appeal Denied October 6, 1994.

PECCARELLI, Woodward, Quetsch

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Plaintiff, Patti Turgeon, special administrator of the estate of her deceased son, William G. Harrington (Bill), who was 17 years old when he died, sued defendants, Commonwealth Edison Company (Edison) and the City of Waukegan (Waukegan), alleging they were liable for Bill's death. Plaintiff appeals from a judgment in favor of defendants entered by the circuit court of Lake County following a jury trial.

On appeal, plaintiff contends that the trial court erred when it: (1) did not allow plaintiff to introduce evidence of prior accidental drowning deaths; (2) did not allow plaintiff to introduce evidence that Edison posted warning signs subsequent to Bill's drowning, or evidence of a subsequent accidental drowning death; (3) applied the Recreational Use of Land and Water Areas Act (Recreational Use Act) (Ill. Rev. Stat. 1991, ch. 70, pars. 31 through 37 (now 745 ILCS 65/1 through 7 (West 1992))) with its willful and wanton standard of liability; and (4) granted summary judgment dismissing two counts of plaintiff's fourth amended complaint alleging Edison was liable under the Public Utilities Act (Ill. Rev. Stat. 1991, ch. 111 2/3, par. 1-101 et seq. (now 220 ILCS 5/1-101 et seq. (West 1992))).

Plaintiff's suit arose from Bill's drowning death in Lake Michigan near Edison's power plant in Waukegan, Illinois, on September 14, 1990. Plaintiff claimed that Bill drowned when he could not escape dangerous currents caused by the plant's discharge of large amounts of water into Lake Michigan.

Edison's plant (the plant) is located on the shore of Lake Michigan in Waukegan. The plant draws lake water through intake valves, uses the water in the plant in the production of electricity, and discharges the water in a warmed condition back into the lake through a discharge channel. The warm water attracts fish making the area around the discharge channel a good place for fishing.

In 1972, after residents expressed an interest in fishing in the vicinity of the discharge channel, Edison and Waukegan entered into a Fishing Rights Agreement. Pursuant to this agreement, Waukegan agreed to police the area and Edison made a pier available to the public for fishing, but prohibited the public from entering the water. On its land near the pier, Edison posted signs prohibiting swimming and wading.

On September 14, 1990, the weather in the vicinity of Edison's pier was warm and windy and the water was rough. Small craft warnings had been issued and there were waves of up to six or seven feet. Around 3 p.m., Bill and five friends went to the pier for a frolic. The plant was operating and discharging water into the discharge channel.

After three of his friends entered the water, Bill jumped from the pier into a large wave. When he jumped into the water, Bill was fully clothed wearing pants, a T-shirt, and combat boots. One witness testified that Bill was also wearing a jacket.

Shortly after jumping into the water, Bill started to struggle and yelled for help. Some of the others also had difficulties in the water but were able to get out of the water by themselves or with the help of the two members of the group who stayed on the pier and had not entered the water.

Eventually, all of Bill's friends jointly tried to help him get out of the water. From the pier, they formed a human chain and tried to pull Bill out. They were able to reach him several times, but he kept slipping out of their hands. Bill was heavyset, and each time a wave raised him high enough so they could grab him, they lost their grip when the wave receded. There was no life-saving equipment on the pier. One of Bill's friends took off his pants and tried unsuccessfully to use them as a life line.

Bill began drifting away from the pier out into the Lake. The pier has three ladders spaced along its length. After Bill drifted past the third ladder, the ladder nearest the deep end of the pier, one of Bill's friends jumped into the water to try to pull Bill out. That friend testified that "it was a real bad current under my feet." Unable to handle the current, the friend had the others pull him out.

Soon Bill drifted out past the end of the pier while the others could only watch helplessly. One of Bill's friends drove to a guard shack and alerted the Edison guards. By the time the friend returned to the pier, Bill had gone under and his other friends had lost sight of him. Three days later, police recovered Bill's body lodged against the grating that prevents debris from entering the plant intake valve.

Plaintiff proceeded to trial on her fourth amended complaint which contained eight counts. Counts I and VI alleged that Edison and Waukegan, respectively, engaged in willful and wanton misconduct and were therefore liable for the wrongful death of Bill. Counts II and VII alleged survival claims against Edison and Waukegan, respectively. Counts III and VIII sought funeral expenses from Edison and Waukegan, respectively, pursuant to the Family Expense Act. Count IV alleged that Edison violated the Public Utilities Act (Ill. Rev. Stat. 1991, ch. 111 2/3, par. 1-101 et seq. (now 220 ILCS 5/1-101 et seq. (West 1992))) and sought compensatory damages for the alleged violation. Count V sought punitive damages pursuant to the Public Utilities Act.

Prior to the trial, the trial court granted Edison's motion for summary judgment with respect to counts IV and V. Following the trial, the jury rendered a verdict in favor of defendants as to the remaining counts of plaintiff's fourth amended complaint. This appeal followed.

Plaintiff first contends that the trial court erred when it did notallow plaintiff to introduce evidence of two prior accidental drowning deaths which occurred in 1988 in the lake waters near Edison's plant. Plaintiff sought to introduce the prior accident evidence to show that Edison knew of the dangerous conditions in the lake waters near its pier and to show that a common cause of the prior and present accidents was hazardous currents created by Edison's discharge of water into the lake. After a hearing on the matter, the trial court accepted defendant's arguments that the Appellate Court, Second District, unlike several other appellate court districts which followed Henderson v. Illinois Central Gulf R.R. Co. (1983), 114 Ill. App. 3d 754, 70 Ill. Dec. 595, 449 N.E.2d 942, required a showing that prior accidents were substantially similar to the present accident before evidence of the prior accidents was admissible, no matter what the intended purpose of the proffered evidence. Defendants cited Davis v. International Harvester Co. (1988), 167 Ill. App. 3d 814, 118 Ill. Dec. 589, 521 N.E.2d 1282 (evidence of prior accidents admissible if proponent establishes accidents occurred in substantially similar manner). The trial court found that the prior accidents and the present accident were not substantially similar and granted defendants' motion in limine to exclude evidence of the prior accidents.

On appeal, the parties agree that the law governing the admissibility of prior accident evidence is stated in Trimble v. Olympic Tavern, Inc. (1993), 239 Ill. App. 3d 393, 180 Ill. Dec. 199, 606 N.E.2d 1276, a second district case decided after the trial in this case, which states:

"Evidence of prior occurrences is admissible at trial for two purposes: (1) to show the existence of a particular danger or hazard; or (2) to show defendant's notice of the generally hazardous nature of the accident site. ( Henderson v. Illinois Central Gulf R.R. Co. (1983), 114 Ill. App. 3d 754, 758, 70 Ill. Dec. 595, 449 N.E.2d 942.) If the evidence is being offered to show the existence of a particular danger or hazard, then a foundation must be laid establishing the similarity between the prior accidents and the present accident. ( Henderson, 114 Ill. App. 3d at 758.) Only similar accidents are relevant to show the existence of a particular danger. ( Henderson, 114 Ill. App. 3d at 758.) It must also be clear (1) that the instrumentality which caused the danger in the earlier accidents was in substantially the same condition at the time such other accidents occurred as it was at the time of the accident complained of and (2) that the condition or thing shown to be the common cause of danger in such earlier accidents must be the condition or thing contributing to the danger of the accident complained of. Simmons v. Aldi-Brenner Co. (1987), 162 Ill. App. 3d 238, 246, 113 Ill. Dec. 594, 515 N.E.2d 403.

If the evidence of prior accidents is being offered only to show the defendant's notice of the generally hazardous nature of the accident site, the proponent does not have to establish a foundation showing the similarity between the prior accidents and the present accident.

( Henderson, 114 Ill. App. 3d at 758.) Evidence of dissimilar prior accidents is relevant to the issue of whether the defendant knew the accident site was generally hazardous. ( Henderson, 114 Ill. App. 3d at 758.) However, the proponent may not introduce details of the prior dissimilar accidents when he is offering the evidence only to show knowledge of the hazardous nature of the site. Henderson, 114 Ill. App. 3d at 758." Trimble, 239 Ill. App. 3d at 397.

Trimble did not specifically address a case where the proponent of evidence of prior accidents offered the evidence to show both the existence of a particular danger and the generally hazardous nature of the accident site. In such a case, the proponent is allowed to introduce evidence of both similar and dissimilar prior accidents, but the proponent is only allowed to introduce the details of substantially similar accidents. Henderson v. Illinois Central Gulf R.R. Co. (1983), 114 Ill. App. 3d 754, 759, 70 Ill. Dec. 595, 449 N.E.2d 942.

Defendants initially contend that plaintiff failed to make an adequate offer of proof regarding the excluded prior accident evidence and therefore failed to preserve the exclusion issue for review. After the trial court granted defendants' motion in limine to exclude the evidence, just before the trial, plaintiff's attorney made a purported offer of proof. Plaintiff's attorney stated:

"Specifically, the plaintiff submits through his lawyer and attorneys an offer of proof that if Michael Hughes was called to testify, which he was, with regard to the 1988 drownings he would testify as--consistently with what is already in the deposition attached to plaintiff's motion with regard to the [motion in] limine that's already in evidence.

The other witness, if Ralph Connard would be called to testify, Mr. Connard would testify consistently with the inquest testimony that he gave in 1988 with regard to Thomas Gilbert's occurrence. That inquest testimony is also attached to plaintiff's response to the motion in limine regarding other accidents, and that constitutes the two offers of proof of those two witnesses relating."

The question before us is whether plaintiff's purported offer of proof adequately preserved the issue for review. Our supreme court recently set out the basic principles regarding the adequacy of offers of proof relating to excluded evidence. The court stated:

"It is well recognized that the key to saving for review an error in the exclusion of evidence is an adequate offer of proof in the trial court. [Citations.] The purpose of an offer of proof is to disclose to the trial Judge and opposing counsel the nature of the offered evidence and to enable a reviewing court to determine whether exclusion of the evidence was proper. [Citation.] The ...


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