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04/18/96 CYNTHIA FANCHER v. CENTRAL ILLINOIS PUBLIC

April 18, 1996

CYNTHIA FANCHER, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF KENNETH E. FANCHER, DECEASED, PLAINTIFF-APPELLANT,
v.
CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jasper County. No. 93-L-4. Honorable James R. Harvey, Judge, presiding.

As Corrected May 10, 1996.

Presiding Justice Hopkins delivered the opinion of the court: Welch and Goldenhersh, JJ., concur.

The opinion of the court was delivered by: Hopkins

PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

Plaintiff, Cynthia Fancher, filed this action in the Jasper County circuit court individually and as the special administrator of the estate of her deceased husband, Kenneth E. Fancher (Fancher). The trial court dismissed plaintiff's third amended complaint with prejudice pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(9) (West 1992)). On appeal, plaintiff argues that the trial court abused its discretion in dismissing the complaint. For reasons we will more fully explain, we reverse and remand.

The general facts about how the accident occurred are not disputed. Fancher was an "operator" or foreman for Effingham Sewer Services (Effingham) at the time of the accident. Central Illinois Public Service Company (CIPS) contracted to have Effingham clean out the fly ash silo at its Newton Power Station. The fly ash silo is an extremely large silo used by CIPS to collect fly ash, a byproduct of the power process employed at the Newton power station. Before the silo can be cleaned, CIPS processes out as much of the fly ash as it can, evidently removing it on conveyor belts before it opens the facility for cleaning.

After CIPS opened the door of the silo, located on the side and at the bottom of the silo, Effingham vacuumed out the silo with large vacuum hoses. Normally, Effingham would have used a "gravity pull" method before vacuuming the silo, but according to Charles Stigers, Effingham's owner, CIPS would not allow Effingham to use the gravity pull method prior to Fancher's death, even though Stigers told CIPS officials Robert Butler and Jim Williams that the gravity pull method was "safer and quicker." Fancher was killed after he entered the silo to clean it from the inside, when fly ash remaining on the walls of the silo above Fancher's head fell on top of him and suffocated him.

Plaintiff's third amended complaint alleged that on May 24, 1992, Fancher was employed by Effingham; that CIPS hired Effingham to clean the fly ash silo at its Newton Power Station in Newton, Illinois; that Fancher exercised due care and caution for his own safety; and that "it was the duty of the defendant, CIPS, to safely operate and maintain said 'fly ash silo' in a manner so as to not place the decedent in danger of injury." Plaintiff alleged in the third amended complaint 16 separate categories of negligence on the part of CIPS, including the allegation that CIPS "carelessly and negligently ordered the decedent and other agents of Effingham Sewer to not use the 'gravity pull method' of cleaning the 'fly ash silo' despite having the knowledge that the 'gravity pull method' was the safest way to clean the 'fly ash silo.'" Additionally, the complaint alleged that Fancher was killed as the direct and proximate result of one or more of defendant's negligent acts. The third amended complaint consisted of two counts, the wrongful death count and a claim for loss of consortium by Fancher's wife Cynthia.

CIPS filed a motion to dismiss plaintiff's third amended complaint pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 1992)). Several months later, CIPS filed an "Index" to the documents it was filing in support of its motion to dismiss, now declaring that the motion was brought pursuant to section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 1992)). In the alternative, CIPS asked the court to enter summary judgment in its favor. In its memorandum of law in support of the various motions, CIPS argued: "Plaintiff has not alleged that Defendant CIPS had meaningful control over the fly ash removal site. In the alternative, because Plaintiff now makes unsubstantiated claims that CIPS'[s] employees instructed Effingham not to use the gravity pull method, Defendant moves for dismissal under [section 2-619] or for summary judgment to refute these now unsubstantiated allegations."

The trial court granted the motion to dismiss, "under section 2-619(9) [sic] of the Civil Practice Act [sic]." The court stated its reasons for granting the motion to dismiss as:

"In three attempts, Plaintiff has failed to plead that CIPS retained 'control' over Effingham Sewer Services' work[,] which is a necessary prerequisite to CIPS['s] liability for Mr. Fancher's death. [The] limitation on Effingham Sewer's work method was that the 'gravity flow' method not be used before vacuuming the fly ash silo. The gravity flow procedure would then have to be used to complete the job. Here, vacuuming had already been in progress for one entire shift before Mr. Fancher was killed. Some fly ash, therefore, had already been removed prior to the shift during which Mr. Fancher and his crew began their work.

This selection of the method to be used, at least where, as here, it does not result in increased risk to the contractors' employees, is not 'control' for purposes of predicating liability." (Emphasis in original.)

On appeal, plaintiff argues that the trial court abused its discretion in dismissing the complaint. We agree. Generally, the trial court should not grant an involuntary dismissal of a complaint under section 2-619 unless it clearly appears that no set of facts can be proved that will entitle plaintiff to relief. Estate of Herington v. County of Woodford, 250 Ill. App. 3d 870, 189 Ill. Dec. 495, 620 N.E.2d 463 (1993). Under section 2-619, a complaint is subject to involuntary dismissal if:

"(9) *** the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." ...


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