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Tinder v. Illinois Power Company

October 23, 2001

KAREN TINDER, AS ADMINISTRATRIX OF THE ESTATE OF WILLIAM L. TINDER, PLAINTIFF-APPELLANT,
v.
ILLINOIS POWER COMPANY, INC., N/K/A ILLINOIS POWER, DEFENDANT-APPELLEE.



Appeal from Circuit Court of Vermilion County No. 98L93 Honorable John P. O'Rourke, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

UNPUBLISHED

In July 1998, plaintiff, Karen Tinder, filed a one-count complaint against defendant Illinois Power Company, Inc., now known as Illinois Power (Illinois Power), alleging that Illinois Power was liable for injury to and the death of decedent, William L. Tinder, pursuant to the Wrongful Death Act (740 ILCS 180/2.1 (West 1994)). The trial court granted summary judgment to Illinois Power, concluding that Illinois Power had no duty to insulate its power lines and had no further duty to protect decedent under the circumstances of this case. Plaintiff appeals. We affirm.

I. BACKGROUND.

Decedent owned a residence in Danville, with a detached garage on the alley. On July 31, 1996, decedent and Donald Delva attempted to take down a citizens band (CB) antenna attached to the garage. Decedent was electrocuted when the antenna contacted overhead power lines owned by Illinois Power.

Illinois Power's lines were located in the alley behind the garage. The lines were clearly visible and unobstructed. The highest line was an uninsulated primary line. Below that line were three 120/240 volt lines. Illinois Power denies that those lines were insulated. The affidavit of William DeWitt, an electrical engineer, however, states that he examined the lines after the incident and "the 120/240 power lines [were] covered by a degraded insulating material." For purposes of this appeal, we assume that DeWitt is correct.

Delva testified that he and decedent discussed how they needed to keep the antenna away from the power lines in the alley because it would be dangerous if the antenna hit the power lines. Decedent and his son, William D. Tinder, had erected the antenna approximately a year earlier. Decedent believed the antenna, 51 or 52 feet tall, had to be located higher than the power lines to improve reception. Tinder and decedent talked about the electrical lines in the alley and the fact that those lines should be avoided because if the antenna "even slipped, one of us could have [gotten] hurt." Tinder testified he and decedent understood that they could be shocked or electrocuted and that was the reason they avoided raising the antenna going east to west.

The neighbors across the alley, the Taylors, owned a garage that had burned in 1990 or 1991. Their garage was about 15 feet from decedent's garage. The fire reached as high as the power lines, and Illinois Power sent a serviceman to look at the lines, who said they did not need to be replaced. Illinois Power did not do anything to change the condition of the power lines during the five years before the incident.

Plaintiff's complaint alleged that Illinois Power failed to properly insulate, guard, protect, and maintain the lines; failed to repair the lines after the garage fire; violated its own internal policies regarding inspection and repair of damaged insulated wire; permitted the insulation to become worn, rotten, or burned; and failed to provide adequate warnings of damaged insulated wire.

II. ANALYSIS

The purpose of summary judgment is not to try a question of fact but to determine whether one exists. Ferguson v. McKenzie, No. 89144, slip op. at 3 (January 29, 2001). Summary judgment is appropriate only where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1998). In an appeal from the grant of summary judgment, review is de novo. Ferguson, slip op. at 3.

Whether a duty exists in a particular case is a question of law to be determined by the court. Ward v. K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). Among the factors that are relevant to the existence of a duty are the reasonable foreseeability of injury, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant. Ward, 136 Ill. 2d at 140-41, 554 N.E.2d at 226-27. Foreseeability is important, but it is not determinative. In a sense, in retrospect, almost everything is to some extent foreseeable.

Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur. Genaust v. Illinois Power Co., 62 Ill. 2d 456, 466, 343 N.E.2d 465, 471 (1976). "[I]t is not objectively reasonable to expect that a person, knowing the danger of electricity if metal should contact electrical wires, would attempt to install a metal tower and antenna in such close proximity to electrical wires." Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471. Genaust sustained the dismissal of a strict liability count where a plaintiff was injured installing a CB antenna.

On the issue of foreseeability, plaintiff argues "the evidence indicates that Illinois Power actually knew that uninsulated or inadequately insulated power lines caused at least seven deaths and injuries in the past five years." Plaintiff's argument is based on her supplemental request No. 7, which asked for "any and all documents regarding fatalities or injuries to humans resulting from the power lines owned or controlled by ILLINOIS POWER within the past [five] years." Illinois Power's response listed the names of seven individuals, along with the dates and locations of their deaths, and a ...


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