Buerkett v. Illinois Power Co.

• Decision Date: 26 July 2008
• Docket Number: No. 4-07-1064.,4-07-1064.
• Parties: James Michael BUERKETT and Jennifer Buerkett, Plaintiffs-Appellants, v. ILLINOIS POWER COMPANY, an Illinois Corporation; Illinois Power Company, d/b/a Amerenip; Ameren Corporation, a Missouri Corporation; Ameren Corporation, d/b/a Amerenip; Amerinip; and Dynegy, Inc., an Illinois Corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

893 N.E.2d 702

384 Ill.App.3d 418

James Michael BUERKETT and Jennifer Buerkett, Plaintiffs-Appellants, v. ILLINOIS POWER COMPANY, an Illinois Corporation; Illinois Power Company, d/b/a Amerenip; Ameren Corporation, a Missouri Corporation; Ameren Corporation, d/b/a Amerenip; Amerinip; and Dynegy, Inc., an Illinois Corporation, Defendants-Appellees.

No. 4-07-1064.

Appellate Court of Illinois, Fourth District.

July 26, 2008.

Justice MYERSCOUGH delivered the opinion of the court:

Plaintiffs James Michael Buerkett (Michael) and Jennifer Buerkett (Jennifer) filed negligence and loss of consortium claims against defendant Illinois Power (IP). On November 27, 2007, the trial court granted IP's motion for summary judgment. The Buerketts appeal, contending the trial court erred in granting summary judgment when it (1) found IP owed no common-law duty of care to plaintiffs, (2) found IP owed no duty of care to plaintiffs under the Public Utilities Act (Act) (220 ILCS 5/8-101 (West 2006)), and (3) denied plaintiffs' claim for breach of voluntary undertaking. We affirm.

I. BACKGROUND

In October 2003, Michael worked as a freelance landscaper and tree trimmer. Michael entered into an agreement to perform tree-trimming services on property located in Champaign. As Michael was preparing to work on a tree, IP employees requested Michael stop work until IP could remove a utility pole that was in close proximity to the tree and allow IP to relocate the power lines servicing the property. Michael agreed to stop work.

Michael drove by the property sometime thereafter and could no longer see the utility pole. Michael returned to the property to complete the tree-trimming work. The tree was located in close proximity to a privacy fence. When Michael conducted a pre-climb inspection, he saw the utility pole had not been completely removed, but rather was cut the same height as the privacy fence. The parties refer to the pole as a "stub" utility pole. After completing his work, Michael began descending the tree, but he slipped and fell, hitting his right hip on top of the stub utility pole, sustaining injuries. Michael filed a complaint against IP for negligence. Jennifer filed a claim for loss of consortium.

IP denied in its answer that it was negligent. After completion of discovery, IP filed a motion for summary judgment arguing Michael could not establish as a matter of law that IP owed Michael a duty to protect him from an open and obvious condition. IP also requested that, if summary judgment were granted on the negligence count, the derivative consortium claim should also be dismissed.

On November 27, 2007, the trial court heard arguments and granted IP's motion for summary judgment. This appeal followed. We affirm the trial court's grant of summary judgment.

II. ANALYSIS

A. Michael Failed To Present a Complete Record on Appeal

Before addressing the applicable facts, this court notes that Michael failed to provide it with a complete record. Michael appeals the trial court's summary judgment order, but the record on appeal fails to contain either (1) a docket sheet of the trial court's proceedings or (2) the trial court's written summary judgment order or (3) the transcript of the hearing for summary judgment. To determine whether a claimed error warrants relief, a court of review must have a complete record of the proceedings from which the appellant claims error. People v. Ortiz, 313 Ill. App.3d 896, 900, 247 Ill.Dec. 164, 731 N.E.2d 937, 941 (2000). Because of the lack of a docket sheet or inclusion of a written order, it is unclear from a review of the record whether a written summary judgment order was issued or whether summary judgment was issued in a docket or minute entry. This court had to access the circuit clerk's website to determine that no written order was issued by the trial court.

Supreme Court Rule 321 provides that "[t]he record on appeal shall consist of the judgment appealed from, the notice of appeal, and the entire original common[-]law record, unless the parties stipulate for, or the trial court, after notice and hearing, or the reviewing court, orders less." (Emphasis added.) 155 Ill.2d R. 321. Michael, the appellant in this case, failed to include a transcript of the hearing on IP's motion for summary judgment. The appellant bears the burden of presenting a record that is adequate for a determination of the issues raised. People v. House, 202 Ill.App.3d 893, 908, 148 Ill.Dec. 627, 560 N.E.2d 1224, 1234 (1990); see also Palmisano v. Connell, 179 Ill.App.3d 1089, 1099, 128 Ill.Dec. 638, 534 N.E.2d 1243, 1250 (1989).

Supreme Court Rule 329 allows for supplementation of the record on appeal if the record on appeal is insufficient to present the questions involved. 210 Ill.2d R. 329. In the interest of the efficient administration of justice, IP's inclusion of the transcript of the summary judgment motion hearing will be treated as a motion to supplement the record and allowed. We emphasize the importance of an accurate record on appeal.

B. Standard of Review

A grant of summary judgment is appropriate when the pleadings, depositions, admissions, and affidavits demonstrate no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2006). The pleadings, depositions, and admissions are to be construed against the party moving for summary judgment. Williams v. Manchester, 228 Ill.2d 404, 417, 320 Ill.Dec. 784, 888 N.E.2d 1, 9 (2008). If reasonable persons may draw different inferences from the undisputed facts or if material facts are disputed, summary judgment is precluded. Williams, 228 Ill.2d at 417, 320 Ill.Dec. 784, 888 N.E.2d at 9.

"Although summary judgment can aid in the expeditious disposition of a lawsuit, it remains a drastic means of disposing of litigation and, therefore, should be allowed only where the right of the moving party is clear and free from doubt. [Citation.] If the plaintiff fails to establish any element of the cause of action, summary judgment for the defendant is proper. [Citations.]" Williams, 228 Ill.2d at 417, 320 Ill.Dec. 784, 888 N.E.2d at 9.

We review de novo the trial court's grant of a motion for summary judgment. Williams, 228 Ill.2d at 417, 320 Ill.Dec. 784, 888 N.E.2d at 9. No deference is given to the trial court's ruling. Interior Crafts, Inc. v. Leparski, 366 Ill.App.3d 1148, 1151, 304 Ill.Dec. 878, 853 N.E.2d 1244, 1247 (2006).

C. The Trial Court Did Not Err in Its Grant of Summary Judgment

1. The Trial Court Correctly Awarded Summary Judgment as Illinois Power Did Not Owe Michael a Duty of Care

To state a claim for negligence, a plaintiff must plead a duty owed by a defendant to that plaintiff, breach of that duty, and injury proximately caused by that breach of duty. Ford v. Round Barn True Value, Inc., 377 Ill.App.3d 1109, 1113, 318 Ill.Dec. 186, 883 N.E.2d 20, 24 (2007); Marshall v. Burger King Corp., 222 Ill.2d 422, 430, 305 Ill.Dec. 897, 856 N.E.2d 1048, 1053 (2006); Ward v. K mart Corp., 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (1990).

Whether a duty of care exists is a question of law to be decided by the court. Shank v. Fields, 373 Ill.App.3d 290, 292, 311 Ill.Dec. 587, 869 N.E.2d 261, 265 (2007); see also LaFever v. Kemlite Co., 185 Ill.2d 380, 388, 235 Ill.Dec. 886, 706 N.E.2d 441, 446 (1998). The nature of the relationship of the parties to each other will determine whether a duty will be imposed as a matter of law. Grant v. South Roxana Dad's Club, 381 Ill.App.3d 665, 669, 319 Ill.Dec. 780, 886 N.E.2d 543, 547 (2008), citing Marshall, 222 Ill.2d at 441, 305 Ill.Dec. 897, 856 N.E.2d at 1060.

In deciding whether a defendant owes a plaintiff a duty, the court considers (1) whether the plaintiff's injury was reasonably foreseeable, (2) the likelihood of injury, (3) magnitude of burden of guarding against injury, and (4) the consequences of placing a burden on defendant. Grant, 381 Ill.App.3d at 669, 319 Ill.Dec. 780, 886 N.E.2d at 547; see also Ward, 136 Ill.2d at 140-41, 143 Ill.Dec. 288, 554 N.E.2d at 226-27. If there is no duty, a plaintiff cannot recover. Clifford v. Wharton Business Group, L.L.C., 353 Ill.App.3d 34, 40, 288 Ill.Dec. 557, 817 N.E.2d 1207, 1213 (2004).

The first factor in determining duty is foreseeability. No legal duty arises unless the harm is reasonably foreseeable. Clifford, 353 Ill.App.3d at 42, 288 Ill.Dec. 557, 817 N.E.2d at 1214. Foreseeability is decided by the reasonableness of the landowner's actions, not by the entrant's actions. LaFever, 185 Ill.2d at 393, 235 Ill.Dec. 886, 706 N.E.2d at 448.

Illinois courts recognize an "open and obvious" exception to the duty of care owed by possessors of land to invitees, as it is not foreseeable that an invitee will be injured when the condition is obvious or known. The open-and-obvious exception is outlined in section 343A of the Restatement (Restatement (Second) of Torts § 343A, at 218 (1965)). Ford, 377 Ill. App.3d at 1116-17, 318 Ill.Dec. 186, 883 N.E.2d at 26; see also LaFever, 185 Ill.2d at 390, 235 Ill.Dec. 886, 706 N.E.2d at 447. Section 343A(1) states:

"A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A(1), at 218 (1965).

The focus, in determining whether a hazard is foreseeable, is on the landowner's knowledge or what the landowner should have known. "The Restatement directs that with regard to open and obvious hazards, liability stems from the knowledge of the possessor of the premises, and what the possessor `ha[d] reason to expect' the invitee would do in the face of the hazard." LaFever, 185 Ill.2d at 392, 235 Ill.Dec. 886, 706 N.E.2d at 448, quoting Restatement (Second) of Torts, § 343A, Comment f, at 220 (1965), and citing R....