Clinton v. Commonwealth Edison Co.

• Decision Date: 15 March 1976
• Docket Number: No. 59370,59370
• Citation: 344 N.E.2d 509,36 Ill.App.3d 1064
• Parties: Theresa CLINTON, Administrator of the Estate of Robert E. Clinton, Deceased, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, etc., et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 509

344 N.E.2d 509

36 Ill.App.3d 1064

Theresa CLINTON, Administrator of the Estate of Robert E Clinton, Deceased, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, etc., et al., Defendants-Appellees.

No. 59370.

Appellate Court of Illinois, First District, First Division.

March 15, 1976.

Edward M. Burke Associates, P.C., Chicago (Michael T. Healy, Chicago, of counsel) for plaintiff-appellant.

O'Brien, Kerpec & Evans, Chicago (Donald J. O'Brien, Jr., Richard M. O'Brien & Dom J. Rizzi, Chicago, of counsel) for defendant-appellee, Commonwealth Edison Co.

Peter Fitzpatrick, Chicago, for defendant-appellee, Paul Hassel.

BURKE, Justice.

Robert Clinton, 15 years old, was found electrocuted in the yard of his family's residence on April 27, 1968. His mother, Theresa Clinton, as administrator, filed a complaint charging negligence against Commonwealth Edison Company (Edison) and Paul Hassel, d/b/a Spark Electric, alleging that Robert Clinton's deat was caused by defendants' failure to insulate the electrical wires over the Clintons' property, to position the transformer properly, and to warn of the dangers of the uninsulated wire.

At the close of all the evidence, the court granted defendants' motions for directed verdicts. Plaintiff contends that the evidence was sufficient to show factual questions of negligence and the lack of contributory negligence which should have been decided by the jury.

On March 3, 1959, James Clinton, the deceased's father, employed Paul Hassel to install poles and electric lines for electric service to the Clintons' new home. Hassel followed the diagram provided by Edison for the installation of the pole line construction. He placed three wooden poles on the Clintons' property and strung bare copper wire from pole to pole. The transformer which he received from Edison was placed on the pole closest to the house, as indicated on the diagram. Hassel sold the wire and poles to James Clinton; the transformer remained the property of Edison.

The first pole was placed about 100 feet from Edison's power transmission line on Stony Island Avenue. The second pole was in the middle of the 300-foot expanse between the first to third poles. The third pole was 50 to 60 feet from the house. The wire on the poles was at the height of about 22 1/2 feet and was clearly visible from the ground.

Edison connected wires from its transmission line to the first pole on the Clintons' property. The primary wire across the poles carried 7200 volts of electrical current. The secondary wire extending from the transformer on the pole closest to the house carried 220 volts.

On April 27, 1968, the Clintons' neighbor first observed Robert Clinton cutting the grass around his home at about 9:30 a.m. At 1:00 p.m. his body was discovered lying in the yard. The cause of death was cardiac arrest due to electrocution. A 25-foot aluminum pole, part of a dismantled citizen's band antenna, was discovered near the body. There were burn marks on the pole, approximately six to seven feet from the top. The primary wire spanning the poles on the Clintons' property also had burn marks.

Hassel testified that James Clinton told him where to place the poles. Hassel also said that he explained the installation of the line and showed Clinton the uninsulated copper wire that he would use. In addition he told Clinton that the wire carried 7200 volts. James Clinton denied that he told Hassel where to put the poles. He maintained that Hassel did not discuss the 7200-volt line with him. The bill for the installation which Clinton's wife paid showed that the line carried 7200 volts.

Hassel also testified that a 7200-volt wire could not be insulated and that bare copper wire was the only type ever installed. Phillip Harris, a consulting electrical engineer who was the plaintiff's expert witness, testified that adequate insulation to protect against shock was available for a 7200-volt line at the time it was installed on the Clintons' property. On cross-examination Harris stated that as a practical matter he would regard even an insulated wire as dangerous since there is always a chance of electrocution.

Casper Hemeroa, an engineer for Edison, testified that the specifications on the diagram provided by his company for the pole line installation on the Clintons' property indicated the size of wire to be used, not the type. Hemeroa stated that the type of wire was usually determined by the customer or the installer. Paul Hassel testified that the type of wire specified on Edison's diagram was an uninsulated copper wire.

Hassel testified that it was necessary to install the transformer close to the Clintons' house, as indicated on Edison's diagram, in order to provide proper service. He said that if the transformer was placed farther away from the house, a greater voltage drop, caused by the greater distance the electrical current must travel on the smaller wire, would produce flickering lights and other disruptions in the service.

Edison replaced the Clintons' 5 K.V.A. transformers with a 10 K.V.A. transformer in 1969 after James Clinton complained about flickering lights. This was after Robert's death. The larger transformer increased the amount of power that it could safely handle but did not change the voltage. James Clinton testified that after the transformer was changed the lights continued to flicker until the time he testified.

Phillip Harris, plaintiff's expert witness, testified that if a 10 K.V.A. transformer were placed on the pole located on the Clintons' property closest to the road, it would be possible to go a distance of 400 to 500 feet with only a small voltage drop, thereby maintaining adequate service, by increasing the size of the wire. The placement of the transformer on the first pole would result in having a 240-volt secondary line spanning the Clintons' property instead of the 7200-volt line.

On cross-examination, Harris stated that a 240-volt line under certain conditions was capable of causing death. Harris also testified that if the house lights flickered where a 10 K.V.A. transformer was only 50 to 60 feet from the house, a very great voltage drop was indicated which possibly precluded moving the transformer farther away from the house. He said that if the transformer was placed on the pole closest to the road, an insulated wire 400 feet long could possibly weigh over 500 pounds; an uninsulated 7200-volt wire extending the same distance would weigh about 40 pounds. Harris further stated on cross-examination that the Illinois Commerce Commission's regulations required that overhead power lines be placed a minimum of 18 feet over private property; and there was no requirement that the wires be insulated.

In considering whether a directed verdict was proper, the Pedrick rule requires the reviewing court to determine whether all the evidence, viewed in its aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) A plaintiff is entitled to recover only by proving each element of a negligence action; the existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately resulting from the breach. (Neering v. Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497.) A plaintiff's failure to prove any one of the necessary elements authorizes a directed verdict for the defendant. May v. Illinois Power Co., 342 Ill.App. 370, 96 N.E.2d 631.

Plaintiff sets forth two acts which she claims constitute negligence by the defendants. First, plaintiff alleges that defendants negligently installed an uninsulated 7200-volt line which spanned the Clintons' property; thus, defendants failed in their duty to protect plaintiff's intestate and others who might foreseeably come into contact with the high voltage wire.

The determination of the existence of a legal duty is a question of law to be determined by the trial court. (Barnes v. Washington, 56 Ill.2d 22, 305 N.E.2d 535; Lorang v. Heinz, 108 Ill.App.2d 451, 248 N.E.2d 785.) In order for a legal duty to exist upon which to predicate liability the occurrence must be reasonably foreseeable. 'Harper and James, in their Law of Torts, observe: 'Not what actually happened, but what the reasonably prudent person Would then have foreseen as likely to happen, is the key to the question of reasonableness.' (2 Law of Torts (1956), sec. 16.9, at 929.)' Cunis v. Brennan, 56 Ill.2d 372, 376, 308 N.E.2d 617, 619.

Electricity is an inherently dangerous and deadly force which should be regarded with a high degree of care by those engaged in the business of supplying electrical energy. (McGill v. Illinois Power Co., 18 Ill.2d 242, 163 N.E.2d 454.) But the high degree of care required does not necessitate the insulation of all electrical wires:

"Persons handling electricity must protect the public against danger by the proper insulation of its wires where the public is likely to come in contact with them. But this duty does not extend to the entire system. Persons engaged in the transmission of electricity are not insurers of the safety of the public * * *.' (Emphasis added.) Austin v. Public Service Co., 299 Ill. 112, 119, 132 N.E. 458, 461. See also Merlo v. Public Service Co., 381 Ill. 300, 313, 45 N.E.2d 665, 673.

The evidence most favorable to the plaintiff indicated that it was physically possible to insulate a line carrying 7200 volts, but that, even insulated, it should be regarded as dangerous. Availability of an alternative to the uninsulated wire, however, does not in itself mandate its use. Defendants had a legal duty to insulate the wire over the Clintons' property only if it can be established that the conditions and circumstances indicated that persons might have come into reasonable proximity to the wire. Ploense v. Illinois Power Co., 2 Ill.App.3d 874, 879, 275...