Fancher v. Central Illinois Public Service Co.

• Decision Date: 18 April 1996
• Docket Number: No. 5-95-0311,5-95-0311
• Citation: Fancher v. Central Illinois Public Service Co., 664 N.E.2d 692, 279 Ill.App.3d 530 (Ill. App. 1996)
• Parties: , 216 Ill.Dec. 55 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.
• Court: Appellate Court of Illinois

Page 692

664 N.E.2d 692

279 Ill.App.3d 530, 216 Ill.Dec. 55

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.

No. 5-95-0311.

Appellate Court of Illinois Fifth District.

April 18, 1996.

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

Bernard L. Chase, Dana L. Palmer, Law Offices of Bernard L. Chase, Chicago, for Appellant.

R. Gerald Barris, Michael T. Kokal, Sorling, Northrup, Hanna, Cullen and Cochran, Ltd., Springfield, for Appellee.

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 "[c]arelessly 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." 735 ILCS 5/2-619(a)(9) (West 1992).

" 'Affirmative matter' within the meaning of section 2-619(a)(9) [citation] is something in the nature of a defense that negates an alleged cause of action completely or refutes crucial conclusions of law or conclusions of material fact * * * contained in or inferred from the complaint. It must, however, be something more than evidence offered to refute a well-pleaded fact in the complaint, for, as in the case of a motion under section 2-615 [citation], such well-pleaded facts must be taken as true for the purposes of a motion to dismiss under section 2-619(a)(9) [citation]." Longust v. Peabody Coal Co., 151 Ill.App.3d 754, 757, 104 Ill.Dec. 436, 502 N.E.2d 1096 (1986).

Thus, CIPS's argument that it owed no duty to Fancher was properly considered by the court as a motion for involuntary dismissal of the complaint. To adequately state a negligence cause of action, a plaintiff must set forth sufficient facts to show that the defendant owed a duty to plaintiff, that the defendant breached that duty, and that an injury was proximately caused by that breach. Ward v. K mart Corp., 136 Ill.2d 132, 143 Ill.Dec. 288, 554 N.E.2d 223 (1990). The question of whether defendant owes any duty to plaintiff and, if so, the scope of that duty is a question of law for the trial court. Ward, 136 Ill.2d at 140, 143 Ill.Dec. 288, 554 N.E.2d 223. The appropriate question in determining the existence of a duty is whether the defendant and plaintiff stood in such a relationship to one another that the law imposed upon defendant an obligation of reasonable conduct for the benefit of plaintiff. Ward, 136 Ill.2d at 140, 143 Ill.Dec. 288, 554 N.E.2d 223.

If CIPS owed no duty to Fancher, then clearly it could not breach any duty, and hence there could be no negligence on the part of CIPS. American National Bank & Trust Co. v. National Advertising Co., 149 Ill.2d 14, 171 Ill.Dec. 461, 594 N.E.2d 313 (1992). Where the court properly determines that the defendant owes no duty to plaintiff, the trial court may properly dismiss the complaint on a motion for involuntary dismissal. Wood v. Village of Grayslake, 229 Ill.App.3d 343, 170 Ill.Dec. 590, 593 N.E.2d 132 (1992). The decision to grant or deny a motion for involuntary dismissal is a matter within the sound discretion of the trial court, and that decision will not be overturned on appeal absent an abuse of that discretion. Dick v. Peoples Mid-Illinois Corp., 242 Ill.App.3d 297, 182 Ill.Dec. 463, 609 N.E.2d 997 (1993). Nevertheless, where the motion is granted on a disputed question of law, as here, the court of review will consider the issue de novo. American Health Care Providers, Inc. v. County of Cook, 265 Ill.App.3d 919, 202 Ill.Dec. 904, 638 N.E.2d 772 (1994).

Thus, the initial question we decide is whether plaintiff adequately alleged a duty on the part of CIPS toward Fancher. We find that plaintiff sufficiently alleged a duty to survive a motion for involuntary dismissal. Under the Premises Liability Act (740 ILCS 130/1 et seq. (West 1992)), an owner of land, such as CIPS, owes entrants on that land, such as Fancher and other employees of Effingham, a duty "of reasonable care under the circumstances regarding the state of the premises or acts done or omitted on them." 740 ILCS 130/2 (West 1992). Our supreme court has ruled that sections 343 and 343A of the Restatement (Second) of Torts (Restatement (Second) of Torts §§ 343, 343A (1965)) accurately set forth the duty of possessors and owners of land to their invitees, such as Fancher. Deibert v. Bauer Brothers Construction Co., 141 Ill.2d 430, 152 Ill.Dec. 552, 566 N.E.2d 239 (1990); Ward, 136 Ill.2d 132, 143 Ill.Dec. 288, 554...