Genaust v. Illinois Power Co.

• Decision Date: 06 November 1974
• Docket Number: No. 73--83,73--83
• Parties: Ben GENAUST, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY, a corporation, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 412

320 N.E.2d 412

23 Ill.App.3d 1023

Ben GENAUST, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY, a corporation, et al., Defendants-Appellees.

No. 73--83.

Appellate Court of Illinois, Fifth District.

Nov. 6, 1974.

John E. Norton, Belleville, Edward J. Kionka, Carbondale, of counsel, for plaintiff-appellant.

Carl W. Lee, Roberts, Gundlach & Lee, Belleville, for Illinois Power Co.

Gordon R. Broom, Burroughs, Simpson & Wilson, Edwardsville, for Hy-Gain Electronics Corp.

Allen D. Churchill, Dunham, Boman, Leskera & Churchill, East St. Louis, for Lurtz Electric Co., Inc.

John F. O'Connell, O'Connell & Waller, Belleville, for Rohn Tower Mfg. Co.

William B. Wham, Wham & Wham, Centralia, for Hubert Plumbing and Heating Co., Inc.

EBERSPACHER, Justice.

This is an appeal by plaintiff, Ben Genaust, from the dismissal by the circuit court of St. Clair County of five counts (numbered Two through Six) of his second amended complaint, in which plaintiff claimed injuries sustained when an electrical current arced from uninsulated power lines of defendant Illinois Power Company to a metal antenna manufactured by defendant Hy-Gain Electronics Corporation sold to plaintiff by defendant Lurtz Electric Company which plaintiff was installing on top of a metal tower manufactured by Rohn Tower Manufacturing Company and sold by defendant Lurtz Electric Company, on the premises of defendant Hubert Plumbing and Heating Co., Inc.

The first count (Count I) of said complaint charged defendant Illinois Power Company with negligence in the location, failure to insulate, and failure to warn of dangers from its wires. That count is not involved in this appeal.

The facts, as taken from the pleadings, are that the plaintiff prior to March 3, 1969, entered into an oral contract with defendant Hubert Plumbing and Heating Company in which he agreed to furnish and install an antenna on Hubert's premises in Belleville, Illinois.

To perform the contract, the plaintiff thereafter purchased a galvanized steel tower and antenna from defendant Lurtz Electric Company of Belleville. The tower was manufactured by defendant Rohn Tower Manufacturing Co. The antenna was manufactured by defendant Hy-Gain Electronics Corporation.

On March 3, 1969, while the plaintiff was installing the tower and antenna on Hubert's premises, the antenna came close to, but did not touch, certain uninsulated power wires of the defendant Illinois Power Co. The wires 'passed close to the building on the premises of Hubert', where the antenna was being installed. An electric current arced from the power lines to the antenna, and the electric current struck the plaintiff causing him serious injury.

The second count against Illinois Power Company is based upon strict liability in tort for unreasonably dangerous products. The plaintiff alleges that the product sold by this defendant, I.e., electricity, was in an unreasonably dangerous condition in that the wires carrying the electricity were uninsulated and located so close to the ground and adjacent building as to create an unreasonable risk of harm. This count also alleged that said defendant failed to warn the public of the uninsulated condition of the wires and of the danger of electricity arcing from them.

The third count is against defendant Hy-Gain Electronics Corporation. The fourth court is against Rohn Tower Manufacturing Co. The fifth count is directed against the seller Lurtz Electric Company. These three counts are all based upon a strict liability in tort theory. The basis of these claims is that the seller (Lurtz) and the manufacturers (Hy-Gain and Rohn) delivered to the defendant the tower and antenna in an unreasonably dangerous condition in that they failed to have adequate warnings or labels on or accompanying the products or their packaging, informing the plaintiff and others of the dangers of using, installing, or bringing these products in close proximity to power lines, and that these products could cause an electric spark to be arced to them from a power wire if brought within a certain distance from such wire.

Count six is directed against Hubert Plumbing and Heating Company. This is the party in possession of the premises on which the tower and antenna were being installed at the time of the injury. The plaintiff alleges that Hubert knew or should have known that the Illinois Power Company wires passed in close proximity to the building and that the wires were not properly and sufficiently insulated. The plaintiff also alleges that Hubert was negligent in three instances; failing to warn, ordering the installation in such position as to be dangerously close to the power wires thereby creating an unreasonably risk of harm to the plaintiff, and failing to provide the plaintiff with a safe place to work.

In support of Count II plaintiff relies upon Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, in which our Supreme Court approved the application of strict liability in tort as set forth in the Restatement of Torts Second, Section 402A, by stating:

'We note that the views herein expressed coincide with the position taken in section 402A of the American Law Institute's revised Restatement of the Law of Torts approved in May 1964. The section provides:

'(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property if

'(a) the seller is engaged in the business of selling such a product, and

'(b) it is expected to reach the user or consumer in the condition in which it is sold.

'(2) The rule stated in subsection (1) applies although

'(a) the seller has excercised all possible care in the preparation and sale of his product, and

'(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller."

(210 N.E.2d @187.)

Although the Restatement's formulation, as adopted by our Supreme Court in Suvada, speaks in terms of liability of the 'seller' of chattels to 'users and consumers,' it has since become apparent that the protection of the doctrine is not limited to users and consumers of the defective product. In fact, the framers of the Restatement, by way of a caveat appended to Section 402A, made it clear that no opinion was expressed on whether the rules embodied in that section '* * * may not apply (1) to harm to persons other than users or consumers * * *.' Comment o. to Section 402A concedes that there may be no reason for denying the protection of the doctrine to nonusers and nonconsumers '* * * other than that they do not have the same reasons for expecting such protection as the consumer who buys * * *' the product, since the doctrine of strict liability resulted from the pressures of consumer advocacy. In recent years the protection afforded by the doctrine of strict liability in tort has been extended to persons other than users and consumers, most notably to bystanders, in Illinois (Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1, Mieher v. Brown, 3 Ill.App.3d 802, 278 N.E.2d 869, rev'd. on other grounds 54 Ill.2d 539, 301 N.E.2d 307) and in other jurisdictions (E.g., Jones v. Hutchinson Mfg., Inc. (Ky.), 502 S.W.2d 66; Giberson v. Ford Motor Co. (Mo.), 504 S.W.2d 8; Moss v. Polyco (Okla.), 522 P.2d 622; Elmore v. American Motors Corp., 70 Cal.2d 578, 75 Cal.Rptr. 652, 451 P.2d 84; and Howes v. Hansen, 56 Wis.2d 247, 201 N.W.2d 825; Darryl v. Ford Motor Co. (Tex.), 440 S.W.2d 630).

Since Suvada there have been a great number of decisions which have dealt with various problems surrounding the applicability of strict liability in tort. None of these cases, however, have considered at what precise point in time such liability accrues. The vast majority of the cases involving strict liability in tort have concerned finished products which were sold, leased or in which possession was otherwise transferred at the normal termination of the manufacturer's marketing scheme. On the other hand, a few cases have considered injuries that have occurred prior to a 'sale' or transfer of possession and still held the manufacturer accountable under the theory of strict liability in tort. (E.g. Davis v. Gibson Products Company (Texas Civil Court of Appeal 1974), 505 S.W.2d 682.) In each of those few cases the injury occurred while the product was in the process of being marketed through a retail outlet in which the product was intentionally made accessable to the public for inspection in hopes that such inspection would result in the sale of the product. Discounting those cases which have involved the transfer of possession or use of a product for promotional or testing purposes, no case can be found which has held a manufacturer liable in strict liability in tort for injuries which have occurred before a product has, at least, entered its final marketing or merchandising stage; nor has the plaintiff suggested that any such cases exist.

Nevertheless, plaintiff contends that the imposition of liability on the manufacturer of electricity to a person injured by electricity being transmitted by its high power lines is a logical extention of the doctrine of strict liability in tort. We cannot agree.

The Supreme Court of Wisconsin when faced with a similar question in Kemp v. Wisconsin Electric Power Co., 44 Wis.2d 571, 172 N.W.2d 161, held that since the electricity in the 'high tension transmission wires' 'had not been sold but was still in the control of the defendant' strict liability in tort 'has no application.' (172 N.W.2d @166.) While we do not consider the fact that there was no sale, conclusive, we agree with the result reached by the Supreme Court of Wisconsin. The special responsibility imposed by strict liability in tort does not accrue until the product is released 'into the stream of commerce.' The focal point is not the 'sale' of the product in question but rather...