Genaust v. Illinois Power Co.

• Citation: 343 N.E.2d 465,62 Ill.2d 456
• Decision Date: 20 January 1976
• Docket Number: No. 47233,47233
• Parties: , 82 A.L.R.3d 205 Ben GENAUST, Appellant, v. ILLINOIS POWER COMPANY et al., Appellees.
• Court: Illinois Supreme Court

Page 465

343 N.E.2d 465

62 Ill.2d 456, 82 A.L.R.3d 205

Ben GENAUST, Appellant, v. ILLINOIS POWER COMPANY et al., Appellees.

No. 47233.

Supreme Court of Illinois.

Jan. 20, 1976.

Rehearing Denied March 25, 1976.

John E. Norton, P.C., Belleville (Edward J. Kionka, Belleville, of counsel), for appellant.

William B. Wham, of Wham & Wham, Centralia, for appellee Hubert Plumbing & Heating Co.

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

Carl W. Lee, of Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, for appellee Illinois Power Co.

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

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

KLUCZYNSKI, Justice.

This appeal involves a suit to recover for personal injuries suffered by plaintiff, Ben Genaust. The six counts of his second amended complaint (hereafter complaint) were predicated upon negligence and strict liability in tort. The circuit court of St. Clair County entered an order dismissing five of the six counts of the complaint for failure to state a cause of action. The circuit court also made an express finding that there existed no just reason for delaying enforcement or appeal of this order. (Ill.Rev.Stat.1973, ch. 110A, par. 304(a).) On appeal to the appellate court, the judgment of the circuit court was affirmed (Genaust v. Illinois Power Co. (1974), 23 Ill.App.3d 1023, 320 N.E.2d 412), and we granted leave to appeal in which plaintiff contests the correctness of the appellate court judgment.

Since this cause comes before us on the pleadings, all facts well pleaded will be accepted as true. (Gertz v. Campbell (1973), 55 Ill.2d 84, 87, 302 N.E.2d 40.) The complaint alleges that on or before March 3, 1969, plaintiff entered into an oral contract with Hubert Plumbing and Heating Company, Inc. (hereinafter Hubert), whereby he agreed to furnish and install a citizens band antenna on Hubert's premises in Belleville, Illinois. Pursuant to this contract, plaintiff purchased a galvanized steel tower and antenna from the Lurtz Electric Company, Inc. (hereinafter Lurtz). The tower was manufactured by the Rohn Tower Manufacturing Company (hereinafter Rohn), and the antenna, by the HyGain Electronics Corporation (hereinafter Hy-Gain). While installing the tower and antenna, the antenna 'came close to, but did not touch' certain 'uninsulated power wires' which were owned and maintained by the Illinois Power Company (hereinafter Illinois Power), and passed close to the boundary of Hubert's property. An electric current arced from the power wires to the antenna, passed through the tower, and struck the plaintiff, causing him serious injury.

Count I of plaintiff's complaint was premised on negligence and was directed against Illinois Power. It charged that Illinois Power was negligent in that it failed to properly and sufficiently insulate its power wires, that it failed to locate the wires at such a distance above the ground so as not to constitute a danger to persons installing antennas, and that it failed to warn persons who might be installing antennas of the danger of the electrical shock if metal objects were brought in close proximity to the power wires. This count was not dismissed by the circuit court, and it is not involved in this appeal.

Count II was also against Illinois Power, but it was predicated upon strict liability in tort. It alleged that Illinois Power was in the business of manufacturing and selling electricity to the general public and that, as a part of the system by which it sold and distributed the electricity, it owned and maintained certain power wires which passed close to the building on Hubert's premises. This count charged that the electricity was in an unreasonably dangerous condition because Illinois Power had not sufficiently insulated the wires, had placed the wires too close to the ground, and had not warned of the danger of an electrical shock if a metal object was brought in close proximity to the wires.

Counts III, IV and V were directed against Hy-Gain, Rohn and Lurtz respectively. These three counts were also based upon strict liability in tort. The counts alleged that at the time the tower and antenna left the defendants' possession and control these devices were in an unreasonably dangerous condition because the devices did not have adequate warnings or labels informing plaintiff of the dangers of using, installing or bringing the products in close proximity to power wires which could cause an electrical spark to be arced to them from the wires if brought within a certain distance.

The final count (count VI) of the complaint was against Hubert. It alleged that Hubert knew or should have known in the exercise of reasonable care that power wires passed in close proximity to the building on its premises and that the wires were not properly or sufficiently insulated. Notwithstanding this duty, plaintiff asserted that Hubert negligently failed to warn him that the wires were dangerous, ordered construction of the antenna dangerously close to the wires, and failed to provide the plaintiff with a safe place to work.

Prefatory to our resolution of the issues raised it is necessary to rule upon two motions filed with this court and held for consideration with this case. Illinois Power has filed a motion to strike that portion of plaintiff's brief pertaining to count II because plaintiff's petition for leave to appeal did not challenge the correctness of the appellate court opinion in relation thereto. We conclude that authority exists for consideration of this matter and said motion will be denied. Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill.2d 143, 145, 281 N.E.2d 323.

Plaintiff has also submitted a motion to amend his complaint to allege additional facts in regard to counts III through VI. In order to amend pleadings in reviewing courts, Supreme Court Rule 362 requires that the movant 'must show the amendment to be necessary, (and) that no prejudice will result to the adverse party if the amendment sought is permitted * * *.' (Ill.Rev.Stat.1973, ch. 110A, par. 362(b)). Considering plaintiff's motion and the objections filed thereto by Rohn, we find that plaintiff has failed to meet the requirements of Rule 362, and the motion is therefore denied.

Plaintiff maintains that the allegations of count II state a cause of action on the basis of strict liability in tort as announced in Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182. In Suvada this court adopted the doctrine of strict liability which coincided with the view expressed in the Restatement (Second) of Torts, section 402A (1965). That section provided:

'(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 and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised 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.'

In Winnett v. Winnett (1974), 57 Ill.2d 7, 11, 310 N.E.2d 1, 4, we expanded the protection afforded to users and consumers by the doctrine of strict liability to those who, in a general sense, are referred to as 'innocent bystanders,' or, more properly, as 'those individuals to whom injury from a defective product may reasonably be foreseen.'

Plaintiff argues that the electricity sold by Illinois Power was a 'product' and that the wires carrying the electricity were the 'packaging,' which was an integral part of the marketing system of this 'product.' He alleged that the absence of insulation or the deteriorating condition of the insulation on the wires rendered the 'product' defective. This defect, he contends, made the electricity unreasonably dangerous at the time it left the control of its manufacturer, Illinois Power. Plaintiff points out that comment H to section 402A, Restatement (Second) of Torts, provides that a product may be in an unreasonably dangerous condition as a result of a defect in its packaging or container.

Assuming, Arguendo, that electricity is a 'product,' it does not logically follow that the wires are its 'packaging.' A package is 'a covering wrapper or container; a protective unit for storing or shipping a commodity.' (Webster's Third New International Dictionary 1617 (1961).) It cannot be held that wires, which are the instrument used to transmit electrical energy fall within this definition. . to accept plaintiff's contention that the power wires were the 'packaging' for electricity would require an expanded definition of the word 'package' in the context of strict liability beyond its common and ordinarily understood meaning. Even if plaintiff's contention were accepted, the doctrine of strict liability would still not be applicable. The power wires were not sold to any consumer, but were owned and controlled to Illinois Power. The only 'product' that was in the process of being sold was the electricity itself, and plaintiff does not contend there was any defect in the electricity. The fact that the wires may have been located too close to the ground does not allege any defect in the wires or the electricity.

Moreover, while the second amended complaint refers to the electrical wires as 'power wires,' the original complaint referred to them as 'high power lines.' Throughout his brief and during oral argument, plaintiff indicated repeatedly that these wires carried 'high voltage electricity.' He specifically stated...