German v. Illinois Power Co.

• Decision Date: 10 June 1983
• Docket Number: 82-272,Nos. 82-175,s. 82-175
• Citation: 71 Ill.Dec. 749,451 N.E.2d 903,115 Ill.App.3d 977
• Parties: , 71 Ill.Dec. 749 Wilbur GERMAN and Alice German, Plaintiffs-Appellees, v. ILLINOIS POWER COMPANY, a corporation, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 903

451 N.E.2d 903

115 Ill.App.3d 977, 71 Ill.Dec. 749

Wilbur GERMAN and Alice German, Plaintiffs-Appellees, v. ILLINOIS POWER COMPANY, a corporation, Defendant-Appellant.

Nos. 82-175, 82-272.

Appellate Court of Illinois Fifth District.

June 10, 1983.

Gundlach, Lee, Eggmann, Boyle & Roessler, Belleville, for defendant-appellant; Richard F. Nash, James Neville, Belleville, of counsel.

Cook, Shevlin, Keefe & Chatham, Ltd., Belleville, for plaintiffs-appellees; Bruce N. Cook, Belleville, of counsel, and Rammel, Kamp, Bradney, Hall, Daham & Kuster, Jacksonville.

KARNS, Justice:

Plaintiff, Wilbur German, was severely injured when the metal fork of the hoist he was operating came into contact with high voltage electrical lines owned by defendant, Illinois Power Company (IPC). Plaintiff sued, alleging several acts of negligence of which the following were submitted to the jury: whether defendant was negligent in failing to warn that the electrical lines were high voltage lines; whether defendant was negligent in failing to warn persons in the vicinity of the lines that the covering was not insulation; and whether defendant was negligent in failing adequately to advise persons that they should request line protectors before working near electrical lines.

The jury, under the comparative negligence doctrine of Alvis v. Ribar (1981), 85 Ill.2d 1, 52 Ill.Dec. 23, 421 N.E.2d 886, returned a verdict for plaintiff and fixed plaintiff's damages at $1,125,000. It found that plaintiff's contributory negligence was 50% of the cause of the accident and judgment was entered for plaintiff for $562,500. Subsequently, plaintiff's wife brought suit to recover damages for loss of consortium. The circuit court granted summary judgment for Mrs. German on the issue of liability; defendant appeals from both decisions.

In March of 1979, plaintiff contracted with the Armstrong-Andrews Company (A.A.Co.) to repair the roof of a 40 year old, three-story warehouse. Although plaintiff had 15 years' experience as a journeyman roofer, this was his first job as an independent roofing contractor. Plaintiff inspected the roof and surrounding area two weeks before he was to begin work. He noticed that the south side of the building was equipped with a railroad spur and loading dock and felt it would be an ideal location for setting up his equipment. The north side was rented to a trucking company. At the west end, the roof of the building was substantially lower, necessitating two lifts to get material to the higher roof. The south end of the east side was cluttered with debris.

Defendant's electrical lines were located on the east side of the building. The lines angled from south to north, becoming as close as four feet, eight inches at the northeast corner of the building where they were attached to a pole. The lines were 30 feet from ground level and 11 feet below the roof. There were installed by IPC in 1929.

Plaintiff began working on March 30. After being told by an employee of A.A.Co. that the company would be using the south side of the building, plaintiff felt his only choice was to set up his equipment on the east side. He located his supplies and his hoist, a gasoline-powered device used to lift material to the roof, about 10 feet south of the northeast corner. At this point the electrical lines were six feet, nine inches from the building. The boom of the hoist, to which was attached a metal cable and fork, extended four feet, two inches over the edge of the roof. Plaintiff estimated that even when the hoist was in operation, the boom cleared the lines by "at least two feet."

Plaintiff did not contact defendant about his decision to work near the lines. Plaintiff testified that he believed the lines were low-voltage utility lines and because they were covered, he felt they were insulated and thus felt no danger in working in their vicinity.

To lift supplies to the roof, plaintiff operated the hoist from the roof while his brother-in-law loaded the supplies at ground level. Plaintiff's father-in-law and son worked to remove supplies lifted to the roof. The four made numerous lifts without experiencing any trouble with the electrical lines, although plaintiff had to stop the hoist and steady the fork several times because of high gusts of wind.

About 10:30 that morning, plaintiff's brother-in-law, Robert E. Culp, was shocked when he grabbed the metal cable as it swung loose. Apparently, he pulled the cable back so that it made contact with the electrical lines. The shock was not severe although Culp's gloves were burned. When Culp informed plaintiff of the shock, plaintiff stopped the hoist and took a closer look at the lines. He noticed gaps in the material covering the lines and concluded that the cable must have come in contact with a bare spot. He moved the hoist several feet so that it was located where the covering was intact, and the four men continued to work. About a half hour later, while plaintiff was in the process of lowering the fork to the ground for another load, a gust of wind caught the fork, blowing it into the electrical lines. Plaintiff was instantly shocked by the current in the 12,000 volt electrical system, resulting in severe injuries.

Defendant's employees investigated the accident shortly after its occurrence. Lerton Krushas, Area Service Manager for IPC, examined the lines and concluded that they were insulated. However, it was later determined that the lines were covered with a weatherproofing material, a substance which has no insulating capacity. At trial, several other IPC employees referred to the lines as insulated and an exhibit prepared by a company employee noted that "insulation on underside of C O conductor revealed signs of being slightly melted." It was acknowledged that the public is unable to distinguish between insulated and weatherproofed lines. Defendant is presently phasing out the use of the weatherproofing material. The lines had serviced the building since it was built and were initially erected some 40 years prior to the accident.

There was extensive evidence at trial concerning defendant's attempts to protect the public from the dangers of electricity. IPC employees testified that high voltage electrical lines are not insulated because of the excessive weight the insulation creates but rather are located high above ground level where the public is unlikely to come into contact with the lines. They testified that warning signs are not placed on high voltage lines or on the poles supporting the lines because they are considered a hazard to linemen and can become energized themselves. In addition, the absence of a warning sign at any one point might give persons near the line a false sense of security. Warning signs are used at ground level substations and to indicate the presence of underground lines because in these cases public contact is much more likely.

In order to protect those who are required to work near electrical lines, defendant provides temporary safety devices such as line guards or protective hoses or will temporarily relocate, remove or de-energize the lines. In addition, IPC employees are instructed to advise anyone they see working near electrical lines of the protective measures available. Defendant informs contractors of these services through periodic meetings and through advertising. Several of defendant's employees testified that area contractors are aware of the safety measures; although, it was admitted that residential roofers, rather than commercial roofers, are generally present at the meetings. John Urbance, the Area Engineering Supervisor for IPC, testified that during the two years preceding plaintiff's injury the company had over 100 requests from contractors for temporary safety services.

Finally, it was uncontradicted that defendant was not in violation of any statute or national, state or local safety standard. Defendant was in compliance with an Illinois Commerce Commission standard requiring electrical lines to be at least three feet from any structure. There was no evidence of standards requiring warning signs on high voltage electrical lines.

Defendant argues that during closing argument to the jury, plaintiffs' counsel made several inflammatory comments aimed solely at arousing the prejudice of the jury. As a result of these improper comments and the fact that plaintiff broke down, cried and had to be removed from the courtroom during counsel's argument, defendant claims he was denied a fair trial.

Defendant also objects to the damages instruction given by the court. The instruction advised the jury that it could consider five elements of damages in fixing the amount of plaintiffs' recovery. Defendant claims that according to the supreme court decision in Powers v. Illinois Central Gulf R.R. Co. (1982), 91 Ill.2d 375, 63 Ill.Dec. 414, 438 N.E.2d 152, the instruction is erroneous because it listed "the nature, extent and duration of the injury" as a separate element of damages.

Finally, defendant argues that the judgment must be reversed because the jury's verdict was a quotient verdict.

The first issue raised on appeal concerns defendant's duty of care. Defendant argues that it owed no duty of care to plaintiff or if there was a duty, that it was only of ordinary care. Thus, defendant claims the court's instruction to the jury that a high decree of care was owed to plaintiff was error.

Defendant argues that it owed no duty of care to plaintiff. However, in Merlo v. Public Service Co. (1943), 381 Ill. 300, 45 N.E.2d 665, the court stated:

"An electric company using highly charged wires owes the legal duty toward every person who, in the exercise of a lawful occupation in a place where he has a legal right to be, whether for business, pleasure or convenience, is liable to come in contact with the wires to see that such wires are properly placed with reference to the safety of such persons and are properly...