Gouge v. Central Illinois Public Service Co.

• Decision Date: 19 September 1991
• Docket Number: No. 70291,70291
• Parties: , 163 Ill.Dec. 842 Johnnie C. GOUGE et al., Appellees, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Appellant.
• Court: Illinois Supreme Court

Page 108

582 N.E.2d 108

144 Ill.2d 535, 163 Ill.Dec. 842

Johnnie C. GOUGE et al., Appellees, v. CENTRAL ILLINOIS PUBLIC SERVICE COMPANY, Appellant.

No. 70291.

Supreme Court of Illinois.

Sept. 19, 1991.

Rehearing Denied Dec. 2, 1991.

Sorling, Northrup, Hanna, Cullen & Cochran, Ltd., (R. Gerald Barris and John A. Kauerauf, of counsel) Springfield, Bleyer & Bleyer, (James B. Bleyer, of counsel) Marion, for appellant.

Rammelkamp, Bradney, Dahman, Kuster, Keaton, & Fritsche P.C. (Forrest G. Keaton, of counsel) Jacksonville, Michael Beer, Decatur, for amicus curiae Soyland Power Co-op., Inc.

Gerald J. Porento, Hugh C. Griffin, and Diane I. Jennings, Lord, Bissell & Brook, and Stuart J. Albert, Chicago, for amicus curiae Com. Edison Co. et al.

Douglas G. Brown, Springfield, for amicus curiae Ill. Mun. Elec. Agency.

Brad L. Badgley, Heiligenstein & Badgley, P.C., Belleville, for appellees.

Justice CLARK delivered the opinion of the court:

Plaintiffs, Johnnie and Vicki Gouge, filed a two-count second-amended complaint in the circuit court of Franklin County against defendant, Central Illinois Public Service Company (CIPS). In count I, Johnnie Gouge sought damages for personal injuries he suffered when his automobile struck a utility pole owned by CIPS. In count II, Vicki Gouge sought damages for loss of consortium. Upon CIPS's motion, the circuit court dismissed plaintiffs' second-amended complaint for failure to state a cause of action. The appellate court reversed and held that the second-amended complaint stated a cause of action for "negligent installation of the utility pole." (195 Ill.App.3d 1026, 1032, 142 Ill.Dec. 563, 552 N.E.2d 1304.) CIPS filed a petition for leave to appeal, which this court denied on October 3, 1990. On November 21, 1990, this court allowed CIPS's motion for leave to file a motion for reconsideration and vacated our October 3, 1990, order. Subsequently, we allowed CIPS's petition for leave to appeal (134 Ill.2d R. 315). Amicus curiae briefs in support of CIPS's petition for leave to appeal were filed by Soyland Power Cooperative, Inc., Illinois Municipal Electric Agency, Commonwealth Edison Company, Central Illinois Light Company, Illinois Power Company, Illinois Bell Telephone Company, and Union Electric Company.

At approximately 1 a.m. on August 7, 1986, Johnnie Gouge was driving his automobile south on Janette Street, in Browning Township, Franklin County. As Gouge approached a sharp curve to his right, he lost control of his vehicle, skidded 65 feet and left the paved surface of the road. After crossing a gravel shoulder, Gouge's automobile struck a wooden utility pole owned by CIPS. The utility pole was approximately 15 feet from the paved surface of Janette Street, and had attached to its top portion a 7,200 volt transformer which was apparently filled with a flammable substance. Upon impact, the utility pole fractured 10 to 12 feet above ground. The top portion of the pole with the transformer attached fell onto Gouge's automobile and through the windshield. The transformer broke open and the flammable substance spilled out and ignited. Gouge suffered severe, permanent and disabling injuries from the fire.

Plaintiffs' second-amended complaint alleges that CIPS was negligent in the installation of the wooden utility pole. Specifically, plaintiffs assert:

"a) Contrary to ANSI [American National Standards Institute] C2, National Electric Safety Code, Rule 261C and 282A, [CIPS] installed and/or permitted to remain in place, the aforesaid pole with a guy wire attached to the accident pole that was out of line with the strain from the wires coming across the road from the takeoff pole to the accident pole;

b) [CIPS] failed to add a second wire to the accident pole alongside the fencerow at the scene of the occurrence, extending away from the road c) [CIPS] failed to place a single guy wire in line with the wires coming across the road from the take-off pole."

CIPS filed a motion to dismiss plaintiffs' second-amended complaint arguing that it failed to state a cause of action as matter of law. CIPS contended that the complaint failed to allege sufficient facts to adequately plead an essential element for a cause of action for negligence, i.e., a duty on the part of CIPS owed to plaintiffs under the circumstances alleged. CIPS argued that it was not reasonably foreseeable that Gouge would leave the roadway and strike this particular utility pole. CIPS relied primarily on two cases which state that utility companies owe no duty to motorists in terms of the placement of utility poles because it is not reasonably foreseeable that a motorist in the ordinary course of travel would leave the traveled portion of the roadway and strike that utility pole. (See Boylan v. Martindale (1982), 103 Ill.App.3d 335, 59 Ill.Dec. 43, 431 N.E.2d 62; Hoffman v. Vernon Township (1981), 97 Ill.App.3d 721, 53 Ill.Dec. 135, 423 N.E.2d 519.) The circuit court agreed and granted CIPS's motion to dismiss.

The appellate court reversed. The appellate court acknowledged that a utility company generally owes no duty for the placement of utility poles to motorists who deviate from the roadway and strike a utility pole. However, the appellate court believed that this case was different because plaintiffs were not suing CIPS for negligent location of the utility pole, but rather for negligent installation of the utility pole. (195 Ill.App.3d at 1030, 142 Ill.Dec. 563, 552 N.E.2d 1304.) In analyzing whether CIPS owed a duty to plaintiffs to exercise reasonable care in the installation of the utility pole, the appellate court concluded that "it is foreseeable that an improperly guyed utility pole may fracture and fall or may simply topple over, whether from weather conditions, strain from other wires running from the pole, the passage of time or collision with an automobile." (195 Ill.App.3d at 1031, 142 Ill.Dec. 563, 552 N.E.2d 1304.) Further, the appellate court stated that the magnitude of guarding against this harm is not great because CIPS need only "properly guy those utility poles which reasonable care dictates require guy wires." (195 Ill.App.3d at 1031, 142 Ill.Dec. 563, 552 N.E.2d 1304.) As a result, the appellate court held that plaintiffs' second-amended complaint stated a cause of action for negligent installation of the utility pole.

Initially, we note that CIPS's motion to dismiss was filed pursuant to section 2-619(a)(9) of the Code of Civil Procedure (Ill.Rev.Stat.1989, ch. 110, par. 2-619(a)(9)). Section 2-619(a)(9) provides that a defendant may file a motion for dismissal alleging "[t]hat the claim asserted against defendant is barred by other affirmative matter avoiding the legal effect of or defeating the claim." In the present case defendant's motion was based on a failure to state a cause of action upon which relief could be granted. Given that CIPS's motion to dismiss challenged the legal sufficiency of the complaint, as opposed to asserting an affirmative defense, CIPS's motion should have been filed pursuant to section 2-615 of the Code (Ill.Rev.Stat.1989, ch. 110, par. 2-615). However, since plaintiffs have not been prejudiced by this error, we will treat CIPS's motion as if it had been filed as a section 2-615 motion to dismiss. (See B.C. v. J.C. Penney Co. (1990), 205 Ill.App.3d 5, 12, 150 Ill.Dec. 3, 562 N.E.2d 533.) A cause of action will not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. (Charles Hester Enterprises, Inc. v. Illinois Founders Insurance Co. (1986), 114 Ill.2d 278, 286, 102 Ill.Dec. 306, 499 N.E.2d 1319.) In making this determination, we must take all well-pleaded facts as true, and all reasonable inferences therefrom should be construed in plaintiffs' favor. Katz v. Belmont National Bank (1986), 112 Ill.2d 64, 67, 96 Ill.Dec. 697, 491 N.E.2d 1157.

To state a cause for negligence, a complaint must allege facts sufficient to show the existence of a duty, a breach of that duty, and injury to the plaintiff which is proximately caused by that breach. (Ziemba v. Mierzwa (1991), 142 Ill.2d 42 45, 153 Ill.Dec. 259, 566 N.E.2d 1365.) Whether a duty exists is a question of law to be determined by the court, and depends on whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. (Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill.2d 507, 525, 111 Ill.Dec. 944, 513 N.E.2d 387.) In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on the defendant. ( Kirk, 117 Ill.2d 507, 111 Ill.Dec. 944, 513 N.E.2d 387; Lance v. Senior (1967), 36 Ill.2d 516, 518, 224 N.E.2d 231.) In terms of foreseeability, the court will consider whether the risk of harm to the plaintiff was reasonably foreseeable. Cunis v. Brennan (1974), 56 Ill.2d 372, 376, 308 N.E.2d 617.

In their second-amended complaint, plaintiffs rely on two rules of the National Electric Safety Code to support their claim that CIPS owed a duty to plaintiffs to properly install guy wires to the utility pole which Gouge's automobile struck. In their brief to this court, plaintiffs assert that CIPS "voluntarily assumed the burden to guard against an injury of this nature by implementing Section 261C and 282A of the National Electrical Safety Code." In addition, plaintiffs argue in their brief that under Illinois Commerce Commission General Order 160, CIPS had a duty to install the pole "in accordance with accepted good practice, given local conditions and all particulars not specified in the rules." Plaintiffs maintain that these rules create a duty on the part of CIPS to properly guy the utility pole so that it would have...