Illinois Bell Telephone Co. v. City of Highland Park

• Decision Date: 30 May 1991
• Docket Number: No. 2-90-0663,2-90-0663
• Citation: 572 N.E.2d 1267,214 Ill.App.3d 15
• Parties: , 157 Ill.Dec. 803 ILLINOIS BELL TELEPHONE COMPANY, Plaintiff and Counterdefendant-Appellee and Cross-Appellant, v. The CITY OF HIGHLAND PARK, Defendant and Counterplaintiff-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 1267

572 N.E.2d 1267

214 Ill.App.3d 15, 157 Ill.Dec. 803

ILLINOIS BELL TELEPHONE COMPANY, Plaintiff and Counterdefendant-Appellee and Cross-Appellant, v. The CITY OF HIGHLAND PARK, Defendant and

Counterplaintiff-Appellant and Cross-Appellee.

No. 2-90-0663.

Appellate Court of Illinois,

Second District.

May 30, 1991.

Rehearing Denied June 27, 1991.

Michael F. Bonamarte III, DeSanto & Bonamarte, P.C., Waukegan, for City of Highland Park.

William P. Anderson, Fuqua, Winter, Stiles & Anderson, Ltd., Waukegan, for Illinois Bell Telephone.

Justice McLAREN delivered the opinion of the court:

Defendant, the City of Highland Park (City), appeals from the judgment of the circuit court in favor of plaintiff, Illinois Bell Telephone Company (Bell), on Bell's negligence complaint. The City raises two issues on appeal: (1) whether the trial court's judgment was against the manifest weight of the evidence; and (2) whether a City ordinance granting plaintiff certain rights in the City bars it from maintaining its cause of action. Bell cross-appeals that part of the judgment which found it 40% comparatively negligent and awarded Bell $10,992.31. In its cross-appeal, Bell raises the following issues: (1) whether the trial court erred in finding that the City had not committed an intentional trespass; (2) whether, as a matter of law, the City cannot raise the defense of contributory negligence to an intentional trespass; (3) whether the trial court's finding that Bell was 40% comparatively negligent was against the manifest weight of the evidence. We affirm in part and remand.

Bell filed a two-count complaint in the circuit court against the City, alleging that on October 11, 1985, the City was performing construction work in the area of 1440 Oakwood in Highland Park. During the course of this construction, an underground Bell cable was damaged. Count I alleged that the City committed a trespass by performing construction at 1440 Oakwood without Bell's consent or knowledge. Count II alleged that the City was negligent because it failed to locate cables under the street and performed its excavation without regard for others' property; negligently augered under the street so as to damage Bell's equipment; disregarded paint and stakes locating Bell's equipment; and damaged Bell's equipment.

The City raised the affirmative defense of contributory negligence. The City alleged that it requested information from Bell regarding the location and identity of underground cables and Bell representatives did not tell the City that there were three ducts under the street.

The City also included a counterclaim for declaratory judgment. The City alleged that it enacted an ordinance granting Bell certain rights in Highland Park. The City alleged, in relevant part, that section 4 of the ordinance provided:

"The Company shall, at its own expense, defend all suits that may be brought against the Municipality on account of or in connection with the violation by the Company of any of the obligations hereby imposed upon or assumed by it, or by reason of or in connection with any damage to life, limb or property as a result of any of the structures constructed by it under or by virtue of this ordinance, and shall save and keep harmless the Municipality from any and all damages, judgments, costs and expenses of every kind, that may arise by reason thereof; provided, that notice in writing shall be immediately given to the Company of any claim or suit against the Municipality which, by the terms hereof, the Company shall be obligated to defend, or against which the Company has hereby agreed to save and keep harmless the Municipality and provided further that the Municipality shall furnish to the Company all information in its possession relating to said claim or suit, and cooperate with the company [sic ] in the defense of said claim or suit. The governing body of the Municipality may, if it so desires, assist in defending any such claim or suit, but solely under the direction of the Company or its attorneys, and the Company shall not be required to reimburse the Municipality for expenses incurred by it in case of the election so to assist."

Based on this section, the City contended that the suit between the parties was not allowed and that Bell had implicitly waived its right to claim damage to its property caused by the City.

At the bench trial, Michael Becvar testified that he worked for Bell as a cable splicer. On October 11, 1985, his supervisor sent Becvar to 1440 Oakwood to repair the facility. When Becvar arrived on the scene, City employees had damaged a cable and were trying to dig it up to see what was the problem. According to Becvar, the cable was so badly damaged that it had to be replaced, rather than repaired. The damaged cable was a "1200 pair lead cable," which consisted of 1,200 wires surrounded by lead.

At 1440 Oakwood, Bell had three ducts between two manholes, but on October 11, 1985, Becvar was unaware that there were three of them. Becvar described the ducts as "a six-duct with two, two, and two; * * * a nine-duct which is three by three, and another nine-duct, three by three." According to Becvar, the damaged cable was in the middle duct, which was one of the lower two ducts. On cross-examination, Becvar admitted that he was "not 100 percent positive" that the damaged cable had been laid in the duct system.

The court asked Becvar in which of the ducts was the damaged cable. Becvar responded that he was not sure because they could not get at the cable to repair it. The court also asked what the hole looked like. Becvar stated that there was a hole in the bottom part of a 2 1/2- to 3-inch cable. In addition, Becvar explained that the ducts were encased in red clay tile, which was then covered with concrete. Becvar admitted that he did not know whether the damaged cable was protruding from an encasement of clay and concrete. Becvar further explained:

"In the manhole you have a concrete wall. You can tell it's clay duct tile by looking inside of it, but it's a flush manhole wall, and you have your six-duct and a few inch spacing, then your nine-duct, and then your next nine-duct. It was a flat concrete wall."

According to Becvar, there are holes in the concrete for service access.

On redirect examination, Becvar indicated that it was not possible to tell from within the manhole whether the entire three-duct system was encased in concrete because of a separate wall on the inside of the manhole.

Steven Harlow, a locator for Bell, testified that, as a general practice, the JULIE system, a multiutility locating system, contacts Bell after it receives a request for Bell cable information. Harlow then goes to the site and refers to plat maps, which indicate what type of cable is placed in the ground and its general location. Harlow then uses a dynatel to locate physically the cable within six inches. Harlow then marks the spot with orange paint and orange stakes.

Harlow further testified that on the cable exchange map, which depicts the configuration of ducts, it was not apparent that there were three ducts at 1440 Oakwood. The map depicted the manholes and one duct run. Harlow does not locate the depths of ducts, and when there is more than one duct on top of each other, Harlow would mark that there was a duct system. Harlow admitted that Bell had knowledge of what they had underground.

Harlow had gone to locate cable at 1440 Oakwood at the City's request. He marked a double orange line and wrote "T/duct" to show the location of the telephone duct. Harlow went into the pit that the City employees had dug. Harlow shined a flashlight through a four- to six-inch hole in which copper tubing had already been placed. He saw where the workers had bored through and damaged a cable. The duct markings ran parallel to the street, and the boring hole ran perpendicular to the street and intersected with the duct markings.

Stephen Nitschneider, a Bell engineer, testified regarding the age of various types of underground structures. According to Nitschneider, the damaged cable had been installed in the mid 1950's. Nitschneider also indicated that the configuration of three ducts stacked on top of each other was not uncommon in Highland Park. In response to a question posed by the court, Nitschneider explained that if there was a loose cable, not in a duct, the map would show the existence of such a cable. Nitschneider further clarified what the map showed, since the map did not depict the duct work itself. According to Nitschneider, if the cable "was outside of the duct work it would be outside of this manhole, it would be a line between the two manholes."

Jack Donald Wood, a safety manager for Bell, testified that he was Harlow's supervisor. Wood stated that Bell never marks the depth of its cables or ducts because the grade could change as much as three to four feet. Bell locators did not identify multiple structures which are located one on top of another; they merely mark the area as a duct or a cable. According to Wood, other utilities also do not mark for depth or multiple structures. Custom and practice in the industry is that the party augering must make sure that the auger's path is clear of any underground structures. Wood further testified that the type of cable which was damaged was always put in a duct, although he admitted that he was not sure that the damaged cable was in a duct system.

When Wood learned of a problem at 1440 Oakwood he went to the site and asked the workers whether they hit a cable. The workers did not know what had happened, since they thought their line was below Bell's structures. Wood described the area as two pits, one on either side of the orange markings. Wood got into one pit, which was about five feet deep. The City was putting the hole through to a "catch pit," where they would hook up the water line to the service to the house. Wood looked through the hole and saw the...