Ryan v. Commonwealth Edison Co.
| Decision Date | 28 March 2008 |
| Docket Number | No. 1-06-3309.,1-06-3309. |
| Citation | 885 N.E.2d 544 |
| Parties | Daniel RYAN, Plaintiff-Appellant, v. COMMONWEALTH EDISON COMPANY, Defendant-Appellee. |
| Court | United States Appellate Court of Illinois |
Daniel B. Malone, The Healy Law Firm, Chicago, for Appellant.
David E. Neumeister, Jennifer L. Medenwald, Querrey & Harrow, Ltd., Chicago, for Appellee.
Electrician Daniel Ryan was injured in an on-the-job circuit breaker explosion. He brought suit against Commonwealth Edison Company (Com Ed), alleging that Com Ed was responsible for the electrical current that flowed into the building and that the severity of the accident was increased by Com Ed's negligent failure to adequately perform its ongoing maintenance duties. The trial court granted summary judgment in favor of Com Ed on grounds that Ryan's claim was time-barred by the construction statute of repose, since it occurred more than ten years after the electrical system was first installed. For the reasons that follow, we reverse and remand.
Viewing the evidence liberally in favor of the nonmoving party, as is appropriate under a summary judgment motion (Purtill v. Hess, 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867, 871 (1986)), we are presented with the following description of events as alleged by Ryan:
Ryan was an electrician employed by the City of Chicago. On April 2, 2001, the day of the accident, Ryan was working in the Heating and Refrigeration (H & R) building at O'Hare International Airport in Chicago, Illinois, performing maintenance work on a circuit breaker. He was working with Byron Glista, an employee of High Voltage Maintenance Corporation (High Voltage). Com Ed installed and owned the transformer (known as transformer number 6) which provided electricity to the circuit breaker.
The procedure for the maintenance operation was that Ryan would first remove the circuit breaker from the cubicle in which it was housed; Glista would then perform the necessary repairs on it, and Ryan would reinstall the circuit breaker in its cubicle. However, when Ryan reinstalled this circuit breaker, it exploded, causing serious injury to Ryan.
Ryan filed a complaint in two counts. The first count was against Glista's employer, High Voltage. In that count, which is not currently at issue, Ryan contended that High Voltage committed negligence through the actions of its employee and was therefore responsible for Ryan's injuries.
It is Ryan's second count, which was against Com Ed, that is at issue in the instant appeal. Ryan alleged that, at the time of the accident, Com Ed had a duty to exercise ordinary care in the repair and maintenance of transformer number 6, which it had breached. Specifically, he alleged that Com Ed:
Ryan further alleged that this negligent maintenance by Com Ed was the proximate cause of the explosion, and thus, of the injuries he sustained.
On July 14, 2006, Com Ed moved for summary judgment. It argued that Ryan's claims against it were time-barred under the Illinois construction statute of repose (735 ILCS 5/13-214(b) (West 2006)), which forecloses all claims for negligent design that are brought more than ten years after a fixture to real property has been installed. Because the parties agreed that the power system at issue was over 20 years old, Com Ed contended that it was entitled to judgment as a matter of law.
In support of its motion, Com Ed referred to a report prepared by John Nelson, the electrical engineer retained as an expert by Ryan, as well as Nelson's subsequent deposition testimony. Com Ed contended that the only fault that Nelson found in Com Ed's system was in its original design and installation, as Nelson never alleged failure to repair as a cause of Ryan's injury.
Nelson based his report, dated June 7, 2004, upon a site inspection that he conducted on April 10, 2001, eight days after the accident occurred, as well as various documents that he had reviewed. In that report, Nelson stated that the transformers supplying power to the circuit breaker involved in the accident were owned by Com Ed, and they were set up in such a way that a resistor linked to the circuit breaker, which was supposed to reduce the electrical current to 300 amps, was shorted out. Hence, in his professional opinion, one of the reasons that Ryan was injured was that "ComEd was careless in the design, construction, commissioning, and follow-up testing of the incoming power system."
In his deposition, dated March 11, 2005, Nelson explained that electrical voltage is similar to water pressure in a hose: the greater the voltage, the greater the flow of power. The purpose of a resistor is to limit the flow of power. In this case, if the resistor at issue had been working correctly, it would have restricted the electric current to 300 amps. However, Nelson stated that the resistor had shorted out and become ineffective. As a result, the current flowing through the circuit breaker at the time of the accident was unrestricted and could have been as high as 28,000 amps. Nelson gave his opinion that if the resistor had not been shorted out and the electrical current had been limited to 300 amps, Ryan's injuries from the accident would have been less severe or possibly nonexistent.
In elaborating on the reasons for the resistor failure, Nelson stated that the transformer installed by Com Ed included a component known as "neutral Xo bushing" that had shorted out, thus causing the resistor to short out. Nelson opined that this bushing was probably placed when the system was first installed.
Nelson further stated that in his report, he had said that Com Ed needed to change its system setup to prevent the resistor from being shorted; nevertheless, when he went to inspect the site again the day before he gave his deposition, he discovered that nothing had been done to correct the problem. That is, he said that the configuration of the neutral Xo bushing had not been changed and that the same dangerous condition still existed. He repeated his opinion that Com Ed's flaws in its system exacerbated the injuries Ryan received in the accident as a result of the negligence of his co-worker.
In his response to Com Ed's motion for summary judgment, Ryan argued that the construction statute of repose did not apply to his claims, because he was not alleging negligence in the way the system was designed, but rather in Com Ed's ongoing maintenance duties. "[T]he Court should not allow Com Ed to convert Plaintiff's negligence Count II of the Complaint against Com Ed into a * * * construction design case," he urged. He further argued that there was a genuine issue of material fact as to whether Com Ed's failure to properly maintain the electrical system was a proximate cause of Ryan's injuries. In support of this contention, Ryan referred to the deposition testimony of Martin LeWand, a Com Ed foreman and supervisor who described Com Ed's extensive maintenance duties at O'Hare at the time of the accident.
In his deposition, LeWand testified that he had been a foreman for Com Ed since 1987, and he worked at O'Hare from around 1998 to 2002. He stated that Com Ed had around 18 employees reporting to its O'Hare office, including eight under LeWand's direct supervision, as well as at least one station operator on duty 24 hours a day, seven days a week. He also said there were three separate stations containing Com Ed transformers which supplied power to the airport. Com Ed employees performed both corrective and preventative maintenance on the equipment in those stations. Although the cables linking the transformers to the airport were not owned by Com Ed, LeWand stated that the transformers themselves were Com Ed property (along with associated equipment, such as bushing).
On April 2, 2001, LeWand was in his office at the airport when he received a telephone call notifying him that an accident had occurred. He went to the H & R building, where he and one of his employees inspected the circuit breaker that was involved in the accident. He then proceeded to the station that housed the transformer supplying power to that circuit breaker, which was about half a block away. Since it was obvious the transformer had exploded and was no longer functional, LeWand made calls to have the damaged parts removed and to replace them with new parts. He said that he didn't know why the transformer exploded, nor did he know whether anyone from Com Ed conducted an inquiry into the reasons for the explosion.
The trial court granted summary judgment in favor of Com Ed and, in a later order, found that there was no just reason to delay enforcement or appeal of the grant of summary judgment under Supreme Court Rule 304. 134 Ill.2d. R. 304. Ryan therefore appealed.
Com Ed contends that it is protected against all liability for the accident under section 13-214 of the Code of Civil Procedure, also referred to as the construction statute of repose. This is the sole issue invoked by the parties in this appeal.1
Section 13-214 provides, in relevant part:
"No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission." 735 ILCS 5/13-214(b) (West 2006).
This statute applies whenever (1) the product at issue is an improvement to real property and (2) the defendant's activities...
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