Schoenbeck v. Du Page Water Com'n

• Decision Date: 29 January 1993
• Docket Number: No. 2-91-1091,2-91-1091
• Citation: 607 N.E.2d 693,240 Ill.App.3d 1045,180 Ill.Dec. 624
• Parties: , 180 Ill.Dec. 624 Audrey SCHOENBECK, Indiv. and as Special Adm'r of the Estate of Herman Schoenbeck, Deceased, Plaintiff-Appellant, v. The DU PAGE WATER COMMISSION et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 693

607 N.E.2d 693

240 Ill.App.3d 1045, 180 Ill.Dec. 624

Audrey SCHOENBECK, Indiv. and as Special Adm'r of the Estate

of Herman Schoenbeck, Deceased, Plaintiff-Appellant, v. The DU PAGE WATER COMMISSION et al., Defendants-Appellees.

No. 2-91-1091.

Appellate Court of Illinois,

Second District.

Jan. 29, 1993.

James E. Pancratz, James E. Pancratz, Ltd., Cooney & Conway, Chicago, for Audrey Schoenbeck.

Aries Hoyt, William M. Waller, Aries, Hoyt & Taden, Thomas G. DiCianni, Ancel, Glink, Diamond, & Cope, P.C., Chicago, for City of Naperville.

James S. Jendryk, Michael Resis, Ellen S. Martin, Querrey & Harrow, Ltd., Chicago, for DuPage Water Com'n.

Thomas H. Ryerson, Clausen, Miller, Gorman, Caffrey & Witous, P.C., Wheaton

for Rezek, Henry, Meisenheimer and Gende.

Alvord, Burdick & Howson, Chicago, for Alvord, Burdick and Howson.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Audrey Schoenbeck, individually and as special administrator of the estate of her husband, Herman Schoenbeck, appeals from an order of the circuit court of Du Page County granting the motion for summary judgment of defendant, the Du Page Water Commission (Commission). Plaintiff brought this wrongful death action after Herman died from injuries he received in an explosion at a work site. On appeal plaintiff contends the trial court erred in determining that defendant owed no duty to her husband. We affirm.

In December 1983 the Commission contracted with the City of Chicago to purchase Lake Michigan water sufficient to meet the water supply needs of the Commission and its customers. In 1986 the Commission entered into a contract with, among other municipalities, the City of Naperville. The Commission agreed to sell, and Naperville agreed to buy, lake water. Like all the municipalities involved in the contract, Naperville had its own waterworks, or "unit system." The Commission's system for transmitting water from Chicago's water supply to Commission customers was differentiated by designating it as the "waterworks system." The contract called for Naperville to construct, operate, and maintain an underground pressure adjusting station at each point where water was delivered from the Commission's waterworks system into Naperville's own unit system.

On March 14, 1990, an explosion occurred at the site of construction of one of Naperville's pressure adjusting stations. Herman Schoenbeck, a construction laborer, suffered serious injuries in the blast and later died. In her complaint plaintiff alleged that the Commission owned, constructed, maintained, and controlled the underground vault where the explosion occurred and that the negligent conduct of the Commission resulted in her husband's death.

The Commission moved for summary judgment essentially on the basis that it had no responsibility for, or control over, the construction of the pressure adjusting station and, thus, owed no duty to the plaintiff's decedent. The motion was supported by the affidavit of Arthur Malm, the manager of facilities construction for the Commission. Plaintiff's memo in opposition to the motion was supported by the discovery deposition of Mr. Malm, a copy of the contract between the Commission and Naperville, correspondence from Malm regarding Naperville's pressure adjusting stations, and relevant contract documents and specifications. Following oral argument the trial court granted the Commission's motion. Since there were other defendants named in the suit, the trial court made the findings required by Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)), and plaintiff timely filed this appeal.

Summary judgment is a drastic remedy which should be granted only when the right of the moving party to relief is free from doubt. (Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867; Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill.App.3d 226, 239, 164 Ill.Dec. 825, 583 N.E.2d 1147.) A motion for summary judgment should be granted when the pleadings, depositions, and affidavits reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Wojdyla v. City of Park Ridge (1992), 148 Ill.2d 417, 420-21, 170 Ill.Dec. 418, 592 N.E.2d 1098; Lang v. Consumers Insurance Service, Inc. (1991), 222 Ill.App.3d 226, 239, 164 Ill.Dec. 825, 583 N.E.2d 1147.) After reviewing the record concerning this motion we are of the opinion the order granting summary judgment was proper.

Defendant's motion was made in the context of a wrongful death action. In an action for negligence the plaintiff must set out sufficient facts to establish that the defendant owed a duty to the plaintiff, that defendant breached that duty, and that the breach proximately caused injury to plaintiff. (Wojdyla 148 Ill.2d at 421, 170 Ill.Dec. 418, 592 N.E.2d 1098; Vesey v. Chicago Housing Authority (1991), 145 Ill.2d 404, 411, 164 Ill.Dec. 622, 583 N.E.2d 538.) Defendant claims it owed no duty to Herman Schoenbeck. The existence of a duty of care must be determined by the court as a matter of law (Wojdyla 148 Ill.2d at 421, 170 Ill.Dec. 418, 592 N.E.2d 1098; Eddings v. Dundee Township Highway Commissioner (1985), 135 Ill.App.3d 190, 197, 88 Ill.Dec. 397, 478 N.E.2d 888), and, absent a showing from which the court can infer the existence of a duty, no recovery by plaintiff is possible as a matter of law and summary judgment in favor of the defendant is proper. (Vesey 145 Ill.2d at 411, 164 Ill.Dec. 622, 583 N.E.2d 538; Rowe v. State Bank of Lombard (1988), 125 Ill.2d 203, 215, 126 Ill.Dec. 519, 531 N.E.2d 1358.) In our opinion, plaintiff did not make the showing necessary to withstand a motion for summary judgment.

Plaintiff characterizes Naperville as an independent contractor, building the pressure adjusting station for the Commission, under the authority of the Commission's charter. She posits that, as a chartered public corporation, the Commission had an affirmative, nondelegable duty to take precautions against accidents at the construction site. Plaintiff cites North Chicago Street R.R. Co. v. Dudgeon (1900), 184 Ill. 477, 56 N.E. 796, Chicago Economic Fuel Gas Co. v. Myers (1897), 168 Ill. 139, 48 N.E. 66, Graves v. North Shore Gas Co. (1981), 98 Ill.App.3d 964, 54 Ill.Dec. 376, 424 N.E.2d 1279, and Reith v. General Telephone Co. (1974), 22 Ill.App.3d 337, 317 N.E.2d 369, in support of this proposition. Each of these cases involved a publicly chartered corporation which contracted for work to be done by an alleged independent contractor. The corporations subsequently disclaimed liability for injury to plaintiff at the work site, claiming they had no control over the independent contractor. The courts held essentially that a corporation engaged in an activity which is dangerous to others, under a State charter or similar license, may not evade liability for negligence by delegating work to an independent contractor.

Plaintiff correctly states the rule found in the authorities she cites. The problem is she does not show that Naperville was an independent contractor or that the work involved here was authorized pursuant to the Commission's charter authority. The controlling statutes and the contract between the Commission and Naperville reflect that the station was built by Naperville, as part of Naperville's own water system, and under Naperville's charter authority.

Plaintiff does not dispute that the Commission and Naperville each had their own, separate waterworks. However, although she nowhere directly confronts the question, we detect a recurring implication in her arguments that the pressure adjusting station may have, in fact, been part of the Commission's waterworks system. This implication is unfounded.

The contract between the Commission and Naperville indicates that the station, when built, would be an integral part of Naperville's municipal water system. The contract states in relevant part:

"The points of delivery shall be defined as the points of outlet where the Lake Water delivered hereunder leaves the Waterworks System and enters a Unit System. These points will be ten feet downstream from the Commission's metering stations. * * * Each Charter Customer shall receive its supply of Lake Water downstream of the Commission's metering stations at pressures that will vary from time to time. Each point of delivery shall have a pressure increasing/reducing station. Each Charter Customer is responsible for the siting, design, construction, operation, maintenance and replacement of the pressure increasing/reducing stations to convey water from the Waterworks System into the Unit System."

Further, according to the contract, each charter customer's operation of "its pressure increasing/reducing stations" (emphasis added) may not cause backflow into the Commission's system, nor may operation of "the Customer's" pressure adjusting facilities cause a drop in pressure in the Commission's system. Not only does the contract put the responsibility for building and operating the pressure adjusting facility squarely on Naperville, but it also indicates that Naperville will "receive" its water at varying pressures. Once received, it is up to the customer to increase or reduce the pressure, as needed. According to the parties' contract, the pressure adjusting station was a functional and essential segment of Naperville's unit system.

While we conclude that the station was part of Naperville's water system, plaintiff's contention that it was authorized by the Commission remains. However, the Commission's contract with Naperville nowhere indicates that Naperville was building the station for the Commission, or at the Commission's request, or that the Commission authorized Naperville to build it. Rather, among many other agreements, Naperville agreed to be "responsible for the siting, design, construction, operation, maintenance and...