Sheffler v. Commonwealth Edison Co.

• Citation: 923 N.E.2d 1259
• Decision Date: 26 February 2010
• Docket Number: No. 1-09-0849.,1-09-0849.
• Parties: Frances SHEFFLER, Mark Resnik, and Debra L. Sloan, individually and on behalf of Jason Sloan, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. COMMONWEALTH EDISON COMPANY, an Illinois corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

923 N.E.2d 1259

Frances SHEFFLER, Mark Resnik, and Debra L. Sloan, individually and on behalf of Jason Sloan, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants,
v.
COMMONWEALTH EDISON COMPANY, an Illinois corporation, Defendant-Appellee.

No. 1-09-0849.

Appellate Court of Illinois, First District, Sixth Division.

February 26, 2010.

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Larry D. Drury, Ilan Chorowsky, Larry D. Drury, Ltd., Chicago, ILL; John H. Alexander, John H. Alexander & Associates, LLC, Chicago, ILL, for Appellants.

John J. Hamill, Erinn L. Wehrman, Sean C. Herring, Jenner & Block LLP, Chicago, ILL, for Appellee.

Justice ROBERT E. GORDON delivered the opinion of the court:

Plaintiffs, Frances Sheffler, Mark Resnik, and Debra Sloan, individually and on behalf of Jason Sloan, appeal the dismissal of their complaint, framed as a class action, against defendant, Commonwealth Edison Company (ComEd), a public utility, and the trial court's denial of their motion for leave to file a fourth amended complaint, also framed as a class action.

On August 23, 2007, the Chicago area was affected by severe storm systems, resulting in the loss of electrical power to many ComEd customers, including plaintiffs. Following the storms, plaintiffs filed this lawsuit seeking legal and equitable relief against ComEd. The operative third amended complaint, which was dismissed in its entirety with prejudice, contained five counts as a class action. Count I, entitled "Negligence," alleges that ComEd negligently failed to prevent the power outages, failed to provide adequate warning to plaintiffs and those similarly situated prior to the power outages, and failed to timely restore power to plaintiffs and the purported class following the power outages. Count II, entitled "Public Utilities Act," alleges the existence of a statutory duty and a violation of that duty. Specifically, count II of plaintiffs' complaint alleges that ComEd violated sections 8-101, 8-401, and 16-125(e-f) of the Illinois Public Utilities Act (Act) (220 ILCS 5/1-101 et seq. (West 2006)), as well as Illinois Commerce Commission Rule 411.100. Count III, entitled "Breach of Contract Implied in Law/Fact," alleges that ComEd accepted payment for and impliedly agreed to provide plaintiffs and the purported class with "adequate, efficient and reliable electric services," and failed to do so. Count IV, entitled "Injunction," sought to enjoin ComEd "from its practice of refusing to have in place infrastructure and planning, that, by design, cannot prevent controllable interruptions of power," and "cannot permit ComEd to timely respond" to a power interruption. Count V, entitled "Illinois Consumer Fraud Act," alleges that ComEd engaged in unfair business practices by "paying its managers and employees bonuses or compensation to spend less on repair for the benefit of ComEd's Illinois customers."

The complaint's prayer for relief requests class-action certification for "any and all persons and entities located in the State of Illinois that suffered damages as a result of electric power outages or interruptions for August 23, 2007, through the date of judgment." The complaint alleges that plaintiffs and purported class members suffered "personal injuries, property damage and other financial damages, including loss of use of property, and costs of repair or replacement of property as a result of the sudden and dangerous power outages or interruptions." The complaint further alleges that plaintiffs "sustained at least the following damages as a result of ComEd's acts and conduct: spoiled food, water damage to walls, furniture, fixtures, appliances, furnace and water heaters, and medical and electrical equipment." As relief,

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the complaint seeks legal and injunctive relief, attorney fees and costs, and any other relief the circuit court finds proper. As part of the injunctive relief sought, the complaint seeks to "enjoin ComEd and its agents, employees, and all persons acting in concert or cooperation with ComEd * * * from its practice of refusing to have in place infrastructure and planning, that, by design, cannot prevent controllable interruptions of power," and "cannot permit ComEd to timely respond to a power interruption."

ComEd filed a section 2-615 motion (735 ILCS 5/2-615 (West 2006)), to dismiss plaintiffs' complaint for failure to state a cause of action. Relying on Lewis E. v. Spagnolo, 186 Ill.2d 198, 238 Ill.Dec. 1, 710 N.E.2d 798 (1999), the trial court dismissed the complaint, with prejudice, concluding that the complaint failed to sufficiently state a cause of action. In Spagnolo, our Illinois Supreme Court affirmed the dismissal of a complaint seeking a sweeping mandatory injunction to correct allegedly deplorable conditions at a school, finding that the "plaintiffs allege merely that the defendants have violated `common law duties,' without specifying what those duties are or what acts or omissions of the defendants breached those duties." Spagnolo, 186 Ill.2d at 233, 238 Ill.Dec. 1, 710 N.E.2d 798. Further, the court found that the issue raised in the plaintiffs complaint was a non-justiciable political question and the redress sought by the plaintiffs was appropriately addressed by the Illinois legislature. Spagnolo, 186 Ill.2d at 205, 238 Ill.Dec. 1, 710 N.E.2d 798. Likening the current case to Spagnolo, the trial court specifically found that the complaint in the case at bar sought relief "for systematic defects in the provision of the electrical services or in the repair of those services once an outage occurs," which the trial court determined were of "the type of broad-based allegations and claims that cannot survive as a matter of law." The trial court concluded that "the bottom line is that * * * plaintiffs' allegations go to the way ComEd provides services and the adequacy of its response when those services fail," and that "the law does not provide relief for the kinds of claims that are stated" in plaintiffs' complaint.

Plaintiffs sought leave to file a fourth amended complaint to remove their allegations seeking injunctive and declaratory relief, and to seek only a damages claim, which the trial court denied. Plaintiffs timely appeal the dismissal of their class-action complaint and the denial of their motion for leave to file a fourth amended class-action complaint. We affirm.

BACKGROUND

Plaintiff Sheffler is a resident of Glenview, Illinois, Plaintiff Resnik of Wilmette, Illinois, and Plaintiff Debra Sloan, who sues individually and on behalf of her son, Jason Sloan, of Des Plaines, Illinois. Plaintiffs' complaint alleges that "on or about August 23, 2007, and thereafter, ComEd failed to provide, and timely restore power to the plaintiffs and other customers in Illinois including Cook County." The complaint further alleges that "the storm of August 2007 precipitated an interruption in excess of 30,000 ComEd customers, including plaintiffs and ComEd did not restore their power within 24 hours." The complaint seeks the appointment of plaintiffs as representatives of a statewide class of similarly situated ComEd customers.

The complaint contains additional allegations concerning the Sloan plaintiffs. Jason Sloan requires a ventilator to breathe and has life support equipment at home, where he lives with his mother Debra Sloan. The Sloan residence lost power during the August 23, 2007, storm. The

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complaint alleges that Debra Sloan telephoned a ComEd customer service representative for assistance and that she received "curt treatment" on the telephone. As a result of the power outage, Debra connected Jason's ventilator to a "temporary generator," contained within their residence's basement. Shortly after connecting Jason's ventilator to the "temporary generator," the Sloan's basement flooded and Debra Sloan's back-up efforts to restore power to Jason's ventilator were unsuccessful. Unable to learn when her home's electric power would be restored, Debra moved her son to an undisclosed location that apparently had electrical power

The Sloan residence appeared on a list known as the "Life Support Registry" (registry) that ComEd maintains under the Illinois Public Utilities Act (Act) (220 ILCS 5/8-204 (West 2006)), due to the presence of life support equipment within the residence. Section 8-204 of the Act requires "every public utility company which furnishes electricity to residential customers to * * * maintain a registry of those individuals who are dependent on an electrically operated respirator, dialysis machine or any other electrically operated life-support equipment." The complaint alleges that ComEd refused to use the registry to assign the Sloan residence priority in restoring electrical power. Further, the complaint alleges that "ComEd rushed to restore power of certain VIPs," rather than give priority to those customers on the life-support equipment registry.

As noted, the trial court proceedings in the case at bar involved four filed complaints and one proposed fourth amended complaint. The procedural history leading to the operative third amended complaint and the proposed fourth amended complaint, is as follows.

On August 28, 2007, five days after the August 23, 2007, storms, plaintiffs Sheffler and Resnik filed a putative class-action complaint against ComEd alleging a violation of the Act and breach of an "implied contract." Two weeks later, plaintiffs moved for and obtained leave to file an amended complaint.

On September 19, 2007, plaintiffs filed an "amended class action complaint." The amended complaint added the Sloan plaintiffs, repeated the original complaint's counts and added allegations concerning ComEd's life-support equipment registry. The amended complaint sought class-action certification for "any and all persons registered on the registry from August 23, 2007, through...