Stambaugh v. Central Illinois Light Co.

• Decision Date: 14 October 1976
• Docket Number: No. 75-229,75-229
• Citation: 42 Ill.App.3d 582,1 Ill.Dec. 148,356 N.E.2d 148
• Parties: , 1 Ill.Dec. 148 Richard L. STAMBAUGH, Appellant, v. CENTRAL ILLINOIS LIGHT COMPANY, a corporation, et al., Appellees.
• Court: United States Appellate Court of Illinois

Page 148

356 N.E.2d 148

42 Ill.App.3d 582, 1 Ill.Dec. 148

Richard L. STAMBAUGH, Appellant, v. CENTRAL ILLINOIS LIGHT COMPANY, a corporation, et al., Appellees.

No. 75-229.

Appellate Court of Illinois, Third District.

Oct. 14, 1976.

William R. Kelly, Peoria, for appellant.

Eugene White, Peoria, Counsel, Kavanagh, Scully, Sudow, White & Frederick, O'Hern, O'Hern & Wombacher, Peoria, for appellees.

STENGEL, Justice.

This is an action for damages by the plaintiff against five defendants for personal injuries sustained while plaintiff was visiting a friend who resided at a mobile home park. Two defendants, Central Illinois Light Company and 2528 Farmington Road, Inc., were dismissed on plaintiff's motion. Summary judgment was granted in favor of the three remaining defendants who were the operators of the mobile home park where plaintiff was injured, and plaintiff appeals.

The portion of plaintiff's Second Amended Complaint relevant to this appeal alleged that defendants were the operators and lessors of a mobile home park and had leased a lot to William Hetzel. On June 29, 1972, plaintiff went to Hetzel's mobile home for the purpose of assisting Hetzel in relocating a CB radio antenna atop a tower. After plaintiff had climbed part way up to the tower, the upper portion of the antenna came in close proximity to an uninsulated electric power line carrying 13,000 volts which ran across the rear of Hetzel's lot. The current arced from the power line to the antenna and knocked plaintiff to the ground, causing serious injury. Plaintiff alleged that defendants were negligent in allowing the trailer to be placed near the power lines, failing to keep the property reasonably safe and failing to warn plaintiff of the danger. Plaintiff also alleged that defendants had notice of the dangerous condition because in 1961, a resident of the park was killed when electricity arced from a power line to a television antenna the resident was erecting.

Defendant Deluxe Mobile Home Park, Inc., in its answer, alleged as new matter that the power lines and transformer were plainly visible. This new matter was not denied by plaintiff. Subsequently Deluxe submitted the affidavit of Edward Butler, the custodian for the mobile home park, and thirteen photographs of the area of Hetzel's lot showing the tower, antenna, power lines and transformer. In the affidavit, Butler stated that the tower on top of which the antenna was to be placed is 35 feet high, that the photographs correctly portray the area adjacent to Hetzel's mobile home, that, as shown by the photographs, there are no obstructions to the view of the power lines and transformer, and that the injury occurred between 1:45 and 2 p.m. on a clear, bright day with excellent visibility.

Also presented to the trial court were excerpts from plaintiff's deposition, in which plaintiff stated that he had been at Hetzel's mobile home on eight or nine previous occasions and had helped Hetzel build his front porch, but had never noticed the power lines or transformer. On the date he was injured, he climbed up the tower with his back to the rear of the lot so that the wires were behind him, and Hetzel handed him the antenna, which plaintiff estimated to be eight feet in width. Plaintiff stated that no one warned him about the wires, and he did not see the wires or transformer.

After Deluxe's motion for summary judgment was granted, the other two defendants were likewise granted summary judgment.

The issue before us is whether the pleadings, affidavits and depositions show that there is no genuine issue as to a material fact and that defendant is entitled to judgment as a matter of law. The right of the moving party to summary judgment must be free from doubt and even where there is no dispute in the evidence, if different conclusions may reasonably be drawn from the evidence, it is the province of the jury to draw the conclusion which to them seems most reasonable. Silberstein v. Peoria Town & Country Bowl, Inc. (3d Dist. 1970), 120 Ill.App.2d 290, 257 N.E.2d 12.

Here the undisputed facts show that plaintiff, who had been to Hetzel's on eight or nine previous occasions, climbed a 35-foot tower and received an electrical shock when an antenna which plaintiff was raising came into close proximity to an uninsulated electric wire. Plaintiff was not aware of the power lines or transformer, and did not see the wires on the date of his injury. The undisputed facts also show that these wires were not obstructed and were plainly visible.

We first note that defendants to this appeal are owners and lessors of the mobile home park and plaintiff was a guest of Hetzel. In Genaust v. Illinois Power Company (1976), 62 Ill.2d 456, 343 N.E.2d 465, plaintiff, who had contracted to erect an antenna on defendant's land was electrocuted when the antenna came in close proximity to uninsulated power lines and brought suit against the utility company and defendant landowner. In that portion of the opinion relevant here, our supreme court discussed the duty of a possessor of land to business invitees and held that plaintiff failed to state a cause of action as against defendant landowner. The court noted that defendant would not have discovered the danger of electrical arcing from power lines which were neither on its property nor under its control, and plaintiff, as a business invitee, would be deemed to have knowledge of the dangers of erecting an antenna near power lines. The court also stated:

'Furthermore, we note that count VI fails to allege that the wires in question were either hidden or concealed. As it is common knowledge that electricity is dangerous, so it is also common knowledge that any line or wire carrying electricity is dangerous. The potential risk of installing metal equipment in close proximity to power (lines) is apparent.'

The Restatement (Second) of Torts, Section 343, correctly states the settled law regarding the liability of possessors of land to invitees. Fancil v. Q.S.E. Foods, Inc. (1975), 60 Ill.2d 552, 557, 328 N.E.2d 538. Any duty which defendants have to plaintiff extends, at most, to latent or concealed conditions or conditions which defendants know create an unreasonable risk of harm and should realize that plaintiff will not discover or appreciate. Liability is based, in part, on the superior knowledge which owners or possessors of land have as to dangerous conditions on the land. Here, the power lines were not under defendants' control, but were on an easement granted to the utility company. More significantly, plaintiff has neither alleged nor adduced facts which indicate that these wires were hidden or concealed, nor has he refuted defendants' evidence which shows that the wires were not obstructedfrom view and were plainly visible. An owner of land is not an insurer against accidents occurring on the premises and liability must be predicated upon negligence on the part of the owner. Beccue v. Rockford Park District (2d Dist. 1968), 94 Ill.App.2d 179, 236 N.E.2d 105.

We do not believe that plaintiff has shown any negligence on the part of these defendants where the injury was caused from electrical wires which were plainly visible and which constituted a commonly known danger. Assuming however, that Genaust is distinguishable and plaintiff at least stated a cause of action, this does not excuse plaintiff from looking when he should look and from seeing that which is within the range of vision. Clark v. Quincy Housing Authority (4th Dist. 1967), 86 Ill.App.2d 458, 229 N.E.2d 780.

While contributory negligence is preeminently a question of fact, it can become a question of law when from the undisputed facts, all reasonable minds in the exercise of fair and earnest judgment would be compelled to reach the conclusion that plaintiff failed to exercise that degree of due care for his safety required of an ordinary prudent person. Bitner v. Lester B. Knight & Associates, Inc. (3d Dist. 1974), 16 Ill.App.3d 857, 307 N.E.2d 136; Clausen v. Ed Fanning Chevrolet, Inc. (3d Dist. 1972), 8 Ill.App.3d 1053, 291 N.E.2d 202.

A similar situation was involved in Withey v. Illinois Power Co. (2d Dist. 1961), 32 Ill.App.2d 163, 177 N.E.2d 254. There the plaintiff, who had resided at a mobile home park for ten months, was injured while attempting to move his television antenna and brought suit against the power company and owner of the park, alleging that the injury was caused by the antenna coming in contact with uninsulated power lines. In holding that plaintiff was contributorily negligent as a matter of law, the court stated:

'(Plaintiff) cannot be heard to say that he did not know that the electric (wire) was there. A failure to see what is clearly visible is not such conduct as is compatible with due caution for one's own safety.'

The court also noted that the danger of electrical energy is a matter of common knowledge to persons of ordinary intelligence and experience.

We believe that plaintiff, who climbed a tower and raised an antenna, without looking for, or seeing power lines, which were clearly visible and which posed an obvious danger, failed to show that he exercised due care. Plaintiff is bound to exercise reasonable and ordinary care to foresee danger and avoid injury, and a person who carelessly walks into danger that the observance of ordinary care would have enabled him to avoid is contributorily negligent. Coleman v. Illinois Central Railroad Company (1974), 59 Ill.2d 13, 319 N.E.2d 228; Briske v. Village of Burnham (1942), 379 Ill. 193, 200, 39 N.E.2d 976; Crowe Name Plate & Mfg. Co. v. Dammerich (4th Dist. 1935), 279 Ill.App. 103. Here, plaintiff had been to Hetzel's mobile home several times previously and, at the time of the injury, was on a 35 foot tower erecting an antenna. We believe that plaintiff must be charged with seeing that which was clearly visible and which presented a commonly known danger. Withey v. Illinois Power Co. (2d Dist. 1961)...