October 23, 2001

JUSTICE COOK delivered the opinion of the court:

In July 1998, plaintiff, Karen Tinder, filed a one-count complaint against defendant Illinois Power Company, Inc.,now known as Illinois Power (Illinois Power), alleging thatIllinois Power was liable for injury to and the death of decedent, William L. Tinder, pursuant to the Wrongful Death Act (740ILCS 180/2.1 (West 1994)). The trial court granted summaryjudgment to Illinois Power, concluding that Illinois Power had noduty to insulate its power lines and had no further duty toprotect decedent under the circumstances of this case. Plaintiffappeals. We affirm.

Decedent owned a residence in Danville, with a detachedgarage on the alley. On July 31, 1996, decedent and Donald Delvaattempted to take down a citizens band (CB) antenna attached tothe garage. Decedent was electrocuted when the antenna contactedoverhead power lines owned by Illinois Power.

Illinois Power's lines were located in the alley behindthe garage. The lines were clearly visible and unobstructed. The highest line was an uninsulated primary line. Below thatline were three 120/240 volt lines. Illinois Power denies thatthose lines were insulated. The affidavit of William DeWitt, anelectrical engineer, however, states that he examined the linesafter the incident and "the 120/240 power lines [were] covered bya degraded insulating material." For purposes of this appeal, weassume that DeWitt is correct.

Delva testified that he and decedent discussed how theyneeded to keep the antenna away from the power lines in the alleybecause it would be dangerous if the antenna hit the power lines. Decedent and his son, William D. Tinder, had erected the antennaapproximately a year earlier. Decedent believed the antenna, 51or 52 feet tall, had to be located higher than the power lines toimprove reception. Tinder and decedent talked about the electrical lines in the alley and the fact that those lines should beavoided because if the antenna "even slipped, one of us couldhave [gotten] hurt." Tinder testified he and decedent understoodthat they could be shocked or electrocuted and that was thereason they avoided raising the antenna going east to west.

The neighbors across the alley, the Taylors, owned agarage that had burned in 1990 or 1991. Their garage was about15 feet from decedent's garage. The fire reached as high as thepower lines, and Illinois Power sent a serviceman to look at thelines, who said they did not need to be replaced. Illinois Powerdid not do anything to change the condition of the power linesduring the five years before the incident.

Plaintiff's complaint alleged that Illinois Powerfailed to properly insulate, guard, protect, and maintain thelines; failed to repair the lines after the garage fire; violatedits own internal policies regarding inspection and repair ofdamaged insulated wire; permitted the insulation to become worn,rotten, or burned; and failed to provide adequate warnings ofdamaged insulated wire.

The purpose of summary judgment is not to try a question of fact but to determine whether one exists. Ferguson v.McKenzie, No. 89144, slip op. at 3 (January 29, 2001). Summaryjudgment is appropriate only where "the pleadings, depositions,and admissions on file, together with the affidavits, if any,show that there is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as a matter oflaw." 735 ILCS 5/2-1005(c) (West 1998). In an appeal from thegrant of summary judgment, review is de novo. Ferguson, slip op.at 3.

Whether a duty exists in a particular case is a question of law to be determined by the court. Ward v. K Mart Corp.,136 Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990). Among thefactors that are relevant to the existence of a duty are thereasonable foreseeability of injury, the likelihood of injury,the magnitude of the burden of guarding against it, and theconsequences of placing that burden on defendant. Ward, 136 Ill.2d at 140-41, 554 N.E.2d at 226-27. Foreseeability is important,but it is not determinative. In a sense, in retrospect, almosteverything is to some extent foreseeable. Foreseeability meansthat which it is objectively reasonable to expect, not merelywhat might conceivably occur. Genaust v. Illinois Power Co., 62Ill. 2d 456, 466, 343 N.E.2d 465, 471 (1976). "[I]t is notobjectively reasonable to expect that a person, knowing thedanger of electricity if metal should contact electrical wires,would attempt to install a metal tower and antenna in such closeproximity to electrical wires." Genaust, 62 Ill. 2d at 466, 343N.E.2d at 471. Genaust sustained the dismissal of a strictliability count where a plaintiff was injured installing a CBantenna.

On the issue of foreseeability, plaintiff argues "theevidence indicates that Illinois Power actually knew thatuninsulated or inadequately insulated power lines caused at leastseven deaths and injuries in the past five years." Plaintiff'sargument is based on her supplemental request No. 7, which askedfor "any and all documents regarding fatalities or injuries tohumans resulting from the power lines owned or controlled byILLINOIS POWER within the past [five] years." Illinois Power'sresponse listed the names of seven individuals, along with thedates and locations of their deaths, and a brief description ofthe incident (three involved ladders, three involved CB antennas,and one a flagpole; five were said to involve the primary line).

Plaintiff's argument is a "cause in fact" argument: the accidents would not have happened if the lines had been fullyinsulated. "Cause in fact" arguments, however, add little to theanalysis of negligence, duty, and proximate cause. If a childasks her mother to drive her the two blocks to school because itis cold outside, and while doing so the mother's car slides intoanother car on the ice, the child could be said to be the "cause"of the accident. The accident would not have happened if thechild had not made the request. Nothing was wrong, however, withthe child making the request. A more accurate statement in thepresent case might be that the seven deaths were caused by theimproper use of tall metal objects in close proximity to liveelectrical wires. See Genaust, 62 Ill. 2d at 466, 343 N.E.2d at471; Lee v. Chicago Transit Authority, 152 Ill. 2d 432, 455, 605N.E.2d 493, 502 (1992) ("legal cause" is a policy decision thatlimits how far a defendant's legal responsibility should beextended for conduct that, in fact, caused the harm).

It is not a breach of duty to supply electricity to acommunity knowing that, over time, electrocution is likely. Thebenefits of electricity outweigh the disadvantages. Perhaps byinsulating and maintaining every power line in the State ofIllinois we could prevent any further deaths by electrocution,but doing so would involve a burden of some magnitude and consequences to the public. It is not a breach of duty to useuninsulated wires in areas where the public is unlikely to comein contact with them. Watkins v. Mt. Carmel Public Utility Co.,165 Ill. App. 3d 493, 498-99, 519 N.E.2d 10, 14 (1988) (linesparallel to a road, 13 feet from a catwalk connecting tanksinstalled many years after the lines had been erected).

"With the advance of civilization electricity hasbecome a necessity, and in order to make it useful to man it mustbe carried from place to place." Merlo v. Public Service Co. ofNorthern Illinois, 381 Ill. 300, 312-13, 45 N.E.2d 665, 673(1942). Restrictions governing the handling of electricity must,in view of its commercial and domestic importance, be reasonable. Persons engaged in the transmission of electricity are notinsurers of the safety of the public. Merlo, 381 Ill. at 313, 45N.E.2d at 673 (holding there was a duty to insulate power linesin close proximity to a street where men were working withcranes).

Merlo suggested there was a duty to insulate lines"where the public is likely to come in contact with them." Merlo, 381 Ill. at 313, 45 N.E.2d at 673; cf. Clinton v. Commonwealth Edison Co., 36 Ill. App. 3d 1064, 1068, 344 N.E.2d 509,513 (1976) ("[e]lectricity is an inherently dangerous and deadlyforce which should be regarded with a high degree of care bythose engaged in the business of supplying electrical energy"). Merlo took a more restrictive view of utility liability thanClinton, and Genaust took an even more restrictive view. Utilities need not anticipate that persons, "knowing the danger ofelectricity if metal should contact electrical wires, [will]attempt to install a metal tower and antenna in such closeproximity to electrical wires." Genaust, 62 Ill. 2d at 466, 343N.E.2d at 471; In re Estate of Martin, 202 Ill. App. 3d 659, 663,559 N.E.2d 1125, 1128 (1990) ("[o]ne might find Genaust and Merloinconsistent"); cf. Watkins, 165 Ill. App. 3d at 499, 519 N.E.2dat 14 (Genaust and Merlo not inconsistent).

"Economic realities make unrealistic the possibilitythat utility companies might insulate all of their power lines,which in many instances amount to thousands of miles." Watkins,165 Ill. App. 3d at 499, 519 N.E.2d at 14 (upholding countsagainst landowner, dismissing counts against utility). Because autility operates in a widespread area, with lines over thousandsof miles, it does not seem appropriate for a court to declarethat a utility has a duty to insulate particular lines, whileanother court may declare the contrary. There should be a singlerule on such a basic question and that rule should come from abody with more expertise than a court. In this case, as inWatkins, plaintiffs alleged that stated company policies andNational Electric Safety Code sections imposed a duty upondefendant utility. Again, as in Watkins, plaintiffs have notbeen able to show any violation of these provisions. Watkins,165 Ill. App. 3d at 499, 519 N.E.2d at 14; cf. Schmall v. Villageof Addison, 171 Ill. App. 3d 344, 350, 525 N.E.2d 258, 262-63(1988) (proof of compliance with codes and regulations is onlyconsidered evidence tending to show due care and is not conclusive of the question of negligence).

This court has reversed a summary judgment for autility in a case where the utility located uninsulated powerlines 13 feet above and nearly over the center of an existingfeed bin, that had to be accessed from the top. Martin, 202 Ill.App. 3d at 664, 559 N.E.2d at 1128. We distinguished Icenogle v.Myers, 167 Ill. App. 3d 239, 521 N.E.2d 163 (1988), as a case"wherein the lines were located over a public right-of-way andwere not over the grain bin." Martin, 202 Ill. App. 3d at 664,559 N.E.2d at 1128-29. We concluded "the Merlo case and itsprogeny are more appropriate to the facts in this case than theGenaust case and its progeny." Martin, 202 Ill. App. 3d at 665,559 N.E.2d at 1129. The supreme court granted a petition forleave to appeal in Martin, but the case was then dismissed uponthe stipulation of the parties. Assuming Martin is good law, itis distinguishable from the present case, where the lines werelocated over a public right-of-way, did not interfere with theuse of private property, and had been in place long before the CBantenna was erected.

Plaintiff cites other cases that she argues support herview. In Schmall, an electrician was killed while he was helpinginstall a light pole near a power line, when a crane operated byanother employee contacted the line. Schmall, 171 Ill. App. 3dat 346, 525 N.E.2d at 260. The Schmall court reversed summaryjudgment for the utility, citing the Merlo rule that the utilityowes a duty where "persons might come in contact with or proximity to the wires." (Emphasis added.) Schmall, 171 Ill. App. 3dat 350, 525 N.E.2d at 262, citing Merlo, 381 Ill. at 314, 45N.E.2d at 674. It is interesting that Schmall does not mentionGenaust. We disagree with Schmall. The test is not what mightconceivably occur, but what is objectively reasonable to expect. Genaust, 62 Ill. 2d at 466, 343 N.E.2d at 471. Again, "it is notobjectively reasonable to expect that a person, knowing thedanger of electricity if metal should contact electrical wires,would attempt to install a metal tower and antenna in such closeproximity to electrical wires." Genaust, 62 Ill. 2d at 466, 343N.E.2d at 471.

Plaintiff also cites Ploense, which held that whetherthe utility had a duty to insulate its wires at the location ofthe accident was a factual question, including whether it wasreasonably foreseeable that persons might reasonably come intoproximity of the wires. Ploense v. Illinois Power Co., 2 Ill.App. 3d 874, 879, 275 N.E.2d 920, 924 (1971) (holding duty is afact question, but contributory negligence is a matter of law). Ploense, however, predated Genaust and is no longer good law.

The dispute whether the lines were ever insulated maybe one of semantics--whether the lines were "insulated" orwhether they were "weatherproofed."

"Practically all wire used in the transmission and distribution of electricity is insulated with a two-ply or three-ply braid weatherproof covering. This is for thepurpose of protecting it against atmospheric conditions and is not for the purpose of protecting persons coming in contact with it from shock." Merlo, 381 Ill. at 313, 45 N.E.2d at 673.

Plaintiff argues that even if Illinois Power did not originallyhave a duty to insulate these lines, once it chose to insulatethem it had a duty to do so in a nonnegligent manner. Evenassuming plaintiff is correct on the facts, however, how did anyconduct on the part of Illinois Power contribute to the death ofdecedent? Plaintiff could not complain if Illinois Power, havingno duty to insulate at all, supplied insulation that was, say,only 50% effective. It has been held that a utility has a dutyto warn that a weatherproof covering that gave a deceptiveappearance of insulation was not insulation. German v. IllinoisPower Co., 115 Ill. App. 3d 977, 983, 451 N.E.2d 903, 907 (1983). In the present case, however, it is clear that decedent recognized that touching the electric lines with the antenna couldresult in electrocution, decedent attempted to avoid touching thepower lines, and decedent was not relying on any coating on thelines to protect him.

We affirm the trial court's judgment, concluding thatIllinois Power had no duty to insulate its power lines and had nofurther duty to protect decedent under the circumstances of thiscase, and granting summary judgment to Illinois Power.

Affirmed.

STEIGMANN, P.J., concurs.

MYERSCOUGH, J., dissents.

JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. This case comes to us upon thetrial court's granting of summary judgment in favor of IllinoisPower. The majority states that "[i]t is not a breach of duty tosupply electricity to a community knowing that, over time,electrocution is likely." Slip op. at 5. I agree. The majorityfurther notes that "'[e]conomic realities make unrealistic thepossibility that utility companies might insulate all of theirpower lines, which in many instances amount to thousands ofmiles.'" Slip op at 7, quoting Watkins, 165 Ill. App. 3d at 499,519 N.E.2d at 14. I also agree. However, when a utility companyundertakes the duty to insulate its power lines, then it must doso in a nonnegligent manner.

Here, Illinois Power denies that the lines were insulated. Plaintiff, however, maintains that the lines were insulated. In support of her position, plaintiff presented anaffidavit by an electrical engineer who examined the power linesand found that the lines were covered by a degraded insulatingmaterial. Summary judgment is appropriate only where "thepleadings, depositions, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact." 735 ILCS 5/2-1005(c) (West 1998). A question offact remains as to whether Illinois Power in fact insulated thepower lines and, thereby, assumed the duty to maintain thoseinsulated lines. Therefore, summary judgment is not proper. I,therefore, respectfully dissent.