Central Trust & Savings Bank v. Toppert

554 N.E.2d 820, 198 Ill. App. 3d 562, 143 Ill. Dec. 885, 1990 Ill. App. LEXIS 804
CourtAppellate Court of Illinois
DecidedMay 31, 1990
DocketNo. 3—89—0141
StatusPublished
Cited by2 cases

This text of 554 N.E.2d 820 (Central Trust & Savings Bank v. Toppert) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Central Trust & Savings Bank v. Toppert, 554 N.E.2d 820, 198 Ill. App. 3d 562, 143 Ill. Dec. 885, 1990 Ill. App. LEXIS 804 (Ill. Ct. App. 1990).

Opinion

JUSTICE STOUDER

delivered the opinion of the court:

The plaintiff in this case, Central Trust and Savings Bank, as executor of the estate of Lee D. Davis, brought this wrongful death action against defendants Beverly Toppert, Burdette Toppert, Charles Toppert, and Rock River Stone Quarry, Inc., the alleged owners or operators of a rock quarry where plaintiff’s decedent was killed in a blasting operation. The circuit court dismissed an absolute liability count of the complaint, but certified for interlocutory appeal the question of whether the absolute liability count stated a cause of action. The interlocutory appeal was allowed. We affirm.

The third amended complaint, the complaint before us on appeal, contains three counts: the first alleging negligence, the second alleging breach of contract, and the third alleging absolute liability. The circuit court granted the motion of the defendants to dismiss the absolute liability count, but denied a motion of the plaintiff to strike certain affirmative defenses pleaded by the defendants against the absolute liability count. In the order disposing of these motions, the circuit court made the findings requisite to an interlocutory appeal under Supreme Court Rule 308 (107 Ill. 2d R. 308); the plaintiff applied for leave to appeal, and this court allowed the appeal. The questions of law certified by the circuit court are as follows:

(1) “whether under the dangerous circumstances alleged in Count III of the Third Amended Complaint, and absent special precautions taken by Defendants, Defendants are absolutely liable”; and
(2) “whether contributory negligence or assumption of the risk of any sort should apply, thus rendering the absolute liability less than absolute.”

In the absolute liability count, the plaintiff alleges that the defendants owned or operated a certain rock quarry and that in furtherance of the operations of the quarry L.D. Davis Construction Company, Inc., was hired “to work with Charles Toppert in setting dynamite and caps in [certain bore] holes and exploding same.” The plaintiff’s decedent, as an employee of L.D. Davis Construction Company, Inc., was allegedly in the process of doing that when “on May 18, 1984, at about 5:45 RM. at said Rock River Stone Quarry, *** while inserting a stick of dynamite with a cap into the 13th bore hole, [he] was killed from a premature explosion.” Plaintiff further alleges in that count that Charles Toppert or someone under the control of Charles Toppert had inserted about 10 sticks of dynamite into that same bore hole immediately prior to the plaintiff’s decedent’s insertion of the capped dynamite. Plaintiff alleges that the work place was inherently dangerous in certain specified respects, that special precautions were not taken for the safety of the plaintiff’s decedent such as certain specified examples, and “[t]hat as a result of said inherent danger, Defendants *** are absolutely liable to Plaintiff for the pecuniary injuries suffered to the heirs of Lee D. Davis as a result of said death.”

While perhaps not technically correct as a general proposition, for purposes of this appeal and for ease of exposition we will treat the terms “absolute liability” and “strict liability,” and corresponding variations thereof, as being synonymous.

As a general rule, one who engages in blasting operations will be strictly liable, regardless of lack of fault on his, her, or its part, for damages proximately caused by the blasting. (See Peet v. Dolese & Shepard Co. (1963), 41 Ill. App. 2d 358, 190 N.E.2d 613; cf. Restatement (Second) of Torts §519 (1977).) Also, an owner or operator of a quarry who employs an independent contractor to perform blasting operations cannot thereby be insulated from such liability, but remains strictly liable for damages due to the blasting. (Cf. City of Joliet v. Harwood (1877), 86 Ill. 110; Restatement (Second) of Torts §427A (1965).) As we interpret the first question certified by the circuit court, we are called upon to decide whether the plaintiff in this case can invoke these general rules to hold the defendants strictly liable, i.e., liable without the need for the plaintiff to show any fault on the part of the defendants, for the damages occasioned by the death of the plaintiff’s decedent. We hold that the plaintiff cannot.

While the parties have cited no cases in Illinois that we consider precisely on point, the issue we are facing has been addressed elsewhere. In Prosser’s treatise on torts is found the following helpful passage:

“[I]f the plaintiff *** encounters the risk [of injury from an abnormally dangerous thing or activity] pursuant to a contract with the defendant ***, then it is quite possible that as between the parties it was impliedly if not expressly understood that there would be no liability in the absence of negligence. Risks should be allocated in the way parties would normally expect those risks to be allocated in the absence of coercion or an expression to the contrary.” (Emphasis added.) (W. Keeton, Prosser & Keeton on Torts §79, at 566 (5th ed. 1984).)

The corporation employing the plaintiff’s decedent was hired to assist in the blasting work at the quarry. While employees or agents of the quarry allegedly participated in the placement of the dynamite in the bore holes, the plaintiff’s decedent had direct, physical control over what clearly was a particularly dangerous part of the work at the time of the premature explosion which caused his death. While each case will turn on its facts, in this case the facts alleged lead us to conclude that the parties could not have reasonably understood the defendants to be strictly liable, i.e., liable without any fault on the part of the defendants, for injuries to or the death of the plaintiff’s decedent in the event dynamite prematurely exploded. Hence, we hold that under the facts here the plaintiff cannot maintain an action against these defendants based on strict or absolute liability.

Both parties cite Conroy v. Sherwin-Williams Co. (1988), 168 Ill. App. 3d 333, 522 N.E.2d 731, as supporting their respective positions. In that case, the defendant and third-party plaintiff (Sherwin-Williams) hired the third-party defendant (independent contractor Phillips) to take care of an electrical problem in high-voltage equipment. Phillips in turn hired the plaintiff (Conroy) as an independent contractor more experienced than employees of Phillips in the repair of high-voltage equipment. Conroy was severely injured when he came into contact with some energized high-voltage equipment. SherwinWilliams settled with Conroy, but sought contribution from Phillips. The circuit court granted Phillips a judgment notwithstanding a jury verdict assessing 20% liability to Phillips, and the appellate court affirmed.

The appellate court in Conroy had to determine what duties, if any, Phillips owed to Conroy under the circumstances of that case. Sherwin-Williams argued, among other things, that since the work involved was inherently dangerous, Phillips owed a nondelegable duty to Conroy to take special precautions for his protection.

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Bluebook (online)
554 N.E.2d 820, 198 Ill. App. 3d 562, 143 Ill. Dec. 885, 1990 Ill. App. LEXIS 804, Counsel Stack Legal Research, https://law.counselstack.com/opinion/central-trust-savings-bank-v-toppert-illappct-1990.