Lurgio v. Commonwealth Edison Co.

914 N.E.2d 659, 394 Ill. App. 3d 957, 333 Ill. Dec. 240, 2009 Ill. App. LEXIS 803
CourtAppellate Court of Illinois
DecidedAugust 27, 2009
Docket1-08-0612
StatusPublished
Cited by4 cases

This text of 914 N.E.2d 659 (Lurgio v. Commonwealth Edison Co.) 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
Lurgio v. Commonwealth Edison Co., 914 N.E.2d 659, 394 Ill. App. 3d 957, 333 Ill. Dec. 240, 2009 Ill. App. LEXIS 803 (Ill. Ct. App. 2009).

Opinion

JUSTICE GALLAGHER

delivered the opinion of the court:

In this personal injury lawsuit, plaintiff James Lurgio appeals the trial court’s order granting summary judgment in defendant Commonwealth Edison Company’s favor. Plaintiff, who is a police officer, was injured when he ran away from an explosion that occurred when defendant’s downed power line came in contact with a streetlight. On appeal, plaintiff contends that the trial court erred in granting defendant’s summary judgment motion because a genuine issue of material fact exists as to whether defendant breached a duty owed to plaintiff to respond to the downed power line with due care. Plaintiff claims that the trial court erred in applying the fireman’s rule to find that defendant did not owe a duty to plaintiff because the rule only applies to owners or occupiers of land and defendant was neither. Plaintiff also claims that by providing an estimated time of arrival (ETA), defendant voluntarily assumed a duty to respond to the downed power line within the ETA. Plaintiff further claims that the trial court erred in finding as a matter of law that defendant’s alleged negligence was not the proximate cause of his injury. For the reasons stated below, we reverse and remand for further proceedings.

BACKGROUND

Defendant owns and operates the electrical power lines attached to a streetlight located on the northwest corner of Riverside Drive and West Joliet Road in the Village of McCook. On May 12, 2003, the Village of McCook police department received a report that defendant’s power line was down in the parking lot of a restaurant and truck stop near the intersection of Riverside Drive and West Joliet Road. A portion of defendant’s power line was hanging near a streetlight and a restaurant sign and the rest of the power Une was on top of a car in the restaurant’s parking lot.

After notifying the fire department, the Village of McCook dispatcher then notified defendant about the downed power line at approximately 9:23 a.m. Defendant provided the dispatcher with a 45-minute ETA, positioning defendant to arrive at the scene at approximately 10:08 a.m.

Dispatched to secure the scene and wait for defendant’s arrival, plaintiff arrived at the scene at approximately 9:45 a.m. Once at the scene, plaintiff directed traffic on the opposite side of the intersection from the downed power line, which was approximately 300 to 400 feet away.

At approximately 10:15 a.m., the downed power line came in contact with a streetlight, creating a loud explosion and causing the streetlight to collapse. Plaintiff ran away from the explosion, injuring his knee.

Village of McCook police records indicate that defendant arrived on the scene at approximately 11 a.m. The Village’s fire department turned the scene over to defendant sometime after 11:30 a.m., and then defendant terminated the source of the electrical power.

On February 28, 2005, Plaintiff brought an action against defendant for personal injuries resulting from defendant’s alleged negligence in maintaining, installing, or supervising the installation of its power lines and alleged negligence in failing to properly respond to a downed power line in a timely and expedited manner. Specifically, plaintiff alleged that defendant failed to terminate the source of electrical power for the downed power Une in a reasonable amount of time. Defendant denied all allegations of negligence and filed a motion for summary judgment on February 28, 2007.

During his deposition, plaintiff testified that although he knew to stay away from downed power lines, he had not received any formal training regarding how to respond to a downed power line.

McCook Police Chief Frank Wolfe testified during his deposition that he also received no formal training regarding downed power lines. He testified, however, that he had some informal training regarding how to respond to a downed power line. Officer Wolfe knew to stay away from the power line and to assist the fire department in securing the area until the electrical power company arrived at the scene. Officer Wolfe elaborated that the police were to evacuate and keep people out of the area.

McCook Fire Chief Joseph Myrick testified during his deposition that in responding to downed power lines, dispatch informs defendant by telephone and asks them for an ETA. He testified that defendant does not always provide an ETA. Meanwhile, the fire department secures the area and waits for defendant to arrive at the scene. The police department assists the fire department in securing the area and by providing traffic control. Once defendant arrives, the fire department turns the scene over to defendant.

Using the police report, McCook fire department Deputy Chief John James testified during his deposition that defendant did not arrive at the scene until approximately 11 a.m. He also testified that the weather was “normal,” which was approximately 59 degrees Fahrenheit with winds northwest at 17 miles an hour.

During his deposition, defendant’s line technician Joseph Dause testified that when he gives an ETA to the dispatcher, it is based on numerous factors, such as the time of day, traffic conditions, and other repair activities. He also testified that on the day of the occurrence, he was operating under a storm situation.

On August 28, 2007, the trial court granted defendant’s motion for summary judgment. After receiving an extension of time from the trial court, plaintiff filed a motion to reconsider on October 29, 2007. Plaintiff filed a reply to defendant’s motion in opposition of the motion for reconsideration. On February 6, 2008, the trial court denied plaintiffs motion to reconsider. Plaintiff timely appealed.

ANALYSIS

This court reviews an order granting summary judgment de novo. Judge-Zeit v. General Parking Corp., 376 Ill. App. 3d 573, 578, 875 N.E.2d 1209, 1214 (2007). Summary judgment “shall be rendered without delay if 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 and that the moving party is entitled to a judgment as a matter of law.” 735 ILCS 5/2 — 1005(c) (West 2006). Construing the evidence in a light most favorable to the nonmoving party, a trial court may only grant summary judgment if the record shows that the movant’s right to relief is clear and free from doubt. Judge-Zeit, 376 Ill. App. 3d at 579, 875 N.E.2d at 1214.

On appeal, plaintiff argues that defendant owed him a duty as a matter of law to respond to the scene of a downed power line and terminate the source of the electrical power in a timely and expedited manner. Plaintiff contends that a genuine issue of material fact exists as to whether defendant breached that duty, which would give rise to a negligence claim. Plaintiff also contends that defendant did not demonstrate that it is entitled to judgment as a matter of law. Therefore, plaintiff claims that the trial court erred in granting summary judgment in defendant’s favor.

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914 N.E.2d 659, 394 Ill. App. 3d 957, 333 Ill. Dec. 240, 2009 Ill. App. LEXIS 803, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lurgio-v-commonwealth-edison-co-illappct-2009.