{ "id": 3505720, "name": "FRANCES BEDNAR, Plaintiff-Appellant, v. COMMONWEALTH EDISON, Defendant-Appellee", "name_abbreviation": "Bednar v. Commonwealth Edison", "decision_date": "1987-06-02", "docket_number": "No. 3\u201486\u20140642", "first_page": "568", "last_page": "575", "citations": [ { "type": "official", "cite": "156 Ill. App. 3d 568" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "428 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3083654 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0380-01" ] }, { "cite": "404 N.E.2d 265", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 3d 919", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5553863 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0919-01" ] }, { "cite": "419 N.E.2d 1253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "95 Ill. App. 3d 223", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3116557 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/95/0223-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "513-14" } ], "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "381 N.E.2d 709", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 634", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3333171 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0634-01" ] }, { "cite": "392 N.E.2d 986", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3271104 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0264-01" ] }, { "cite": "132 N.E. 458", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "299 Ill. 112", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5024588 ], "opinion_index": 0, "case_paths": [ "/ill/299/0112-01" ] }, { "cite": "32 A.L.R.2d 244", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1953, "pin_cites": [ { "page": "247" } ], "opinion_index": 0 }, { "cite": "451 N.E.2d 903", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "908" }, { "page": "909" } ], "opinion_index": 0 }, { "cite": "115 Ill. App. 3d 977", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3556319 ], "weight": 2, "pin_cites": [ { "page": "985" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/115/0977-01" ] } ], "analysis": { "cardinality": 848, "char_count": 17260, "ocr_confidence": 0.747, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.09844666619559674 }, "sha256": "e3ac78c2bd87dc5af3d26311e150883d01e10e7e38a84c19d31d9b2023a4d7a2", "simhash": "1:27b25add8a4db97e", "word_count": 2814 }, "last_updated": "2023-07-14T21:00:40.510932+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "FRANCES BEDNAR, Plaintiff-Appellant, v. COMMONWEALTH EDISON, Defendant-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE BARRY\ndelivered the opinion of the court:\nPlaintiff, Frances Bednar, sued Commonwealth Edison for personal injuries allegedly suffered as a result of tripping over a utility pole that was lying on the boulevard in front of a neighbor\u2019s residence. Following a trial in the circuit court of La Salle County, the jury returned a general verdict for defendant. Plaintiff appeals from the verdict and from the denial of her post-trial motion. We affirm.\nEvidence adduced at trial established the following facts. In the early evening of Saturday, October 29, 1983, plaintiff was walking along the street on Laura Avenue, Streator, between her own home and that of a neighbor, Carol Hoskins. Plaintiff was returning a catalog that she had borrowed. According to plaintiff, it was a cool, clear and dark evening. She proceeded down the middle of the street because there were no city sidewalks or curbs in that neighborhood. She did not notice whether or not the streetlight on the utility pole standing midway between her home and the Hoskins\u2019 was lit at the time. Plaintiff testified that when she reached the point across from the Hoskins\u2019 front door, she made a right-angle turn and proceeded onto the grassy boulevard toward the Hoskins\u2019 front sidewalk. Plaintiff then fell, hitting her chest on the defendant\u2019s utility pole, which had been laid off along the boulevard perpendicular to the Hoskins\u2019 sidewalk. As a result of the fall, plaintiff suffered fractures to her wrist and two ribs.\nAccording to the record the 45-foot utility pole in question was laid off by defendant\u2019s employees on Friday, October 28, 1983, and was to be installed at a later date. The boulevard area contained gravel and mowed grass. The diameter of the pole ranged from 16 inches at the butt end to eight inches at the top. No signs or special warning devices were placed around the area where the pole lay, and no effort was made by defendant\u2019s employees to personally notify residents of the neighborhood that the pole was there.\nBernard Jonen, defendant\u2019s construction foreman, testified that he checked the site of the accident on Monday evening, October 31. At that time the streetlight was lit on the utility pole standing within 10 feet of one end of the laid-off pole. Jonen had been employed with Commonwealth Edison for 37 years. He testified that it was not the practice of the defendant utility company to provide any warning devices around poles laid off along the shoulder of a street, such as the one in question. To his knowledge, no utility or construction industry practice required the placing of barricades or warning devices under similar circumstances.\nRichard Hoekstra, a lineman for defendant who had participated in laying off the pole in question, corroborated Jonen\u2019s testimony that no flags, flashes or barricades were generally used to warn of poles laid off prior to being set.\nPhotographs of the accident scene display a large, dark brown utility pole lying in the grassy area between the gravel at the edge of a paved street and the lawns of the Hoskins home and the home next door. The daytime photographs show that the pole was clearly visible and unobstructed where it lay.\nIn addition to the foregoing, plaintiff attempted to place into evidence expert testimony by photographer Arthur Sala for the purpose of comparing light meter readings in the area where plaintiff fell. However, after an offer of proof, the trial court sustained defendant\u2019s objection to the testimony on the ground that Sala\u2019s tests, which were conducted at 10 p.m. in June of 1986, were not shown to have been made under conditions similar to those which existed at the time of plaintiff\u2019s fall in October of 1983.\nAt the close of plaintiff\u2019s case in chief, both parties rested. Defendant moved for and was granted a directed verdict on count II of plaintiff\u2019s complaint, charging a violation of the Public Utilities Act (Ill. Rev. Stat. 1985, ch. 111\u2154, par. 5\u2014201, as amended). Plaintiff was then granted leave to amend her complaint to add count III, charging wilful and wanton misconduct. Defendant moved for and was granted a directed verdict on this count as well. The matter proceeded to closing argument and jury instructions on count I, charging common law negligence, only.\nIn this appeal, plaintiff raises seven issues for our consideration: (1) whether utility companies are held to a \u201chigh degree of care\u201d in installing utility poles; (2) whether defendant owed a duty to exercise a high degree of care by virtue of the Illinois Commerce Commission\u2019s General Order 160; (3) whether defendant owed a duty to provide warnings by virtue of its own work rules; (4) whether the trial court erred in directing a verdict for defendant on count II of plaintiff\u2019s complaint; (5) whether the trial court erred in refusing to admit testimony by plaintiff\u2019s expert witness; (6) whether the trial court improperly sustained an objection raised by defense counsel during plaintiff\u2019s closing argument; and (7) whether two jury instructions tendered by defendant were improperly given.\nIn her first three issues, plaintiff appears to contend that the trial court should have found that defendant breached a duty owed to plaintiff as a matter of law or that the court erred when it refused plaintiff\u2019s instruction 12 to the effect that defendant owed a duty to exercise a high degree of care.\nPlaintiff\u2019s tendered instruction 12 read as follows:\n\u201cIt was the duty of defendant Commonwealth Edison Co. under Count I of the complaint, before and at the time of the occurrence, to exercise a high degree of care for the safety of plaintiff Fran Bednar in connection with the distribution of electrical energy because the risk is great.\u201d\nDefense counsel objected to the instruction. The objection was sustained, and at the court\u2019s request plaintiff replaced it with plaintiff\u2019s instruction 12A. The instruction given to the jury closely tracks Illinois Pattern Jury Instruction, Civil, No. 10.04 (2d ed. 1971) (hereinafter IPI Civil 2d):\n\u201cIt was the duty of Defendant Commonwealth Edison Co., before and after the time of the occurrence, to use ordinary care for the safety of the plaintiff Fran Bednar. That means it was the duty of the defendant to be free from negligence.\u201d\nIn addition, the jury was given plaintiff\u2019s instructions 9 and 10 (IPI Civil 2d Nos. 10.01,10.02) defining ordinary care and negligence.\nPlaintiff contends that defendant, as a public utility engaged in the distribution of electrical energy, owed a special duty for her protection. (German v. Illinois Power Co. (1983), 115 Ill. App. 3d 977, 451 N.E.2d 903, 908.) The injury suffered by plaintiff in German resulted from contact between the metal fork of the hoist plaintiff was operating and defendant\u2019s high voltage electrical lines. Plaintiff\u2019s jury instruction on a high degree of care owed by the public utility was there given over defendant\u2019s objection. On appeal, the court observed that \u201cthe general rule in this country [would appear to be] that a power company is held to a high degree of care in connection with the distribution of electrical energy.\u201d (Emphasis added.) The court stated that, \u201c[considering the dangerous nature of electricity, the \u2018circumstances\u2019 [there] present, reasonable care would seem to be the same as a high degree of care.\u201d (115 Ill. App. 3d 977, 985, 451 N.E.2d 903, 909, citing 32 A.L.R.2d 244, 247 (1953).) Relying on analyses by Professor Prosser (W. Prosser, Torts sec. 34, at 180-81 (4th Ed. 1971)) and Austin v. Public Service Co. (1921), 299 Ill. 112, 132 N.E. 458, the court concluded that, while \u201cit would have been proper to instruct the jury in the language of the Illinois Pattern Jury Instructions [IPI Civil 2d No. 10.01],\u201d the instruction given to the jury in that case \u201cwas an accurate statement of the law *** [and] was not likely to mislead the jury.\u201d\nWe find German inapposite to the case before us because the act or omission complained of there related directly to the distribution of electrical energy and maintenance of defendant\u2019s high voltage lines. By contrast, here we are concerned with defendant\u2019s construction activities which were merely preparatory to the dangerous operation of disconnecting the overhead lines from the old pole and reconnecting them to the pole that plaintiff fell over. Plaintiff did not allege injury by reason of defendant\u2019s \u201chazardous enterprise.\u201d She alleged only that defendant negligently left its pole along the roadside \u201cwithout adequate guards, warnings or other devices that would forewarn pedestrians\u201d of where it lay.\nIt would be unreasonable to charge defendant with a high degree of care in every aspect of its business operations merely because its rai-son d\u2019etre is the distribution of electricity. Rather, as stated by Professor Prosser, \u201c[t]he amount of care demanded by the standard of reasonable conduct must be in proportion to the apparent risk. As the danger becomes greater, the actor is required to exercise caution commensurate with it.\u201d (W. Prosser and W. Keeton, Torts sec. 34, at 208 (5th ed. 1984).) The danger here was that someone might not see the pole and would be injured in a fall over or on it. There was no danger that a person could be electrocuted by the pole. In our opinion, where it is apparent that a publicly-owned boulevard is used for pedestrian or vehicular purposes a land user/occupier owes a duty to exercise ordinary care for the protection of the public. See Carroll v. Lily Cache Builders, Inc. (1979), 74 Ill. App. 3d 264, 392 N.E.2d 986, citing Restatement (Second) of Torts sec. 367 (1964) for rule that possessor of land \u201cis subject to liability for physical harm suffered by plaintiff upon a finding that *** injuries were attributable to defendant\u2019s failure to exercise reasonable care to maintain the [private roadway] in a reasonably safe condition for pedestrian traffic.\u201d\nIn Carroll, the plaintiff was injured when she fell into a hole in defendant\u2019s roadway during a heavy thunderstorm. On appeal, defendant argued that it owed only a duty to refrain from wilful and wanton misconduct because plaintiff had the status of licensee. This court disagreed, concluding that defendant\u2019s liability to plaintiff as an invitee was, under the circumstances there presented, a question of fact for the jury, as was the issue of plaintiff\u2019s contributory negligence.\nIn our opinion, defendant here was subject to liability under the same circumstances as was the defendant land developer in Carroll. The question for the jury here was whether defendant breached its duty to exercise ordinary care for the protection of plaintiff. We hold that the trial court committed no error in refusing plaintiff\u2019s instruction 12 on a high degree of care. In this'case, unlike German, the tendered instruction would only have confused the jury; and, under the circumstances presented by the evidence, it would not have been an accurate statement of the law.\nWe have reviewed plaintiff\u2019s contentions that defendant owed a special duty by virtue of General Order 160 of the Illinois Commerce Commission and defendant\u2019s own work manual \u2014 plaintiff\u2019s exhibits 9 and 13, respectively. General Order 160 details the Commission\u2019s \u201crules for construction of electric power and communication lines.\u201d In our opinion, the rules alluded to either were not shown to have been violated or were not shown to have contemplated the harm suffered by plaintiff under the circumstances here. (See W. Prosser and W. Keeton, Torts sec. 36, at 225 (5th ed. 1984); Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709 (court held that Illinois Commerce Commission rules not intended for benefit of lineman injured when he fell from obviously decayed utility pole).) Plaintiff was permitted to argue that defendant owed a duty to warn of the existence of the pole laid off along the boulevard. However, neither the General Order nor defendant\u2019s work manuals specifically required such. The jury, on the basis of the evidence adduced at trial, was free to determine that the pole was an obvious danger and that plaintiff\u2019s injuries were the result of her own inattention \u2014 not defendant\u2019s failure to warn.\nNext, we consider plaintiff\u2019s argument that the trial court erred in directing a verdict for defendant on count II, charging a violation of the Public Utilities Act. (Ill. Rev. Stat. 1985, ch. 111\u2154, par. 5\u2014201.) The Act provides that a public utility is liable for any act or omission done in violation of any provision of the Public Utilities Act, or any rule, regulation or order of the Commerce Commission. It allows plaintiff to recover, in addition to actual damages, punitive damages and reasonable attorney\u2019s fees.\nGeneral Order 160 requires in section 200 that defendant carry on its construction activities in accordance with \u201caccepted good practice for the given local conditions.\u201d In section 211, it requires defendant to install and maintain its lines and equipment \u201cso as to reduce hazards to life as far as practicable.\u201d The only evidence that was introduced here relative to the standard of good practice for the laying off of utility poles was testimony by defendant\u2019s employees, Jonen and Hoekstra. According to these witnesses, warnings were not required under the circumstances of this case. As indicated above, we do not find that the duty to reduce \u201chazards to life\u201d as far as practicable was intended to apply to the defendant\u2019s conduct here. Even when viewed in its aspect most favorable to plaintiff, we find that the evidence with respect to count II so overwhelmingly favored defendant that no contrary verdict based on the evidence could ever stand. (See Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14.) Under these circumstances, the trial court properly entered a directed verdict for defendant on count II.\nWe turn next to plaintiff\u2019s argument that the court erred in refusing to admit testimony by photographer Sala. As a general rule, the admission of experimental evidence is within the sound discretion of the trial court, and the trial court\u2019s determination will not be disturbed on appeal absent a clear showing that that discretion has been abused. (Kent v. Knox Motor Service, Inc. (1981), 95 Ill. App. 3d 223, 419 N.E.2d 1253.) We have reviewed the record of plaintiff\u2019s offer of proof. The proffered testimony was technical and demonstrative, but failed to establish that the conditions as they existed when plaintiff fell in October of 1983 were similar to those under which Sala\u2019s light meter experiment was conducted in June of 1986. As such, we cannot say that the testimony would have been helpful to the jury. Accordingly, we hold that the trial court did not abuse its discretion by excluding the experimental evidence.\nPlaintiff\u2019s contention that the trial court erred in sustaining defense counsel\u2019s objection during plaintiff\u2019s closing argument is similarly unavailing. Counsel for plaintiff attempted to demonstrate during closing argument that a substantial award of damages in this case would have a minimal effect on the rate-payors\u2019 utility bills. Defense counsel objected to the line of argument on grounds that it was an improper \u201cper diem\u201d argument and \u201ctotally inappropriate under the circumstances.\u201d Having reviewed the argument, we do not find that the court erred in sustaining defendant\u2019s objection. Counsel\u2019s comments found no support in the evidence presented at trial. Moreover, the gist of the argument tended to appeal to any prejudices of the jurors toward the public utility and its vast resources. As such, the argument was unfair and was properly cut short by sustaining defendant\u2019s objection. See Babcock & Chesapeake & Ohio Ry. Co. (1979), 83 Ill. App. 3d 919, 404 N.E.2d 265 (argument emphasizing corporate nature of defendant held to be improper as tending to inflame prejudices of jury against corporations).\nLastly, we find no merit to plaintiff\u2019s argument that the trial court erred by giving defendant\u2019s jury instructions 5 and 7 (IPI Civil 2d Nos. 36.01, A45.05 (1971 and 1986 Supp.)). Defendant\u2019s position at trial was that defendant was not negligent in laying off the pole on the boulevard and leaving it there, unmarked, for later installation; or, in the alternative, that plaintiff\u2019s own inattention to where she was walking was the cause of her injuries. At the conference on instructions, plaintiff\u2019s counsel did not object to defendant\u2019s instructions 5 and 7, which accurately instructed on defendant\u2019s theories of defense. Under the circumstances, we find that plaintiff has waived any error (Stephenson v. Dreis & Krump Manufacturing Co. (1981), 101 Ill. App. 3d 380, 428 N.E.2d 190); and the trial court did not commit plain error by giving defendant\u2019s tendered instructions.\nFor these reasons, we affirm the judgment of the circuit court of La Salle County.\nAffirmed.\nHEIPLE and SCOTT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BARRY" } ], "attorneys": [ "Emmanuel F. Guyon, of Streator, for appellant.", "T. Donald Henson, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle (Robert M. Hansen, of counsel), for appellee." ], "corrections": "", "head_matter": "FRANCES BEDNAR, Plaintiff-Appellant, v. COMMONWEALTH EDISON, Defendant-Appellee.\nThird District\nNo. 3\u201486\u20140642\nOpinion filed June 2, 1987.\nEmmanuel F. Guyon, of Streator, for appellant.\nT. Donald Henson, of Herbolsheimer, Lannon, Henson, Duncan & Reagan, P.C., of La Salle (Robert M. Hansen, of counsel), for appellee." }, "file_name": "0568-01", "first_page_order": 590, "last_page_order": 597 }