Buerkett v. Illinois Power Company

NO. 4-07-1064 Filed 7/23/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
JAMES MICHAEL BUERKETT and ) Appeal from
JENNIFER BUERKETT, ) Circuit Court
Plaintiffs-Appellants, ) of Champaign County
v. ) No. 05L283
ILLINOIS POWER COMPANY, an )
Illinois Corporation; ILLINOIS POWER )
COMPANY, d/b/a AMERENIP; AMEREN )
CORPORATION, a Missouri Corporation; )
AMEREN CORPORATION, d/b/a AMERENIP; )
AMERINIP; and DYNEGY, INC., an Illinois ) Honorable
Corporation, ) Jeffrey B. Ford,
Defendants-Appellees. ) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
Plaintiffs James Michael Buerkett (Michael) and
Jennifer Buerkett (Jennifer) filed negligence and loss of
consortium claims against defendant Illinois Power (IP). On
November 27, 2007, the trial court granted IP's motion for
summary judgment. The Buerketts appeal, contending the trial
court erred in granting summary judgment when it (1) found IP
owed no common-law duty of care to plaintiffs, (2) found IP owed
no duty of care to plaintiffs under the Public Utilities Act
(Act) (220 ILCS 5/8-101 (West 2006)), and (3) denied plaintiffs'
claim for breach of voluntary undertaking. We affirm.
I. BACKGROUND
In October 2003, Michael worked as a freelance
landscaper and tree trimmer. Michael entered into an agreement
to perform tree-trimming services on property located in
Champaign. As Michael was preparing to work on a tree, IP
employees requested Michael stop work until IP could remove a
utility pole that was in close proximity to the tree and allow IP
to relocate the power lines servicing the property. Michael
agreed to stop work.
Michael drove by the property sometime thereafter and
could no longer see the utility pole. Michael returned to the
property to complete the tree-trimming work. The tree was
located in close proximity to a privacy fence. When Michael
conducted a pre-climb inspection, he saw the utility pole had not
been completely removed, but rather was cut the same height as
the privacy fence. The parties refer to the pole as a "stub"
utility pole. After completing his work, Michael began
descending the tree, but he slipped and fell, hitting his right
hip on top of the stub utility pole, sustaining injuries.
Michael filed a complaint against IP for negligence. Jennifer
filed a claim for loss of consortium.
IP denied in its answer that it was negligent. After
completion of discovery, IP filed a motion for summary judgment
arguing Michael could not establish as a matter of law that IP
owed Michael a duty to protect him from an open and obvious
condition. IP also requested that, if summary judgment were
granted on the negligence count, the derivative consortium claim
- 2 -
should also be dismissed.
On November 27, 2007, the trial court heard arguments
and granted IP’s motion for summary judgment. This appeal
followed. We affirm the trial court's grant of summary judgment.
II. ANALYSIS
A. Michael Failed To Present a Complete Record on Appeal
Before addressing the applicable facts, this court
notes that Michael failed to provide it with a complete record.
Michael appeals the trial court's summary judgment order, but the
record on appeal fails to contain either (1) a docket sheet of
the trial court's proceedings or (2) the trial court's written
summary judgment order or (3) the transcript of the hearing for
summary judgment. To determine whether a claimed error warrants
relief, a court of review must have a complete record of the
proceedings from which the appellant claims error. People v.
Ortiz, 313 Ill. App. 3d 896, 900, 731 N.E.2d 937, 941 (2000).
Because of the lack of a docket sheet or inclusion of a written
order, it is unclear from a review of the record whether a
written summary judgment order was issued or whether summary
judgment was issued in a docket or minute entry. This court had
to access the circuit clerk's website to determine that no
written order was issued by the trial court.
Supreme Court Rule 321 provides that "[t]he record on
appeal shall consist of the judgment appealed from, the notice of
- 3 -
appeal, and the entire original common[-]law record, unless the
parties stipulate for, or the trial court, after notice and
hearing, or the reviewing court, orders less." (Emphasis added.)
155 Ill. 2d R. 321. Michael, the appellant in this case, failed
to include a transcript of the hearing on IP's motion for summary
judgment. The appellant bears the burden of presenting a record
that is adequate for a determination of the issues raised.
People v. House, 202 Ill. App. 3d 893, 908, 560 N.E.2d 1224, 1234
(1990); see also Palmisano v. Connell, 179 Ill. App. 3d 1089,
1099, 534 N.E.2d 1243, 1250 (1989).
Supreme Court Rule 329 allows for supplementation of
the record on appeal if the record on appeal is insufficient to
present the questions involved. 210 Ill. 2d R. 329. In the
interest of the efficient administration of justice, IP's
inclusion of the transcript of the summary judgment motion
hearing will be treated as a motion to supplement the record and
allowed. We emphasize the importance of an accurate record on
appeal.
B. Standard of Review
A grant of summary judgment is appropriate when the
pleadings, depositions, admissions, and affidavits demonstrate no
genuine issue of material fact exists and the movant is entitled
to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West
2006). The pleadings, depositions, and admissions are to be
- 4 -
construed against the party moving for summary judgment.
Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9
(2008). If reasonable persons may draw different inferences from
the undisputed facts or if material facts are disputed, summary
judgment is precluded. Williams, 228 Ill. 2d at 417, 888 N.E.2d
at 9.
"Although summary judgment can aid in the
expeditious disposition of a lawsuit, it
remains a drastic means of disposing of
litigation and, therefore, should be allowed
only where the right of the moving party is
clear and free from doubt. [Citation.] If the
plaintiff fails to establish any element of
the cause of action, summary judgment for the
defendant is proper. [Citations.]" Williams,
228 Ill. 2d at 417, 888 N.E.2d at 9.
We review de novo the trial court’s grant of a motion
for summary judgment. Williams, 228 Ill. 2d at 417, 888 N.E.2d
at 9. No deference is given to the trial court’s ruling.
Interior Crafts, Inc. v. Leparski, 366 Ill. App. 3d 1148, 1151,
853 N.E.2d 1244, 1247 (2006).
C. The Trial Court Did Not Err in
Its Grant of Summary Judgment
1. The Trial Court Correctly Awarded Summary Judgment
as Illinois Power Did Not Owe Michael a Duty of Care
- 5 -
To state a claim for negligence, a plaintiff must plead
a duty owed by a defendant to that plaintiff, breach of that
duty, and injury proximately caused by that breach of duty. Ford
v. Round Barn True Value, Inc., 377 Ill. App. 3d 1109, 1113, 883
N.E.2d 20, 24 (2007); Marshall v. Burger King Corp., 222 Ill. 2d
422, 430, 856 N.E.2d 1048, 1053 (2006); Ward v. K mart Corp., 136
Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990).
Whether a duty of care exists is a question of law to
be decided by the court. Shank v. Fields, 373 Ill. App. 3d 290,
292, 869 N.E.2d 261, 265 (2007); see also LaFever v. Kemlite Co.,
185 Ill. 2d 380, 388, 706 N.E.2d 441, 446 (1998). The nature of
the relationship of the parties to each other will determine
whether a duty will be imposed as a matter of law. Grant v.
South Roxana Dad’s Club, 381 Ill. App. 3d 665, 669, 886 N.E.2d
543, 547 (2008), citing Marshall, 222 Ill. 2d at 441, 856 N.E.2d
at 1060.
In deciding whether a defendant owes a plaintiff a
duty, the court considers (1) whether the plaintiff's injury was
reasonably foreseeable, (2) the likelihood of injury, (3)
magnitude of burden of guarding against injury, and (4) the
consequences of placing a burden on defendant. Grant, 381 Ill.
App. 3d at 669, 886 N.E.2d at 547; see also Ward, 136 Ill. 2d at
140-41, 554 N.E.2d at 226-27. If there is no duty, a plaintiff
cannot recover. Clifford v. Wharton Business Group, L.L.C., 353
- 6 -
Ill. App. 3d 34, 40, 817 N.E.2d 1207, 1213 (2004).
The first factor in determining duty is foreseeability.
No legal duty arises unless the harm is reasonably foreseeable.
Clifford, 353 Ill. App. 3d at 42, 817 N.E.2d at 1214.
Foreseeability is decided by the reasonableness of the
landowner’s actions, not by the entrant's actions. LaFever, 185
Ill. 2d at 393, 706 N.E.2d at 448.
Illinois courts recognize an "open and obvious"
exception to the duty of care owed by possessors of land to
invitees, as it is not foreseeable that an invitee will be
injured when the condition is obvious or known. The open-and-
obvious exception is outlined in section 343A of the Restatement
(Restatement (Second) of Torts §343A, at 218 (1965)). Ford, 377
Ill. App. 3d at 1116-17, 883 N.E.2d at 26; see also LaFever, 185
Ill. 2d at 390, 706 N.E.2d at 447. Section 343A(1) states:
"A possessor of land is not liable to
his invitees for physical harm caused to them
by any activity or condition on the land
whose danger is known or obvious to them,
unless the possessor should anticipate the
harm despite such knowledge or obviousness."
Restatement (Second) of Torts §343A(1), at
218 (1965).
The focus, in determining whether a hazard is
- 7 -
foreseeable, is on the landowner's knowledge or what the
landowner should have known. "The Restatement directs that with
regard to open and obvious hazards, liability stems from the
knowledge of the possessor of the premises, and what the
possessor 'ha[d] reason to expect’ the invitee would do in the
face of the hazard." LaFever, 185 Ill. 2d at 392, 706 N.E.2d at
448, quoting Restatement (Second) of Torts, §343A, Comment f, at
220 (1965), and citing R. Ferrell, Emerging Trends in Premises
Liability Law: Ohio's Latest Modification Continues to Chip Away
at Bedrock Principles, 21 Ohio N.U.L. Rev. 1121, 1137 (1995). In
general, entrants are expected to appreciate the dangers involved
with heights. Ward v. Mid-American Energy Co., 313 Ill. App. 3d
258, 260, 729 N.E.2d 861, 863 (2000), citing Bucheleres v.
Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826, 832
(1996).
There are exceptions to the open-and-obvious doctrine.
Foreseeability will be found where a landowner knows or should
know an entrant may be distracted. "[T]o the extent that the
[open-and-obvious exception to the duty-of-care] rule may have
held that the duty of reasonable care owed by an owner or
occupier to those lawfully on his premises does not under any
circumstances extend to conditions which are known or obvious to
such entrants, that rule is not the law in this State." (Emphasis
in original.) Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229. Even
- 8 -
where the condition may be characterized as known or obvious:
"If the defendant may reasonably be expected
to anticipate that even those customers in
the general exercise of ordinary care will
fail to avoid the risk because they are
distracted or momentarily forgetful, then his
duty may extend to the risk posed by the
condition." Ward, 136 Ill. 2d at 156, 554
N.E.2d at 234.
This has come to be known as the "distracted" exception to the
open-and-obvious exception to the duty of care. The recognition
of the distracted exception in Ward requires a court to look
beyond whether a condition is open and obvious and examine
whether a defendant should have foreseen that a plaintiff was or
could be distracted or forgetful.
Another exception to the open-and-obvious doctrine, the
deliberate-encounter exception, provides that harm may also be
reasonably anticipated when the possessor of land "'has reason to
expect that the invitee will proceed to encounter the known or
obvious danger because to a reasonable man in his position the
advantages of doing so would outweigh the apparent risk.'"
LaFever, 185 Ill. 2d at 391, 706 N.E.2d at 448, quoting
Restatement (Second) of Torts §343A, Comment f, at 220 (1965).
Under the deliberate-encounter exception, individuals will make
- 9 -
deliberate choices to encounter hazards when faced with
employment concerns, and those encounters are reasonably
foreseeable by possessors of property. LaFever, 185 Ill. 2d at
394, 706 N.E.2d at 449.
As with the distraction exception, the focus with the
deliberate-encounter analysis is on what the landowner
anticipates or should anticipate the entrant will do.
"[L]iability stems from the knowledge of the possessor of the
premises, and what the possessor 'ha[d] reason to expect' the
invitee would do in the face of the hazard." LaFever, 185 Ill.
2d at 392, 706 N.E.2d at 448, quoting Restatement (Second) of
Torts §343A, Comment f, at 220 (1965).
In examining the issue of foreseeability in the case
sub judice, the trial court found the stub utility post was open
and obvious. Further, the court found no evidence that Michael
was distracted or forgetful of the stub utility pole. The trial
court concluded that the deliberate-encounter exception did not
apply. The trial court concluded that imposing a duty on IP
would "almost require" IP to ensure the safety of the invitees.
The trial court then granted IP's motion for summary judgment,
finding IP had no duty of care to Michael.
We agree with the trial court. Michael saw the utility
pole and chose to continue with his work. Michael did not
testify that he forgot about the utility pole after he saw it or
- 10 -
failed to protect himself from it because of a distraction.
Michael testified at his deposition that he did not consider the
utility pole to be an impediment to the safe performance of his
work because he did not expect to fall or slip off the side of
the tree trunk. Michael, an experienced tree trimmer, did not
foresee that the stub utility pole was a danger. A duty should
not be imposed upon IP to have foreseen a danger. IP was
entitled to an expectation that Michael would exercise reasonable
care for his own safety.
But foreseeability of injury alone is not dispositive
when determining the existence of a duty in negligence cases.
Simich v. Edgewater Beach Apartments Corp., 368 Ill. App. 3d 394,
410, 857 N.E.2d 934, 946 (2006). The likelihood of Michael's
injury does not weigh heavily in favor of finding a duty. To
guard against injury, IP or any utility company would have to
keep the utility poles and the area around its utility poles
clear from debris or other conditions that individuals could fall
onto or over, which would be a great burden on IP. Requiring IP
to keep areas surrounding its poles clear would have significant
consequences because IP would have to continually monitor all of
its poles to keep them free of debris. The trial court correctly
issued summary judgment as IP owes no duty of care to Michael.
Regardless of whether a duty and a breach of that duty
existed, there was overwhelming evidence of Michael's
- 11 -
contributory negligence. While ordinarily the question of
contributory negligence is a question of fact for the jury, "it
becomes a question of law when all reasonable minds would agree
that the evidence and reasonable inferences ***, viewed in a
light most favorable to the nonmoving party, so overwhelmingly
favors the movant that no contrary verdict based on that evidence
could ever stand." West v. Kirkham, 207 Ill. App. 3d 954, 958,
566 N.E.2d 523, 525 (1991). The trial court correctly awarded
summary judgment on the basis of Michael's overwhelming
contributory negligence.
2. The Trial Court Correctly Awarded Summary
Judgment as Illinois Power Did Not Owe Michael
a Duty of Care Under the Public Utilities Act
In 1921, the General Assembly enacted the Public
Utilities Act (Ill. Rev. Stat. 1921, ch. 111(a), par. 1 et seq.).
The purpose of the Act is to provide utility services at
reasonable rates. "The General Assembly finds that the health,
welfare[,] and prosperity of all Illinois citizens require the
provision of adequate, efficient, reliable, environmentally
safe[,] and least-cost public utility services at prices which
accurately reflect the long-term cost of such services and which
are equitable to all citizens." 220 ILCS 5/1-102 (West 2006).
The Illinois Supreme Court described the legislative
intent of the Act as: "The Public Utilities Act [citation] ***
was enacted to assure the provision of efficient and adequate
- 12 -
utility service to the public at a reasonable cost." Local 777
v. Illinois Commerce Comm'n, 45 Ill. 2d 527, 535, 260 N.E.2d 225,
229 (1970).
The Act is to be read in favor of the utility because
it is in derogation of common law. Tucker v. Illinois Power Co.,
232 Ill. App. 3d 15, 29, 597 N.E.2d 220, 230 (1992). Courts will
read nothing into the Act "by intendment or implication."
Tucker, 232 Ill. App. 3d at 29, 597 N.E.2d at 230. "[T]he Act
will not be extended any further than what the language of the
statute absolutely requires by its express terms or by clear
implication." Illinois-American Water Co. v. City of Peoria, 332
Ill. App. 3d 1098, 1105, 774 N.E.2d 383, 390 (2002).
Michael argues section 8-101 of the Act (220 ILCS 5/8-
101 (West 2006)) should be found to create a duty for public
utility landowners. Section 8-101 of the Act states, in
pertinent part:
"A public utility shall furnish,
provide, and maintain such service
instrumentalities, equipment, and facilities
as shall promote the safety, health, comfort,
and convenience of its patrons, employees,
and public and as shall be in all respects
adequate, efficient, just, and reasonable."
220 ILCS 5/8-101 (West 2006).
- 13 -
However, this Act does not create a duty when common-
law negligence principles already establish a duty between
parties. Poke v. Illinois Power Co., 187 Ill. App. 3d 631, 633-
34, 543 N.E.2d 1085, 1087 (1989). The plaintiff there argued
that the defendant had violated a duty of care based on section
8-101 of the Act by allowing an accumulation of water to stand in
the lobby and in failing to properly warn the public of the
dangerous condition. Poke, 187 Ill. App. 3d at 632, 543 N.E.2d
at 1086. The appellate court declined to find liability and
rejected treating a public utility differently or in a special
manner from other landowners, as the plaintiff's injury was in no
way related to the operation of the utility. Poke, 187 Ill. App.
3d at 633-34, 543 N.E.2d at 1087. As the common-law principles
of negligence adequately addressed plaintiff's cause of action,
the court declined to interpret section 8-101 of the Act as a
basis for liability in a normal slip-and-fall case. Poke, 187
Ill. App. 3d at 634, 543 N.E.2d at 1087.
Before a duty will be found under the Act, a plaintiff
is required to show that if a violation of the rules takes place,
the rule was intended for the benefit of that plaintiff. To
impose liability for a violation of a statute or rule designed to
protect human life or property, a plaintiff must show the
following: "(1) the violation proximately caused his injury; (2)
the [party] belonged to the class of persons whom the rule was
- 14 -
intended to protect from injury; and (3) the kind of injury
suffered by the [party] was the kind of injury the rule sought to
prevent." Miller v. Highway Commissioner of North Otter Township
Road District, 344 Ill. App. 3d 1157, 1170, 801 N.E.2d 599, 610
(2003), citing Gouge v. Central Illinois Public Service Co., 144
Ill. 2d 535, 543, 582 N.E.2d 108, 112 (1991).
The Act and administrative rules were not designed to
protect injured parties. When a lineman was injured when he fell
from a rotted utility pole, the appellate court found the rules
promulgated by the Illinois Commerce Commission under the Act
were not promulgated for the benefit of the injured lineman.
Longnecker v. Illinois Power Co., 64 Ill. App. 3d 634, 641, 381
N.E.2d 709, 714-15 (1978).
"Rather the regulations were designed for the
protection of the public generally, and to
insure the service of a continual supply of
electrical energy without undue interruption.
Thus the rules have no application to any
duty owed by Illinois Power to the instant
plaintiff, individually, under the
circumstances herein." Longnecker, 64 Ill.
App. 3d at 641, 381 N.E.2d at 715.
While regulations and codes are admissible as standards
in the industry for deciding whether reasonable care was used by
- 15 -
a defendant, a plaintiff must factually plead the applicability
of the statute and its regulations to the underlying facts of the
case. See Kotarba v. Jamrozik, 283 Ill. App. 3d 595, 598, 669
N.E.2d 1185, 1188 (1996). Michael has not alleged or shown which
provisions or regulations of the Act were intended to protect him
against this kind of injury. Because the common-law principles
of negligence adequately address his cause of action, the trial
court correctly awarded summary judgment.
3. The Trial Court Correctly Awarded Summary Judgment on
Michael’s Claim for Breach of Voluntary Undertaking
In providing a service, a possessor of land is
obligated to use reasonable care not to create increased dangers
on its property. Cross v. Wells Fargo Alarm Services, 82 Ill. 2d
313, 317, 412 N.E.2d 472, 474-75 (1980). "It is axiomatic that
every person owes to all others a duty to exercise ordinary care
to guard against injury which naturally flows as a reasonably
probable and foreseeable consequence of his act, and that such
duty does not depend upon contract, privity of interest[,] or the
proximity of relationship, but extends to remote and unknown
persons." Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86,
199 N.E.2d 769, 779 (1964); see also Rice v. White, 374 Ill. App.
3d 870, 884, 874 N.E.2d 132, 144 (2007).
If a person voluntarily agrees to perform a service
necessary for the protection of another person or their property,
a duty may be imposed on the party undertaking the service under
- 16 -
the voluntary-undertaking theory. A person undertaking such
service must perform the service in such a manner so as not to
increase the risk of harm to the other person who relies on that
undertaking. One who is negligent in the undertaking will be
held liable for the foreseeable consequences of the act if
another suffers harm because they relied on the other's
undertaking. Bourgonje v. Machev, 362 Ill. App. 3d 984, 995-96,
841 N.E.2d 96, 107 (2005). The voluntary-undertaking theory is
outlined in section 323 of Restatement (Second) of Torts. The
Restatement provides:
"One who undertakes, gratuitously or for
consideration, to render services to another
which he should recognize as necessary for
the protection of the other's person or
things, is subject to liability to the other
for physical harm resulting from his failure
to exercise reasonable care to perform his
undertaking, if
(a) his failure to exercise such care
increases the risk of such harm, or
(b) the harm is suffered because of the
other's reliance upon the undertaking."
Restatement (Second) of Torts §323, at 135
(1965).
- 17 -
The Illinois Supreme Court has adopted the Restatement. Frye v.
Medicare-Glaser Corp., 153 Ill. 2d 26, 32, 605 N.E.2d 557, 560
(1992).
Courts narrowly construe the voluntary-undertaking
theory. Frye, 153 Ill. 2d at 33, 605 N.E.2d at 560; see also
Rice, 374 Ill. App. 3d at 884, 874 N.E.2d at 144. A person who
gratuitously or for consideration provides services to another
person is subject to liability for bodily harm caused to the
other if the person fails to exercise due care or "'"such
competence and skill as [one] possesses."'" Frye, 153 Ill. 2d at
32, 605 N.E.2d at 560, quoting Cross, 82 Ill. 2d at 317, 412
N.E.2d at 474, quoting Nelson, 31 Ill. 2d at 85-86, 199 N.E.2d at
779; see also Crider v. Crider, 225 Ill. App. 3d 954, 960, 588
N.E.2d 439, 444 (1992). "[T]he scope of the duty is limited by
the extent of the undertaking." Crider, 225 Ill. App. 3d at 960,
588 N.E.2d at 444.
While a voluntary undertaking may establish a duty
between parties, a plaintiff must also establish breach of duty
and proximate cause to recover. Rice, 374 Ill. App. 3d at 887-
91, 874 N.E.2d at 146-50. While proximate cause is generally a
question of fact, a court may determine a lack of proximate cause
as a matter of law where the facts fail to establish both cause
in fact and legal cause. Rice, 374 Ill. App. 3d at 888, 874
N.E.2d at 148. In Rice, even though this court found that
- 18 -
defendants had voluntarily undertaken a duty to check for
weapons, no evidence established the defendants breached the duty
to check for weapons or that defendant's acts were the proximate
cause of the decedent's injuries. Rice, 374 Ill. App. 3d at 887-
91, 874 N.E.2d at 146-50.
In determining whether a party may recover under the
voluntary-undertaking theory, courts must examine whether there
was reliance on the defendant's actions by the injured party. In
doing so, there is a distinction between misfeasance and
nonfeasance. Jakubowski v. Alden-Bennett Construction Co., 327
Ill. App. 3d 627, 640, 763 N.E.2d 790, 800 (2002). Nonfeasance
applies where there is a failure by omission to perform the
voluntary undertaking, and misfeasance is the negligent
performance of the voluntary undertaking. Bourgonje, 362 Ill.
App. 3d at 996, 841 N.E.2d at 107. "Under Illinois law, a
plaintiff's reliance on the defendant's promise is an
independent, essential element in cases of nonfeasance."
Bourgonje, 362 Ill. App. 3d at 997, 841 N.E.2d at 108. However,
to justify reliance, a plaintiff must be unaware of the actual
circumstances and not equally capable of determining the facts.
Bourgonje, 362 Ill. App. 3d at 1005, 841 N.E.2d at 115. With
misfeasance, a plaintiff may recover if he relied on the
volunteer's performance or if the volunteer's performance
increased the risk of harm to plaintiff. Bourgonje, 362 Ill.
- 19 -
App. 3d at 997, 841 N.E.2d at 108.
In the case sub judice, IP voluntarily undertook the
duty of relocating the power lines and initially undertook to
remove the pole before Michael could trim the tree. Under these
facts, nonfeasance is not applicable. To establish misfeasance,
Michael must then show that either he relied on IP's performance
or that IP's partial removal of the pole increased Michael's risk
of harm. However, the undisputed testimony was that Michael saw
the utility pole, knew it was cut off rather than removed
completely, and chose to continue his work. As this court
previously held, one who renders gratuitous service is not
subject to liability where the person who accepts the service is
aware that the service was incompetent. Rice, 374 Ill. App. 3d
at 886, 874 N.E.2d at 146, citing Restatement (Second) of Torts
§323, Comment b, at 136-37 (1965). Michael continued to perform
his work, despite the manner in which IP performed its service.
Clearly, Michael cannot now claim reliance on IP's removal of the
utility pole. Finally, Michael failed to present any evidence,
other than mere speculation on his part, that IP's partial
removal of the utility pole increased his risk of harm. We
affirm summary judgment in favor of IP.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's
judgment.
- 20 -
Affirmed.
COOK and TURNER, JJ., concur.
- 21 -