Whittleman v. Olin Corp.

Case Date: 06/30/2005
Court: 5th District Appellate
Docket No: 5-04-0231 Rel

                    NOTICE
Decision filed 06/30/05.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-04-0231

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


LLOYD C. WHITTLEMAN,

     Plaintiff-Appellant,

v.

OLIN CORPORATION and
CLIFFORD S. MEISENHEIMER,

     Defendants-Appellees.

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Appeal from the
Circuit Court of
Madison County.

No. 02-L-932


Honorable
Phillip J. Kardis,
Judge, presiding.



JUSTICE KUEHN delivered the opinion of the court:

This is an electrocution injury case. Lloyd C. Whittleman appeals from the trial court's March 25, 2004, order prejudicially dismissing his fourth amended complaint for the failure to state a claim.

On September 27, 2000, Lloyd C. Whittleman (Whittleman) was employed as an electrician by Wegman Electric on assignment to an Olin Corp. (Olin) job at Olin's East Alton manufacturing facility. Whittleman's job was to install aluminum conduit piping. The job site was near high-voltage electrical lines, which were not deenergized, shielded, or otherwise covered. The contract did not require that the electrical lines be deenergized, shielded, or covered. At some point during his workday, a length of conduit Whittleman was holding came into contact with one of these high-voltage lines, resulting in severe electrical burns to Whittleman. These burns required surgical debridement and an amputation of a portion of Whittleman's left foot, as well as soft tissue injuries to his neck, back, and legs.

Whittleman filed suit against Olin, the owner of the premises, and Clifford S. Meisenheimer (Meisenheimer), Olin's chief engineer at the East Alton site. The initial complaint simply alleged that the defendants had been negligent in failing to deenergize the high-voltage lines, failing to provide protective covering for the lines, and failing to plan for the project to be done in a manner that did not expose workers to dangerous power lines. The defendants filed a motion to dismiss for a failure to state a cause of action, arguing that they did not owe Whittleman a duty of due care because of the open and obvious nature of the danger. Defendant Meisenheimer also argued that he owed Whittleman no duty because he did not possess or control the premises on which Whittleman was injured. The trial court granted these motions.

On December 5, 2002, Whittleman filed his first amended complaint. This time he alleged the distraction theory, specifically alleging that the defendants had been negligent for failing to deenergize power lines, failing to plan for the work, and failing to provide protection against contact with power lines, when they knew or should have known that workers would be distracted from the danger. The defendants again asked the trial court to dismiss the complaint, which the court did on March 27, 2003, with leave to file a second amended complaint.

The second amended complaint was filed on April 14, 2003. The distraction theory was again pleaded, specifically alleging that in failing to deenergize the power lines, in failing to plan for the work, and in failing to provide protection against contact with power lines, the defendants knew or should have known "that those doing the work would be distracted by the work they were doing" (emphasis added). The trial court dismissed this complaint on June 19, 2003, with leave to file a third amended complaint.

On June 23, 2003, Whittleman filed his third amended complaint. In this amendment, he alleged that the defendants had failed to deenergize power lines, failed to plan for the work, and failed to provide protection against contact with power lines when they knew or should have known "that those doing such work in the vicinity of said lines would be distracted by [their] work" (emphasis added). On September 11, 2003, the trial court granted the defendants' motion to dismiss and granted Whittleman leave to file a fourth amended complaint.

Whittleman filed his fourth amended complaint on October 30, 2003. In this version of the complaint, he alleged that Olin had failed to deenergize the high-voltage lines, failed to exercise reasonable care to protect those working in the line's proximity, and failed to appropriately plan the work being done when it should have expected that those so engaged might "momentarily forget the danger or be distracted by the work they were doing" (emphasis added). Whittleman alleged a slightly different version against defendant Meisenheimer but essentially carried forth with the theme that the distraction was the work that Whittleman was doing at the time of the accident. Both defendants again asked the trial court to dismiss the complaint, and on March 25, 2004, the trial court granted this motion with prejudice, denying Whittleman the opportunity to file his fifth amended complaint.

Whittleman appeals.

When the trial court is presented with a motion to dismiss a case for a failure to state a cause of action, pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2002)), the court must determine whether the complaint sets forth sufficient facts that, if established, could entitle the plaintiff to relief. Bryson v. News America Publications, Inc., 174 Ill. 2d 77, 86, 672 N.E.2d 1207, 1214 (1996). The trial court must accept all well-pleaded facts in the complaint as true and draw reasonable inferences from those facts that are favorable to the plaintiff. Bryson, 174 Ill. 2d at 86, 672 N.E.2d at 1213-14. Because the trial court is not being called upon to judge any witness's credibility or weigh facts, on appeal we review the matter de novo. Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 9, 689 N.E.2d 205, 211 (1997).

At issue is whether Whittleman ever alleged sufficient facts that could have entitled him to relief. Generally speaking, a possessor of land owes no duty to invitees for physical harm related to an open and obvious danger. Restatement (Second) of Torts