A state appeals panel has ruled a lower court was wrong to let Ameren off the hook from a lawsuit brought by a tow truck driver injured by low-hanging power lines.
In 2015, Bradley Fox was doing contact work for the city of Beardstown, using an extended tow truck boom to remove “sand bunkers” under Ameren utility lines, part of water treatment plant flood mitigation efforts. Fox suffered injuries when his truck’s boom contacted the lines, which Ameren later admitted didn’t meet Illinois Commerce Commission vertical clearance requirements. Those requirements stem from the National Electrical Safety Code.
Fox and his wife, Michelle, filed a lawsuit against Ameren alleging negligence. But in October 2021 Cass County Circuit Court Judge Kevin Tippey granted summary judgment to Ameren based on its argument the lines were in such poor condition as to negate any statutory or common-law duties. Fox challenged that ruling before the Fourth District Appellate Court.
Justice Robert Steigmann wrote the panel’s opinion, issued Aug. 24; Justices Craig DeArmond and Peter Cavanagh concurred.
Fox had done the same work at the Beardstown water plant in 2013, and court records show a village employee told Fox of a June 2015 incident in which a dump truck driver delivering sand hit the power lines because he failed to lower the bed to accommodate for the height. According to an Ameren filing from March 2018, shortly after Fox’s injury it measured the lines that injured Fox at about 17.4 feet off the ground, roughly the same height restored from repairs following the dump truck collision, although NESC requires 20.75 feet of vertical clearance.
“While maneuvering the truck, Fox realized that the truck’s cab had caught on fire,” Steigmann wrote. “He attempted to exit the truck to get a fire extinguisher but received an electric shock and was thrown to the ground, sustaining a knee injury, a spine injury and burn marks on his body.”
The panel said the “open and obvious doctrine” Ameren invoked isn’t a defense against negligence allegations, but merely “an analytical doctrine for determining the existence of a duty.” In other words, although there is a state law dictating power line height, Ameren said it can’t be sued for an accident resulting from the conditions because of the assumption people would see the low hanging power lines and avoid the risk.
“A public utility, like Ameren, can be sued for injuries resulting from its violation of the NESC rules, which are intended for the ‘safeguarding of persons during the installation, operation or maintenance of electric supply and communication lines and their associated equipment,’ ” Steigmann wrote. “Permitting the open and obvious doctrine’s application to this case, thereby negating Ameren’s duty, would be inconsistent with the purposes” of the laws governing utility safety.
Power lines are by their very nature dangerous, the panel said, but agreeing with Ameren’s position could absolve Ameren from liability in almost any injury stemming from one of its transmission lines, even if the lines were only four feet above the ground. Because the state deploys precise standards for power line placement, the panel continued, the open and obvious doctrine can’t apply.
Furthermore, because the panel wouldn’t allow Ameren to invoke the open and obvious doctrine, it also cannot use that exception to avoid exposure to financial damages. However, Ameren can still argue it acted reasonably in hopes of mitigating its exposure to Fox’s recovery, as well as content its violation of the power line law wasn’t the proximate cause of Fox’s injury.
The panel also agreed with Fox that Ameren had a common law duty to keep the lines at a safe height, meaning even if the open and obvious doctrine did apply, it still would be appropriate to reverse and remand the complaint for future proceedings.
The Foxes are represented by Pullano Law Offices, of Chicago.
Ameren is represented by HeplerBroom, of Springfield and Chicago.
Lawyers from Power Rogers, of Chicago, filed an amicus brief for the Illinois Trial Lawyers Association in support of the Foxes position.