Appellate Court Reaches Obvious Decision on ‘Open and Obvious’ Case

A power company hangs its lines nearly 3½ feet below where regulations permit them. A tow truck driver, hired by the city to remove sand bunkers under those lines, uses his extended retractable boom to carry out the job, which accidentally comes into contact with the lines.

Noticing the cab of his truck has caught fire, the driver starts to leave the cab to get a fire extinguisher—but he receives a high-voltage electric shock and tumbles to the ground, sustaining injuries to his knee and spine as well as burns.

Despite hanging their lines below the regulation height, the power company refuses to accept responsibility, saying the powerlines were “open and obvious” and that the victim is to blame because he should have seen them.

The above fact pattern is exactly what happened to our client while working in Beardstown, Illinois.  Unfortunately, the power company persuaded the trial court that they were not obligated to comply the safety regulations as powerlines were open and obvious.  

We at Pullano & Siporin never give up fighting for our clients while pursuing justice.  We felt strongly that this particular client and this particular case could set important precedent that would help keep all citizens of Illinois safe.  After all, based on the reasoning applied by the trial court, power companies could hang powerlines at whatever height above ground they wanted, the health and safety of people would be jeopardized, and there would be insufficient leverage to compel power companies to comply with safety rules in order to protect the public from harm.  While we were obviously disappointed in the trial court’s findings, we were not deterred – we immediately appealed the decision.    

During the appeal, the power company did not dispute the fact of the powerline’s height violated safety standards but continued to say our client should have seen them. In fact, the power company argued that irrespective of what national safety standards say, they should be allowed to hang powerlines four feet above ground over a sidewalk and not be held accountable if someone inadvertently walks into them. To us, that is absurd and it puts every citizen in our state, including children, in harm’s way. The appellate court agreed.  

In doing so, the appellate court found that our client was clearly part of the group of people the state regulation was intended to protect, that his injury was the type the regulation intended to protect against, and that his expert had correctly testified that the injuries would not otherwise have occurred.

In holding that the “open and obvious” doctrine did not apply, the court noted that, “One would be hard pressed to imagine a situation where powerlines would not be open and obvious, which means that, if the open and obvious doctrine applied, injured parties would be incapable of recovering damages for their injuries. Because (1) powerlines by their very nature are open and obvious hazards, (2) the stated goal of the [Illinois Commerce Commission] is to protect the public, and (3) the regulatory scheme is so specific, the Act and the ICC’s regulations at issue here were clearly meant to create a nonrebuttable duty.”

As a result, the appellate court reversed the trial court’s order dismissing the case and  remanded the case back to the trial court for further proceedings. Power companies like Ameren are thus not granted immunity from statutory duty violations. The appellate court noted that at trial, Ameren is free to argue that it “acted reasonably under the circumstances or that a violation of the statute was not the proximate cause of the injury. However, these questions are for the fact finder to determine.” 

The primary purposes of civil litigation are: (1) compensating injury victims and (2) keeping our communities safe from bad actors. Many lawyers would not have accepted the responsibility of representing this client because of how much work it would entail. However, Pullano & Siporin is different. We are continually guided by these tenets.  

“I’m very happy for my client because the appellate court made such a well-reasoned decision,” partner Mat Siporin, who handled the case, told the Chicago Daily Law Bulletin. “Also, this decision will ensure that our communities are safer because the court did not let Ameren off the hook from violations of Illinois statutes and national safety rules. When you’re dealing with electricity, power companies have a high duty of care, and they must be held accountable when they do not comply with safety rules.”

He adds, “Otherwise, as a society, we are all put at risk of injury and there are no institutional mechanisms in place to compel wrongdoers to change their behaviors before a catastrophic event occurs.”

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