dissenting:
I would reverse the trial court’s order granting defendant summary judgment on counts II through IV of plaintiff’s complaint, and remand for further proceedings.
It was once held that the duty of reasonable care owed by an owner or occupier of land to those lawfully on his premises did not under any circumstances extend to known or obvious conditions. That rule is no longer the law in Illinois. (Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 145, 554 N.E.2d 223, 229.) A possessor of land can be liable, even for physical harm caused by a known or obvious condition, if he should have anticipated the harm despite such knowledge or obviousness. (Restatement (Second) of Torts §343A (1965); see Ward, 136 Ill. 2d at 149, 554 N.E.2d at 231.) The effect of Ward is to allow a jury to decide many cases which previously would have been resolved against plaintiff by the court. “Whether in fact the condition itself served as adequate notice of its presence or whether additional precautions were required to satisfy the defendant’s duty are questions properly left to the trier of fact.” (Ward, 136 Ill. 2d at 156, 554 N.E.2d at 234.) “The obviousness of the danger and plaintiff’s own negligence affect whether and to what extent plaintiff is comparatively negligent, not the duty of the possessor of land.” Deibert v. Bauer Brothers Construction Co. (1990), 141 Ill. 2d 430, 442, 566 N.E.2d 239, 245; see Restatement (Second) of Torts §343A, Comment f, at 220 (1965).
I. Existence Of A Duty
“ ‘A duty limitation is proper for those dangers which are always outside the defendant’s scope of duty, but obvious dangers are not always found there.’ ” (Ward, 136 Ill. 2d at 146, 554 N.E.2d at 294, quoting Note, Torts — Assumption of Risk and the Obvious Danger Rule. Primary or Secondary Assumption of Risk?, 18 Land & Water L. Rev. 373, 384 (1983).) Ward was recently applied in an electrocution case, American National Bank & Trust Co. v. National Advertising Co. (1992), 149 Ill. 2d 14, 26, 594 N.E.2d 313, 318. In American National defendant was the lessee of a billboard and had contracted with decedent’s employer to have the billboard painted. The billboard had a walkrail along its back, consisting of 2 by 6 boards located about two feet from its top. A high-voltage line crossed the billboard at right angles, about eight inches from one end, 24 to 30 inches above the top of the sign. American National first considered whether the power line was open and obvious, to determine whether defendant could fit within section 343A of the Restatement. Because some workers had testified they were unaware of the power line’s presence, American National held there was a question of fact whether the danger was open and obvious. (American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) Despite that question of fact the supreme court went on to consider whether other grounds would defeat the summary judgment entered in favor of defendants.
First, however, American National considered whether Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, announced a rule that a landowner could never have a duty to warn of a power line, concluding that it did not. American National distinguished Genaust on the basis the landlord there
“could not have discovered the danger of electricity arcing from power lines ‘which were neither on its property nor under its control.’ (Emphasis in original.) (Genaust, 62 Ill. 2d at 468.) Further, the court found that an employer would expect a worker with expertise in installing antennae to be reasonably aware of the hazards of installing metal equipment near power lines.” (American National, 149 Ill. 2d at 28, 594 N.E.2d at 319.)
(Cf. Carroll v. Commonwealth Edison Co. (1986), 147 Ill. App. 3d 909, 498 N.E.2d 645 (rejecting plaintiff’s attempts to distinguish his case from Genaust, finding plaintiff’s degree of experience or expertise as an electrician not determinative, and finding of no significance that the power lines were located on Babson Farms, whereas in Genaust the power lines were beyond the landowner’s control because they were not on the landowner’s property).) In the present case it would appear defendant could easily have discovered the danger of these power lines, even if they were slightly off his property. Nor has it been established that defendant believed decedent to be anything more than a self-taught painter with no formal training in or knowledge of electricity. To paraphrase Ward, to the extent Genaust was previously thought to state an absolute rule that a landowner did not under any circumstances have a duty to warn of a power line, that rule is not the law in Illinois. Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229; Deibert, 141 Ill. 2d at 442, 566 N.E.2d at 245.
In determining whether there was a duty, American National considered whether it was foreseeable that a worker would come into contact with the power line, whether it was foreseeable the worker would be distracted, and how heavy the burden would be on defendant to protect workers against the power line. (American National, 149 Ill. 2d at 29, 594 N.E.2d at 320.) In American National it was found objectively reasonable to expect that a worker could come into contact with a power line that hung only AVz to 5 feet above the walkrail. Similarly, in the present case it is foreseeable that persons using equipment more than 20 feet in height in a farm lot will encounter a power line located 20 feet 6 inches above the ground at the edge of the property. In American National it was held reasonable to expect that a worker might be distracted by having to watch where to place his feet while walking on the walkrail. Similarly in this case it is reasonable to expect the decedent would be distracted walking through weeds, near if not through debris, while carrying a 20-foot ladder upright.
The grass and weeds where the ladder fell are shorter than other grass in the area, but still tall enough to conceal holes, ruts, or small items of debris. The majority opinion states that according to the testimony of John H. Swearingen, the deputy coroner of Logan County, and to the photographs, the area south of the bulldozer “was well mowed and clear of any impediments.” (234 Ill. App. 3d at 991.) Swearingen actually said the area was “covered with vegetation, grass, weeds and so forth and appeared to have been mowed regularly. So I would say that vegetation was approximately six inches tall.” Although the area may have been mowed regularly, it does not appear to have been mowed recently. The photographs (particularly Nos. 23 and 24) show the ladder lying in grass and weeds about six to eight inches tall, south of the bulldozer. Some of the grass and weeds had gone to seed. The ground at that point appears somewhat uneven. Swearingen testified there was a shallow, vegetation-covered ditch alongside the roadway. The power lines were along the northern edge of the ditch, where the midpoint of the ladder landed when it fell. The grass at the southeast comer of the bulldozer and along its east side, where decedent was apparently headed with the ladder, appears to be about five feet tall. In Deibert, the plaintiff, who was not carrying anything, “could not look both places: up, to check for the possibility of flying construction materials; and down, to protect himself from tripping in a rut.” (Deibert, 141 Ill. 2d at 439, 566 N.E.2d at 243.) Decedent’s task in this case was certainly no easier.
There is no policy reason why a landowner should not be held liable for accidents caused by power lines on his property, although there are policy reasons why utility companies should not be liable. (See, e.g., Watkins v. Mt. Carmel Public Utility Co. (1988), 165 Ill. App. 3d 493, 499, 519 N.E.2d 10, 14 (economic realities make it unrealistic that utility companies post warning signs or insulate their power lines, which may amount to thousands of miles).) American National held that the landowner’s burden of protecting workers against the power line would not have been heavy — defendant might have shortened the walkrail, or demanded the utility relocate the line, or at least warned workers of the hazard. The magnitude of the burden of guarding against the injury in the present case also does not appear great — the debris could have been moved, the landowner could have demanded that the utility temporarily relocate the power line, or at least the landowner could have warned decedent of the hazard. The defendant landowner in this case owed a duty of reasonable care to the invitee.
II. Breach Of Duty, Proximate Cause
The trial court based its summary judgment on its finding that there was no duty. The majority opinion also adopts a fall-back position, that even if there were issues of fact plaintiff did not sustain her burden of responding to defendant’s motion for summary judgment. Whether a defendant has breached its duty of care is generally a question of fact for the jury, as is the question whether the breach was the proximate cause of the injury. (Deibert, 141 Ill. 2d at 438-39, 566 N.E.2d at 243.) Proximate cause only becomes a question of law when the facts are not only undisputed but are such that there can be no difference in the judgment of reasonable persons as to the inferences to be drawn from them. (Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 357, 564 N.E.2d 242, 253.) If what is contained in the pleadings and affidavits would have constituted all of the evidence before the court and upon such evidence there would be nothing left to go to a jury, and the court would be required to direct a verdict, then a summary judgment should be entered. (Fooden v. Board of Governors of State Colleges & Universities (1971), 48 Ill. 2d 580, 587, 272 N.E.2d 497, 500.) The evidence in this case does not so overwhelmingly favor the movant that a contrary verdict could never stand. Summary judgment should have been denied on counts II through IV.
The trial court quoted Genaust for the proposition that an invitee must be held to be as equally aware of all obvious and normal hazards as is the possessor of the land. It must be remembered, however, that defendant had been on this lot many more times than decedent, having erected the grain bin in 1972. It is likely that defendant on occasion had maneuvered farm equipment between the grain bin and the power lines. The trial court also noted that decedent could have removed any alleged debris to clear a path just as easily as defendant. Perhaps a jury would so conclude, but I see no justification for a court making that decision in this case. There is no indication decedent could have moved the bulldozer, which was operable. Defendant apparently had equipment available for mowing grass and weeds, but there is no showing that decedent had any such equipment. If decedent had moved debris he would have to have asked defendant for permission, and where the debris should be moved. Decedent had room to lower his ladder from an upright to a horizontal position before he walked around the bin, but it is not clear that a reasonable person, engaged in painting a grain bin, would have done that. In Deibert plaintiff could easily have avoided the accident by stopping before he looked up for falling debris. That, however, was something for the jury to consider, not the court. (Deibert, 141 Ill. 2d at 442, 566 N.E.2d at 245.) In American National the court held there were jury questions whether the power lines were open and obvious, whether defendant took any safety precautions, and whether those precautions were adequate to satisfy its duty of reasonable care. The jury was also to consider, on the issue of plaintiff’s negligence, whether the American National decedent’s experience as a sign painter, and his use of ordinary care, would have caused him to avoid the accident. The jury should decide those issues in this case as well.
I respectfully dissent.