dissenting:
I respectfully dissent from the majority’s holding that there was no evidence that defendant’s failure to maintain the fence was wilful.
Whether an act or omission constitutes wilful conduct is within the peculiar province of the jury to consider. (Sprague v. Commonwealth Edison Co. (1978), 59 Ill. App. 3d 342, 375 N.E.2d 493.) In order to establish wilful conduct it is not necessary to prove that defendant had actual knowledge of an impending danger and failed to take reasonable precautions to prevent it. The Illinois Supreme Court has advised this particular defendant that utter indifference or conscious disregard for the safety of others can be established where the evidence discloses that defendant failed to discover a dangerous condition through recklessness or carelessness when it could have been discovered by ordinary care. Klatt v. Commonwealth Edison Co. (1965), 33 Ill. 2d 481, 211 N.E.2d 720.
The principles governing wilful conduct have been held to take on particular significance when the distribution of electrical energy is involved. (Spence v. Commonwealth Edison Co. (1975), 34 Ill. App. 3d 1059, 340 N.E.2d 550.) Power companies are required to exercise extraordinary care due to the inherently dangerous nature of their business. (Spence; McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242, 163 N.E.2d 454.) The menace of electricity has been characterized as.a silent, deadly, instantaneous force comparable to the operation of a firing range. (Spence, citing Merlo v. Public Service Co. (1942), 381 Ill. 300, 45 N.E.2d 665, and Mullen v. Chicago Transit Authority (1961), 33 Ill. App. 2d 103, 178 N.E.2d 670.) Because the dangers connected with the distribution of electricity are not obvious to the general public, a power company’s own employees are best qualified to discover the potential hazards of electricity. McGill v. Illinois Power Co. (1959), 18 Ill. 2d 242, 163 N.E.2d 454.
It is true, as stated in the majority opinion, that there is conflicting testimony regarding whether the barbed wire was deteriorated and in a state of disrepair prior to the accident. Indeed, this is not surprising inasmuch as the only question to be determined as a prerequisite to the imposition of punitive damages is whether defendant wilfully violated a rule promulgated under the Public Utilities Act. However, I disagree with the majority’s conclusion that conflicting evidence cannot support a finding of wilfulness.
Defendant’s employees testified that regular inspections were conducted to ensure that the high voltage transformers located within the electrical substations were properly guarded. Defendant’s safety log reflects that substation C — 17 was inspected on 43 occasions during the 16 months preceding the accident. Defendant’s records further indicate that no new barbed wire has been placed at this location since 1948.
Mr. Harper, a 32-year employee of defendant, testified that because the safety of the general public was defendant’s primary concern, workers had been instructed that the public was to be protected from contact with the equipment. Harper further testified that any disrepair of the fencing which would allow children to gain access to the substation would be an unsafe condition requiring immediate attention.
Another lifelong employee of defendant, Mr. Weiler, acknowledged that barbed wire was intended to prevent children from climbing over the fence. In order to accomplish this goal, defendant passed regulations which required all three strands of barbed wire to be kept intact at all times.
Through the testimony of its employees, defendant acknowledged that it had a duty to maintain the barbed wire along the fence and to keep the ladder stored within the enclosure. Defendant’s defense, therefore, was simply that the barbed wire did not exist in a state of disrepair, as plaintiff’s witnesses claimed. Defendant stressed that had it been in such a state prior to the accident, defendant would have been aware of the condition and remedied it.
However, the jury refused to believe the testimony of defendant’s employees. Instead, they accepted as credible the testimony of plaintiff’s witnesses. In addition to the testimony of a “six-year-old child” (who was 11 years old at the time of trial) and a “family friend,” plaintiff introduced the testimony of Mr. Warnecke and Sergeant Randolph. Mr. Warnecke noticed the sagging condition of the barbed wire prior to the accident. Sergeant Randolph described the fence along the east side of the station as having two strands of wire completely missing and one strand sagging. The bayonets designed to reinforce the barbed wire were rusty and deteriorated. One was completely obstructed by shrubbery.
The jury also heard extensive testimony from plaintiff’s witness, Dr. Armington. He testified that in his opinion defendant violated numerous sections of General Order 160 of the Illinois Commerce Commission, which sets forth minimum standards for the proper installation and maintenance of electrical equipment. These sections were designed to protect the general public and especially children from gaining access to high-voltage equipment.
After hearing the evidence, the trial court determined that there was sufficient evidence to instruct the jury that punitive damages could be awarded if defendant was guilty of wilful and wanton conduct. They were also instructed as to the definition of wilful and wanton conduct. Resolving the question of credibility of the witnesses against defendant, the jury returned a substantial punitive award against defendant indicative of their determination that defendant’s conduct constituted a wilful violation under the Act.
In my judgment, there is substantial evidence in the record to support the jury’s finding that defendant’s wilful violation of the Act caused the electrocution of a seven-year-old boy. By substituting its own judgment for that of the jury regarding whether defendant’s conduct was wilful, the trial court invaded the constitutional prerogative of the jury to weigh the credibility of the witnesses. (Buer v. Hamilton (1964), 48 Ill. App. 2d 171, 199 N.E.2d 256.) Also, it was error for the trial judge to strike the award after the jury returned their verdict.
Defendant’s concern for safety which was demonstrated by the numerous inspections it conducted cannot insulate defendant from punitive liability where its “concern” did not extend to rectifying the condition which gave rise to plaintiff’s decedent’s injuries.
This court recently considered an analogous case wherein plaintiff established that the defendant railroad had allowed the crossing to fall into a state of disrepair causing plaintiff’s injuries in Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199. As did defendant in the instant case, the railroad denied having actual knowledge of its crossing being in a state of disrepair. However, the jury believed plaintiff’s witnesses who testified that the crossing had been in a state of disrepair prior to the accident. The court noted that ‘ ‘the fact that the condition at the crossing existed is itself sufficient evidence that the railroad failed to conduct proper maintenánce to correct the violation.” (Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 711, 450 N.E.2d 1199, 1206.) This reasoning is equally applicable to the case at bar. Aside from the testimony of several witnesses, possibly the best evidence of defendant’s failure to adequately maintain the fence to prevent the public from coming into contact with 34,500 volts of raw electricity is the fact that two young children successfully gained access to the substation.
The Hazelwood court also commented upon defendant’s reliance on the railroad’s inspections:
“[T]here is evidence in the record that the railroad inspected the crossing frequently. It is far more egregious for the railroad to continue to inspect the crossing and then fail to repair it than for the railroad to simply fail to inspect. Consequently, it is clear from the record before us that, as a matter of law, the railroad’s actions justified the imposition of punitive damages.” 114 Ill. App. 3d 703, 711, 450 N.E.2d 1199, 1206.
It is equally clear in the instant case that defendant’s actions justify the imposition of punitive damages.
The trial court, and now this court, was apparently influenced by the fact that since the substation’s construction in 1948, there was only one prior incident where a young child gained access to the substation through a defect in the fencing. Defendant argues that having introduced a myriad of evidence establishing its overall concern for safety, it cannot be found to have exhibited a conscious disregard for safety which would warrant punitive liability. However, this argument distorts the intention of the legislature in passing the Public Utilities Act. The public policy underlying section 73 of the Act is clear:
“Unquestionably, the Public Utilities Act intends to punish an offender and discourage similar offenses by allowing punitive damages to be awarded whenever an injury results from a defendant’s wrongful and wilful statutory violation. It would pervert the Act’s intention if reprehensible conduct, so severe in consequence that resultant injury, culminating in death, was to be insulated from punitive liability under the act designed to vigilantly promote safety by public utilities.” Froud v. Celotex Corp. (1983), 98 Ill. 2d 324, 332, 456 N.E.2d 131, quoting National Bank v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 160, 174, 383 N.E.2d 919, 924.
Despite defendant’s claim that it was concerned about safety, the jury having been properly instructed, concluded that defendant acted in utter disregard for the public’s safety. There was sufficient evidence that defendant was aware of the defect through its frequent inspections and in violation of General Order 160 of the Illinois Commerce Commission failed to repair it. There was also evidence that defendant violated General Order 160 by failing to store the ladder which plaintiff’s decedent used to climb the transformer. Defendant’s actions show an indifference to public safety and a punitive damage award will reassure the public that an indifference to its safety will not be tolerated in the future. (Churchill v. Norfolk & Western Ry. Co. (1978), 73 Ill. 2d 127, 383 N.E.2d 929.) The trial court’s refusal to permit the imposition of punitive damages “for the sake of example and by way of punishment” undermines the legislative intent contained in the clear language of the Public Utilities Act. Ill. Rev. Stat. 1981, ch. 1112/3, par. 77.
As stated above, my review of the record indicates that defendant’s actions justify the imposition of punitive damages in the instant case. Therefore, I must consider whether the jury’s award of $3.5 million is excessive. In Hazelwood, the court outlined three factors which should be considered in determining whether an award is excessive. They are: (1) the egregiousness of the act; (2) the financial status of the defendant; and (3) the potential liability of the defendant in situations where defendant faces multiple liability for the same or similar wrongs. Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 450 N.E.2d 1199.
Having applied these factors, I find that the award is excessive. I would reduce the award to $1 million. This amount fairly reflects the seriousness of the injury and the magnitude of the wrong without threatening the financial stability of defendant. The award represents .0294% of defendant’s net worth, which is $3,396,934,000. (See Hazelwood, wherein the court determined that an award representing .0237% of defendant’s net worth was proper.) Finally, the reduced award of $1 million is substantial enough to discourage similar offenses in the future, thereby fulfilling the public policy underlying section 73 of the Public Utilities Act. Hazelwood v. Illinois Central Gulf R.R. (1983), 114 Ill. App. 3d 703, 712-15, 450 N.E.2d 1199, 1207-08.