Company not liable for electrocution of distracted contractor

Olin Corp. hired Wegman Electric to perform electrical work at Olin's manufacturing plant in East Alton, Ill. The job site was near high-voltage electrical lines, and Wegman's contract did not require that the lines be deenergized or shielded.

On Sept. 27, 2000, while installing aluminum conduit piping at the Olin job, Wegman employee Lloyd C. Whittleman was holding a length of conduit that came into contact with one of the high-voltage lines. Whittleman was severely burned and lost part of his left foot. Whittleman sued Olin, arguing it was negligent in failing to de-energize or cover the high-voltage lines, and for failing to plan for the project without exposing workers to dangerous power lines. Olin asked the Illinois trial court to dismiss the complaint, arguing that it did not owe Whittleman a duty of care because of the open and obvious nature of the danger. The court agreed, and dismissed the case.

Whittleman filed a series of amended complaints, asserting that, despite the open and obvious nature of the danger, Wegman knew or should have known that electricians working in the vicinity of the lines would be distracted from the danger by their work.

When Whittleman's amended complaints were dismissed, he appealed to the Appellate Court of Illinois. That court noted the general rule that an owner is not liable to invitees for injuries caused by open and obvious dangers, and stated that an exception may exist when the owner has reason to expect that the invitee's attention might be distracted so that he will not discover the open and obvious danger.

According to the court, the distraction-theory exception applies when the owner can anticipate injuries to invitees who are generally exercising reasonable care for their own safety. To state a claim against Olin, Whittleman would have had to allege that whatever distracted him could have been reasonably anticipated by Olin. He never did this or charged that anything Olin did or did not do caused the distraction. "The law cannot require a possessor of land to anticipate and protect against a situation that will only occur in the distracted mind of his invitee," the court concluded.

Whittleman v. Olin Corp., 832 N.E.2d 932 (Ill.App. 2005), Appellate Court of Illinois, June 30, 2005.
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