Legal Services Department

Rockford case centers on 'negligence'

By James C. Kozlowski, J.D.

Electrocution on Playground

In the case of Nelson by Tatum v. Commonwealth Edison Co., 80 Ill.Dec. 401, 465 N.E.2d 513 (1984), plaintiff Warren Nelson, through his mother, Linda Tatum, sued the Rockford Park District and the Common-wealth Edison Company after being electrocuted on a public playground. The circumstances surrounding the accident were as follows:

On October 14, 1981, Warren Nelson, a 10-year-old boy, was playing in Sabrooke Playground in Rockford. High voltage electrical power lines run in an east-west direction over the middle of the park and are at least 30 feet high. The park land is owned by Commonwealth Edison but leased and controlled by the Rockford Park District. Young Nelson, either by himself or with a playmate, apparently discovered a piece or spool of copper wire. One of the youths tossed it high into the air while Nelson held on to one end of the wire. An electric current either arced from nearby power lines to the copper wire or the wire actually contacted the power lines, causing plaintiff [Nelson] to receive serious electrical burns.

In his complaint. Nelson alleged that defendants Commonwealth Edison and the Rockford Park District were negligent because "defendants knew that children habitually frequented the Sabrooke Playground, that the park was directly underneath electrical power transmission lines, and that said power lines constituted a dangerous condition."

Further, Nelson argued that a young child would not appreciate the danger posed by the power lines. Consequently, Nelson maintained defendants had a duty to remedy this dangerous condition or otherwise take necessary steps to protect children using the playground. According to Nelson, "the cost of providing warning signs was slight when compared to the risk of injury to young children."

Given the height of the power lines (30 feet), the trial judge had concluded that "it was not reasonably forseeable that a child would throw a heavy copper wire spool close enough to the park's elevated power lines to cause injury."

Should a park district foresee unusual circumstances?

[T]he trial judge stated, in substance, that where property was set aside as a public playground, the Park District and the utility company would be held responsible to recognize that certain rights for children exist in the use that are far greater than would be permitted in other areas of a playground. . . . [I]t would be reasonably foreseeable that a child might do something that would involve activity off the ground (such as flying a kite or model aircraft tethered with a control wire) without appreciating the danger of such activity. The trial court concluded, however, that throwing a wire in the air was not like throwing a football or baseball, and found that it was not reasonably foreseeable that a child of relatively tender years would throw a wire 30 feet or more in the air.

Having determined that "the occurrence itself was unforeseeable," the trial judge found "the defendants had not assumed the type of unforeseeable risk for which liability would attach." The trial court, therefore, granted defendants motion to dismiss the suit. Nelson appealed.

On appeal. Nelson claimed "the trial court misunderstood the requirements of proximate [or legal] cause [to establish negligence] by finding that it was necessary that the exact method or precise manner in which the injury occurred be reasonably foreseeable. According to Nelson, "the 'foreseeability' requirement does not refer to the method of injury.'' On the contrary, Nelson argued, "as long as the resulting event was foreseeable [electrocution], the manner in which it occurred [throwing a wire spool] was irrelevant." The appeals court agreed with Nelson.

According to the appeals court, the issue in this case was "whether Warren Nelson's electrical injuries were so unforeseeable an occurrence that the trial court could properly conclude that the defendants owed him no legal duty of protection." In resolving this issue, the appeals court adopted the following definition of "foreseeability":

[T]he particular manner or method by which a plaintiff is injured is irrelevant to a determination of defendants' liability for negligence. It is generally accepted that where the plaintiff's injury resulted from the same physical forces whose existence required exercise of greater care than was displayed and were of the same general sort expectable, unforeseeability of the exact developments and of the extent of loss will not limit liability.

Applying these general legal principles to the facts of this case, the ap-

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peals court rejected the trial court's conclusion that Nelson's electrocution was unforeseeable. "[I]t cannot be said that plaintiff's injuries, caused by tossing a copper wire near a high voltage uninsulated power line in an open playground, were so objectively unforeseeable as to warrant dismissal of his claim for failure to show the existence of a legal duty."

Warren Nelson was injured in a public playground, where defendants should have reasonably anticipated both the presence of children and their innumerable playtime activities. No express notice is necessary where these objective tacts suffice to put a defendant on notice of plaintiff's proximity to the electrical wires. Young Nelson was rightfully in a public area which was designated as a playground for children of all ages. If defendant Edison chose to continue its dangerous activities, such as the transmission of high voltage electricity in close proximity to an area which it has leased to a park district, it must be charged with a duty of protection commensurate with the risks involved. Because of the nature of the electrical business and highly-charged wires, an electric utility company owes a duty to see that such wires are properly placed and/or properly insulated where the conditions and circumstances indicate that persons might come into reasonable proximity to those wires. Similarly, the defendant Park District owed a duty to the public and the plaintiff not to operate a public park under these circumstances.

According to the appeals court, "the facts of the instant case require only a limited holding that in the erection, maintenance and placement of high voltage electrical wires in public playgrounds, power companies and land occupiers are charged with a duty to provide safe air space.

Considering the height, location and voltage of the wires, there was clearly some chance of contact with them. The resulting injury from any such contact would inevitably be severe. Second, the magnitude of defendants' burden in reducing the risk of electrocution or injury is not as onerous as defendants imply. ... It is not such a great burden for the defendants to insure that high voltage electrical wires in the open area of a public playground — an area in which children have been tacitly invited to use the air space — are either insulated, placed underground, or redirected around such air spaces. Finally, while preventive measures would necessarily result in some available and social impact, the aforementioned alternatives available to the defendants would not create undue costs or problems.

The appeals court, therefore, reversed the trial court's dismissal of Nelson's claim and remanded the case to the trial court. On remand, a jury would consider Nelson's allegations of negligence against the utility company and the park district.

ABOUT THE AUTHOR: James Kozlowski is an attorney and legal affairs consultant to the National Recreation and Park Association in Alexandria, VA. He is the author of the Recreation and Parks Law Reporter.

NRPA accepting award nominations

Nominations for the National Recreation and Park Association's (NRPA) 1985 National Awards program are now being received. All nominations must be received at NRPA by midnight April 15. Nominations should be mailed to; NRPA National Awards, 3101 Park Center Dr., Alexandria, VA 22302.

July named national parks, recreation month Breaking with past tradition, the National Recreation and Park Association (NRPA) has changed the celebration of National Recreation and Parks Month from June to July. This year, July 1-7 has been declared as "Life. Be in it." Week to focus on NRPA's nationwide promotional campaign. It's hoped this change will accommodate regional differences in school closings and recreation planning. NRPA found that many leisure service agencies believed July was more conducive to conducting the communitywide celebrations which are associated with National Recreation and Parks Month. At a meeting of the Council of Affiliate Presidents last year, only one of the 75 individuals present objected to the change of months. Others actively supported the change. Programming and promotional materials for the celebration of July as National Recreation and Parks Month will be mailed by NRPA to local communities in February. NRPA blasts Reagan veto The National Recreation and Park Association (NRPA) voiced strong disapproval of President Reagan's veto of a bill last October to establish the American Conservation Corps, NRPA calling the program "a catalyst for state and local government initiatives." The bill, approved by Congress with overwhelming bipartisan support, would have created a work program modeled after the Civilian Conservation Corps of the 1930s. The $225 million-program was designed to employ youths in state and U.S. parks and on Indian lands. "The proposed Corps would address, in a modest but helpful way, two very stressful situations — the quality of many public recreation resources and youth unemployment," NRPA pointed out in a letter to Reagan.

Illinois Parks and Recreation 35 January/February 1985

Aquatics school set for April

The National Recreation and Park Association (NRPA) has announced the formation of the National Aquatics Management School. It will be held at Arizona State University, Tempe, April 14-17.

The school is an intensive educational program designed for facility operators, maintenance personnel and administrators of aquatic facilities. Sessions will be applicable to those operating swimming pools, lagoons, beaches and other types of aquatic facilities. A comprehensive first-year curriculum has been planned to cover all aspects of effective private and public aquatic management and maintenance. A second-year curriculum will be introduced in 1986 to complete the two-year program in which successful graduates will be certified as aquatic administrators. Continuing Education Units (CEUs) will be made available from Arizona State University.

The school is limited in size for maximum effectiveness and participation. Registrations will be accepted in the order which they are received. A check, purchase order or payment voucher must accompany the registration form. Cancellations for a full refund will be accepted if notice is received at the NRPA Pacific Regional Office on or before March 1. A charge of $50 will be made if cancellations are received in writing after March 1. No refunds will be given if a registrant fails to attend and does not give notice 10 days prior to the start of the school.

For further information about the National Aquatics Management School, contact Jane Hipps Adams, regional director. National Recreation and Park Association, 1400 K Street, Suite 302, Sacramento, CA 95814 (916/441-0445).

Illinois Parks and Recreation 36 January/February 1985