                          NO. 4-07-1064              Filed 7/23/08

                      IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

JAMES MICHAEL BUERKETT and              )    Appeal from
JENNIFER BUERKETT,                      )    Circuit Court
     Plaintiffs-Appellants,             )    of Champaign County
          v.                            )    No. 05L283
ILLINOIS POWER COMPANY, an              )
Illinois Corporation; ILLINOIS POWER    )
COMPANY, d/b/a AMERENIP; AMEREN         )
CORPORATION, a Missouri Corporation;    )
AMEREN CORPORATION, d/b/a AMERENIP;     )
AMERINIP; and DYNEGY, INC., an Illinois )    Honorable
Corporation,                            )    Jeffrey B. Ford,
     Defendants-Appellees.              )    Judge Presiding.
_________________________________________________________________

          JUSTICE MYERSCOUGH delivered the opinion of the court:

          Plaintiffs James Michael Buerkett (Michael) and

Jennifer Buerkett (Jennifer) filed negligence and loss of

consortium claims against defendant Illinois Power (IP).    On

November 27, 2007, the trial court granted IP's motion for

summary judgment.   The Buerketts appeal, contending the trial

court erred in granting summary judgment when it (1) found IP

owed no common-law duty of care to plaintiffs, (2) found IP owed

no duty of care to plaintiffs under the Public Utilities Act

(Act) (220 ILCS 5/8-101 (West 2006)), and (3) denied plaintiffs'

claim for breach of voluntary undertaking.     We affirm.

                           I. BACKGROUND

          In October 2003, Michael worked as a freelance

landscaper and tree trimmer.   Michael entered into an agreement
to perform tree-trimming services on property located in

Champaign.   As Michael was preparing to work on a tree, IP

employees requested Michael stop work until IP could remove a

utility pole that was in close proximity to the tree and allow IP

to relocate the power lines servicing the property.    Michael

agreed to stop work.

          Michael drove by the property sometime thereafter and

could no longer see the utility pole.   Michael returned to the

property to complete the tree-trimming work.   The tree was

located in close proximity to a privacy fence.   When Michael

conducted a pre-climb inspection, he saw the utility pole had not

been completely removed, but rather was cut the same height as

the privacy fence.   The parties refer to the pole as a "stub"

utility pole.   After completing his work, Michael began

descending the tree, but he slipped and fell, hitting his right

hip on top of the stub utility pole, sustaining injuries.

Michael filed a complaint against IP for negligence.    Jennifer

filed a claim for loss of consortium.

          IP denied in its answer that it was negligent.    After

completion of discovery, IP filed a motion for summary judgment

arguing Michael could not establish as a matter of law that IP

owed Michael a duty to protect him from an open and obvious

condition.   IP also requested that, if summary judgment were

granted on the negligence count, the derivative consortium claim


                               - 2 -
should also be dismissed.

            On November 27, 2007, the trial court heard arguments

and granted IP’s motion for summary judgment.    This appeal

followed.    We affirm the trial court's grant of summary judgment.

                            II. ANALYSIS

    A. Michael Failed To Present a Complete Record on Appeal

            Before addressing the applicable facts, this court

notes that Michael failed to provide it with a complete record.

Michael appeals the trial court's summary judgment order, but the

record on appeal fails to contain either (1) a docket sheet of

the trial court's proceedings or (2) the trial court's written

summary judgment order or (3) the transcript of the hearing for

summary judgment.    To determine whether a claimed error warrants

relief, a court of review must have a complete record of the

proceedings from which the appellant claims error.    People v.

Ortiz, 313 Ill. App. 3d 896, 900, 731 N.E.2d 937, 941 (2000).

Because of the lack of a docket sheet or inclusion of a written

order, it is unclear from a review of the record whether a

written summary judgment order was issued or whether summary

judgment was issued in a docket or minute entry.    This court had

to access the circuit clerk's website to determine that no

written order was issued by the trial court.

            Supreme Court Rule 321 provides that "[t]he record on

appeal shall consist of the judgment appealed from, the notice of


                                - 3 -
appeal, and the entire original common[-]law record, unless the

parties stipulate for, or the trial court, after notice and

hearing, or the reviewing court, orders less." (Emphasis added.)

155 Ill. 2d R. 321.    Michael, the appellant in this case, failed

to include a transcript of the hearing on IP's motion for summary

judgment.    The appellant bears the burden of presenting a record

that is adequate for a determination of the issues raised.

People v. House, 202 Ill. App. 3d 893, 908, 560 N.E.2d 1224, 1234

(1990); see also Palmisano v. Connell, 179 Ill. App. 3d 1089,

1099, 534 N.E.2d 1243, 1250 (1989).

            Supreme Court Rule 329 allows for supplementation of

the record on appeal if the record on appeal is insufficient to

present the questions involved.    210 Ill. 2d R. 329.   In the

interest of the efficient administration of justice, IP's

inclusion of the transcript of the summary judgment motion

hearing will be treated as a motion to supplement the record and

allowed.    We emphasize the importance of an accurate record on

appeal.

                        B. Standard of Review

            A grant of summary judgment is appropriate when the

pleadings, depositions, admissions, and affidavits demonstrate no

genuine issue of material fact exists and the movant is entitled

to judgment as a matter of law.    735 ILCS 5/2-1005(c) (West

2006).    The pleadings, depositions, and admissions are to be


                                - 4 -
construed against the party moving for summary judgment.

Williams v. Manchester, 228 Ill. 2d 404, 417, 888 N.E.2d 1, 9

(2008).    If reasonable persons may draw different inferences from

the undisputed facts or if material facts are disputed, summary

judgment is precluded.    Williams, 228 Ill. 2d at 417, 888 N.E.2d

at 9.

            "Although summary judgment can aid in the

            expeditious disposition of a lawsuit, it

            remains a drastic means of disposing of

            litigation and, therefore, should be allowed

            only where the right of the moving party is

            clear and free from doubt. [Citation.] If the

            plaintiff fails to establish any element of

            the cause of action, summary judgment for the

            defendant is proper. [Citations.]"     Williams,

            228 Ill. 2d at 417, 888 N.E.2d at 9.

            We review de novo the trial court’s grant of a motion

for summary judgment.    Williams, 228 Ill. 2d at 417, 888 N.E.2d

at 9.    No deference is given to the trial court’s ruling.

Interior Crafts, Inc. v. Leparski, 366 Ill. App. 3d 1148, 1151,

853 N.E.2d 1244, 1247 (2006).

                  C. The Trial Court Did Not Err in
                     Its Grant of Summary Judgment

        1. The Trial Court Correctly Awarded Summary Judgment
         as Illinois Power Did Not Owe Michael a Duty of Care


                                - 5 -
           To state a claim for negligence, a plaintiff must plead

a duty owed by a defendant to that plaintiff, breach of that

duty, and injury proximately caused by that breach of duty.      Ford

v. Round Barn True Value, Inc., 377 Ill. App. 3d 1109, 1113, 883

N.E.2d 20, 24 (2007); Marshall v. Burger King Corp., 222 Ill. 2d

422, 430, 856 N.E.2d 1048, 1053 (2006); Ward v. K mart Corp., 136

Ill. 2d 132, 140, 554 N.E.2d 223, 226 (1990).

           Whether a duty of care exists is a question of law to

be decided by the court.   Shank v. Fields, 373 Ill. App. 3d 290,

292, 869 N.E.2d 261, 265 (2007); see also LaFever v. Kemlite Co.,

185 Ill. 2d 380, 388, 706 N.E.2d 441, 446 (1998).    The nature of

the relationship of the parties to each other will determine

whether a duty will be imposed as a matter of law.    Grant v.

South Roxana Dad’s Club, 381 Ill. App. 3d 665, 669, 886 N.E.2d

543, 547 (2008), citing Marshall, 222 Ill. 2d at 441, 856 N.E.2d

at 1060.

           In deciding whether a defendant owes a plaintiff a

duty, the court considers (1) whether the plaintiff's injury was

reasonably foreseeable, (2) the likelihood of injury, (3)

magnitude of burden of guarding against injury, and (4) the

consequences of placing a burden on defendant.   Grant, 381 Ill.

App. 3d at 669, 886 N.E.2d at 547; see also Ward, 136 Ill. 2d at

140-41, 554 N.E.2d at 226-27.   If there is no duty, a plaintiff

cannot recover.   Clifford v. Wharton Business Group, L.L.C., 353


                                - 6 -
Ill. App. 3d 34, 40, 817 N.E.2d 1207, 1213 (2004).

          The first factor in determining duty is foreseeability.

No legal duty arises unless the harm is reasonably foreseeable.

Clifford, 353 Ill. App. 3d at 42, 817 N.E.2d at 1214.

Foreseeability is decided by the reasonableness of the

landowner’s actions, not by the entrant's actions.     LaFever, 185

Ill. 2d at 393, 706 N.E.2d at 448.

          Illinois courts recognize an "open and obvious"

exception to the duty of care owed by possessors of land to

invitees, as it is not foreseeable that an invitee will be

injured when the condition is obvious or known.   The open-and-

obvious exception is outlined in section 343A of the Restatement

(Restatement (Second) of Torts §343A, at 218 (1965)).     Ford, 377

Ill. App. 3d at 1116-17, 883 N.E.2d at 26; see also LaFever, 185

Ill. 2d at 390, 706 N.E.2d at 447.    Section 343A(1) states:

               "A possessor of land is not liable to

          his invitees for physical harm caused to them

          by any activity or condition on the land

          whose danger is known or obvious to them,

          unless the possessor should anticipate the

          harm despite such knowledge or obviousness."

          Restatement (Second) of Torts §343A(1), at

          218 (1965).

          The focus, in determining whether a hazard is


                              - 7 -
foreseeable, is on the landowner's knowledge or what the

landowner should have known.   "The Restatement directs that with

regard to open and obvious hazards, liability stems from the

knowledge of the possessor of the premises, and what the

possessor 'ha[d] reason to expect’ the invitee would do in the

face of the hazard."   LaFever, 185 Ill. 2d at 392, 706 N.E.2d at

448, quoting Restatement (Second) of Torts, §343A, Comment f, at

220 (1965), and citing R. Ferrell, Emerging Trends in Premises

Liability Law: Ohio's Latest Modification Continues to Chip Away

at Bedrock Principles, 21 Ohio N.U.L. Rev. 1121, 1137 (1995).      In

general, entrants are expected to appreciate the dangers involved

with heights.   Ward v. Mid-American Energy Co., 313 Ill. App. 3d

258, 260, 729 N.E.2d 861, 863 (2000), citing Bucheleres v.

Chicago Park District, 171 Ill. 2d 435, 448, 665 N.E.2d 826, 832

(1996).

           There are exceptions to the open-and-obvious doctrine.

Foreseeability will be found where a landowner knows or should

know an entrant may be distracted.     "[T]o the extent that the

[open-and-obvious exception to the duty-of-care] rule may have

held that the duty of reasonable care owed by an owner or

occupier to those lawfully on his premises does not under any

circumstances extend to conditions which are known or obvious to

such entrants, that rule is not the law in this State." (Emphasis

in original.)   Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229. Even


                               - 8 -
where the condition may be characterized as known or obvious:

          "If the defendant may reasonably be expected

          to anticipate that even those customers in

          the general exercise of ordinary care will

          fail to avoid the risk because they are

          distracted or momentarily forgetful, then his

          duty may extend to the risk posed by the

          condition."   Ward, 136 Ill. 2d at 156, 554

          N.E.2d at 234.

This has come to be known as the "distracted" exception to the

open-and-obvious exception to the duty of care.     The recognition

of the distracted exception in Ward requires a court to look

beyond whether a condition is open and obvious and examine

whether a defendant should have foreseen that a plaintiff was or

could be distracted or forgetful.

          Another exception to the open-and-obvious doctrine, the

deliberate-encounter exception, provides that harm may also be

reasonably anticipated when the possessor of land "'has reason to

expect that the invitee will proceed to encounter the known or

obvious danger because to a reasonable man in his position the

advantages of doing so would outweigh the apparent risk.'"

LaFever, 185 Ill. 2d at 391, 706 N.E.2d at 448, quoting

Restatement (Second) of Torts §343A, Comment f, at 220 (1965).

Under the deliberate-encounter exception, individuals will make


                               - 9 -
deliberate choices to encounter hazards when faced with

employment concerns, and those encounters are reasonably

foreseeable by possessors of property.      LaFever, 185 Ill. 2d at

394, 706 N.E.2d at 449.

           As with the distraction exception, the focus with the

deliberate-encounter analysis is on what the landowner

anticipates or should anticipate the entrant will do.

"[L]iability stems from the knowledge of the possessor of the

premises, and what the possessor 'ha[d] reason to expect' the

invitee would do in the face of the hazard."      LaFever, 185 Ill.

2d at 392, 706 N.E.2d at 448, quoting Restatement (Second) of

Torts §343A, Comment f, at 220 (1965).

           In examining the issue of foreseeability in the case

sub judice, the trial court found the stub utility post was open

and obvious.   Further, the court found no evidence that Michael

was distracted or forgetful of the stub utility pole.     The trial

court concluded that the deliberate-encounter exception did not

apply.   The trial court concluded that imposing a duty on IP

would "almost require" IP to ensure the safety of the invitees.

The trial court then granted IP's motion for summary judgment,

finding IP had no duty of care to Michael.

           We agree with the trial court.    Michael saw the utility

pole and chose to continue with his work.     Michael did not

testify that he forgot about the utility pole after he saw it or


                              - 10 -
failed to protect himself from it because of a distraction.

Michael testified at his deposition that he did not consider the

utility pole to be an impediment to the safe performance of his

work because he did not expect to fall or slip off the side of

the tree trunk.   Michael, an experienced tree trimmer, did not

foresee that the stub utility pole was a danger.    A duty should

not be imposed upon IP to have foreseen a danger.    IP was

entitled to an expectation that Michael would exercise reasonable

care for his own safety.

          But foreseeability of injury alone is not dispositive

when determining the existence of a duty in negligence cases.

Simich v. Edgewater Beach Apartments Corp., 368 Ill. App. 3d 394,

410, 857 N.E.2d 934, 946 (2006).   The likelihood of Michael's

injury does not weigh heavily in favor of finding a duty.     To

guard against injury, IP or any utility company would have to

keep the utility poles and the area around its utility poles

clear from debris or other conditions that individuals could fall

onto or over, which would be a great burden on IP.    Requiring IP

to keep areas surrounding its poles clear would have significant

consequences because IP would have to continually monitor all of

its poles to keep them free of debris.   The trial court correctly

issued summary judgment as IP owes no duty of care to Michael.

          Regardless of whether a duty and a breach of that duty

existed, there was overwhelming evidence of Michael's


                              - 11 -
contributory negligence.   While ordinarily the question of

contributory negligence is a question of fact for the jury, "it

becomes a question of law when all reasonable minds would agree

that the evidence and reasonable inferences ***, viewed in a

light most favorable to the nonmoving party, so overwhelmingly

favors the movant that no contrary verdict based on that evidence

could ever stand."    West v. Kirkham, 207 Ill. App. 3d 954, 958,

566 N.E.2d 523, 525 (1991).   The trial court correctly awarded

summary judgment on the basis of Michael's overwhelming

contributory negligence.

          2. The Trial Court Correctly Awarded Summary
         Judgment as Illinois Power Did Not Owe Michael
         a Duty of Care Under the Public Utilities Act

          In 1921, the General Assembly enacted the Public

Utilities Act (Ill. Rev. Stat. 1921, ch. 111(a), par. 1 et seq.).

The purpose of the Act is to provide utility services at

reasonable rates.    "The General Assembly finds that the health,

welfare[,] and prosperity of all Illinois citizens require the

provision of adequate, efficient, reliable, environmentally

safe[,] and least-cost public utility services at prices which

accurately reflect the long-term cost of such services and which

are equitable to all citizens."   220 ILCS 5/1-102 (West 2006).

          The Illinois Supreme Court described the legislative

intent of the Act as: "The Public Utilities Act [citation] ***

was enacted to assure the provision of efficient and adequate


                               - 12 -
utility service to the public at a reasonable cost."       Local 777

v. Illinois Commerce Comm'n, 45 Ill. 2d 527, 535, 260 N.E.2d 225,

229 (1970).

          The Act is to be read in favor of the utility because

it is in derogation of common law.       Tucker v. Illinois Power Co.,

232 Ill. App. 3d 15, 29, 597 N.E.2d 220, 230 (1992).      Courts will

read nothing into the Act "by intendment or implication."

Tucker, 232 Ill. App. 3d at 29, 597 N.E.2d at 230.      "[T]he Act

will not be extended any further than what the language of the

statute absolutely requires by its express terms or by clear

implication."     Illinois-American Water Co. v. City of Peoria, 332

Ill. App. 3d 1098, 1105, 774 N.E.2d 383, 390 (2002).

          Michael argues section 8-101 of the Act (220 ILCS 5/8-

101 (West 2006)) should be found to create a duty for public

utility landowners.    Section 8-101 of the Act states, in

pertinent part:

                  "A public utility shall furnish,

          provide, and maintain such service

          instrumentalities, equipment, and facilities

          as shall promote the safety, health, comfort,

          and convenience of its patrons, employees,

          and public and as shall be in all respects

          adequate, efficient, just, and reasonable."

          220 ILCS 5/8-101 (West 2006).


                                - 13 -
           However, this Act does not create a duty when common-

law negligence principles already establish a duty between

parties.   Poke v. Illinois Power Co., 187 Ill. App. 3d 631, 633-

34, 543 N.E.2d 1085, 1087 (1989).   The plaintiff there argued

that the defendant had violated a duty of care based on section

8-101 of the Act by allowing an accumulation of water to stand in

the lobby and in failing to properly warn the public of the

dangerous condition.   Poke, 187 Ill. App. 3d at 632, 543 N.E.2d

at 1086.   The appellate court declined to find liability and

rejected treating a public utility differently or in a special

manner from other landowners, as the plaintiff's injury was in no

way related to the operation of the utility.   Poke, 187 Ill. App.

3d at 633-34, 543 N.E.2d at 1087.   As the common-law principles

of negligence adequately addressed plaintiff's cause of action,

the court declined to interpret section 8-101 of the Act as a

basis for liability in a normal slip-and-fall case.   Poke, 187

Ill. App. 3d at 634, 543 N.E.2d at 1087.

           Before a duty will be found under the Act, a plaintiff

is required to show that if a violation of the rules takes place,

the rule was intended for the benefit of that plaintiff.     To

impose liability for a violation of a statute or rule designed to

protect human life or property, a plaintiff must show the

following: "(1) the violation proximately caused his injury; (2)

the [party] belonged to the class of persons whom the rule was


                              - 14 -
intended to protect from injury; and (3) the kind of injury

suffered by the [party] was the kind of injury the rule sought to

prevent."    Miller v. Highway Commissioner of North Otter Township

Road District, 344 Ill. App. 3d 1157, 1170, 801 N.E.2d 599, 610

(2003), citing Gouge v. Central Illinois Public Service Co., 144

Ill. 2d 535, 543, 582 N.E.2d 108, 112 (1991).

            The Act and administrative rules were not designed to

protect injured parties.     When a lineman was injured when he fell

from a rotted utility pole, the appellate court found the rules

promulgated by the Illinois Commerce Commission under the Act

were not promulgated for the benefit of the injured lineman.

Longnecker v. Illinois Power Co., 64 Ill. App. 3d 634, 641, 381

N.E.2d 709, 714-15 (1978).

            "Rather the regulations were designed for the

            protection of the public generally, and to

            insure the service of a continual supply of

            electrical energy without undue interruption.

            Thus the rules have no application to any

            duty owed by Illinois Power to the instant

            plaintiff, individually, under the

            circumstances herein."   Longnecker, 64 Ill.

            App. 3d at 641, 381 N.E.2d at 715.

            While regulations and codes are admissible as standards

in the industry for deciding whether reasonable care was used by


                                - 15 -
a defendant, a plaintiff must factually plead the applicability

of the statute and its regulations to the underlying facts of the

case.   See Kotarba v. Jamrozik, 283 Ill. App. 3d 595, 598, 669

N.E.2d 1185, 1188 (1996).    Michael has not alleged or shown which

provisions or regulations of the Act were intended to protect him

against this kind of injury.    Because the common-law principles

of negligence adequately address his cause of action, the trial

court correctly awarded summary judgment.

    3. The Trial Court Correctly Awarded Summary Judgment on
       Michael’s Claim for Breach of Voluntary Undertaking

            In providing a service, a possessor of land is

obligated to use reasonable care not to create increased dangers

on its property.    Cross v. Wells Fargo Alarm Services, 82 Ill. 2d

313, 317, 412 N.E.2d 472, 474-75 (1980).    "It is axiomatic that

every person owes to all others a duty to exercise ordinary care

to guard against injury which naturally flows as a reasonably

probable and foreseeable consequence of his act, and that such

duty does not depend upon contract, privity of interest[,] or the

proximity of relationship, but extends to remote and unknown

persons."    Nelson v. Union Wire Rope Corp., 31 Ill. 2d 69, 86,

199 N.E.2d 769, 779 (1964); see also Rice v. White, 374 Ill. App.

3d 870, 884, 874 N.E.2d 132, 144 (2007).

            If a person voluntarily agrees to perform a service

necessary for the protection of another person or their property,

a duty may be imposed on the party undertaking the service under

                               - 16 -
the voluntary-undertaking theory.   A person undertaking such

service must perform the service in such a manner so as not to

increase the risk of harm to the other person who relies on that

undertaking.   One who is negligent in the undertaking will be

held liable for the foreseeable consequences of the act if

another suffers harm because they relied on the other's

undertaking.   Bourgonje v. Machev, 362 Ill. App. 3d 984, 995-96,

841 N.E.2d 96, 107 (2005).   The voluntary-undertaking theory is

outlined in section 323 of Restatement (Second) of Torts.    The

Restatement provides:

                "One who undertakes, gratuitously or for

          consideration, to render services to another

          which he should recognize as necessary for

          the protection of the other's person or

          things, is subject to liability to the other

          for physical harm resulting from his failure

          to exercise reasonable care to perform his

          undertaking, if

                (a) his failure to exercise such care

          increases the risk of such harm, or

                (b) the harm is suffered because of the

          other's reliance upon the undertaking."

          Restatement (Second) of Torts §323, at 135

          (1965).


                              - 17 -
The Illinois Supreme Court has adopted the Restatement.     Frye v.

Medicare-Glaser Corp., 153 Ill. 2d 26, 32, 605 N.E.2d 557, 560

(1992).

          Courts narrowly construe the voluntary-undertaking

theory.   Frye, 153 Ill. 2d at 33, 605 N.E.2d at 560; see also

Rice, 374 Ill. App. 3d at 884, 874 N.E.2d at 144.    A person who

gratuitously or for consideration provides services to another

person is subject to liability for bodily harm caused to the

other if the person fails to exercise due care or "'"such

competence and skill as [one] possesses."'"     Frye, 153 Ill. 2d at

32, 605 N.E.2d at 560, quoting Cross, 82 Ill. 2d at 317, 412

N.E.2d at 474, quoting Nelson, 31 Ill. 2d at 85-86, 199 N.E.2d at

779; see also Crider v. Crider, 225 Ill. App. 3d 954, 960, 588

N.E.2d 439, 444 (1992).     "[T]he scope of the duty is limited by

the extent of the undertaking."     Crider, 225 Ill. App. 3d at 960,

588 N.E.2d at 444.

          While a voluntary undertaking may establish a duty

between parties, a plaintiff must also establish breach of duty

and proximate cause to recover.     Rice, 374 Ill. App. 3d at 887-

91, 874 N.E.2d at 146-50.    While proximate cause is generally a

question of fact, a court may determine a lack of proximate cause

as a matter of law where the facts fail to establish both cause

in fact and legal cause.     Rice, 374 Ill. App. 3d at 888, 874

N.E.2d at 148.   In Rice, even though this court found that


                                - 18 -
defendants had voluntarily undertaken a duty to check for

weapons, no evidence established the defendants breached the duty

to check for weapons or that defendant's acts were the proximate

cause of the decedent's injuries.    Rice, 374 Ill. App. 3d at 887-

91, 874 N.E.2d at 146-50.

          In determining whether a party may recover under the

voluntary-undertaking theory, courts must examine whether there

was reliance on the defendant's actions by the injured party.       In

doing so, there is a distinction between misfeasance and

nonfeasance.   Jakubowski v. Alden-Bennett Construction Co., 327

Ill. App. 3d 627, 640, 763 N.E.2d 790, 800 (2002).     Nonfeasance

applies where there is a failure by omission to perform the

voluntary undertaking, and misfeasance is the negligent

performance of the voluntary undertaking.     Bourgonje, 362 Ill.

App. 3d at 996, 841 N.E.2d at 107.     "Under Illinois law, a

plaintiff's reliance on the defendant's promise is an

independent, essential element in cases of nonfeasance."

Bourgonje, 362 Ill. App. 3d at 997, 841 N.E.2d at 108.     However,

to justify reliance, a plaintiff must be unaware of the actual

circumstances and not equally capable of determining the facts.

Bourgonje, 362 Ill. App. 3d at 1005, 841 N.E.2d at 115.     With

misfeasance, a plaintiff may recover if he relied on the

volunteer's performance or if the volunteer's performance

increased the risk of harm to plaintiff.     Bourgonje, 362 Ill.


                              - 19 -
App. 3d at 997, 841 N.E.2d at 108.

            In the case sub judice, IP voluntarily undertook the

duty of relocating the power lines and initially undertook to

remove the pole before Michael could trim the tree.     Under these

facts, nonfeasance is not applicable.     To establish misfeasance,

Michael must then show that either he relied on IP's performance

or that IP's partial removal of the pole increased Michael's risk

of harm.    However, the undisputed testimony was that Michael saw

the utility pole, knew it was cut off rather than removed

completely, and chose to continue his work.     As this court

previously held, one who renders gratuitous service is not

subject to liability where the person who accepts the service is

aware that the service was incompetent.      Rice, 374 Ill. App. 3d

at 886, 874 N.E.2d at 146, citing Restatement (Second) of Torts

§323, Comment b, at 136-37 (1965).      Michael continued to perform

his work, despite the manner in which IP performed its service.

Clearly, Michael cannot now claim reliance on IP's removal of the

utility pole.   Finally, Michael failed to present any evidence,

other than mere speculation on his part, that IP's partial

removal of the utility pole increased his risk of harm.     We

affirm summary judgment in favor of IP.

                           III. CONCLUSION

            For the foregoing reasons, we affirm the trial court's

judgment.


                               - 20 -
Affirmed.

COOK and TURNER, JJ., concur.




                   - 21 -
