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Mcgourty v. Chiapetti

NOVEMBER 7, 1962.

FRANK J. MCGOURTY, PLAINTIFF-APPELLEE,

v.

MIKE CHIAPETTI, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. WILBERT F. CROWLEY, Judge, presiding. Judgment affirmed.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Defendant appeals from a judgment on a verdict for personal injuries sustained by plaintiff while he was leaving defendant's place of business. The principal issues are whether plaintiff was an invitee while on the particular premises on which he was injured and whether the defective condition was a latent or patent one. Errors are charged, among which is one involving the use of an unverified answer for impeachment.

Defendant was a meat packer and plaintiff was a wholesale dealer in meats. Defendant's place of business was at 3810 South Halsted Street, Chicago. The north 75 feet of the property was improved with a 2-story office and packing house, running flush along the west edge of Halsted Street. The entrance to the building from the street proper was in the wall facing Halsted Street. The 25 feet immediately to the south of the building was occupied by a loading area where defendant's customers could drive in their trucks, load their merchandise and drive away. The loading area consisted of a platform or loading dock, over which there was a roof, and a parking area with a concrete floor. The platform of the dock was 2 1/2 to 3 feet above the floor. To the south defendant had in 1952 built what was called a "restraining wall," which he says was intended to prevent damage to the adjoining building. The restraining wall or ledge tapered from "almost nothing" at the west end where the drive enters Halsted Street to a height of approximately 2 1/2 feet where it meets the dock. It is about 6 to 8 inches below the loading platform and about 8 inches wide.

On the day in question, March 3, 1954, plaintiff and his truck driver drove by truck to defendant's place of business and bought some slaughtered lambs. The meat was taken to the loading platform. The driver brought up the truck and the meat was loaded into it. Plaintiff then went to the south edge of the loading area, stepped on the ledge which, as we have said, was 6 to 8 inches below the platform, braced himself against the wall of the adjoining building and then stepped on a concrete block located on the concrete floor of the loading area. Plaintiff contends that the block had been placed there for such purpose and had been safely used in that fashion by many customers and by employees of defendant for a considerable time prior to that day. There had been a snowfall and on this occasion snow and ice had accumulated which, according to some of the testimony, had come from the roof over the loading platform. The concrete block slipped when plaintiff stepped on it and plaintiff fell, receiving the injuries complained of.

Plaintiff testified that there were 40 to 50 employees in the packing company; that every one who came out of the plant and went on the dock used the concrete block as a stepping stone or jumped off the dock; that he had seen defendant himself use the block that way about 100 times prior to this event and that customers, truck drivers and employees all so used the block. The block had been there 8 to 12 months at the time of the accident; it was always in the same spot; plaintiff had never seen it moved, and so far as he knew, it was permanent. After the truck was loaded, plaintiff testified, he had occasion to see the road pavement beneath the truck and saw ice practically all along the length of the dock. He also saw the roof over the dock on that day. There was no spout of any kind on it and snow was dripping off. The driver of plaintiff's truck supported plaintiff's testimony. The testimony of plaintiff and his truck driver are adequate to send the case to the jury. The court properly denied the motion for directed verdict and for judgment notwithstanding the verdict.

Defendant denied the essential portions of the testimony of plaintiff and his truck driver, but his testimony was discredited to a considerable extent by his pre-trial deposition. He testified at the trial that he had provided a movable stairway, but in the pre-trial deposition taken on March 8, 1956, he testified that he did not recall any ladder or steps being provided at the loading platform. In fact, at that time he testified that "Neither I, my brother or any subordinate was in charge of the dock." A mason contractor who did work for defendant testified that there had been a movable stairway on the north side of the dock; that he was there part time during the month of December 1953 and the first half of January. The injuries in question occurred, as we have said, on March 3, 1954. The contractor also testified that among the ways of getting on the dock was climbing up to it, climbing over the ledge, or using the stairway. The parties agreed that it had snowed on the day preceding plaintiff's injuries. Weather reports indicated that it snowed slightly on the day in question. Clearly, this was a case for the jury. The verdict was not against the manifest weight of the evidence.

Defendant in his answer denied that he controlled the loading platform and denied that he invited plaintiff either expressly or by implication to come upon the platform. During the trial defendant changed his position and admitted that he had invited plaintiff to come on the premises to conduct business with him. He also admitted that the platform or dock was under his control, supervision and direction, and was provided for the use of wholesalers who did business with him.

With respect to the ledge and the cement block as a means of descending from the platform, defendant contends that plaintiff was a mere licensee and that therefore defendant was only liable for wilful and wanton injuries. The invitation to do business extends not only to the portion of the premises where the business is transacted, but to all such parts of the premises as it is reasonable for a visitor to believe are held open to him, including those portions of the premises which provide a means of access to or egress from the place where the business was transacted. Pauckner v. Wakem, 231 Ill. 276, 83 N.E. 202. Restatement, Torts § 343, p 942. See Brett v. Century Petroleums, Inc., 302 Ill. App. 99, 23 N.E.2d 359. The rule as stated in Restatement, Torts, supra, is as follows:

"A business invitation includes an invitation to use such part of the premises as the visitor reasonably believes are held open to him as a means of access to or egress from the place where his business is to be transacted. If the possessor has intentionally or negligently misled the visitor into the reasonable belief that a particular passageway or door is an appropriate means of reaching the business area, the visitor is entitled to the protection of a business visitor while using this passageway. . . . Since the status of the other as a business visitor depends upon whether the possessor should have known that his visitor would be led to believe that part of the premises are held open to him as a business visitor, the question is often one of fact and as such a matter for the jury."

See also CJS, vol 65, § 48, p 539 — Negligence; Happy v. Walz, 358 Mo 56, 213 S.W.2d 410; Tschumy v. Brook's Market, 60 Cal.App.2d 158, 140 P.2d 431; Johnston v. DeLaGuerra Properties, 170 P.2d 5 (Cal); Ingalls v. Western Reserve University, 102 N.E.2d 605 (Ohio); Smith v. August A. Busch Co., 329 Mass. 615, 109 N.E.2d 843. Thus the question is one of fact as well as law; that is, was it reasonable to believe that the block and ledge were held open to plaintiff as a means of egress from the dock? If we accept plaintiff's testimony, which the jury evidently believed and which under the circumstances of this case we cannot reject, it appears that for a considerable period of time prior to the injury complained of, employees, customers and defendant himself had been leaving the loading platform in the same manner in which plaintiff left it. We must consider the jury's verdict to be conclusive on this point.

[4-7] Defendant's duty toward plaintiff as an invitee was to exercise reasonable care to discover defects or dangerous conditions on the premises, and he is liable for injuries resulting from a condition which he could have discovered in the exercise of reasonable care, that is to say, a patent defect. He is not liable for defects latent in character. Placher v. Streepy, 19 Ill. App.2d 183, 153 N.E.2d 369; National Builders Bank of Chicago v. Schuham, 319 Ill. App. 546, 49 N.E.2d 825. Defendant claims this was a latent defect. A latent defect is one hidden from the knowledge as well as from the sight and must be one which could not be discovered by the exercise of ordinary and reasonable care. Smith v. Morrow, 230 Ill. App. 382, 390; Kordig v. Grovedale Oleander Homes, Inc., 18 Ill. App.2d 48, 55, 151 N.E.2d 470. In Smith v. Morrow, supra, where a railing which had been exposed to snow, rain, heat and cold for six years was involved, the court said, at p 390:

"Merely looking at it might not have revealed the rusty nails which were concealed, but an inspection probably would have revealed the rotten ends of the rails, or there would have been some indication that the ends of the rails were rotten. Undoubtedly any force applied to the rail in its weakened condition would have demonstrated that it was unsafe."

In Houlihan v. Sulzberger & Sons Co., 282 Ill. 76, 118 N.E. 429, the court said that inspection with a sharp point or instrument would have disclosed the condition and therefore it was a question of fact whether a reasonably ...


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