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Sullivan v. La Salle Const. Co.

JANUARY 18, 1966.




Appeal from the Circuit Court of Cook County; the Hon. JOSEPH J. BUTLER, Judge, presiding. Judgment reversed and remanded with directions as to Gen. No. 49,584. Judgment affirmed as to that part of Gen. No. 50,077 in the action over dismissing complaint by Asbestos against Johns Manville. The judgments in all the actions over in Appeals Gen. Nos. 50,077 and 50,160 (except the action over by Asbestos against Johns Manville, which is affirmed) are reversed and the causes remanded with directions for further proceedings consistent with these views. MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.

This is an appeal from a judgment in favor of plaintiff, which has been consolidated with appeals from judgments in favor of various defendants against other defendants.

On July 29, 1957, a roof was being completed upon a building owned by defendant, Johns Manville Dutch Brands Products Corporation (hereinafter referred to as Johns Manville). Johns Manville engaged architects to draw up plans and specifications and defendant, LaSalle Construction Company (hereinafter referred to as La Salle), was the general contractor. Work proceeded according to the plans and specifications to a point where the I-beam supports for the roof were in place. Underlying beams extended from north to south, parallel to each other, approximately four feet apart. There were no direct cross supports between the I-beams.

A transite roof deck was then erected. The materials specified for the roof deck were as follows:

2502. Corrugated Cement Asbestos: Shall be "Corrugated Transite" as manufactured by Johns Manville Products Corp., shall have 4.2" pitch; shall be 42" wide, ten corrugations per sheet.

2504. Fasteners: Corrugated transite may be secured with any standard J-M approved fasteners such as standard clip-on-methods, Nelson Stud fasteners, or Fabco self-tapping screws per Johns Manville standard specifications. . . .

Delivery and Handling 2505. . . . No cracked or broken sheets shall be used. . . .

Erection-Transite 2506. Sheets shall be of such length that all end joints center over a framing member and shall be laid smooth side down, with all joints butted together.

2507. Transite sheets shall be secured at all framing members by means of the approved methods scheduled in paragraph 2504 above.

The transites were obtained from Johns Manville directly. The Johns Manville transite was a white corrugated material which was not transparent. Prior to delivery each transite was subjected to a weight of more than eight hundred pounds at its center by a hydraulic cylinder. A Johns Manville resident engineer was at the construction site to enforce the above specifications.

The sub-contractor who installed the corrugated transites was the Asbestos Wood Manufacturing Company (hereinafter referred to as Asbestos). The transites were bolted to the I-beams. To do this, holes were drilled through the material and the top of the I-beam. The bolts or fasteners were applied with a torque device and then automatically disengaged. The number of fasteners used was based upon the recommendation of the manufacturer, Johns Manville.

On July 29, 1957, plaintiff arrived on the job site about 7:55 a.m. He was one of the roofers employed by the roofing contractor, Boice Roofing Company, (hereinafter referred to as Boice). He had been a roofer about ten years. All prior roof decks which he worked on had cross support beams directly under them. After he helped to unload insulation from a truck, he was called to the roof by his foreman. Seventy pound bundles of insulation were lifted to the transite roof deck by a rope and an A-frame hoist, and placed upon the deck by plaintiff and four or five other roofers.

Plaintiff testified that after he got up on the deck and set the A-frame hoists, he laid planks in an east-west direction on the transites. He then wheeled two 70-pound packages of insulation on the planks to where they were needed. On one of his trips, plaintiff wheeled in a westerly direction along the planks for about 60 feet from the A-frame hoist when he turned to the north and traveled on the deck in a northerly direction for 50 more feet without any planking under him. When plaintiff arrived at a place about 50 feet north of the plank, he noticed that the roof sagged a bit under his weight. He continued, however, and unloaded the wheelbarrow. He then returned to the spot where he noticed the sag and tested it.

When plaintiff tested the spot, he noticed that there was a crack in the transite and that it would give or yield. The crack was a hairline crack about two feet long. "The crack was parallel to the I-beam" said plaintiff, and the nearest bolt "was approximately six inches away" from where the crack began. Neither he nor the other roofer had noticed the spongy spot prior to the time plaintiff felt the sag in the roof. Plaintiff's partner complained to the roofing foreman that the deck was unsafe but the foreman said, "It's all right." Plaintiff testified that after testing the crack with his hands, he yelled to his foreman telling him about the crack. The foreman denied this. Plaintiff then walked back to the piled insulation and returned along an unplanked route to the same spot with a bundle of insulation. Plaintiff later stated, "I had stepped out onto the transite section with this seventy pound bundle, where the crack was, when I went through and suffered the accident." Plaintiff injured his feet, hip and hand or wrist.

Plaintiff's complaint alleged specific acts of negligence against the owner-manufacturer, Johns Manville; against the general contractor, LaSalle; and against the subcontractor, Asbestos.

At the trial, after the evidence was heard, the court, at the request of plaintiff, gave to the jury plaintiff's instruction No. 8, which was objected to by all defendants. This instruction stated:

The plaintiff claims that he was injured and sustained damage while exercising ordinary care and that the defendants or one or more of them, were negligent in one or more of the following respects:

Permitted the use of unsafe decking;

Failed to inspect the decking, although the defendants knew that the decking was intended to support men working at ...

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