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Gatto v. Curtis

JUNE 26, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. RANDALL S. QUINDRY, Judge, presiding.


Rehearing denied August 3, 1972.

A long and complicated record brings before this court the appeal of Calumet Flexicore Corporation (Calumet). The action was brought by Sophie Gatto for personal injuries and also by her husband, Frank Gatto, for loss of consortium. The third plaintiff is their granddaughter, Janice Boger, then a minor, who sued for personal injuries. These persons will be collectively referred to as plaintiffs. The cause of action arose on June 19, 1964. Sophie Gatto and Janice Boger were customers in a drug store when a portion of the roof collapsed.

A number of defendants and third party defendants appear in this record. It is not necessary to enumerate them all. One defendant was the partnership of Paul Greenfield, Phillip Zelkowitz and Sol Harris, together with Al M. Curtis, Louis David Friedman and Albert Marks, doing business as Curtis, Friedman and Marks, who will be collectively referred to as the Lessors. They were owners of the beneficial interest in a land trust which held legal title to the property in question. Another defendant was Clifford J. Wood, who was active in construction of the shopping center project of which the drug store was a part. Calumet was joined as third party defendant to a counterclaim filed by the Lessors. Calumet was also made defendant in an amended complaint filed in behalf of Janice Boger.

After a lengthy jury trial, verdicts were returned against the Lessors and in favor of Sophie Gatto for $100,000 and Frank Gatto for $20,000. In addition, a verdict was returned in favor of the Lessors on their counterclaim and against Calumet as third party defendant in the amount of $120,000. There was also a verdict against all three plaintiffs and in favor of Louis Sladky, the drug store operator, and Clifford J. Wood. Another verdict was returned against Janice Boger, the minor plaintiff, in favor of Louis Sladky, the Lessors, Clifford J. Wood and Calumet. Verdict was also returned in favor of the Lessors and against Clifford J. Wood on the counterclaim of the Lessors in the sum of $120,000.

After hearing extensive arguments upon extended post-trial motions, the court entered judgment on the verdicts in favor of Sophie Gatto and Frank Gatto against the Lessors and also in favor of the Lessors against Calumet. The court set aside the verdict in favor of Lessors and against Clifford J. Wood, individually. The court granted a new trial to the minor plaintiff as against the Lessors, Clifford J. Wood, individually, and Calumet. Calumet has appealed to this court from the judgment entered against it in favor of the Lessors. In addition, Calumet has filed in this court a petition for leave to appeal from the order granting the new trial to the minor plaintiff. (Supreme Court Rule 306, 43 Ill.2d R. 306.) An answer to this petition has been filed by the minor plaintiff. These proceedings bear General Number 54613.

During the pendency of the appeal, on January 17, 1970, Sophie Gatto died intestate. On January 27, 1970, the Lessors assigned the judgment recovered by them against Calumet as third party defendant, to plaintiffs Frank Gatto and Sophie Gatto. Thereafter, Frank Gatto was appointed administrator of Sophie Gatto's estate. The parties to the assignment agreed that if the judgment against Calumet is affirmed on appeal, the sum of $60,000 from the proceeds thereof would be paid to the Lessors together with one-half of the expenses on appeal. In addition, a substitution of attorneys was made so that the Lessors are now represented in this court by counsel for the plaintiffs.

In this appeal, Calumet contends that the judgments in favor of Sophie and Frank Gatto were against the manifest weight of the evidence and that the trial court should have directed verdicts for defendants, including Calumet. In addition, numerous alleged trial errors are cited: 1) that improper conduct of plaintiffs' counsel and of the court denied Calumet a fair trial; 2) that the court erred in ruling on testimony in disqualification of a witness and in improperly curtailing cross-examination by Calumet's attorney; 3) that the court erred in permitting testimony by an expert not previously disclosed by plaintiffs; 4) that the court also erred in improper exclusion of a weather report and 5) in refusing to sever certain claims. The final contention rests upon allegedly improper closing argument by opposing counsel to the jury. A factual statement is required for consideration of the first point.

The record presents a difficult situation. Some of the testimony was given by experts in building and engineering and was extremely technical. These factors added to the problems which confronted the trial court and the jury. The drug store in question was operated under an agency affiliation with the Walgreen chain by Louis Sladky, one of the defendants. He had a written lease to the store premises executed in April, 1961, and expiring in June of 1966.

The store is one unit in a group referred to as the Ridgewood Shopping Center located in the Village of Worth, south of the City of Chicago. The shopping center fronts upon 111th Street and consists of one building to the east of New England Avenue and other structures to the west. We are concerned with the structure located on the southeast corner of New England Avenue and 111th Street facing north. This single store building has a frontage of from 150 to 175 feet on 111th Street and extends back south some 70 to 75 feet on New England Avenue. The building is of brick construction and houses three stores. The Sladky store is farthest to the west, occupying a corner area, some 40 to 50 feet in width. There are two other retail stores located to the east, all within the single structure.

The outside or western wall was 12 inches thick. There was a space of 15 feet four inches from the west wall to a row of so-called lally columns. The west wall extended up to a steel "I" beam which was ten feet six inches above the floor, resting directly upon the top of the brick wall. These beams consist of heavy steel fabricated into two horizontal flanges, each some 14 inches wide, and a vertical member known as a web. A cross section of this beam presents the letter "I". The steel beam extended back some 18 feet in a southerly direction from the store front. There was a similar steel beam to the east supported by the lally columns. There was a distance of 15 feet four inches from the outside of the west brick wall to the center of the lally columns. These columns were made of hollow steel four inches in diameter and rested upon concrete footings and pads.

The material in the flange of the steel beam on the west wall was three-eighths of an inch thick and each flange was six and three fourths inches in depth upon both sides of the web. This was referred to as a 30 pound beam, being the weight of each linear foot. The beam to the east, resting on the columns, also had flanges six and three fourths inches wide on each side of the web but one-half inch thick so that the beam was referred to as a 38 pound beam.

The roof was made by placing Flexicore units in an easterly and westerly direction between the two "I" beams. It is agreed that these slabs were manufactured and installed by Calumet. They were 16 inches wide by eight inches thick and 14 feet ten inches in length. Each slab weighed from 1100 to 1200 pounds. They were manufactured with hollow cores and had steel rods incorporated within them for reinforcement. Use of these slabs is a quick and economical building construction method. When installed, the slabs are grouted or fastened together with a thin layer of plaster. Thus, the lower surface of the slabs forms the ceiling of the store, to which lighting and other fixtures may be affixed, and the upper surface forms a substantial foundation for the roof. In this construction, as in other similar projects, insulation was set upon the top of the slabs and this was followed by tar paper so that the roof could be formed. For this reason, the roof was flat, without pitch. The possibility of a slant downward to the south was rejected because it might have resulted in a tunnel-like effect in the interior of the store.

Along the west side of the building, the brick wall was built some 12 inches above the roof to form a parapet wall. This wall rested upon the top of the westernmost "I" beam and was covered with stone coping. That portion of the parapet located on the western edge of the building, and toward the northern line thereof, extended upward and form a superstructure 16 inches in thickness, measured from east to west, and seven feet in length, from north to south. The plans showed this pylon as 12 feet tall above the parapet itself and perhaps 13 feet including the coping. However, the stone mason subcontractor testified that, as completed, the pylon was "a couple of feet" shorter. Opposing counsel differ as to whether this structure should be referred to as a "parapet" or a "pylon." We have some doubts as to which designation is technically more appropriate. Simply for ease of reference, we will use the term "pylon."

The architectural plans for the shopping center originally showed the pylon designed with apertures extending throughout its thickness from east to west. However, these holes were eliminated in construction so that the structure could be used for a display sign for the Ridgewood Shopping Center. The mason subcontractor testified that these holes were eliminated at the direction of Clifford J. Wood. He stated that these openings were unnecessary as the pylon was so heavy and strong as "to break the wind resistance." The pylon was "tied together with bricks and headers." The "headers" are bricks turned on end to add to the structural strength. The pylon was built of cement block, with Roman brick finish. The mason subcontractor testified that in the construction 840 bricks were used at a weight of 4.2 pounds each, making a total weight of approximately 3500 pounds. It was capped with two pieces of stone coping each weighing some 200 pounds. The brick was bonded together with the usual mortar, which added to the weight by an additional 1500 or 2000 pounds. Also, there were 80 cement blocks within the pylon weighing 32 pounds each, being a total of 2560 pounds. This made a total weight somewhat in excess of 8000 pounds. The whole pylon was built upon a 12 inch wall which, according to the testimony of the experienced mason, would support it up to a height of from 35 to 40 feet. There were also some chimneys on top of the parapet wall toward the rear of the building. They rose some six or seven feet above the parapet. They were constructed of brick, four inches thick and each chimney would weigh only about one-eighth as much as the pylon.

A substantial issue arises with reference to the details of installation of the Flexicore slabs. This shopping center was built during 1956 and was ready for occupancy about November of that year. An individual named Clifford J. Wood was very active in construction of the project. Ridgewood Shopping Center, Inc., a corporation, was organized by Wood. In addition, some of the construction activities were carried out by another corporation in which Wood was active, known as Clifford J. Wood, Inc. This corporation was also the carpenter and cement subcontractor. The evidence is conflicing as to whether the general contractor was Ridgewood Shopping Center, Inc., a corporation, or Clifford J. Wood, Inc. Wood owned stock in and was president of both corporations. Plans for the building were drawn by a firm of architects. These are the plans above referred to showing the openings in the pylon which were eliminated. Calumet was retained to manufacture and install the Flexicore units and another firm was given the subcontract for the roof.

The architectural plans showed the Flexicore slabs installed so as to rest on the upper flanges or top horizontal surfaces of both "I" beams. However, the shop drawings made by Calumet for this installation showed the Flexicore units as resting upon the lower flanges of the "I" beams and they were actually installed in that manner. These beams have a curvature of the surface where the vertical member, or the web, meets the horizontal flanges. Consequently, this method of installation would reduce the size of the bearing surface of the Flexicore units as they rested upon the steel. No direction or order was given to Calumet for this variance from the original plans. It does not appear that this modification was the subject of consultation or discussion between any agent of Calumet and any agent of the architect. Wood testified generally that the Flexicore was installed on the lower flange of the "I" beam on the west wall. He did not testify to any conversation regarding this with any agent of Calumet. It does not appear that this installation was ever specifically noted as a deviation from the architectural plans by any person other than the Calumet personnel until after the events which culminated in the bringing of this suit.

On June 19, 1964, at about 7:30 P.M., the late Sophie Gatto and Janice Boger, her granddaughter, were in the Sladky Drug Store as customers. It was raining heavily and the wind was quite strong. Suddenly, without warning, the lights in the store went out and simultaneously the roof collapsed causing injury to both. It appeared later that 11 of the Flexicore members had become detached from the beam at the eastern edge of the store and had fallen so that they remained propped up against the western wall. In addition, the pylon, or upper portion of the parapet wall, had collapsed onto the roof. The precise cause of this event and the order in which the pylon collapsed and the Flexicore units fell were the subject of lengthy and detailed expert testimony and opinions and acrimonious and sometimes antagonistic argument and wrangling between the attorneys. Other evidence must be noted before we attempt to analyze the expert testimony.

Lessors were the owners and operators of the Ridgewood Shopping Center on June 19, 1964, when the mishap occurred. They acquired their interest in the property in November of 1959, some three years after the buildings had been erected. One member of this group, a practicing attorney, testified that he inspected the property about two weeks prior to its acquisition. This was not a technical inspection but consisted primarily of a visit to every tenant including the operator of the Sladky Drug Store. At that time, a conversation took place with reference to the need of paving repairs to the parking lot but no other comment was made to the prospective owned by Sladky or any other tenant regarding the condition of the roof.

The written lease covering the drug store in question specifically gave the lessor free access to the demised premises for the purpose of making necessary repairs or alterations as the lessor might see fit but the lessee waived liability of the lessor for damage or ...

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