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Karon v. E.h. Marhoeffer

AUGUST 13, 1973.

BEVERLY KARON, PLAINTIFF,

v.

E.H. MARHOEFFER, JR. CO. ET AL., DEFENDANTS — (E.H. MARHOEFFER, JR. COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT,

v.

CECO CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES P. HORAN, Judge, presiding. MR. PRESIDING JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:

This case arises out of injuries sustained by Beverly Karon on November 25, 1967, at O'Hare International Airport. Mrs. Karon was injured when she fell over a plank either on the sidewalk, street or curb outside the construction site of a control tower at the airport.

Third-party plaintiff, E.H. Marhoeffer, Jr. Company (hereinafter "Marhoeffer") was the general contractor on the construction site. Third-party defendant Ceco Corporation (hereinafter "Ceco") was a subcontractor. On November 27, 1968, Mrs. Karon filed a complaint against Marhoeffer, Ceco, and Thomas Hoist Erectors, Inc., another subcontractor alleging negligence on the part of each of them in connection with the occurrence.

On May 4, 1971, Ceco filed a motion for summary judgment in the original action of Karon v. Marhoeffer. Ceco appended as exhibits to its motion for summary judgment excerpts of the discovery depositions of William J. LaVoie, Marhoeffer's general superintendent on the construction site, Beverly Karon, and her husband, Irwin Karon.

William J. LaVoie, Marhoeffer's general superintendent testified during his deposition that it was the duty of Marhoeffer's construction foreman, Sol Pacifico, to check the fence surrounding the project and that if planks or construction debris were on the sidewalk or curb outside the site, Marhoeffer's employees working under Mr. Pacifico were to remove it.

During the depositions of Beverly Karon and her husband, Irwin, both witnesses testified that they were unable to identify at the time of the occurrence who was the owner of the plank on which Mrs. Karon fell or who placed the plank on the sidewalk or curb.

On August 10, 1971, a hearing on Ceco's motion for summary judgment in the original action was conducted before Judge Samuel Shamberg. All parties to the action received notice of Ceco's motion for summary judgment. Neither Marhoeffer nor plaintiff Karon objected to Ceco's motion. Judge Shamberg, after having heard the arguments of counsel, entered an order stating, inter alia:

"This cause having come on to be heard on the motion of defendant Ceco Corp. and the Court being fully advised in the premises and having jurisdiction of the parties and the subject matter, and all parties of record having appeared by their attorneys.

It is further ordered, that, plaintiff having no objection, and having filed nothing in opposition to the defendant Ceco's motion for summary judgment, and the Court finding from the exhibits and affidavits filed by defendant Ceco Corp. in behalf of its motion for summary judgment, that there is no genuine material issue of fact between the plaintiff and the defendant Ceco Corporation, and further finding that the defendant Ceco Corporation is not guilty of any negligence which proximately caused the injuries and/or occurrence complained of by the plaintiff.

It is hereby ordered that defendant, Ceco Corp.'s motion for summary judgment against the plaintiff be, and hereby is granted, and the judgment be entered for the defendant Ceco Corp., only against the plaintiff, Beverly Karon, and trial as to the balance. It is further ordered there is no just reason to delay the enforcement or appeal hereof." (Emphasis supplied.)

On November 18, 1971, almost three years after Beverly Karon's complaint was filed and more than three months after Ceco's motion for summary judgment in the original action had been granted, Marhoeffer filed a third-party complaint against Ceco. In Count I of the third-party complaint Marhoeffer alleged that Ceco was actively negligent and the third-party plaintiff Marhoeffer, if negligent at all, was passively negligent. Count II of the third-party complaint alleged a contract of indemnity existed and obligated Ceco to indemnify Marhoeffer.

On December 15, 1971, Ceco filed in lieu of an answer a motion to strike and dismiss Marhoeffer's third-party complaint. In its motion to strike and dismiss, Ceco alleged as an affirmative defense of estoppel by judgment Judge Shamberg's order of August 10, 1971, granting Ceco summary judgment in the original action and wherein Judge Shamberg held, inter alia that "defendant Ceco Corporation is not guilty of any negligence which proximately caused the injuries and/or occurrence complained of by plaintiff."

On January 7, 1972, argument was heard before Judge Charles P. Horan who granted Ceco's motion to strike and dismiss Marhoeffer's third-party complaint.

On January 12, 1972, the original action of Karon v. Marhoeffer was called for trial and was settled by payment to Mrs. Karon of $3,500 by Marhoeffer.

Marhoeffer now appeals the order of January 7, 1972, granting Ceco's motion to strike and dismiss ...


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