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Bitner v. Lester B. Knight & Assocs.

JANUARY 30, 1974.

KENNETH BITNER, PLAINTIFF-APPELLEE,

v.

LESTER B. KNIGHT & ASSOCIATES, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Peoria County; the Hon. J.E. RICHARDS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from judgments entered by the circuit court of Peoria County in favor of Kenneth Bitner, the plaintiff, and against Lester B. Knight & Associates, Inc., a foreign corporation, hereinafter referred to as "Knight", and Jervis B. Webb Company, a foreign corporation, hereinafter referred to as "Webb." The action in the trial court also joined as defendant the O. Frank Heinz Construction Co., Inc.; however, the jury returned a verdict in favor of this defendant and against the plaintiff.

This appeal stems from a factual situation which had its beginning in 1964. In that year the Caterpillar Tractor Company employed Knight to conduct a feasibility study regarding a foundry to be located at Mapleton, Illinois. This study continued until 1966 when Knight entered into a contract with Caterpillar whereby architectural, engineering and construction management services were to be provided for the building of the plant at Mapleton. Knight was to design the plant and supporting systems and was also charged with the responsibility of seeing to it that Caterpillar received what it contracted for from various contractors before their work was approved and accepted.

Knight wrote the performance specifications for a casting delivery and cooling system in the new plant. This entailed a conveyor system of large steel buckets, suspended from rollers riding on a steel rail and which were pulled by chain-operated drive units attached to and suspended from the structural steel in the building. The casting cooling gallery is a large unheated area through which the castings travel so they will be cooled before being delivered to a finishing area for clearing. In what we refer to as the casting cooling gallery, the structural steel beams from which the buckets are suspended are located at a 30-foot level. At a 21-foot level is other structural steel on which Knight specified a steel grating was to be installed so as to provide for a mezzanine floor. The purpose of this floor was to provide protection from falling castings as well as a means of access to the system for maintenance and repairs.

On January 13, 1966, as a cost reduction measure, Caterpillar made a unilateral decision to delete the installation of the mezzanine floor grating which had been specified by Knight. Knight was advised of this decision on January 18, 1966. It was Caterpillar's intention to use alternate means of access to the system for purposes of maintenance and repairs.

The defendant Webb designed, manufactured and erected the conveyor system. In September, 1967, Webb recommended to Caterpillar that an additional 1200 feet of maintenance and service platforms be installed in the casting cooling area at the 30 foot level. Caterpillar refused to approve this recommendation. The erection of the conveyor system by Webb was completed and in operation by early 1968. It was approved by Knight and subsequently accepted by Caterpillar in September of 1968. Caterpillar's contract with Knight was terminated January 31, 1969, and thereafter Caterpillar assumed the responsibility of dealing directly with all contractors.

The evidence discloses that when a problem arose with the conveyor system the employees would follow the dangerous practice of walking on steel I beams 8 inches wide in order to gain access to the conveyor system. It is abundantly clear that this method of gaining access to the conveyors was dangerous. A formal grievance was filed in January or February, 1969, with Caterpillar concerning this practice. It is apparent from the record that ladders or a "sky worker" (a device on wheels with a bucket and telescoping arm) could have been used by personnel to attain access to the conveyor system but walking the I beam was the quickest way to get access to the system.

Caterpillar sometime in the middle of the year 1969 decided to have grating installed at the 21 foot level, as originally proposed by Knight and an order for the work to be performed by O. Frank Heinz was released in early 1969; however, Heinz was instructed to delay such installation until the winter shut down between Christmas and the New Year at the end of 1969 so as not to interfere with production.

The plaintiff Bitner is employed by Caterpillar as an electrician and had been employed in the maintenance department at the foundry approximately ten months prior to the date of the accident in question.

On October 18, 1969, while walking or working from one of the I beams at the 21 foot level, the plaintiff fell to the floor of the gallery below and was injured. On January 5, 1970, the plaintiff returned to work and O. Frank Heinz was at that time installing the mezzanine floor grating in the casting cooling gallery which includes the area where the plaintiff fell.

Further facts adduced from the evidence presented during the course of trial of this cause will be set forth as they relate to a determination of the issues presented by this appeal.

As we have previously stated, a jury found the defendants Knight and Webb guilty and assessed damages against them in the sum of $110,000.00

Before we direct our attention to the issues presented in this appeal it is necessary that we first examine pleadings filed in the trial court. At the very outset it should be noted that the complaint of the plaintiff contained several counts against three defendants. One of the defendants, namely, the O. Frank Heinz Construction Company, Inc., was charged with liability for violating the Structural Work Act (Ill. Rev. Stat., ch. 48, secs. 60 through 69); however, this defendant was found not guilty by the jury. The plaintiff's claim against Knight is that Knight failed to provide beam level flooring which led to the unreasonably dangerous use of a very high narrow I beam. The claim of the plaintiff against Webb is quite similar in that it charges this defendant with a duty to those who would make repairs on the conveyor system and this duty was violated by planning and approving the use of steel 8 inch I beams as platforms from which repairs could be made and in failing to design and install an adequate platform or catwalk.

We pay particular attention to the gist of the action set forth in the pleadings of the plaintiff in the light of certain instructions ...


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