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Mundt v. Ragnar Benson

MARCH 5, 1974.




APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.


Rehearing denied May 1, 1974.

Rex Mundt, plaintiff-appellant (hereinafter plaintiff), was injured on December 20, 1965, when he fell during the construction of a four-story building owned by defendant-appellee Western Electric Company, Inc. (hereinafter Western Electric). At the time of his fall, plaintiff was in the employ of the Corbetta Construction Company, which company was a subcontractor for the concrete work on the project. Defendant-appellee Ragnar Benson, Inc. (hereinafter Ragnar Benson) acted as "management contractor" for the construction of the building.

In 1966, plaintiff brought suit, based on a common law negligence theory, against: Western Electric, as owner of the building; Ragnar Benson, as "management contractor" for the construction; the architectural firm of Holabird and Root, which was party to a contract with Western Electric under which it had responsibility for all design drawings and documents related to the construction; and Bell Telephone Laboratories, as an additional "owner, operator, or possessor" of the building.

The record presented here is unclear as to the disposition of the case with respect to Holabird and Root, the architects. It was explained by counsel during argument before this court, however, that the firm was directed out of the case at some point during the course of the proceedings in the court below.

Prior to trial in the court below, summary judgment was entered with respect to Bell Telephone Laboratories, the court finding that no triable issue of fact existed relative to Bell; Bell is not a party to this appeal.

On two occasions in the trial court (after the jury had been sworn, but before the trial commenced; and after the close of plaintiff's case), plaintiff requested leave of court to file an amended complaint. Pleading the same allegations of fact as had been made in the original complaint, it would have added a second count alleging a cause of action based upon the Illinois Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.). The trial court refused to permit plaintiff leave to file the proposed amendment.

At the close of plaintiff's case, the trial court directed verdicts in favor of Western Electric and Ragnar Benson with respect to the common law negligence count. Plaintiff appeals from the entry of the order denying him leave to file the amended complaint, as well as from the order directing verdicts in favor of defendants.

The seminal issues presented to this court on review are: (1) whether the court below properly refused to permit plaintiff leave to file an amended complaint, count two of which was based upon the Illinois Structural Work Act; and (2) whether the court below erred in directing verdicts for Western Electric and Ragnar Benson in the action for common law negligence.

It would be helpful at the outset to summarize the common law negligence complaint filed in 1966 by plaintiff against defendants Western Electric and Ragnar Benson. The complaint alleged, inter alia, that on December 20, 1965, plaintiff was engaged in construction work, in the employ of Corbetta Construction Company, at the premises of Western Electric located at Wheaton and Warrenville Roads in Du Page County, Illinois; that Ragnar Benson was the general contractor in charge and control of the construction being performed on said premises; that Holabird and Root were the architects in charge and control of said construction; that Western Electric was the owner of the premises; that all the named defendants were in charge and control of said construction; that plaintiff was in the exercise of due care and caution for his own safety; that the defendants, on the day in question, had the duty to maintain, operate, and control the construction work in a safe, suitable, and proper manner so that plaintiff, while at work, would not be injured; that, notwithstanding the aforesaid duties, defendants were guilty of one or more of the following acts or omissions constituting negligence: (a) allowed work areas to be poorly lighted for night work; (b) failed to use due care in inspecting the condition of their premises; (c) failed to provide warnings or barricades around openings for workers on the premises; (d) failed to provide adequate lighting for night work; (e) failed to warn plaintiff of an existing unsafe condition; (f) failed to retain sufficient and proper control over the construction work; (g) failed to illuminate the work areas and openings in the floor at the construction site at night; and, finally, that as a direct result of defendants' negligence, plaintiff was caused severe injury when he fell through an opening from the fourth floor to the third floor at the building site. Plaintiff prayed for judgment in the amount of $150,000 against each of the named defendants, including Western Electric and Ragnar Benson.

Plaintiff's employer Corbetta Construction Company, as a subcontractor for Ragnar Benson, was under contract to build the concrete floors under construction at the time of plaintiff's accident. Using 4' x 8' pieces of plywood, Corbetta employees would build temporary wooded floors, "decking," and then proceed to cover those floors with concrete. When the concrete had hardened, they would remove the temporary flooring from below. Whenever it was necessary to leave a hole in the concrete floor for the future installation of an elevator or an air duct, Corbetta employees were supposed to nail four boards into a square and then nail the square to the temporary wooden floor before the concrete was poured. Consequently, the concrete would harden around the square and leave a hole in the final concrete floor. When the temporary flooring was removed, leaving a hole in the floor, it was customary procedure for a Corbette workman to cover or barricade the hole. Larger holes, those for elevator shafts and the like, were barricaded; smaller holes, those for air ducts, were generally supposed to be covered by hatch covers or by sheets of plywood, which were to be nailed from their upper surfaces to the wooden baffle square which was still in place, or themselves "cleated" by pieces of wood nailed to their undersurfaces so that when they were placed over the openings in the concrete floor, the "cleats" would prevent them from slipping or sliding off the opening.


Plaintiff testified, in pertinent part, that on December 20, 1965, he was employed on the night crew by Corbetta Construction Company, for whom he had worked since August, 1965. He had started out with Corbetta as a general laborer and would occasionally help with the wrecking crew. He had worked as a laborer for 20 years. At the time of the accident, his duties were to take care of recently poured concrete on Western Electric's building, making sure that it was completely covered and that heaters and thermometers were properly positioned in the bottom of the concrete forms and on top of the concrete slabs after they had been covered. The covering procedure was this: the concrete floors were covered with graphite paper; blankets were then placed on top of the paper; and, finally, any available material nearby was laid on top of the blankets to make certain the blankets did not blow away. The concrete could be covered approximately 1 1/2 to 2 hours after it had been poured.

Plaintiff's accident occurred at approximately 8:30 P.M. on December 20, 1965, at which time plaintiff and a helper, Edward Malcom, another Corbetta employee, were engaged in covering concrete in an area which had been poured that day, an area to which we will refer as the south bay. (The bays upon which plaintiff worked were approximately 30 feet wide and anywhere from 80 to 100 feet long.) The materials used by plaintiff to cover the recently poured concrete (the graphite paper, and so forth) were usually left by the day crew in the bay adjacent to that which had most recently been poured; in other words, on the evening in question, as plaintiff was working in the south bay, the materials he would use would usually be set up by Corbetta employees in the next adjacent bay, in this case what we will refer to as the north bay. The materials were set up in the north bay that night.

Immediately prior to his accident, plaintiff and Malcom ran out of graphite paper with which to cover the south bay. Plaintiff estimated, variously, in this testimony that he and Malcom needed 5 or 10 or 20 feet more of the paper with which to complete the job. Plaintiff informed Malcom that he (plaintiff) would go over to the north bay to get the balance of the graphite paper necessary. The south bay was illuminated by a portable floodlight of approximately 175 to 200 watts, which plaintiff would carry around with him while doing his work. In addition to the floodlight, plaintiff used a flashlight while he covered the cement.

At the moment the pair ran out of paper, plaintiff was in the southwest corner of the south bay. He proceeded along the west wall of the south bay into the north bay. Light conditions varied from bay to bay, and, in the north bay, there was no light at all. When plaintiff went for the paper, he carried his flashlight with him; it was lit. He did not take the floodlight.

There was "material" lying all over the north bay: plywood, two-by-fours, and four-by-fours. Plaintiff proceeded to the north end of the north bay, all the while flashing his light around. At approximately the middle of the north end of the north bay, plaintiff saw a four-feet-by-eight-feet piece of plywood, which was lying flat against the graphite paper on the floor. He shined his light down on the plywood. He placed his flashlight in his hip pocket and reached over to pick up the plywood by its width, the four-feet side, in order to get at the graphite paper he sought. He used both hands to lift the plywood, which was "heavy," and as he hoisted it up almost as high as his head, plaintiff stepped forward and into a hole covered with graphite paper. He fell from the fourth floor to the third floor.

Plaintiff also testified that he had previously seen the hole into which he fell before it had been covered with graphite paper; further, he testified he may have covered the hole through which he fell.

At the time of plaintiff's accident, Earl Hauge was plaintiff's immediate supervisor, as labor foreman for Corbetta. He testified that Corbetta was the subcontractor working on the subject construction for Ragnar Benson, the management contractor. Herbert Johnson, the general superintendent for Ragnar Benson, was on the job site and worked in conjunction with Hauge's superintendent, Larry Forst. Ragnar Benson also had other people at the construction site.

Western Electric had Robert Morton from its plant design and construction department and two or three other inspectors at the site all the time. Ragnar Benson and Western Electric shared a temporary office at the site, and Western Electric's "inspectors in the field" checked the progress of the construction. Morton checked the "whole job." In the chain of command for the construction work, first would come Morton, then Johnson.

Hauge in this testimony described the construction of the floors at the building site. In erecting a floor or bay, shoring and stringers were used. Above the shoring, which ran from the floor below to the ceiling above, there would be a deck made of four-feet-by-eight-feet pieces of plywood. Generally, the procedure to be followed with respect to openings in the floors left for duct work and pipes was to cover them over with plywood. Corbetta employees bore the responsibility of so covering the holes.

On the day of plaintiff's accident, it began to get dark at approximately 5 or 5:30 P.M. Strings of lights were attached underneath the boards on the floors where Hauge's men worked so that the men could see properly in maintaining the heaters, which were there to facilitate the drying of the recently poured cement; there were also strings of lights put up for the cement finishers to enable them to finish the pour; and Hauge could, if he felt the need, get electricians to string lights. There would be very little lighting in an area where either pouring or finishing was not in progress and merely a bulb or two in areas where Hauge's men were not working during the dark hours. Electricians were responsible for stringing lights in the areas where work was not in progress.

Hauge further testified that on occasion his men would run short of graphite paper used in their covering operations; it was nothing unusual. When the squares were taken away during the "stripping" operation, a piece of plywood was usually put over any holes remaining in the floors, but the men did not immediately run up to the floor above and cover the hole with plywood; that was customarily done after they left the job. Covering holes was the best practice. The graphite paper and blankets were removed before the plywood and forms so that, if the stripping were removed from a portion of the deck, usually Hauge would expect that the paper and blankets had been removed earlier.

Herbert Johnson, the general superintendent of the subject construction for Ragnar Benson, testified, as an adverse witness under section 60 of Illinois' Civil Practice Act, that his duties included coordinating the activities of the subcontractors as to the plans and specifications of the building, coordinating his own staff, and carrying the responsibility, when work fell behind schedule, of seeing to it that the work got caught up. On occasion, he and three or four of his men would go to the Western Electric building site where Ragnar Benson maintained a field office to check the work progress. Johnson further testified that Western Electric had approximately six men on the job site, in addition to one Mr. West, who acted as project manager for Western Electric; that once a week general construction meetings were held at which Western Electric was in charge; that matters of job safety were brought up at those meetings; that, in walking around the job site, he observed conditions which he felt would be hazardous to the men working on the job; that, having made these observations, he would leave it to Corbetta Construction to take care of any hazards to protect the men on the job; that usually he and his staff would undertake daily inspections of the construction area; that he had been up to inspect the lighting which had been strung out in the building as it was being erected; that, as a general practice, lights were kept burning night and day on a construction job even in areas where work was not proceeding; that Ragnar Benson's subcontractor (the electrical contracting firm of Fischbach, Moore & Morrisson) had the responsibility to see that the temporary lights were on in the building at all times; that he and his men checked to see that the lights were on; that "We [Johnson and his staff] don't let anyone work on the job without any lights"; and that, as a matter of practice, the general contractor made sure that the subcontractor does the work in accordance with what the subcontractor was supposed to do.

The following colloquy, with respect to the hole through which plaintiff fell, took place later in Johnson's testimony:

"A. * * * I saw the plywood from underneath. When I stood down below there when I came up on the fourth floor I saw it laying on the floor or over this opening, and the next day when I got to the pour I was wondering how a man could fall through it when there was a piece of plywood on it.

Q. Did you notice anything in addition to the plywood being on the covering that you observed the day before? Was it ...

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