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Grant v. Joseph J. Duffy Co.

JUNE 25, 1974.

OSSIE GRANT, PLAINTIFF-APPELLANT,

v.

JOSEPH J. DUFFY COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES A. GEROULIS, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 26, 1974.

Ossie Grant, plaintiff-appellant, was injured on October 22, 1962, when the scaffold upon which he was standing collapsed. At the time of the accident plaintiff was employed by Adjustable Forms, Inc. (Adjustable), which company was the subcontractor for the construction and removal of wooden forms used in laying concrete. Defendant-appellee Joseph J. Duffy Co. performed the services of general contractor for the Atomic Energy Commission (AEC) pursuant to its contract with that federal government agency to build a High Energy Physics Building (ZGS building) at Argonne National Laboratory (Argonne) near Lemont, Illinois.

Plaintiff brought suit under the Illinois Structural Work Act (Ill. Rev. Stat. 1963, ch. 48, pars. 60-69) against defendant, which company, in turn, filed a third-party complaint against Adjustable. This latter complaint was subsequently dismissed by order of the court pursuant to stipulation of the defendant and Adjustable.

The case was tried on plaintiff's amended complaint based on the Structural Work Act which charged that as a direct and proximate result of the wilful violation of the provisions of the Act and defendant's allowance of an unsafe, unsuitable, improper and unsecured scaffolding, plaintiff sustained certain severe and permanent injuries. Defendant's answer admitted it was in charge of the overall erection and construction of the subject building but denied being in charge of the specific portion of the building or instrumentality alleged to be the cause of the injury, denied any wilful violations of the Act, and further denied that if the scaffold did break, fall, collapse or give way and the plaintiff thereafter fell, it was not the direct or proximate result of any violation of the Act.

The matter was tried before a jury and, at the close of the plaintiff's case, his motion for a directed verdict on the issue of liability was denied. The jury returned a verdict in favor of defendant and, having denied plaintiff's motion for a judgment notwithstanding the verdict, the trial court entered judgment on the verdict.

Plaintiff's appeal presents the following issues:

1) whether the trial court erred in refusing to admit into evidence the testimony of two similar prior accidents;

2) whether the trial court properly denied plaintiff's request to admit into evidence certain provisions of the contract between the defendant and the AEC;

3) whether the trial court erred in refusing to direct a verdict in favor of the plaintiff; and

4) whether the trial court erred in the giving and refusing of certain instructions to the jury.

It is our conclusion that for the reasons set out later in this opinion, the cause should be reversed and remanded for a new trial. We shall only set forth such facts as are pertinent to the reasons for our conclusions.

At the time of the accident, construction of the ZGS building had progressed to the point that the foundation had been laid, the steel framework substantially completed, and the concrete floors on each of the three stories almost finished.

Before pouring the concrete the record indicates that the usual procedure is to lay out wooden forms, pour the concrete onto these forms, and, once the concrete has set to form a solid floor, remove the forms. This last process is known as "stripping" and, in the instant case, the laborers were unable to "strip" the wooden floors without the use of scaffolds.

The evidence indicates that the scaffolds used were of a hanging variety and were assembled by first placing a 4-by-4-inch cross bar approximately 8 to 10 feet in length between two "I-beams" so that the ends of the cross bar rested on the portions of the I-beams that project to form a ledge. Two large, "S"-shaped hangers, shaped from round 3/4-inch steel bars, are then hung at either end of the cross bar. Each end of a hanger is split, resembling a fish hook, and the hangers can be 6, 7, or 8 feet in length. Another 4-by-4-inch cross bar is then suspended across the lower portions or "hooks" of the two hangers. A short distance away an identical structure is assembled and two 2-by-12-inch boards (approximately 16 feet in length) are suspended between the lower 4-by-4-inch cross bars of each hanging structure. Finally, these 2-by-12-inch boards are covered with a piece of plywood. The laborers would then stand on this scaffold and "strip" or remove the wooden forms above them.

The plaintiff testified that at about 2:30 P.M. on October 22, 1962, he was on a scaffold stripping 4-by-4-inch boards from the ceiling above him when "all at once, all I knew, I was lying down on the ground, on the floor." The plaintiff did not return to work until January, 1964. On cross-examination the plaintiff stated that a piece of plywood had fallen and knocked him from a scaffold before the particular incident giving rise to this suit but, since the question initiated what the court determined was an improper attempt to impeach the witness, the question and answer were stricken. Plaintiff stated the plank on which he was standing at the time of the accident was approximately 5 feet above the floor. However, other witnesses placed the scaffold at either 6 or 7 feet above the floor.

Eligha Tanner testified that during October, 1962 he was working as a stripper for Adjustable; that at the time of the accident his scaffold was 10 to 12 feet from the plaintiff's scaffold; that the foreman's (Larry McCabe's) scaffold was 4 to 5 feet from plaintiff's but connected to it with a 4-by-8-foot piece of plywood; that it was a windy day and, as plaintiff pulled down a piece of plywood, it "sailed," hit plaintiff's scaffold knocking one of the hangers from beneath the 4-by-4-inch cross bar, and that plaintiff and the scaffold fell to the floor below.

Tanner further testified that this sort of swinging scaffold had been used at the job site during the 2 months prior to the accident; that defendant's assistant superintendent Wagner had on more than one occasion come to the area where the scaffolding was being used; that the witness had seen other of defendant's supervisory people in the scaffolding area; and that he had had difficulty with the scaffolds prior to October 22, 1962.

On or about October 10, 1962, as Tanner was working on one of three scaffolds, a piece of plywood flew in the wind and knocked the hanger from beneath the 4-by-4-inch cross bar causing the scaffold to fall from under the witness. He grabbed a steel beam and swung in the air until someone brought him a ladder. Tanner stated that, immediately after his mishap, he walked over to defendant's assistant superintendent Wagner and asked if there was any way to make the scaffold safer since he was afraid.

Approximately 3 to 4 days prior to the October 10 incident Tanner and one other man were stripping from the same scaffold. In order to remove a particular piece of plywood both men had to stand at one end of the scaffold and, as they pulled down the wood, it swung and knocked a hanger from under the cross bar. Tanner stated that assistant superintendent Wagner was present during this incident.

Tanner, who had been working for Adjustable at the site for about 2 months prior to the October 22 incident, testified about another such mishap which occurred about 3 weeks after Tanner had begun working at Argonne. One Ledbetter was working with Tanner on the scaffold and, as they pulled a piece of plywood from above them, it knocked the hanger from under the cross bar and the scaffold fell. As the witness began to recount yet one more mishap with the scaffold the trial court sustained defense counsel's objection to such on the ground that, since the witness stated that in this incident, as in the one preceding it, both he and Ledbetter were on the same scaffold, the situation was not physically similar to the plaintiff's accident since in the latter plaintiff was the only person on the scaffold. For this same reason the court instructed the jury to disregard Tanner's testimony of all but the incident occurring on or about October 10, 1962, regardless of the fact that in each situation the scaffolds were similar.

On cross-examination the witness stated that the lower 4-by-4 cross bars were usually 12 feet long and that it was customary for them to overlap the hangers for a space of 4 to 6 inches.

Other witnesses testified on behalf of the plaintiff: e.g., a supervisor of Adjustable who testified concerning the physical characteristics of the subject scaffold; one Eden, an employee of Adjustable whose duties involved assembling and dismantling the scaffolds was not permitted to testify either as to whether there were guard rails on the scaffolds or as to a prior similar occurrence involving two men; and one Ledbetter who testified about the incident causing plaintiff's injury and to an incident which occurred in the presence of defendant's assistant superintendent Wagner about 2 weeks prior to the subject incident.

Howard L. Sather, an orthopedic surgeon, testified that, having observed plaintiff in the hospital after the accident, he diagnosed the plaintiff's injuries as a compression fracture of the right heel bone and a strain of the lower back. The plaintiff was hospitalized for approximately 2 1/2 weeks, used crutches for 3 to 4 months, and finally underwent surgery in May, 1963, to solidify the injured joints to prevent any movement and thereby eliminate the pain. In January, 1964, approximately 15 months after the accident, the witness recommended that the plaintiff return to some type of light work.

Charles H. Mann, president of defendant corporation, was called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act. In October, 1962, the witness was vice-president of the defendant company and was also its general field superintendent which required him to travel from job to job in a supervisory capacity, inspecting the various jobs as they progressed. Mann stated that the defendant had entered into a contract with AEC and thereby became the general as well as prime contractor for the construction work at Argonne.

A general contractor, Mann testified, is responsible for the work of a subcontractor "insofar as it must agree with the plans and specifications" and it is customary within the building trade for the general contractor or his agent to inspect the work of the subcontractors. With regard to the Argonne job, the witness stated that he visited the site two to three times a week; that stripping had to be performed as part of the overall work; that he had made only a casual inspection of the hanging scaffolds, observing that the lower 4 x 4" cross bars extended from 12 to 18 inches beyond the scaffold hangers; that he had received no information that anyone other than plaintiff had been injured on the scaffolds; and that news of any such injury would come from either defendant's accounting department or a Mr. Meuller, defendant's field superintendent.

Plaintiff's counsel attempted to question Mann regarding health and safety rules and regulations governing the construction industry, but the trial court sustained defense counsel's objection to the question on the ground that such rules are binding only between an employer and employee.

Plaintiff also requested that two paragraphs from defendant's contract with the AEC be admitted into evidence. One paragraph obligated the defendant to have a full-time superintendent on the work site with authority to act for defendant. This provision, plaintiff argued, would demonstrate to the jury that defendant was obligated by contract to furnish a superintendent. The other paragraph required defendant to take all reasonable precautions to protect the health and safety of employees and the public and to comply with all health, safety, and fire protection regulations and requirements of the AEC. Again plaintiff's counsel maintained that the jury should be aware of defendant's contractual obligations with the AEC in order to determine the extent of defendant's responsibility, i.e., whether it was "in charge of" the job. The trial court sustained defense counsel's objection to the admission of the contractual provisions into evidence since, the court stated, the contract between defendant and the AEC was not relevant.

The trial court later sustained an objection to plaintiff's counsel's question to Mann as to whether defendant's contract with the government required defendant to follow any specific safety regulations and further prevented plaintiff from introducing into evidence industry standards as set out in various manuals since such information was not "germane" considering the number of different trades a general contractor must supervise.

Mann acknowledged that there are "certain customs and practices which are known and accepted in the construction industry relative to the method of construction and erection of scaffolds." He further stated that in Chicago in October, 1962, it was customary on this particular type of scaffold to securely fasten the hanger to the cross bar with a clamp or "U-bolt"; that it was not the custom or practice to provide guard rails or to ...


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