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Schroeder v. Braun

decided: August 22, 1974.

KEITH SCHROEDER, A MINOR, ETC., PLAINTIFF-APPELLEE,
v.
C. F. BRAUN & CO., NORTHERN NATURAL GAS COMPANY, NORTHERN PETROCHEMICAL COMPANY AND FLUOR COOLING PRODUCTS COMPANY, APPELLEES-APPELLANTS, V. COOLING TOWER ERECTORS, INC., THIRD-PARTY-DEFENDANT-APPELLANT



Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71 C 1852 RICHARD B. AUSTIN, Judge.

Swygert, Chief Judge, Cummings, Circuit Judge, and Matthes, Senior Circuit Judge.*fn1

Author: Cummings

CUMMINGS, Circuit Judge.

In his second amended complaint, plaintiff sued four companies for injuries he suffered in Morris, Illinois, on April 20, 1971. The complaint contained appropriate allegations of diversity and jurisdictional amount under 28 U.S.C. § 1332.

Plaintiff was an employee of Cooling Tower Erectors, Inc. ("Cooling"). Defendant Northern Petrochemical Company ("Northern Petro") had contracted with the general contractor, defendant C. F. Braun & Co. ("Braun") for Braun's construction of a polyethylene plant, including a water cooling tower, on Northern Petro's premises at Morris, Illinois.

Braun thereafter entered into a subcontract with defendant Fluor Cooling Products Company ("Fluor") to construct the cooling tower. Fluor then hired plaintiff's employer, Cooling, to erect the structure according to blueprints and with a kit of parts supplied by Fluor. Defendant Northern Natural Gas Company ("Northern Natural") allegedly provided supervisory personnel to defendant Northern Petro, its wholly owned subsidiary, in connection with the erection of the tower.

According to the complaint, the four defendants had charge of the erection and construction of the cooling tower within the meaning of the Illinois Structural Work Act (Ill. Rev. Stats. 1973, ch. 48, §§ 60-69). They allegedly violated that Act by failing "to provide ladders which were reasonably necessary to give proper and adequate protection to the life and limb of persons engaged" in work on this structure. Plaintiff claimed that his fall from the cooling tower was caused by this violation of the Structural Work Act. He sought $500,000 damages.

Northern Natural and Northern Petro filed cross-action against Braun and Fluor and a third-party action against Cooling, alleging both contractual and common law indemnity.

Braun filed a cross-action against Fluor for contractual and common law indemnity, and an action against Cooling for common law indemnity. Fluor also filed an action against Cooling for contractual and common law indemnity.

The jury returned a verdict in plaintiff's favor against all defendants in the sum of $252,106.20. Judgment was entered thereon.

The jury was instructed that if it found for any cross-claimants or third-party plaintiffs, it "should assess the damages in the same amount as [it] found for plaintiff." In violation of this instruction, the jury apportioned its award to plaintiff among nine indemnity verdicts. The trial court impounded the erroneous verdicts returned on the indemnity claims and submitted new verdicts to the jury, directing it to return verdicts in the amount of $252,106.20 in favor of each indemnitee and against each indemnitor. The jury thereupon returned verdicts in favor of Northern Natural and Northern Petro against Braun, Fluor and Cooling. Verdicts were also returned in favor of Braun against Fluor and Cooling. A verdict was returned in favor of Fluor against Cooling. Judgments were entered on these nine verdicts, each for $252,106.20, resulting in this appeal by Cooling.

After the foregoing verdicts were returned, the district court heard the claims for contractual indemnity. Thereafter, it entered judgment on the contractual claims in favor of Northern Natural against Braun and in favor of Northern Petro against Braun, Fluor and Cooling in the amount of plaintiff's verdict and for attorneys' fees of $8,742.25 and costs; in favor of Braun and against Fluor in the amount of the plaintiff's verdict and $19,263.87 for attorneys' fees,*fn2 plus costs; and in favor of Fluor against Cooling in the amount of plaintiff's verdict and $26,527.09 for attorneys' fees,*fn3 plus costs. Cooling has appealed from these judgments.

All defendants have filed appeals from the judgments in favor of plaintiff, although Cooling is the only party ultimately required to pay all damages, including attorneys' fees and costs of all parties.

The cooling tower was to be about 45 feet tall, 35 feet wide and 60 feet long. The heated water was to be pumped to the top of the structure and then allowed to trickle through baffles within the structure to a cement basin at the ground level. A large fan was eventually installed at the top of the tower to cool the trickling water.

The tower was constructed from redwood beams and has been variously described as resembling a giant erector set or huge honeycomb when finished. The only walkway was at the top of the completed structure, running parallel with its length. Access to the top level was ultimately supplied by a staircase.

When the accident occurred, the tower had been erected to its full height. Plaintiff was told by his foreman to climb to the top of the tower to pass lumber to the carpenters. At that time there were two ladders reaching only 18 feet up either side of the tower. After leaving the ladder, a workman would have to climb from beam to beam. The evidence was conflicting, but at least some adjacent beams were six feet apart.

Plaintiff's foreman later instructed him to descend to the ground to open crates. Plaintiff lowered himself from beam to beam at a point about 20 to 30 feet from one of the ladders. He lost his footing and fell to the ground about ten feet from the top of the tower.

One day after the accident, ladders had been placed on the tower reaching to its top. An architect and construction engineer testified for plaintiff that a hazard existed at the time of the accident because there were then no ladders going to the top of the tower. ...


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