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Mundt v. Ragnar Benson





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Walter J. Kowalski, Judge, presiding. MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 24, 1975.

Rex Mundt, the plaintiff, was severely injured when he fell through an opening approximately five feet long and four feet wide on the fourth floor of a building owned by Western Electric Co., Inc. He brought a common law negligence action in the circuit court of Cook County against Western Electric Co., Bell Telephone Laboratories, Ragnar Benson, and Holabird and Root, architects.

The appellate court (18 Ill. App.3d 758) summarized the complaint:

"* * * [O]n 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." 18 Ill. App.3d 758, 760-761.

Prior to trial, summary judgment was entered by the trial court in favor of Bell Telephone Laboratories, and at the close of the plaintiff's evidence the court entered directed verdicts for Western Electric, Ragnar Benson and Holabird and Root. The trial court denied a motion by the plaintiff to amend his complaint to include a count under the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.). The appellate court affirmed (18 Ill. App.3d 758), and we granted the plaintiff's petition for leave to appeal. The plaintiff did not appeal to the appellate court from the summary judgment order entered for Bell or from the directed verdict for Holabird and Root. Thus, Western Electric and Ragnar Benson are the only defendants in this appeal.

Western Electric contracted with Ragnar Benson, Inc., for that company to act as the management contractor for the construction of a building in Du Page County. Benson entered into a contract with Corbetta Construction Co. (Corbetta) whereby Corbetta agreed to perform all of the concrete work for the building. Corbetta would lay floors by pouring concrete in sections (bays) approximately 30 feet wide and 100 feet long. To form a section, plywood forms, 8 feet long, 4 feet wide and 3/4 of an inch thick (8 x 4's), would be placed on top of vertical shoring so as to form a deck. Concrete was poured on top of the deck where it would harden and form a slab. If the plans called for an opening in the floor to accommodate, for example, an air duct, workers would form the opening by nailing four "four by fours" into a square bulkhead and then nailing the bulkhead to the top of the deck. In that way the concrete, when poured, would not enter the bulkhead, and an open area would be created. The bulkhead would then have an 8-foot by 4-foot plywood sheet laid across it and nailed to it to serve as a cover for the opening. The cover had a safety purpose. It was to prevent persons from falling into the opening. Between three and seven days after the concrete was poured, the plywood deck underneath the slab would be stripped or removed.

Corbetta had added cold weather procedures to prevent concrete from freezing. After finishers had leveled or smoothed the concrete on the deck, the concrete was covered with sisalkraft paper. This was made of heavy opaque material. The paper then would be covered with blankets which were held in place by plywood forms or other materials. Salamanders or heaters would also be set up to help prevent freezing.

Rex Mundt testified that he had worked on the Western Electric building as a laborer for Corbetta on the day shift from August to December 1965. During that time he poured concrete, stripped or removed decking and had seen carpenters building bulkheads. In December of 1965 he began working nights. He covered freshly poured concrete with paper, and placed blankets on the paper, then weighted down the blankets. He also saw that the salamanders were functioning properly and periodically checked the temperature of the concrete to insure it was adequately protected. Materials that the plaintiff would require to perform his work were usually stored by the day crew in the bay adjacent to the one he would work in.

He said that on December 20, 1965, he and Edward Malcolm, his helper, were working on a freshly poured bay on the floor of the fourth story. At about 8:30 p.m. they had covered all but 20 feet of the new concrete when they ran out of sisalkraft paper. Although strings of lights had been installed in the bay where they were working, he and his helper had been given also a floodlight and a flashlight for additional lighting. Taking the flashlight, the plaintiff walked about 40 feet from the bay where he was working to the bay north of his position where materials had been stored. There was no lighting in the north bay. Using his flashlight, the plaintiff saw a long strip of paper lying underneath an 8-foot by 4-foot sheet of plywood. He turned off the flashlight and began to attempt to lift the plywood sheet so as to free the strip of paper. The sheet proved to be a bulkhead cover, and, according to the evidence, it was nailed to the bulkhead. He said that it was very difficult to move but he did succeed in lifting it up about as high as his forehead. He then stepped forward and fell through the opening to the floor below.

On cross-examination the plaintiff acknowledged that he had seen the opening in question prior to the date of his falling and said that, in fact, he had probably papered it. He said that when laying paper on decks he had covered many openings with sisalkraft paper. The plaintiff testified he was aware that such openings were covered with plywood 8-foot by 4-foot sheets to prevent persons from falling through the openings. He said that when he turned off his flashlight it was so dark that he could not see his hand in front of his face and that it would have been impossible for him to see what was underneath the plywood cover on the bulkhead.

Edward Malcolm testified that he was employed by Corbetta as a construction laborer on Western's building at the Bell Telephone Laboratories' site in August 1965. He said he had been working overtime with the plaintiff, on December 20, 1965, covering freshly poured concrete. They had run out of sisalkraft paper, and the plaintiff had gone to get more. Shortly after the plaintiff had walked to the north bay the witness heard a scream. He ran to the north bay and saw that the plaintiff had fallen through an opening. He saw an 8-foot by 4-foot sheet next to the opening which evidently had been lifted by Mundt from the opening.

Herbert Johnson, the general superintendent of Ragnar Benson, was called by the plaintiff as an adverse witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60). He said that in addition to his duties of coordinating the activities of subcontractors and insuring that their work complied with architectural plans and specifications, he usually made daily inspections of the construction site and reported any hazardous conditions he observed to the subcontractors involved. He testified that on December 19, 1965, the day before the plaintiff was injured, he observed the opening that the plaintiff fell through. He said that an 8-foot by 4-foot sheet of plywood had been placed over the opening as a cover and that it had been nailed into the bulkhead which formed the sides of the opening.

The trial court did not err in directing the verdicts, as we consider the plaintiff as a matter of law was guilty of contributory negligence. This court in Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, set out a single standard for determining not only the propriety of directed verdicts and judgments n.o.v. but for deciding as well whether negligence or contributory negligence is to be considered a matter of law. The standard is whether "all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." 37 Ill. 494, 510; see Hardware State Bank v. Cotner, 55 Ill.2d 240, 246.) We judge that measuring by this standard no verdict here for the plaintiff could have stood.

There have been many holdings that one familiar with the location of an opening who falls through it under circumstances similar or comparable to those ...

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