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Domena v. Prince





APPEAL from the Circuit Court of Kane County; the Hon. CARL A. SWANSON, Judge, presiding.


Rehearing denied October 12, 1977.

Plaintiff brought this action against defendants under the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, pars. 60 through 69) and the jury returned verdicts in favor of plaintiff against both defendants in the amount of $100,000. Defendants appeal.

The plaintiff, Ruben Domena, was a bricklayer's helper employed by Wil-Mar Mason Contractors who were engaged in the erection of masonry walls for a warehouse building being constructed in Kane County, Illinois. Defendants W. Wood Prince and James F. Donovan, as trustees of Central Manufacturing District, were the owners of the building and defendant CMD Construction Company was the general contractor for its construction.

On February 11, 1970, plaintiff was working on a Morgen scaffold some 15 to 18 feet above the ground when the Morgen plank, an integral portion of the scaffold, fell from under him as he stepped on it leaving a 10-inch-wide opening some 7 feet long in the scaffold through which plaintiff fell to the ground and was injured. Defendants contend on appeal that plaintiff failed to prove by competent evidence any violation of the Structural Work Act or that either defendant was in charge of the work when the injury occurred or wilfully violated the Act.

A somewhat detailed description of the Morgen scaffold is necessary to an understanding of defendants' first contention. It is constructed of 20-foot-tall steel towers which are erected in pairs 7 feet apart parallel to the working area. Each pair of towers has, or should have, a cross-brace and stringer braces extending between them for stability and to maintain the requisite 7 feet between the towers. There are support brackets or arms extending on both the wall side and the outside of each tower upon which planks may be placed from tower to tower to form platforms for the workers. The platform next to the wall is used by the bricklayers and consists of three 10-inch-wide planks. The outside platform is used by the bricklayers' helpers, such as plaintiff, and is made up of seven 10-inch-wide planks, including the Morgen plank, which fits directly between the towers. The Morgen plank is a 2- by 10-inch plank designed to be exactly 6 feet 11 inches long and its ends to rest upon and be supported by 4-inch-long steel brackets protruding from each tower for that purpose. Neither end of the plank is secured to those brackets but is intended to be held in place by the maintenance of the 7-foot interval between towers and the correctness of the length of the plank so that its ends would safely rest on both tower brackets. The brackets and support arms described can be mechanically elevated at each tower to raise the working surfaces of the scaffold as the wall is constructed.

The scaffold had been supplied and erected on the job by plaintiff's employer, Wil-Mar, when the mason work commenced 3 weeks before the injury and while working upon it over that period plaintiff noticed no defect in it. On February 11, 1970, plaintiff was carrying an 8-inch building block in each hand and walking from the outside platform to the inner to supply the bricklayers when he stepped on the Morgen plank and it fell with him to the ground. Plaintiff reached for something to grasp to prevent his fall but there was nothing; outside railings are used at times on Morgen scaffolds but were not present on the day of this accident.

Defendants assert first that the trial court committed prejudicial error in permitting Harry Scoggin, called by plaintiff to testify as an expert witness, to suggest through guess and conjecture reasons why the Morgen plank fell.

The qualifications of Scoggin as an expert were not challenged in trial by defendants. He was an architect and engineer who had examined Morgen scaffolds 25 to 50 times prior to this trial and was familiar with their construction and use although he had never examined the particular Morgen scaffold being considered in this case. Scoggin testified that a Morgen scaffold was a properly designed and safe scaffold when erected and used in accordance with its manufacturer's directions. Over defendants' objection, he was permitted to testify that the stability of a Morgen scaffold depended upon the cross-bracing between the support towers to hold them 7 feet apart and upon the Morgen plank being cut to the correct length so as to permit its ends to rest safely on the tower brackets. The witness further testified there were two other factors which could affect the security of a Morgen plank: that the supports on the towers at each end of the plank should not be raised to different levels and that a heavy weight on the plank will cause it to sag in the middle. Both factors, if present, would have the effect of shortening the plank and the support under its ends.

After testifying that the length of the Morgen plank, the cross-bracing between the towers and the support brackets for the plank ends on the towers were the only structural features of a Morgen scaffold which come into play regarding support of the plank, the witness was permitted to testify, over objection, that in his opinion the Morgen plank would not fall on a Morgen scaffold when stepped on by a laborer if these factors were all in order.

Defendants contend that the length of the Morgen plank when it fell, whether bracing was missing between the towers and whether one end of the scaffold had been raised higher than the other were not matters to be established by expert opinion, but only by direct evidence. They argue that the opinion of an expert witness may properly be allowed only if based upon facts in evidence called to his attention or facts within the personal knowledge of the witness and that he may not be permitted to express an opinion as to why the plank fell based upon his guess, speculation or conjecture, citing 18 Ill. L. & Prac. Evidence § 329 (1956); Jines v. Greyhound Corp. (1965), 33 Ill.2d 83, 88, 210 N.E.2d 562, 565; and Sommers v. American Economy Insurance Co. (1972), 8 Ill. App.3d 450, 452, 289 N.E.2d 712, 714.

• 1 We note that Scoggin did not express any opinion as to how this accident occurred, why this plank fell or in what manner this Morgen scaffold may have been defective at the time of plaintiff's injury. He did, in substantial detail, describe the structural features of Morgen scaffolds and those features which, in his opinion, affected the stability of such a scaffold. All of his testimony was based solely upon his personal knowledge and experience as an architect and engineer with Morgen scaffolds and cannot correctly be described as guess, speculation or conjecture. His testimony was clear that a properly constructed and operated Morgen scaffold was sound and stable; this, of course, was the defendants' posture in the case. In view of the uncontroverted evidence that the plank fell when plaintiff stepped upon it, a thorough explanation by an expert of the structure of such a scaffold was in order for the better understanding of the jury.

"[T]he trend is to permit expert testimony in matters which are complicated and outside the knowledge or understanding of the average person, and even as to matters of common knowledge and understanding where difficult of comprehension and explanation." Miller v. Pillsbury Co. (1965), 33 Ill.2d 514, 516, 211 N.E.2d 733, 734.

"There must be a need apparent from the record in the case for scientific knowledge, expertise and experience which will aid the jury to a correct and a just result." Abramson v. Levinson (1969), 112 Ill. App.2d 42, 50, 250 N.E.2d 796, 800, cert. den. (1970), 398 U.S. 950, 26 L.Ed.2d 290, 90 S.Ct. 1868. See also Mahlstedt v. Ideal Lighting Co. (1915), 271 Ill. 154, 110 N.E. 795; Ray v. Cock Robin, Inc. ...

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