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Zvonarits v. Vollen

OPINION FILED SEPTEMBER 14, 1978.

RUDOLPH ZVONARITS, PLAINTIFF-APPELLEE,

v.

HARRY A. VOLLEN ET AL., DEFENDANTS. — (CONSUMERS ROOFING AND INSULATING COMPANY, DEFENDANT-APPELLANT.)



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

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The defendant appeals from a jury verdict finding it negligently leaned a ladder against a railing while making roof repairs, thereby weakening the railing which later broke when plaintiff leaned against it. We find no error and affirm.

The plaintiff, Rudolph Zvonarits, worked as a janitor for Harry Vollen. *fn1 He did not work on Vollen's residential properties but at some other property. However, on the day of the accident, he went to Vollen's home at 3939 North Pine Grove in connection with his employment. While there, he noticed water coming from the ceiling and went upstairs to see if he could help.

The house at 3939 North Pine Grove is an old three story house built in 1899. There are outside wooden stairs in back going all the way up to the third floor. Besides the porch, the stairs have three landings. There are railings on both the stairs and the landings.

Zvonarits found a leak on the third floor. He had to tear a chest of drawers apart. While waiting for the plumber to come to repair the hot water line he decided to take the debris down. He walked out onto the stairs at the third-floor landing and walked down to the next landing. He looked at the railing which appeared all right to him, so he bent down, held on to the railing and called out that he was going to throw some debris. That is the last he remembered. Zvonarits was found lying on the ground directly below the landing and was rushed to the hospital.

Vollen observed that the top part of the railing on the second landing had given way. It had pulled out from both ends. The down slats were intact. Vollen had the entire railing replaced a few days later. In a deposition Vollen gave in 1975 he said it was the bottom part of the landing which had given way and not the top part.

According to Vollen, the railing was a horizontal two-by-four connected to vertical four-by-fours with slats running from the two-by-four. The two-by-four is grooved which allows for vertical slats to come down and tie into the floor of the particular landing. Vollen did not know what type of wood was used or how the nails were fastened. There is a locked metal gate on the rear steps of the back porch to prevent access to the stairs. The gate can be opened with a key from the outside or by turning a little round knob from the inside.

Vollen did not use the back stairs very often. The stairs and the railings were checked periodically — virtually every spring. There were some repairs done about a year prior to the accident but he did not remember what was repaired. He did not know if it had been 10 years since he had been on the third floor with repairs. He also stated that the railing had not been replaced before the accident. In a recorded statement made in 1971 he had said there had been no direct repairs to the railing within the last several years.

About five weeks before the accident, the defendant company was employed by Vollen to repair the roof. This work included laying asphalt shingles to cover the original tiles that were on the roof. When Vollen first saw the men at work, they had a wooden one-section ladder coming up from the ground level to the second landing which was the landing nearest the portion of the roof on which they were working. The top of the ladder extended about a foot and a half to two feet above the railing. He estimated that the railing was about 22 feet above the ground.

There were two men on the project. One appeared to be in his forties, another to be in his twenties. Both were light in weight, about 135-140 pounds. Vollen saw them climb the ladder perhaps two or three times. When the men reached the second landing they climbed around the top of the ladder and stepped down, the ladder being higher than the railing. They used a smaller ladder from the second landing to the roof — Vollen conceded, however, that he just assumed that they had a second ladder. He did not remember how they got materials to the roof. When the men climbed to the roof they stayed there for a full day or at least half of a working day before coming down.

Vollen believed that the work continued possibly for a whole week. As far as he could remember, the ladder was removed at the end of the day and replaced when work commenced the next day. On the second day that he observed the ladder it was replaced in the same manner.

At no time did Vollen tell the defendants that they should not lean a ladder against the railing. The roofer never asked him for a key to the metal gate barring access to the back stairs.

Three roofers who had worked on the job testified for the defense. Dan Dewaele testified that he had worked there approximately one half day, working on the main part of the flat part of the roof of the house. He got to the roof by setting a ladder on the side drive and worked off of a built-in gutter on the main part of the house. The ladder was not near the back stairs or railings. The materials used on the roof were raised by double hoisting them. None of the material was carried up by ladder. At the time he worked on the job, there was no other crew for his company there and no other ladders. He was not there when the other crew had worked.

Frank Sayles had been part of the first crew which had worked on the roof. He is no longer employed by the defendant. He testified that he worked on the job at Pine Grove for about three days. On the first day, shortly after he and his partner, John Postel, arrived, someone who identified himself as a janitor, opened the gate blocking the back stairs. The man was in his forties, about 5'5", and dressed in work clothes. The two roofers carried some shingles up the back stairs, set them on the ledge and tossed them onto the roof. However, Sayles noticed that the bannister at the second landing was very wobbly. For that reason they decided not to ...


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