APPEAL from the Circuit Court of Madison County; the Hon.
MOSES W. HARRISON, Judge, presiding.
MR. JUSTICE FRIEDMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 14, 1979.
Plaintiff's decedent was killed while cleaning a drain at the bottom of a dumbwaiter shaft at Doctor's Memorial Hospital, Carbondale, Illinois, on January 3, 1972.
Defendants, Southern Illinois Hospital Corporation and Calandrino and Associates, were sued in negligence. Minner Construction Company, Inc., and McDonald-Inter American Corporation, a joint venture, Cedar Elevators and Equipment, Inc., and Energy Elevator Company, Inc., were sued in strict liability.
Verdicts were returned in favor of plaintiff and against Southern Illinois Hospital Corporation, Cedar, and the joint venture, with damages in the amount of $300,000. Verdicts were returned against plaintiff and in favor of Energy and Calandrino. Southern Illinois Hospital Corporation, Cedar, and the joint venture, appeal against plaintiff. Plaintiff cross-appeals against Energy and Calandrino. McDonald-Inter American appeals, claiming that it was not properly joined as a party.
Doctor's Memorial Hospital engaged Calandrino to act as architect for an addition to its hospital facilities in Carbondale. Calandrino prepared plans and specifications. The joint venture successfully bid for the general work. The joint venture subcontracted with Cedar to furnish and install elevators and dumbwaiters. Their agreement specified that the dumbwaiter at issue here would be manufactured by Energy Elevator Company. The general contract provided that the dumbwaiter could be one made by Otis Elevator Company, Energy Elevator Company, Montgomery Elevator Company, or an approved equal. The subcontract was approved by the architect.
Energy manufactured the dumbwaiter and shipped it to the hospital in five crates and several bundles. The dumbwaiter was spray painted with grey paint when shipped. The dumbwaiter was assembled and installed by Cedar. The joint venture performed no work in this regard, but only erected the shaftway.
The dumbwaiter has a power train in the bottom, an access door in the shaftway at the first-floor level for servicing or cleaning, and a car with biparting gates which open up and down. At the lower front of the unit, guide rails are separated by a metal spreader bar. The purpose of the spreader bar is to keep the guide rails in alignment during manufacture, shipment, and installation. There was evidence that the spreader bar was secured to the rails by a temporary weld and that it was to be removed after installation of the dumbwaiter. Cedar presented evidence tending to prove that the spreader bar is welded permanently and is not to be removed.
There was evidence that an employee of Energy printed the word "remove" on the spreader bar prior to shipment. At some time later, the word was covered by painting. After the accident, the paint was removed, revealing the word "remove." There was further evidence that Energy did no brush painting at its plant, and did only spray painting. The dumbwaiter spreader bar, at some point, had been brush painted. The masonry surrounding the dumbwaiter also contained streaks of paint, apparently from splashing. The employees of Cedar denied having painted the dumbwaiter. Witness Sprawl said that he had seen Cedar workers painting metal braces.
Hines, a professional safety officer, testified as an expert witness for plaintiff. In his opinion, the dumbwaiter, as installed, was in an unreasonably dangerous condition because it lacked an access door contact switch, the disconnect switch was too far away from the machine, because the spreader bar was still on the machine, and because there was no warning on the access door of movable machinery in the access area. Other evidence indicates that the dumbwaiter could be deactivated either by opening the biparting gates of the car, or by a disconnect switch located some distance away.
There was testimony that job safety was first and foremost in decedent's mind.
During construction, sand, dirt, concrete, and pieces of debris fell into the drain at the bottom of the hoistway and clogged it up. Plaintiff's decedent, Willis Brannon, a plumber, and his superintendent, Charles Patrick, arrived at the hospital at 8 or 8:30 a.m. on January 3, 1972, to correct several items, including the clogged drain.
When Brannon first arrived at the hospital, he met with Mr. Holder, assistant superintendent of maintenance of the hospital. Brannon first fixed a fresh air intake valve and then worked on a steam trap in the boiler room. Brannon left to obtain a vacuum cleaner from Jack Gunn, the maintenance superintendent, to clean the drain. Gunn told him where he could find one. Gunn observed Brannon proceed in the direction of the dumbwaiter.
Reeta Grammer, a nurse, testified that Brannon told her he had come to clean out the drain. She saw him in and out of the area around the dumbwaiter several times. While he was working, the dumbwaiter had been in use. She also testified that if someone saw that the dumbwaiter doors were open, they would just ...