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Revak v. Village of Hanover Park

OPINION FILED DECEMBER 22, 1978.

WALLACE C. REVAK, PLAINTIFF-APPELLEE,

v.

THE VILLAGE OF HANOVER PARK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM B. KANE, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

This appeal arises out of a jury's award of damages to plaintiff in an action for negligence against defendant. Defendant raises a number of issues, but we need not consider all of them because we find one issue dispositive. We reverse and remand for a new trial on grounds that the trial court erred in directing a verdict on the issue of negligence.

Unless otherwise indicated, the following facts come from plaintiff's testimony. At about 10:15 a.m. on September 25, 1973, plaintiff, Wallace Revak, an employee of a scavenger service, arrived at the Village of Hanover Park (Village) municipal building to make his last commercial pickup of the day. Plaintiff's partner, John Magget, was also present at the time. As plaintiff backed his truck into a "leach box" or garbage container, he noticed 20 to 25 five-gallon cans in the area of the leach box. Some of the cans were labelled "poison." Plaintiff said that it was not his custom to read the labels. Since some of the cans were resting against the leach box, he and Magget had to move the cans in order to get to the box. They threw six to eight of the cans into the truck. Also, when they emptied the leach box into the truck, they noticed another one of the cans in the box. Plaintiff testified that it was his habit not only to empty the leach box but to pick up anything in the area of the leach box and throw it into the truck. He said that he had done so for seven years. He also said that there were no warnings of any kind posted in the area of the leach box. On cross-examination, he testified that he was aware of the dangers in his line of work and that he did not always "scoop up" everything he saw.

After they had thrown all the garbage into the truck, a blade in the truck pushed all of the garbage into a separate container. When the blade returned, it splashed a puddle of red colored water which had accumulated in the truck's hopper and some of the substance splashed onto plaintiff's hand. Plaintiff testified that although he was wearing gloves, the substance soaked through and caused a burning sensation in his hands.

Plaintiff testified that about five minutes after they had arrived and immediately after they had returned the leach box to its proper place, Anthony Bursha, a foreman with the water and sewer section of the Village, came out and told plaintiff that he did not want the cans picked up by the scavenger service. Plaintiff, who was angry with Bursha for saying this, told him that he was a little late in making his announcement. Bursha then told plaintiff that he had called the garbage dump the day before and that they had refused to take the cans. He told plaintiff that the substance contained in the cans was used to clean out sewers and that it was very flammable and potent and could cause burns if one were to come into contact with it. Plaintiff stopped loading the cans after this warning. After Bursha had left, three employees of the Village came out and one told plaintiff that the substance contained in the cans was "pretty hot stuff." Plaintiff told him that since the cans were already in the truck, he could not do anything about it. Plaintiff then left the municipal building and went to meet another truck which was working the residential areas of the Village.

Anthony Bursha, a section 60 witness called by plaintiff, testified that the cans had been stored a couple of feet away from the leach box. He said that they had been stored there because the Village was going to bury the cans in a field. The cans were eventually buried two or three days later. Bursha said that he first spoke to plaintiff seven minutes after he had seen plaintiff arrive in his scavenger truck. He said that he ran to plaintiff and told him that he hoped that he had not dumped any of the cans. He told plaintiff that when the powder in the cans was mixed with water, it would smoke. He also told him that there was a danger in mixing the chemical with gasoline rags and water. After these warnings, he told plaintiff to get the cans out of the truck. When plaintiff refused, Bursha told him that "it is bad stuff when mixed with water." Nevertheless, plaintiff said, "You have a fire department, haven't you," and then he left.

After plaintiff had travelled about a quarter of a mile, he heard a hissing sound coming from the back of the truck. He said that it sounded like a "bunch of cats in a closed area." After about 30 seconds, there was an explosion. Despite the explosion, plaintiff kept driving the truck, flashing his lights and sounding his horn as he sped down the highway. He said that he could see smoke and flames coming from the rear of the truck and he headed in the direction of a fire station. When he arrived at the station, the fire was eventually extinguished. Plaintiff testified that while he was driving to the fire station, he was not injured but he felt very upset and was afraid of involving other motorists in his troubles.

William Gresher, chief of the Village Fire Department, testified as plaintiff's section 60 witness. He stated that at approximately 10:40 a.m. on September 25, 1973, he directed the extinguishment of a fire in a garbage truck. He stated that when he first saw the truck, smoke was coming from the back end. In his report, he indicated that the cause of the fire was chemical in origin.

When the fire had been extinguished, plaintiff drove the truck over to the residential area where his foreman, Johnny White, was working. Later that day, White drove plaintiff home. Plaintiff testified that during the ride home, he felt "very upset and very uptight." He said that he had never felt those emotions before. When he arrived home, his wife decided to take him to see their family doctor, Dr. Jamison.

Plaintiff testified that Jamison treated his arm with salve and ointment and told him that he had second degree burns. Plaintiff said that he felt very nervous while he was in the doctor's office. The next day he returned to work, but two days later he returned to see Jamison. He stated that after the incident he was feeling very nervous and emotionally upset because of the incident. He began losing weight. He could no longer get along with those around him and he was having problems sleeping. He testified that he began screaming and crying when he was upset. Also, he stated that he had developed a bad attitude towards the Village on account of what had happened.

Dr. Dan D. Jamison testified that he had first treated plaintiff for convulsions in February of 1973. He next saw plaintiff in May and prescribed some medicine for the convulsions. On September 25, he treated plaintiff for the injuries to his hands. On September 28, he said that plaintiff returned and his hands seemed cured. However, he noted that plaintiff appeared to be "unduly disturbed about the incident, and * * * he mentioned seeing a lawyer." When asked on cross-examination whether the cause of plaintiff's ill being was that he spilt the chemical on his hands, he testified that it was.

The week after plaintiff had last seen Jamison, he went to see Dr. Clapman, a skin specialist. He testified that the reason that he went to Clapman was because he wanted to make sure that there were no cancerous materials in his hands. He saw Clapman three times in the month of October.

In December, plaintiff went to see Dr. Ronald Shlensky, a physician-psychiatrist. He went to see Shlensky because all of the conditions previously described were getting progressively worse. He said that he was developing a very dark attitude of life. He also said that he felt that "everything was closed in around" him. Shlensky recommended that he go immediately into a hospital. However, he did not enter a hospital because he was afraid of losing his job.

Dr. Shlensky testified that plaintiff's attorney had referred plaintiff to him. He said that plaintiff told him that he had suicidal feelings. Plaintiff also told him about the previously described conditions. Shlensky diagnosed these conditions as traumatic neurosis and psychotic depressive reaction and stated that plaintiff was in need of immediate hospitalization. He explained that traumatic neurosis was an illness which begins when there is some traumatic event which somehow reaches every element of a person's state of mind. He stated that an explosion was an example of such a traumatic event. He explained psychotic depressive reaction by saying that it is a depression in which there is a diversion from reality and certain vegetative signs. He stated that this illness is manifested in some cases by an individual thinking that he has cancer inside of him that ...


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