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Kenny v. Lakewood Eng'r & Mfg. Co.





APPEAL from the Circuit Court of Cook County; the Hon. IRVING R. NORMAN, Judge, presiding.


Rehearing denied June 18, 1980.

Robert R. Kenny instituted a negligence action to recover damages for personal injuries. He was struck in the face by a steel plate welded to two stakes as the plate was being removed from the side of a flatbed trailer owned by the defendant, Joseph T. Ryerson and Sons (Ryerson). The individual moving the steel plate was an employee of the defendant, Lakewood Engineering and Manufacturing Company (Lakewood). Ryerson and Lakewood filed counterclaims against each other seeking indemnity. Ryerson subsequently amended its counterclaim to add a claim for contribution from Lakewood. The jury returned a verdict of $175,000 in favor of the plaintiff and against both Ryerson and Lakewood. Judgment was entered on the verdict. The court directed verdicts for each counterdefendant on the claims for indemnity and contribution. Ryerson and Lakewood appeal from the judgments entered against them in favor of the plaintiff and from the judgments against them on their counterclaims.

The plaintiff was employed as a tractor-trailer driver for the Willett Company. On the date of occurrence, May 5, 1972, he delivered a trailer from the Ryerson premises to the Lakewood plant. The trailer was a flatbed, 35 feet long and 8 feet wide. Located along the perimeter of the trailer were pockets or sockets spaced approximately 14 inches apart. Metal stakes were fitted into the sockets in order to restrain the material loaded on to the bed of the trailer. On each side of the trailer, located toward the front or nose end, there was a steel plate welded to two stakes to which Ryerson would sometimes affix a sign bearing its name. The trailer was loaded with 11 skids of steel, weighing approximately 4000 pounds each. There was a tarp covering the trailer.

Ralph Gallardo, a Lakewood employee, testified that after the plaintiff drove the truck into the loading area at Lakewood, he helped the plaintiff remove the sign from the right side of the trailer. The stakes had already been removed from that side although Gallardo did not see who had taken them out. Gallardo then unloaded the steel situated on the right side of the trailer bed with the aid of a forklift truck. He explained that the forklift had a lift capacity of approximately 5000 pounds.

After unloading the right side of the trailer, Gallardo came around to the left side. He noted that the plaintiff was attempting to remove the sign but that the plaintiff was "having a pretty hard time with it." Gallardo then placed one of the prongs of the forklift under the sign at an angle. Gallardo claimed that "before I started taking the sign off with the fork, I told [the plaintiff] to move back some," and that he saw the plaintiff move back about three or four feet. Gallardo then applied pressure to the sign with the forklift but the sign did not move. However, when he applied pressure a second time, the sign popped out of the socket and, arching to the right, struck the plaintiff in the face.

Gallardo testified that at the time he decided to use the forklift to remove the sign he noticed that "it was pretty rusted solid in there." On cross-examination he stated he did not know if it was rust that caused it to stick. It was not unusual to observe trucks where a sign or stake was wedged. He also stated that on other occasions he had used a crowbar to dislodge a stake or a sign and he had also used the forklift to remove a stake or sign prior to plaintiff's accident.

The plaintiff testified that he and Gallardo removed the sign on the right side of the trailer as well as the stakes on both the right and left sides. While removing the stakes the plaintiff was standing on the ground rather than on the bed of the trailer. The plaintiff proceeded to remove the tarp from the left side. He began at the rear of the trailer and worked forward. At the time he was struck he was bent over to pull the tarp. He did not remember if Gallardo told him to step back a little. Nor did he know what Gallardo was doing at the time he was struck.

Peter DeLuca testified that as the shipping clerk at Lakewood he was responsible for supervising two forklift drivers, including Gallardo. He stated that there was no training program for these drivers at Lakewood. However, it was not the custom of Lakewood to use a forklift to try to remove a sign or other obstacle and that he instructed the drivers not to do so.

The plaintiff introduced evidence that while Ryerson's periodic maintenance program provided for the servicing of trailers every three months the trailer which he drove on May 5, 1972, was not serviced for four months prior to the accident. The plaintiff also introduced evidence to show that Ryerson knew that Lakewood would use a forklift to unload the trailer and that this method of unloading would require the removal of the signs.

Ryerson introduced evidence that the records upon which the plaintiff relied in establishing that the trailer was serviced a month behind schedule were not correct, since the wrong date was entered thereon. The Willett foreman of mechanics testified that while he had seen signs fitted into the slots on a trailer which had surface rust on them, he had never seen one so rusted that it was difficult to take out. Finally, Ryerson introduced the testimony of two Willett mechanics, who service the trailers at Ryerson, on the method of dislodging signs which were stuck in place. One of them testified that if a sign was rusted and could not be taken out, a pry bar and fulcrum would be used. If that did not work a torch would be used. The other testified that if a sign was not readily removable he would try to pry it off or use grease and oil. However, he stated that he never saw a sign that was not readily removable because it was "rusted solid."

Ryerson first argues that the court was in error in failing to direct the verdict in its favor because the plaintiff had failed to prove facts which established the existence of a duty, the breach of that duty and proximate cause.

In arguing that there was no duty Ryerson alleges that the sign was not inherently dangerous and the injury could not have been foreseen as a natural and probable consequence of the condition. (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill.2d 74, 219 N.E.2d 483; Donehue v. Duvall (1968), 41 Ill.2d 377, 243 N.E.2d 222.) The substance of this argument centers around the assertion that the circumstances of the case are extraordinary and that the defendant could not anticipate what it characterizes as the bizarre or far-fetched conduct of Gallardo. Such conduct, according to Ryerson, is only a remote possibility. Ryerson points to the testimony of the employees of Willett stating that if a sign is fixed in place they would remove it by using a pry bar or fulcrum and if that did not work they would torch it out or use a lubricant.

• 1 We do not agree with Ryerson's characterization of Gallardo's conduct. Force was necessary and an immediate source of that force was available, the forklift. We cannot say as a matter of law that the use of the forklift was not reasonably foreseeable. Indeed, that the force was foreseeable is illustrated by the fact that Gallardo in the past had used the same forklift to remove signs from the trailer and DeLuca found it necessary to instruct forklift drivers not to do it. The fact that the object is not inherently dangerous does not preclude recovery. Ryerson seeks to make an analogy between the case and Donehue. In Donehue dirt and glass, although not inherently dangerous by themselves, became dangerous when they were put together and thrown at the plaintiff. The court concluded that the wrongful act of the party who threw the clod of dirt and glass could not be reasonably foreseen. In the instant case, it was entirely appropriate to expect that the item not inherently dangerous, the sign, would have to be removed from the socket, and we do not believe that the analogy is appropriate.

The argument that there is no evidence of a breach of any duty is based on Ryerson's assertion that no evidence was adduced to support the conclusion that the sign was stuck and that the friction was caused by rust. We believe the evidence was abundant to show that the sign was stuck and that it was stuck because of rust. Gallardo stated that the sign was rusted solid and there was rust on the rails and all around the peg in which the stake was placed. The fact that he later stated on ...

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