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Zizzo v. Ben Pekin Corp.

OPINION FILED DECEMBER 12, 1979.

FRANK ZIZZO, PLAINTIFF-APPELLEE,

v.

BEN PEKIN CORPORATION ET AL., DEFENDANTS. — (BEN PEKIN CORPORATION, DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLEE,

v.

MARINO PLUMBING COMPANY, THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Frank Zizzo brought this action pursuant to the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60, et seq.) to recover damages for personal injuries which he suffered while working on a construction project. A jury in the Circuit Court of Cook County returned a verdict in favor of the plaintiff and against the general contractor, Ben Pekin Corporation, in the amount of $125,000. The jury also returned a verdict on the third-party complaint in favor of Ben Pekin Corporation and against Marino Plumbing Company, the plaintiff's employer. The trial court entered judgments on the verdict. Ben Pekin Corporation appeals that portion of the order which entered judgment against it in the amount of $125,000. Marino Plumbing Company appeals from an order denying its post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial.

The following issues are raised on appeal:

1. Whether Ben Pekin Corporation failed to provide the plaintiff with a safe and suitable scaffold upon which to perform his work.

2. Whether Ben Pekin Corporation's conduct was the proximate cause of the plaintiff's injury.

3. Whether Ben Pekin Corporation wilfully violated the Structural Work Act.

4. Whether the trial court erred in refusing to grant judgment notwithstanding the verdict in favor of Ben Pekin Corporation.

5. Whether the verdict against Ben Pekin Corporation is against the manifest weight of the evidence.

6. Whether the verdict in favor of Ben Pekin Corporation and against Marino Plumbing Company is against the manifest weight of the evidence.

The plaintiff claims that several points raised in Ben Pekin's brief were not preserved for review because they were not particularly specified in the post-trial motions. The plaintiff, however, does not specify to which issues he is referring. Although there is an absence of detail in these motions, we believe the points raised by Ben Pekin were sufficiently specific to preserve the issues for our review.

On October 21, 1970, the plaintiff, a journeyman plumber, was employed by Marino Plumbing Company and was working on the construction of the Hammond-Columbia Refrigerated Warehouse located at 4551 South Racine Avenue in Chicago. Ben Pekin Corporation was the general contractor in charge of the construction of the warehouse.

On that day the plaintiff and Thomas Hein, another employee of Marino, were working with Gerald Selemi, Marino's foreman, in the engine room of the warehouse. Their assignment was to install 8-inch water main pipes which were to be suspended from the ceiling of the engine room.

The plaintiff testified concerning the various equipment Marino used to install overhead ceiling pipes. Marino owned a 5-foot by 8-foot rolling scaffold, as well as an Econo-ladder, a mobile ladder which could be cranked up to different heights. The Econo-ladder had a wood platform with a safety rail upon which a worker could stand. A third piece of equipment used to install the pipe was the roust-a-bout, a mobile type crank used to raise the pipe to the ceiling. Marino also possessed a chain fall, a 60-pound pulley-type object which could raise the pipe to the ceiling.

The engine room in which the plumbers were working was very confined. The room contained machinery, and the aisles were cluttered with pipes and equipment. In addition, other tradesmen were working in the room.

The plaintiff was instructed to use the chain fall to install the pipe. It was not possible to use either the rolling scaffold, the Econo-ladder or the roust-a-bout to attach the chain fall because these three devices were too large to use in the crowded work area.

Pursuant to the direction of Selemi, the plaintiff obtained a 14-foot A frame circular rung ladder which had been leaning against the wall in the engine room. Although the ladder did not belong to Marino, the plaintiff had used the ladder on previous occasions. The plaintiff opened the ladder and positioned it over a large piece of machinery.

The plaintiff climbed up the ladder and attached a beam clamp to an overhead beam in the ceiling upon which he would hook the chain fall. He also placed a rope over a pipe so that both ends of the rope dropped to the floor. Selemi and Hein tied one end of the rope around the chain fall and pulled on the other end of the rope, raising the chain fall to where the plaintiff was standing on the ladder.

The plaintiff was standing near the top of the ladder with one foot on the third rung and one foot on the fourth rung. He reached two feet to his right to pick up the chain fall and lift it over his head. When the plaintiff attempted to attach the chain fall to the beam clamp, he felt the ladder move and felt a pain in his back which ran down his leg. The plaintiff missed the beam clamp, his arm dropped down and the chain fall hit the top of the ladder. The plaintiff again attempted to lift the chain fall and felt "a stab in the spine and then like a shooting pain went down my leg." After resting for a moment, the plaintiff successfully attached the chain fall and continued to work the remainder of the day.

The pain in the plaintiff's back became more severe in subsequent days. After medication, bed rest, traction and physical therapy failed to alleviate the pain, the plaintiff eventually underwent an operation on his back. Despite the operation, the pain in the plaintiff's back and leg remains severe and, as a result, there are periods of time from one to three weeks during which he is unable to work. Because of his work record following his injury, the plaintiff is unable to obtain employment and is self-employed.

The plaintiff also testified concerning a prior operation on his spine. In 1956 he injured his back while lifting 300- to 400-pound valves. His back worsened over the years and in 1965 he underwent an operation. Subsequent to this surgery, the plaintiff engaged in strenuous work by unloading trucks and installing pipes. He encountered no problems with his back until his injury in 1970.

Dr. James W. Ryan, an orthopedic surgeon, testified that he treated the plaintiff for his 1970 back injury. Dr. Ryan stated that the plaintiff's medical history indicated that he had surgery for disc problems, a laminectomy, approximately 5 years previous to his 1970 injury. In 1971 Dr. Ryan assisted a neurosurgeon who again performed a laminectomy upon the plaintiff. In Dr. Ryan's opinion, the second injury could have caused the flare-up of the plaintiff's previous disc problems. In addition, Dr. Ryan believed that the plaintiff's condition was permanent.

The plaintiff called J.B. Duke, Jr., to testify as an adverse witness. In October 1970, Duke was vice-president of the construction division of Ben Pekin Corporation. It was his responsibility to see that all the jobs that he was supervising were completed in a workmanlike manner. Duke spent 3 hours to 8 hours a day at the Hammond-Columbia construction site.

Duke testified that neither he nor Ben Pekin's foreman supervised the subcontractors in regard to safety. Ben Pekin did not initiate any safety program for this job or establish safety rules for the subcontractors. Duke also testified that although the foreman was not a safety inspector, he had the responsibility of that job. If Duke or the foreman observed an unsafe practice by a subcontractor, they would contact the ...


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