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Ewert v. Wieboldt Stores

OPINION FILED MAY 27, 1980.

WERNER EWERT, JR., PLAINTIFF-APPELLANT,

v.

WIEBOLDT STORES, INC., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID CERDA, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff, Werner Ewert, was seriously injured when he fell while washing windows on the Wieboldt Department Store building located in downtown Chicago. He filed a complaint in the circuit court against Wieboldt Stores, Inc., alleging that their violation of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.) caused his injuries. The trial court denied Wieboldt's motion for a directed verdict at the close of plaintiff's case and defendants Wieboldt and General Window Cleaning Company (impleaded by Wieboldt on a third-party complaint) presented their defense. When the jury could not arrive at a verdict, the court declared a mistrial. Following Wieboldt's motion for the trial judge to reconsider his denial of the directed verdict or, in the alternative, to enter a judgment notwithstanding the "disagreement" of the jury, the trial court entered judgment in favor of defendant. Plaintiff then filed a post-trial motion for the trial judge to reconsider his judgment and, when it was denied, took this appeal. The issues raised are whether the evidence presented at trial was sufficient to raise a jury question under the Structural Work Act (the Act) and whether plaintiff complied with procedural guidelines in perfecting his appeal. Defendant has raised this second issue on appeal, as it did at an earlier date, seeking to preclude plaintiff's appeal. We have previously ruled on the matters raised, and since defendant has presented no persuasive reason to change that decision, we decline to reconsider our ruling. Thus only the Structural Work Act issue remains to be decided.

At the time of the accident plaintiff was 35 years of age and employed as a commercial window washer by General Window Cleaning Company. He had been a window washer for approximately 15 years and had recently been nominated for foreman. Plaintiff had been washing windows on the Madison and State Street sides of the Wieboldt store for several days and, on the day of the accident, he was assigned to the Wabash Street side of the building to finish those windows designated by Wieboldt personnel as missed or inadequately cleaned. He testified that he went to a bay of four windows on the 14th floor, Wabash Street side of the building. He was unable to open the first two windows so he proceeded to the third, which he was able to open. Plaintiff had brought his own equipment, a belt fitted with two terminals, one on each end, which would fit into the anchored hooks on each side of the Wieboldt windows. When securely attached, the connection of the terminals to the anchor would act much as a scaffold to secure plaintiff's safety. He also testified that prior to stepping out through the third window, he was warned by his foreman, Ted Barr, that some of the anchors were bad and might pull out of the wall.

He climbed through the window and connected his belt, sensing that the terminal connections were "sloppy," with considerable movement within the attachment. After completing the first window, he moved to one of the stuck windows and, while still attached to the left anchor, attempted to connect his belt to the anchor on the right side of the next window. He testified that he missed the anchor on the first attempt and then, feeling a tug, saw the terminal detach from the anchor. He fell 15 to 20 feet to a lower roof, sustaining extensive injuries.

On cross-examination plaintiff was questioned about two earlier occasions when he stated, inconsistent with his present testimony, that the anchor had pulled out of the wall. As he explained during direct testimony, plaintiff reiterated that, on at least one of the occasions, he had been on medication for the pain of the accident and had simply confused the two words, terminal and anchor. He also was questioned about inconsistencies in his written statements regarding where he worked prior to his employment with General and the amount of salary he earned on a weekly basis.

The second witness for plaintiff was Carl Pedersen, president of General, who identified a letter which set forth the terms and conditions of the window washing agreement with Wieboldt. The letter stipulated that "General Window Cleaning Company will furnish all labor, supervision, equipment and materials to do the above [window washing]." Wieboldt accepted the proposal on those terms. The testimony of two doctors was presented to establish damages and the final witness, plaintiff's expert, Stanley Sedavy, was called.

Sedavy stated that he was a consulting engineer for Polytechnic, Inc., and was involved in "accident investigation, product safety studies, and general industrial consulting." Sedavy had examined various anchors on the Wieboldt building windows and discovered that two sizes were in use. He utilized the recommendations of the American National Standards Institute in his investigation and found that the terminals on the belt worn by plaintiff complied with those standards. Similarly, the anchors on the majority of the windows he examined met the safety standards. He discovered that although none of the anchors were broken or loose, some of those on the Wabash side, including the one from which plaintiff's terminal purportedly slipped, were smaller in size (.550" to .560") than the ANSI recommended.

Sedavy testified that in his opinion "the hook on the building being considerably undersize as compared to the hook on the belt or the channel on the belt terminal that there was not a secure engagement made and the belt terminal would come off the window hook." His testimony also illustrated how it might have happened:

"Q. Mr. Sedavy, if you had a terminal such as this one with this size channel, if you had a hook with a head which was smaller than .70, let's say it was .60, do you have an opinion based upon a reasonable degree of scientific certainty as to whether or not that particular terminal could come off of that hook with that size head without touching the safety spring?

A. With a head of .60, I would not think that under most conditions the terminal would come off of the anchor.

Q. [What about with] .50?

A. At .50, it would or would not come off with a straight type pull, depending on the actual dimensions. If it was slightly larger or smaller, if the two were the same, some physical force would be required to part it, but it still would come off.

Q. When you say a physical force, straight out pull?

A. Yes, straight out pull would part it ...


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