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Atchley v. Berlen





APPEAL from the Circuit Court of Kankakee County; the Hon. PATRICK BURNS, Judge, presiding.


This is an appeal from a judgment of the circuit court of Kankakee County awarding to the plaintiff, James Atchley, $45,000 for injuries suffered in a fall at the defendants' meat packing plant, and from a subsequent order of the circuit court granting the plaintiff's motion for a new trial on the issue of damages only. For the reasons stated hereafter, we affirm.

The facts relevant to this appeal are as follows. The defendants, Joe Berlen, Jim Argyropolous, and Joseph Maffei, owned a business known as "Tripoles Packing," and operated a slaughterhouse and meat packing plant in Grant Park, Illinois. The plaintiff, Atchley, was employed by the State as a meat inspector, and visited the plant on a daily basis. Atchley had worked at the defendants' plant as a meat inspector as early as 1970. He suffered back problems as a result of a 1971 fall at defendants' plant, and was virtually incapacitated until March 1973. In that month, he returned to work, and despite wearing a brace for a drop foot condition, was able to perform all of his duties without difficulty.

The office of the meat inspector at the Tripoles plant is located on the second floor. However, the actual inspection of the animal carcasses is done on the floor below, the "kill floor." The plaintiff normally reached the kill floor by walking down a concrete ramp connecting that floor with the second floor. This ramp was not equipped with handrails, and its surface was smooth.

On the day in question (July 17, 1973), the ramp was slick with blood and grease from recently slaughtered animals. Prior to proceeding down the ramp to inspect a carcass, the plaintiff requested that defendant Berlen clean off the ramp with a hot-water hose located at the bottom of the ramp. Berlen, however, refused. The plaintiff then proceeded down the ramp. When he was about halfway down the ramp, his feet flew out from under him and he fell, injuring his back. Although he was in a great deal of pain, he finished work that day.

Shortly thereafter, the plaintiff was admitted to a Kankakee hospital, where he was treated for 17 days. Treatment included pelvic traction, passive physical therapy, and administration of medication to relieve his almost constant pain. Subsequently, he was transferred to Northwestern Memorial Hospital in Chicago, where surgery revealed a herniated disc at the location indicated by previous myelograms. A laminectomy was then performed upon his lower back. Three weeks later he was discharged and instructed not to bend, lift, or stoop. Because of the pain, the plaintiff's physician, Dr. Siqueria, prescribed the use of a back brace in March 1974. Two months later, Dr. Siqueria declared the plaintiff to be permanently disabled. Although he could engage in a sedentary occupation, he was no longer physically able to fulfill his duties as a meat inspector. As a consequence, the Director of Meat and Poultry Inspection requested the plaintiff's resignation in 1975.

On July 16, 1974, the plaintiff filed the instant personal injury action against the defendant. In his complaint, the plaintiff alleged that the defendants were negligent in failing to maintain the ramp in a safe condition and in failing to install handrails on the ramp. The case was subsequently tried before a jury, and at the close of the plaintiff's case the defendant moved for a directed verdict on the grounds that the plaintiff was contributorily negligent as a matter of law. This motion was denied. The jury eventually returned a verdict in favor of the plaintiff and awarded him damages of $45,000, but the trial court, stating that in his opinion the damages were in excess of $300,000, granted the plaintiff's motion for a new trial on damages only.

• 1 On appeal, only two issues are raised for our consideration. The first is whether the trial court erred in denying the defendants' motion for a directed verdict at the close of the plaintiff's case in chief. The defendants contend that the evidence reveals the plaintiff to have been contributorily negligent as a matter of law, and that consequently their motion should have been granted. The standard to be used in determining whether contributory negligence exists as a matter of law is the same as that used in determining whether a directed verdict or judgment n.o.v. was proper: does all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favor the movant that no contrary verdict based on that evidence could ever stand (Mundt v. Ragnar Benson, Inc. (1975), 61 Ill.2d 151, 335 N.E.2d 10; Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504; Rhoades v. W.E. O'Neil Construction Co. (1980), 80 Ill. App.3d 1117, 400 N.E.2d 1035). Viewing the evidence in a light most favorable to the plaintiff, we cannot say that as a matter of law the plaintiff was contributorily negligent.

• 2 In contending that the plaintiff was in fact contributorily negligent as a matter of law, the defendants argue that the plaintiff had at least two other ways to get to the kill floor from the second floor, yet consciously chose the more dangerous means of access. It is well settled that if a plaintiff has available to him two different ways of proceeding, one dangerous or hazardous and the other safe, consciously chooses the former, and is injured as a consequence, he is contributorily negligent as a matter of law (Harris v. Union Stock Yard & Transit Co. (1975), 29 Ill. App.3d 1072, 331 N.E.2d 182; Reid v. Employers Mutual Liability Insurance Co. (1973), 14 Ill. App.3d 174, 302 N.E.2d 108; Day v. Barber-Colman Co. (1956), 10 Ill. App.2d 494, 135 N.E.2d 231). However, in the instant case the plaintiff did not have another available route to the kill floor. It is true that access to the kill floor from the second floor could be obtained in one of three ways: A person could walk down the ramp connecting the kill floor with the second floor (the route taken by the plaintiff); go outside and around the building, climb a fence, walk through the livestock pens, and enter the kill floor through a door normally used to bring in livestock; or go outside the building, walk around it, enter the "inedible room," and descend a different ramp leading to the kill floor. Neither of these latter two means of access, however, presented a viable alternative to the plaintiff because both the livestock pens and the inedible room contained contaminants. The only choices actually available to the plaintiff were to proceed down the ramp or remain in his office on the second floor, in which case he would be unable to fulfill his duties as a meat inspector.

In addition, the record reveals that the plaintiff did all he reasonably could have done to make the ramp safe before he proceeded. He requested that the ramp be cleaned (which request was refused by defendant Berlen), and, despite defendants' suggestion that the plaintiff could have compelled the cleaning of the ramp by closing down the plant, his authority to close the slaughterhouse was limited to only those instances when conditions in the plant created the possibility of direct product contamination. The plaintiff did not have the authority to close the plant simply because blood and grease had accumulated on the floors. Therefore, the plaintiff could not have used his authority to close the plant as a lever to force the defendants to clean the ramp.

The defendants further contend that the plaintiff, as a result of his infirmity, a drop foot, was under a responsibility to use greater care in proceeding down the slippery ramp than that required of one without such an infirmity. "[I]t may be incumbent on one with a physical disability to put forth a greater degree of effort than would otherwise be necessary in order to attain that standard of care which is required of everyone" (65A C.J.S. Negligence § 142 (1966); Accord, Prosser, Torts, § 32 (4th Ed. 1971)). However, the defendants have presented no evidence that the plaintiff, although cognizant of his infirmity, failed to meet the standard of care which the law imposes upon him. For this reason, the defendants' argument that the plaintiff failed to meet the applicable standard of care is without merit.

"To be guilty of contributory negligence as a matter of law it must appear that all reasonable minds would agree that assuming the facts as presented by the plaintiff and all reasonable inferences that may be drawn therefrom in her favor, plaintiff is nevertheless guilty of contributory negligence. [Citations omitted].

Whether a plaintiff is guilty of contributory negligence is ordinarily * * * a question of law only when the evidence is so clearly insufficient to establish due care that all reasonable minds would reach the conclusion that there was contributory negligence."

(Swenson v. City of Rockford (1956), 9 Ill.2d 122, 128, 136 N.E.2d 777, 780.) Reviewing the record, we are of the opinion that the evidence in this case establishing due care is not so insufficient so as to take the question of contributory negligence away from the ...

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