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Pendowski v. Patent Scaffolding Co.

OPINION FILED SEPTEMBER 23, 1980.

FRANK PENDOWSKI, PLAINTIFF-APPELLEE,

v.

PATENT SCAFFOLDING COMPANY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES C. MURRAY, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Plaintiff, Frank Pendowski (Pendowski), filed this personal injury suit against defendant, Patent Scaffolding Company (Company). One count of the complaint sought compensatory damages based upon Company's alleged ordinary negligence, and one count sought punitive damages based upon Company's alleged wilful and wanton conduct. Company admitted its liability on the negligence count. Thus the trial issues were a determination of (1) the amount of compensatory damages, if any, due to Pendowski on the negligence count, and (2) whether Company had wilfully and wantonly breached a duty owed to Pendowski so as to allow an award of punitive damages. The jury returned a verdict finding Company to have both negligently and wilfully and wantonly breached a duty owed to Pendowski, awarding $500,000 negligence damages and $200,000 punitive damages. Company appeals the finding of wilful and wanton conduct and the punitive damages award.

The issues raised on this appeal are: (1) whether the evidence presented at trial adequately demonstrated that Company was guilty of wilful and wanton conduct which would support an award of punitive damages, (2) whether the trial court erred in its choice of jury instructions, (3) whether the trial court erred in denying Company's several motions for mistrial which were based upon the allegedly improper and prejudicial manner in which Pendowski conducted his case, and (4) whether Pendowski's amended complaint validly stated a cause of action for punitive damages based upon wilful and wanton conduct.

Company engages in the business of manufacturing, furnishing, erecting, and dismantling scaffolding and protective canopies. In 1973, Company entered into a contract to build a scaffold and protective canopy on the southwest corner of the building located at 80 East Van Buren Street, Chicago. The scaffold was to be constructed at the top floor of the 20-story building. The canopy was to be built on the sidewalk directly below.

On September 11, 1973, as Company's employees were engaged in constructing the scaffold, a jack handle used on the job was dislodged from the partially built structure by one of the employees. The jack handle fell the 20 stories to street level, where it struck Pendowski, a pedestrian, as he walked past the area. The site of the impact was not covered by a protective canopy. Pendowski suffered severe injuries to his right foot which necessitated several surgical procedures including a partial amputation. This action followed.

The testimony and evidence relevant to this appeal concerns Pendowski's allegation that Company conducted itself in a manner which could legally be characterized as wilful and wanton, thereby allowing entry of a punitive damages award.

Victor Arbor (Arbor), manager of Company's Chicago branch, testified that he had contracted for Company for the construction of the scaffold and canopy in question. Arbor made an on-site inspection of the premises, determined what type of scaffolding would be necessary, and designed a protective canopy for the street level area below the scaffold. The purpose of the canopy, he stated, was to protect pedestrians passing the site. Prior to the on-site inspection, Arbor desired to extend the canopy across the alley (18 feet wide) located next to the building upon which the scaffold was to be built. The other party to the contract did not desire to undertake the extra cost that this would involve, and on-site inspection demonstrated, in Arbor's opinion, that such a structure was not feasible in any event because of traffic in the alley. Therefore, a canopy extending only four feet into the alley was built. Arbor testified that under normal circumstances, with a scaffold 20 stories high, the canopy would have been at least 10 feet wide.

Arbor also testified that Company had designed the scaffold jack handle and machine in which it was used. He stated that no safety line was used on any of the tools during work and that he knew of no law requiring such safety lines. He stated that use of a safety net below the scaffold during its construction was not feasible, although he did not specifically state why. Arbor related that once the scaffold was completed, a mesh cloth was placed around it which would prevent any tools from thereafter falling off the structure. He also related that the likelihood of an item falling off the scaffold existed only while it was not yet completed. He had no knowledge of any locking devices to keep the jack handle locked into the machine during use. He noted that Company used no warning signs nor other information devices at street level during construction. He stated that Company had not experienced an accident such as happened here in its 62 years of business.

Also called to testify were the two employees of Company who were working on the scaffold when the accident occurred. One witness stated that a rope could be attached to the jack handle since that was how it was lowered to the scaffold from the roof above. The employee who knocked the jack handle off the scaffold testified that it happened as he was adjusting a ladder running from the scaffold to the roof and that the occurrence was wholly accidental.

I.

The controlling issue is Company's contention that the evidence presented to the jury was insufficient to prove its liability for wilful and wanton conduct.

• 1 It has long been established that punitive damages may be awarded when torts are committed with fraud, actual malice, deliberate violence or oppression, or when the defendant acts wilfully or with such gross negligence as to indicate a wanton disregard of the rights of others. (Kelsay v. Motorola, Inc. (1978), 74 Ill.2d 172, 186, 384 N.E.2d 353.) While the measurement of punitive damages is a jury question, the preliminary question of whether the facts of a particular case justify imposition of such a penalty is properly one of law. (Kelsay.) We therefore undertake review of Pendowski's case to determine the validity of the trial court's submission of the question to the jury in the first instance.

• 2 A tort is characterized as having resulted from wilful and wanton conduct when such conduct is intentional, or when the act is committed under circumstances exhibiting a reckless disregard for the safety of others. Failure, after knowing that there is impending danger, to exercise ordinary care to prevent it, or failure to discover danger through recklessness or carelessness when it could have been discovered by the exercise of ordinary care, constitutes wilful and wanton conduct. (Schneiderman v. Interstate Transit Lines, Inc. (1946), 394 Ill. 569, 583, 69 N.E.2d 293.) It was incumbent upon Pendowski to demonstrate that Company's actions fell within this definition in order for him to have succeeded in his punitive damages action.

Pendowski argues that Company failed to exercise ordinary care in the face of the known danger that objects could fall from the scaffold to the street below. For examples of the "ordinary care" which Company allegedly could and should have used, Pendowski states that netting hung directly below the scaffold during construction to catch falling objects was feasible. Pendowski also suggests that warning signs should have been erected at street level, that ...


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