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Derrico v. Clark Equipment Co.

OPINION FILED NOVEMBER 26, 1980.

JERRY DERRICO, PLAINTIFF-APPELLANT,

v.

CLARK EQUIPMENT COMPANY, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF-APPELLANT. — (HENRY STEWART, D/B/A STEWART BUILDING MAINTENANCE, ET AL., THIRD-PARTY DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE A. HIGGINS, Judge, presiding.

MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The plaintiff, Jerry Derrico, brought this action for damages pursuant to the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.) and for common law negligence for injuries he sustained while working at the showroom of the defendant, Clark Equipment Company (Clark). At the close of the plaintiff's case the trial court directed a verdict as to the Structural Work Act count in favor of Clark. The jury returned a verdict in favor of Clark as to the negligence count and found by answer to a special interrogatory that the plaintiff was guilty of contributory negligence. Judgment was entered on the verdict and the plaintiff appeals. Clark also conditionally appeals from the summary judgment entered against it and in favor of the third-party defendants on Clark's third-party complaint for indemnity.

The accident occurred on June 23, 1973, while the plaintiff was washing the windows of a showroom owned by Clark. Henry Stewart, d/b/a Stewart Building Maintenance (Stewart), had a contract with Clark to perform janitorial services. Stewart subcontracted the window washing portion of the contract to the plaintiff, who owned and operated a window-cleaning service. The plaintiff had washed the windows at Clark for approximately seven years.

When the showroom first opened, approximately seven years prior to the accident, a manager of Clark told the plaintiff not to clean the windows by standing on the floor and using a pole. Therefore, it was necessary to use a ladder in order to wash the windows. Upon completion of the work someone at Clark would sign the plaintiff's job ticket which stated that the work was performed satisfactorily. In most instances, however, no inspection was made of the work. The plaintiff then submitted the job ticket to Stewart for payment.

On the day of the accident the plaintiff and his summer helper, Jeffery DeLeon, entered Clark's showroom. The plaintiff testified that he asked an employee of Clark to move three forklifts which were parked parallel to the windows.

The plaintiff and DeLeon followed a regular routine while washing the windows. The plaintiff placed his ladder against the ledge which divided the upper and lower panes of glass on the first window. He gave the ladder, which had rubber shoes, a push or two to firm it. The plaintiff would dip his sponge into his bucket, wring out the sponge, climb up the ladder, wipe the upper pane, squeegee it and descend the ladder. The plaintiff would then move the ladder to the second window and DeLeon would wash the bottom pane of the first window. The plaintiff would then squeegee the pane that DeLeon had just washed. The plaintiff would repeat this procedure for the top pane of the next window and DeLeon would wipe off the water on the bottom ledge of the first window. DeLeon testified that if any water fell to the floor it never extended more than two inches from the window.

After washing approximately 10 windows, the plaintiff was descending the ladder when it started to slide. The ladder fell from the dividing ledge and hit the lower window pane. In order to prevent the ladder and himself from falling through the window, the plaintiff jerked back the ladder which slipped out from under him. He fell from the ladder and landed on the right side of his hip.

After his fall the plaintiff noticed a foreign substance on the floor. DeLeon testified that he observed that the legs of the ladder were partially in a 6-inch by 2-foot clear puddle on the floor. DeLeon stated that the substance felt like motor oil. He stated that the puddle was directly underneath the area previously occupied by the forklifts. The plaintiff testified that on two prior occasions he had observed oil on the showroom floor.

The plaintiff was taken by ambulance to a hospital. His son, Thomas Derrico, went to Clark's premises to pick up his father's equipment and automobile. Thomas testified that he noticed that there was some oil on the rubber shoes of his father's ladder. He smelled the substance and recognized it as hydraulic fluid. He was familiar with the smell of this fluid because he had operated an automobile body shop for 10 years.

The plaintiff and his doctors testified concerning the nature and extent of his injuries. This testimony will not be discussed because it is irrelevant to this appeal. The plaintiff also described a subsequent injury which occurred when he returned to work. This accident occurred when the plaintiff's leg gave out while he was standing on a ladder and washing the windows of a private residence with a pole.

Irving Hazard, a registered professional engineer, conducted tests on the plaintiff's ladder at the request of Clark. The tests were conducted on a floor under different conditions in order to determine when the floor was most slippery. The results of the test in the order of slipperiness were as follows: (1) floor with motor oil on it; (2) floor with hydraulic oil on it; (3) dry floor; (4) wet floor. Hazard explained that the reason the wet floor was most resistant to slipping was that there is better adhesion between the rubber shoes on a ladder and the floor when the surface is wet.

On cross-examination Hazard stated that a person placing a ladder in oil would feel it immediately because the ladder would begin to move when tested for its sturdiness.

The trial court refused to admit into evidence the plaintiff's photograph of the showroom because there were markings on the picture and because the jury could readily visualize the showroom's appearance.

At the conclusion of the plaintiff's case the trial court directed a verdict in favor of Clark as to the Structural Work Act count of the plaintiff's complaint. The court found that there was no evidence that Clark was in charge of the work performed by the plaintiff.

Howard Gleiter, Clark's general sales manager at the time of the plaintiff's accident, testified that the forklifts were not parked parallel to the windows but were parked at 45° angles. He stated that there was no request to move the machines and that he gave no instructions to the plaintiff concerning the manner in which he washed the windows. Gleiter also testified that there were several feet of water on the floor and that DeLeon was using a mop and bucket to clean the floor.

Gleiter claimed that there were no rubber shoes on the ladder but that there was a smooth rubber skid pad. On cross-examination the plaintiff's counsel attempted to impeach Gleiter with his deposition testimony. The following colloquy occurred:

"Q: And didn't you also contend that he (the plaintiff) said to you that he should have replaced the bottom skids quite a while back? He said some months ago he was tempted to replace them because they had worn smooth?

A: Yes."

A second Clark employee at the time of the accident, Nicholas Haviland, testified that the forklifts were parked at 45° angles and that their tips were four to five feet from the window. He also testified that ...


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