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Walsh v. A.d. Conner

OPINION FILED AUGUST 19, 1981.

MICHAEL WALSH, PLAINTIFF-APPELLEE,

v.

A.D. CONNER, INC., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN W. GUSTAFSON, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The plaintiff, Michael Walsh, brought this action to recover damages for personal injuries he suffered as the result of the alleged negligence of the defendant. A jury returned a verdict in favor of the plaintiff and against the defendant in the amount of $87,000. The defendant's motion for judgment notwithstanding the verdict or, in the alternative, a new trial was denied, and the defendant appeals.

On July 2, 1973, the plaintiff was employed by Illinois Service Oil Company (Illinois Service) as an attendant and acting manager of a Texaco gas station. On the evening of July 2, the defendant delivered gasoline to the station in its tank truck. The plaintiff, pursuant to procedures established by his employer, climbed up to the top of the truck, broke the seals on the truck, and visually inspected the contents in order to determine whether the correct amount of gasoline was contained therein. A ladder located at the rear of the truck provided the only means of access to the top of the truck.

After inspecting the contents of the truck, the plaintiff began to descend the ladder. His foot slipped off the top rung, and he fell approximately eight feet to the ground. The plaintiff landed on his right foot which was injured. It is the plaintiff's contention that the defendant was negligent in failing to provide him with a reasonably safe means of access to the top of the truck.

At trial the plaintiff described the manner in which he descended the ladder. The plaintiff sat down on the metal edge of the trough which was located on the top of the truck. He placed his feet on the first rung of the ladder which was approximately 18 inches below the edge. The plaintiff placed his hands on the lip of the edge because the handrail provided did not extend to the top of the truck. The plaintiff next attempted to turn his body around from this position so that he could descend the ladder facing the truck. In the process of turning, the plaintiff's right foot slipped off the rung, and he fell to the ground.

The plaintiff explained that there was an alternative way to descend the ladder. He stated that, while facing the front of the truck, he could have squatted, gripped the sides of the truck and extended his foot blindly until he felt the top rung of the ladder. The plaintiff testified that after testing both means of descent, he concluded that the first method was better.

The plaintiff additionally testified that some truck drivers pumped gasoline through a meter which would record the amount of the delivery. He did not recall if the defendant's drivers ever used a meter during their deliveries. The plaintiff asserted that the use of a meter eliminates the necessity of inspecting the contents of the truck.

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.

Plaintiff's expert, Stanley Sedivy, testified that the ladder on the truck did not provide a reasonably safe access to the upper portion of the truck. He stated that the ladder was not in accordance with the accepted design criteria of the American Standard Institute. Sedivy asserted that the spacing between the steps of the ladder was too great, that the handrail should have extended 3 1/2 feet above the top of the truck, and that the width of the steps was too small. Sedivy described the manner in which one could modify the width of the steps and the handrail in order to conform with the safety standards. He stated that the cost of said modification would be approximately $70.00.

Sedivy further testified that there was no safe manner in which to descend the ladder. Concerning the two ways described by the plaintiff, Sedivy stated that neither method was safer than the other.

Eugene Lietz, part owner of the defendant corporation, testified that he was unaware of any ladder design which was different from the one on defendant's truck. He did not participate in the design or manufacturing of the truck which was purchased from Heil & Heil. He asserted that there would be problems loading the trucks at the refinery if a ladder extended 3 1/2 feet above the top of the truck.

Lietz stated that in 1973 the defendant delivered gasoline to 250 service stations. Only Illinois Service and one other station requested that their employees be permitted to inspect the contents of the delivery by climbing to the top of the truck. Such a request was against defendant's policy. As a safety precaution, the defendant did not allow anyone near its truck except the driver. However, the defendant made an exception for Illinois Service, its customer of 12 to 15 years.

Lietz further testified that if a service station asked his drivers to pump the gasoline through a meter, the request would be honored. However, Lietz stated that if the gasoline was metered, the pumping of the gasoline took twice as long.

Joseph Kissane testified that he was the driver of the truck involved in the accident. He stated that the plaintiff did not fall from the top step of the ladder. Kissane maintained that the plaintiff's foot slipped off the bottom step of the ladder, which was approximately 18 to 20 inches from the ground. He further testified that although no one requested that he use a meter while unloading the gasoline, he could have done ...


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