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Urman v. Walter

OPINION FILED NOVEMBER 13, 1981.

FRANK URMAN, PLAINTIFF-APPELLEE,

v.

FRED WALTER ET AL., D/B/A VERMONT STREET INVESTMENTS, DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES D. CROSSON, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendants were found liable to plaintiff under the Structural Work Act. (Ill. Rev. Stat. 1979, ch. 48, par. 60.) The trial court entered judgment against defendants in the amount of $83,232.50 for injuries plaintiff suffered when a 600-pound steel truss fell on his leg. Defendants appeal, contending that (1) the Structural Work Act is inapplicable to the circumstances of this case; (2) the trial court erred in preventing defendants from amending their answer to plead that plaintiff was their employee, which may have constituted a defense under the Workmen's Compensation Act (Ill. Rev. Stat. 1979, ch. 48, par. 138.5); (3) the judgment should be reversed because of plaintiff's counsel's prejudicial closing argument; and (4) the trial court abused its discretion in allowing plaintiff's expert witness to testify after he had failed to give defendants his deposition. We affirm the trial court.

Plaintiff, a structural ironworker, was injured on September 21, 1974, while he was working at a construction site in Palatine, Illinois. The individual defendants owned Vermont Street Investments, which was the general contractor for the construction project. Defendant Walter took the most active role as general contractor for the erection of the structural steel, scheduling and coordinating the steel erection. As general contractor in charge, he was also responsible for safety on the job site.

Walter had originally hired Jim's Welding Service to erect the steel columns, beams, and trusses into a grid so that the roof decking could be laid. By the day of the occurrence, however, Jim's Welding had only partly completed the work and could not continue. Walter therefore contacted another ironworker, Lenny Aftstein, who worked for Corbetta Steel Company, and arranged for him and his co-workers, including plaintiff, to finish the job on a weekend.

When plaintiff and the other ironworkers arrived at the site, the perimeter and partition brick walls of the building were completed. The interior ground had been filled with gravel, clay, and unrefined sand, which had been graded once before the masonry work was begun. The roof trusses, which were to be placed on top of the beams, were outside the building when the ironworkers arrived. They moved them inside with a crane and placed them directly on the ground. At that time, the ground was bumpy and full of ruts because it had been used by forklifts, trucks, and cranes after being graded once.

In the early afternoon of the day of plaintiff's injury, a heavy rain fell and stopped the ironworkers for approximately 30 minutes. Shortly after the rain ceased, the men returned to work. Plaintiff and Herman Johnson, the ironworker's foreman, began the necessary procedures to lift the trusses in place on the roof beams. Just before the accident, Johnson and plaintiff were preparing to attach a choker or sling around one of the trusses so that they could hook the other end onto the crane that would lift it into place. Suddenly, several trusses fell over and pinned plaintiff to the ground, breaking his ankle. He was taken to a hospital for treatment.

Plaintiff filed suit against defendants on October 17, 1975, seeking $200,000 in damages for his injuries.

In October of 1979, the trial began. Plaintiff first called defendant as a witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 60). Walter admitted that he was the general contractor in charge of safety on the job site. He testified that he was familiar with the practice of using cribbing or wood supports to stabilize trusses. He also testified that plaintiff was not his employee.

Plaintiff then presented three witnesses who testified as to the customs and practice of the ironworking industry with respect to the support of trusses on job sites. Herman Johnson, the foreman, was an ironworker with 24 years of experience. He stated that the "normal procedure" was to put the trusses on four-by-four planks of lumber to make them level and prevent them from rolling. Johnson further testified that when he asked defendant Walter for lumber to be used for such support, he was told that there was none available.

James Finney, an ironworker with 12 years experience, also testified from his personal knowledge that the custom and practice in the ironworking industry was to support trusses with heavy lumber to support and stabilize them. He further testified that the general contractor is the party responsible for providing such cribbing.

In addition to the other two witnesses, Charles Schultz testified for plaintiff, over defense objections, as an expert on industry practices. His experience included a total of 10 1/2 years as a safety inspector for State and Federal government agencies. At the time of trial, Schultz worked as a construction safety consultant for general contractors. In his opinion, based on plaintiff's counsel's hypothetical, the trusses had been placed on unstable ground without sufficient support and created a dangerous situation that violated the rules and general practices of the construction industry. He further testified that four-by-fours, four-by-sixes, or railroad ties should have been used as cribbing for the trusses, to protect the workers.

Dr. Robert W. Alfini, plaintiff's treating physician, described the injury and the surgical procedures used to repair plaintiff's broken ankle. He also testified that plaintiff wore a leg cast for approximately 12 weeks. Subsequently, he underwent physical therapy. By the time of trial, although the break had healed, plaintiff still suffered from some permanent damage to the soft tissue surrounding the fracture. He continued to suffer pain upon prolonged activity and changes in the weather.

After plaintiff rested, defendants moved for leave to amend their answer to plead the affirmative defense that plaintiff was defendants' employee. They proposed to show that since plaintiff collected unemployment compensation from defendants, he was barred from suing them under the Structural Work Act. Plaintiff objected on the grounds that such an amendment was untimely. Further, he argued that defendant Walter's admission that plaintiff was not his employee was a binding admission on that issue. The court allowed defendants to file the motion for the record but denied leave to amend the pleadings to add the affirmative defense.

Defendants then called the court reporter who had been present during plaintiff's deposition on July 21, 1977. She read portions of the deposition into the record. *fn1

At the close of their case, defendants moved for a directed verdict, which was denied. The jury was instructed, following counsels' closing arguments, and they ...


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