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Ciborowski v. Philip Dressler & Assoc.

OPINION FILED NOVEMBER 30, 1982.

LADDY A. CIBOROWSKI, PLAINTIFF-APPELLEE,

v.

PHILIP DRESSLER & ASSOCIATES ET AL., DEFENDANTS. — (GOLD SEAL BUILDERS, INC., DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLEE,

v.

JAMES MANSFIELD & SONS, INC., THIRD-PARTY DEFENDANT-APPELLANT.)



Appeal from the Circuit Court of Cook County; the Hon. James E. Sullivan, Judge, presiding.

JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 11, 1983.

Laddy Ciborowski brought this action against Philip Dressler & Associates (Dressler) and Gold Seal Builders, Inc. (Gold Seal), under the Structural Work Act for personal injuries he received while working on a roof under construction. Dressler was the owner-contractor of the project and Gold Seal was the general contractor. Dressler and Gold Seal filed separate third-party actions against James Mansfield & Sons, Inc. (Mansfield), who was plaintiff's employer, based on implied indemnity. Dressler also filed a counterclaim against Gold Seal for indemnity.

Jury verdicts were returned in favor of plaintiff against Gold Seal in the amount of $600,000, and in favor of third-party plaintiff Gold Seal against third-party defendant Mansfield for indemnity. Dressler was found not liable to plaintiff. In addition, the jury answered in the affirmative a special interrogatory asking whether Gold Seal was guilty of major fault. Judgment was entered on the general verdict. Gold Seal appeals, contending the trial court erred in denying its motion for judgment notwithstanding the verdict, denying its motion for a new trial, and denying its motion for a remittitur. Mansfield appeals, contending that the general verdict against it should be set aside because of the jury's answer to the special interrogatory.

The facts surrounding plaintiff's injuries are not critical to this appeal and will be recited only briefly. On August 7, 1974, plaintiff was working on the roof of a tennis club under construction in Glen Ellyn, Illinois. The roof, which is about 20 feet off the ground at the edges, has a rise of four inches for every 12 inches of roofing. Part of this roofing consisted of corrugated steel sheets which were placed on the structural members. At about 7:15 a.m. on August 7, plaintiff slid from near the peak of the building and fell to the ground. He asserted that oil on the sheets caused him to slip. Plaintiff, who was 29 years old at the time, sustained extensive injuries from the fall, including two fractured vertebrae and sciatic nerve damage. He underwent surgery on his hip and back for the placement of metal supports and further surgery to remove the supports and to fuse spinal members. There was conflicting testimony as to whether plaintiff would ever be able to return to work.

The posture of the parties is critical, particularly with respect to Mansfield's appeal. Dressler entered into a number of contracts to build a tennis facility. This facility was to consist of an exterior steel building with an interior "core" building. Gold Seal was retained as the general contractor for the exterior building. Gold Seal then subcontracted the roofing for the exterior building to Mansfield. Plaintiff was an employee of Mansfield. Gold Seal's representative at the construction site was Edward Jaster, who was superintendent of the project. His duties were to see that the workmen were present and had adequate materials. He did not instruct the workmen on how they should perform their work. Dressler's foreman admitted that he had the duty to see that the work of all the subcontractors was done properly. Jaster was at the site three or four days per week spending 1 1/2 to 2 1/2 hours on each visit. He was not at the construction site on the morning of the accident but was there the previous day. He testified that on the day prior to the accident he observed the presence of "chicken ladders" (ladders hung from the roof), "toe boards" (boards nailed vertically at the eave line), and "life lines" (ropes dangling from the roof) on the building. These safety measures were denied by plaintiff and four other witnesses.

Mansfield's foreman at the site was Robert Dimock. Any complaints regarding the condition of the roof were to be directed to Dimock or the other Mansfield supervisor. There was testimony that Mansfield's employees informed Dimock that the roof was slippery. Jaster testified that these complaints were not communicated to him or anyone else at Gold Seal. While Dimock testified that it was only after plaintiff's accident that he (Dimock) learned of the oil on the roofing sheets, other witnesses testified they had informed Dimock earlier. During cross-examination, Dimock admitted discussing the problem of oil on the roofing panels with Jaster prior to plaintiff's accident. Dimock had safety equipment installed on the roof after the accident. Gold Seal's contract with Mansfield specifically provided that Mansfield assumed sole responsibility for the safety of its employees and would take all necessary measures to prevent injuries to its employees.

Gold Seal's first contention on appeal is that its motion for judgment n.o.v. should have been granted by the trial court. It asserts that plaintiff failed to present sufficient evidence that Gold Seal knew or should have known that safety devices were necessary on the roof being constructed. In particular, Gold Seal argues that there was no evidence that Jaster or anyone else connected with Gold Seal was aware of the oil on the roofing sheets or had an opportunity to learn of the slippery condition on the roof. Its position is that Mansfield was completely responsible for the condition of the roof and had exclusive control over the roofing work.

• 1 Judgments n.o.v. are proper only in those cases where all the evidence, viewed in a light most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504.) The issue before us is therefore whether the trial court properly applied the Pedrick standard when it denied Gold Seal's motion for judgment n.o.v. A review of the record reveals that the trial court acted within its discretion when it denied the motion. There was ample evidence that Gold Seal knew, or in the exercise of ordinary care should have known, that the condition of the roof necessitated safety devices and that it failed to provide such devices.

Gold Seal was the general contractor for the outer shell of the structure. Its superintendent, Edward Jaster, had the responsibility of inspecting the work of subcontractors such as Mansfield and had the authority to stop the work with three days notice for unsafe practices by those subcontractors. Jaster inspected the subject building three or four times a week for 1 1/2 to 2 1/2 hours each time. He also inspected the roofing materials that were delivered to the site and climbed onto the roof a number of times to inspect the sheeting and insulation being installed. Although Jaster and Dimock testified that ladders and supports were in place prior to the accident, plaintiff and four other witnesses denied the existence of these or any other safety devices. Additionally, Dimock admitted during cross-examination that he informed Jaster of the oily condition of the roofing sheets prior to the accident. There was also expert testimony from a consulting engineer that the general rule is that if safety precautions are not provided by the employer they are the responsibility of the general contractor. In view of this evidence, we find that the trial court properly applied the Pedrick standard when it denied Gold Seal's motion for judgment n.o.v.

• 2 Gold Seal's next contention is that its motion for a new trial should have been granted by the trial court. The standard of review of a trial court's denial of a motion for a new trial is whether the jury's verdict was against the manifest weight of the evidence. (See Spankroy v. Alesky (1977), 45 Ill. App.3d 432, 439, 359 N.E.2d 1078.) Our analysis concerning the trial court's denial of Gold Seal's motion for judgment n.o.v. is applicable here. In light of the evidence that Gold Seal knew or should have known of the need for safety equipment on the roof, we do not believe the jury's findings in this regard were against the manifest weight of the evidence.

• 3 It is also claimed by Gold Seal that the trial court should not have permitted plaintiff's attorney to comment on Gold Seal's failure to call as a witness a doctor it engaged to examine plaintiff. Plaintiff's attorney asked the jury to infer that the doctor was not called by Gold Seal because his testimony would have been adverse to its position. Gold Seal's motion in limine to bar such comments was denied. It claims that the witness was not under its control and, therefore, these comments and the submission to the jury of Illinois Pattern Jury Instructions, Civil, No. 5.01 (2d ed. 1971) (hereinafter cited as IPI Civil) — requiring an adverse inference for failing to call a witness in certain instances — were improper. (See Wetherell v. Matson (1977), 52 Ill. App.3d 314, 318-19, 367 N.E.2d 472.) In Biel v. Wolff (1970), 126 Ill. App.2d 209, 223-24, 261 N.E.2d 474, appeal denied (1970), 44 Ill.2d 583, this court quoted an earlier Illinois opinion quoting McCormick, Evidence sec. 249, at 533-34 (1954), as follows:

"`When it would be natural under the circumstances for a party to call a particular witness * * * his adversary may use this failure as the basis for invoking an adverse inference * * *.

Most of the controversy arises in respect to the failure to call a witness. It is generally agreed that when a potential witness is available, and appears to have special information relevant to the case, so that his testimony would not merely be cumulative, and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if ...


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