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Hollis v. R. Latoria Construction





Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Janczy, Judge, presiding.


Rehearing denied March 28, 1984.

Plaintiff, Richard Hollis, appeals from the circuit court's denial of his post-trial motion, which sought a new trial on damages only or, alternatively, a new trial on all issues. The circuit court had entered judgment on a jury verdict of $30,000 in favor of plaintiff and against defendant, R. Latoria Construction, Inc. On appeal, plaintiff asserts that the trial court erred in denying his post-trial motion in that the jury's verdict was inadequate and against the manifest weight of the evidence. For the reasons which follow, we reverse the order denying the post-trial motion and remand for a new trial on the issue of damages only.

Plaintiff brought this suit under the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) against defendant to recover damages for injuries sustained when plaintiff fell through an open skylight on April 19, 1977. On that day plaintiff was employed as a roofer by a subcontractor at the construction site of an addition to the Industrial Fasteners and Supply Company building in Franklin Park, Illinois. The defendant, R. Latoria Construction, Inc., was the general contractor for the construction.

Rocco Latoria testified that he is engaged in the general contracting business through R. Latoria Construction, Inc. He had contracted to build an addition to the Industrial Fasteners and Supply Company plant and had hired several subcontractors to perform various phases of that work. Latoria visited the construction site two or three times a day in March and April of 1977. Every day he noticed that each of the seven 4 feet by 4 feet skylight holes was open. He testified that he had the authority to stop work if the subcontractors were performing improperly, but he asserted that this authority did not include the right to stop work for safety violations. He testified on cross-examination that each trade was responsible for its own safety rules and protection. On redirect examination by plaintiff, Latoria testified that protective planking would have been placed over the open skylight holes if the plans had so specified, which they did not. Latoria stated that "[g]uardrails and safety measures are all part of the plans and specifications." He admitted that he had hired the architect and the draftsman who drew up the plans and that he, Latoria, had the right to direct these people to provide in the plans for plywood covers for the open holes until the skylight domes were installed.

Daryl Torgerson, who is a self-employed roofer, testified that customarily in the construction and roofing trade, the general contractor is responsible for safety on the job and has the right to stop the work for dangerous conditions created by a subcontractor's performance. He testified that the pay rate is now $15.80 for a journeyman roofer, and that other benefits include health and welfare, pension, and vacation benefits. Torgerson also testified on cross-examination that the construction industry has been "way off" the past three years and that he had worked 40-44 weeks per year between 1970 and 1978. He did not indicate how many weeks he worked in each of the subsequent years.

Louis Jacobs is a consulting architect and safety engineer. He testified that according to the custom and practice in the industry, the general contractor is in charge of safety. He further testified that the general contractor assumes the entire responsibility for safety, while the subcontractors share joint responsibility with the general contractor for subcontracted work. Jacobs also indicated that various industry and government codes require railings, guardrails, toeboards, or covers over open skylights. In his opinion, the construction project "with the openings in the roof for seven skylights is in violation of all code and standard rules and regulations." The specific violation was "the leaving of the skylight open without any protective devices."

Plaintiff testified that on the day of the accident he slept late and got to the job site around 9 a.m. The roof of the addition was made of corrugated sheet metal with six or seven open skylights already installed. The sheet metal roof contained ridges and channels which ran the full length of the roof. The ridges were about three inches wide and were separated from each other by the channels which are about an inch and a half wide. Plaintiff was operating an adhesive-spreading machine as part of the roofing operation. This machine has wheels which should remain on the ridges of the roof during the adhesive-spreading process so that the adhesive is applied to the ridges, on which the other roofing material will rest. The machine is usually operated by pulling it behind the operator, to avoid walking through the freshly applied adhesive. The operator typically walks backward or sideways in order to observe the wheels of the machine and to keep them properly tracked on the ridges. On the morning of the accident, plaintiff was pulling the machine with his left hand and walking sideways. He finished spreading adhesive between the first and second skylight and then started the spreader between the next pair of skylights. At this time he fell backwards. His left leg hit the back of the skylight opening and he fell about 18 feet to a hard-packed dirt floor, landing on his hands and knees.

Initially, plaintiff felt no pain and tried unsuccessfully to stand up. His arms were "distorted" and his left elbow and right wrist were obviously fractured. An ambulance arrived in about 10 minutes, by which time he had shooting plains in his right arm and left elbow and a throbbing pain in his left knee. He was admitted to a local hospital where he was X-rayed. Dr. Milos performed a surgical procedure during which plaintiff was under a general anesthetic. He awoke with a cast on his left leg from the ankle to the thigh, and a cast on both of his arms. He remained in the hospital for seven days.

When plaintiff was discharged from the hospital he was unable to walk. He could open and close his left hand but could not bend his left arm at the elbow, which also suffered from a throbbing pain. An area on the top of the left forearm was numb. Plaintiff could bend his left leg very slightly and could walk on it some, although with a limp. The leg was weak, with a "dull" sensation around the knee. His right wrist developed shooting pains which ran to the elbow.

Plaintiff underwent physical therapy three times a week for two months and then once a week for two months. At the end of this time he was still unable to bend his left arm. In September of 1977 he underwent a second surgical procedure and was hospitalized for three days. Another cast was placed on the arm and remained there for five weeks. At the end of that time, Dr. Milos removed the cast. Plaintiff was able to bend the arm somewhat.

Plaintiff testified that he currently experiences various types of pain in his extremities, especially during weather changes, that his knee will not support him if he walks a long way or up steep steps, and that he is physically unable to perform manual labor for periods of time exceeding a half hour.

Plaintiff also testified that at the time of his fall he was able-bodied with no physical problems, except for a bad ear. He was a journeyman roofer making $11.50 an hour when he was injured. The union hourly wage scale increased to $12.30 on June 1, 1978, to $13.05 in 1979, $14.30 in 1980, and $15.80 in 1981. These hourly rates did not reflect other additional benefits, including pensions. Plaintiff testified that he worked between 45 and 48 weeks each year. After his fall, he did not work at all for a year and a half. He presently drives a delivery truck for $5 per hour.

John Megall, Jr., president of plaintiff's former employer, testified that plaintiff worked 41 weeks in 1975 and 34 weeks in 1976, and that full-time employees worked an average of 38 weeks per year. He indicated that ...

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