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Bass v. Washington-kinney Co.

OPINION FILED NOVEMBER 18, 1983.

JOHN BASS ET AL., PLAINTIFFS-APPELLANTS,

v.

WASHINGTON-KINNEY COMPANY, INDIV. AND D/B/A CROWN PORTABLE POWER LIFT COMPANY, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding. PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiffs, husband and wife, brought this action to recover damages for personal injuries and loss of consortium, respectively, sustained as a result of plaintiff-husband's (Bass) assistance in the unloading of a forklift delivered by defendant Washington-Kinney Company *fn1 to Bass' place of employment. After a trial by jury, judgment was entered for defendant and against plaintiffs, with costs and charges assessed against plaintiffs. On appeal, plaintiffs contend: (1) the trial court applied an erroneously narrow concept of proximate cause which misled the jury; (2) the trial court improperly allowed defense counsel to force Bass to judge the veracity of a witness; (3) the trial court's comments to the jury regarding plaintiffs' unexpected completion of their case were prejudicial to plaintiffs; (4) the trial court erred in refusing to admit Bass' personnel records; (5) the verdict was against the manifest weight of the evidence; (6) the trial court erroneously allowed unconnected testimony regarding prior unrelated injuries suffered by Bass; (7) the trial court erroneously allowed testimony regarding workers' compensation; (8) defense counsel's failure to disclose its expert witnesses prejudiced plaintiffs; (9) the trial court erroneously allowed testimony regarding Bass' unrelated hospitalizations; and (10) the trial court erroneously admitted evidence regarding Bass' alcoholism. For the following reasons, we affirm the judgment of the trial court.

The record establishes that at the time of the accident, Bass was employed by the Sovereign Hotel, 1040 West Granville, Chicago, as a building engineer. As part of his employment responsibilities, Bass performed electrical and plumbing work as well as miscellaneous maintenance tasks. On April 19, 1976, Bass was requested by his boss, Fred Wertymer, to help unload a forklift from a pickup truck which was parked in the alley next to the hotel. The hotel did not have a loading dock. When Bass arrived in the alley, four other employees plus Wertymer were already there and the forklift was on the truck bed, near the tailgate. The driver indicated that the forklift had been incorrectly loaded onto the truck. Generally, for a ground delivery, the forks on the lift would face the rear of the truck so that it could be driven down the tailgate ramp. In this case, however, it had been loaded with the forks facing the front of the truck.

Bass testified that Wertymer ordered him to hurry up and help unload the forklift because the hotel was paying the driver by the hour. The driver proceeded to lower the tailgate to a position parallel to the truck bed and secured it with a chain. At this time, Bass was standing on the ground, near the left rear side of the truck and the driver was standing on the right rear side. The driver then instructed Bass as to how to operate the control levers on the forklift so that Bass could slowly move the forklift onto the tailgate as the driver lowered the tailgate to the ground by loosening the chain support. Suddenly, the chain slipped and the tailgate dropped. Before Bass could get out of the way, the lift toppled over and fell onto his back. Several of the men raised the lift off of him and Bass managed to pull himself up. Wertymer then drove Bass to Edgewater Hospital where he was admitted with spinal injuries and released after 30 days. In addition to numerous other post-accident problems, Bass has been sexually impotent since the occurrence.

On cross-examination, Bass stated that he had never been on the bed of the truck and had never received instructions from the driver not to stand behind the forklift. The forklift itself was approximately six feet tall, the controls were approximately 21/2 feet from the bed of the truck and the bed was approximately three feet off the ground. Thus, he could easily reach the controls while he was standing on the ground. Bass did not recall whether the forklift was moving when the chain slipped; but he did recall that the lift was partly on the truck bed and partly on the tailgate when the tailgate started to drop. When Bass tried to support the lift, he may have caused it to fall on its side.

Nathaniel Burns, Bass' co-worker, testified that the driver activated the forklift and rolled it back to the tailgate at which time the chain either slipped or broke, the tailgate dropped, and the forklift fell off the truck, landing on Bass' back. Bass attempted to run out of the way, but fell. Prior to the accident, both Bass and Burns had been standing on the ground, close to the left rear side of the truck; the driver was on the right side. All three of them were physically touching the machine in an effort to keep it from falling. Although from his vantage point Burns could not see whether Bass had positioned his hands on the lift controls, he was sure that Bass had not activated the lift. Further, Bass never climbed onto the bed of the truck.

On redirect, Burns stated that the lift had fallen directly from the back of the truck, not sideways. Burns, Bass and the driver attempted to hold it when it started to fall, but as soon as they realized they could not steady it, they let go and ran. The driver was supervising the unloading.

Next, Michael Allison, driver of the delivery truck, testified as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure. (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102.) At the time of the delivery, Allison had been employed by defendant and had been furnished with its truck, forklift and ramp for delivery purposes. It was standard procedure for defendant to issue work service tickets which indicated whether delivery was to be dock or ground, which fact determined the position in which the forklifts would be loaded. Allison recalled previous occasions when forklifts had not been properly loaded for the specific type of delivery; yet, successful deliveries had been accomplished. The work service ticket for the Sovereign Hotel indicated "ground delivery"; however, the lift had been loaded as if for a dock delivery. Generally, in such a situation, the driver would place a two-by-four under the ramp to modify the steep angle of the lowered tailgate. However, the driver had not been provided with a board for the Sovereign Hotel delivery. In readying the forklift for unloading, Allison had activated the controls and moved it to the rear wheel well area of the truck bed.

During examination by defense counsel, Allison testified that on April 19, 1976, he pulled his truck into the alley next to the Sovereign Hotel, unclamped the forklift, and proceeded to lower his tailgate parallel to the bed, securing it with a chain. By twisting the handle controls, he then moved the lift toward the rear wheel well area. At one point, someone from the hotel brought out a two-by-four; however, it was too large to be useful. After Allison moved the lift, he noticed Bass for the first time, standing on the truck bed, on the other side of the lift. Bass had his hands on the controls and asked Allison how to operate it. Allison told him to "hang loose" and that he would explain the controls after they unloaded the lift. Bass then told Allison that they should unload the lift by moving it onto the tailgate and then lowering the tailgate. Allison told him that that was impossible and if he needed any help, he would ask for it. Allison then jumped off the truck and proceeded to lower the tailgate by manipulating the chain. Suddenly, he heard the forklift motor start, and saw Bass and the lift falling down the ramp. The weight of the lift caused the chain to slip and the tailgate dropped to the ground. When Allison reached up to grab the lift, it lurched sideways and hit the ground, falling on top of Bass.

Thereafter, outside the presence of the jury, defendant requested the court's permission to mention Bass' chronic alcoholism on the ground that it precipitated certain ailments and injuries for which Bass was claiming damages. In response, counsel for plaintiffs argued that Bass' alcoholism was unrelated to the issue of liability and testimony regarding his condition would severely prejudice plaintiffs. The trial court agreed that it was unrelated to the issue of liability, but also recognized that there could be problems regarding the issue of damages if such testimony were excluded. After further discussion, the court stated that because there was no evidence that Bass had been drinking or was under the influence of alcohol at the time of the accident, the only grounds for cross-examining Bass as to his drinking would be its relevance to the claim of sexual impotence and the determination of damages. The court then suggested that the parties stipulate to Bass' alcoholism and also to the fact that there was no evidence that he had been drinking at the time of the accident. Counsel for plaintiffs agreed to the stipulation, but argued that because they would be deleting any costs for the treatment of Bass' alcoholism from their claim for damages, any evidence regarding treatment for alcoholism or any symptoms during the immediate hospitalization would be irrelevant and highly prejudicial. Thereafter, the trial court read the following stipulation to the jury:

"There will be or I should say that there is a stipulation between the parties that the plaintiff is an alcoholic, and when I say `the plaintiff,' I am talking about John Bass, and he has been an alcoholic for some years. And it is agreed between the parties, it is stipulated between the parties that at the time of this occurrence, there is no evidence that he was under the influence of alcohol, nor that he was drinking alcohol.

Now, that means that both sides agree that there is no evidence of that at the time of the occurrence, at the time he was injured.

If you hear some evidence of alcoholism from witnesses, this evidence is allowed in only for the purpose of damages, if any."

Next, William Kearney, vice-president of finance of Irmco Properties and Management, management company for the Sovereign Hotel, testified regarding Bass' pre-application for employment at the Sovereign Hotel. The pre-application was retained by Irmco as a business record in the ordinary course of business. Notations on the pre-application which indicated that Bass' employment references had been checked also had been made in the ordinary course of business. When counsel for plaintiffs offered the pre-application into evidence, the trial court sustained defendant's objection. Thereafter, outside the presence of the jury, plaintiff made the following offer of proof: (1) the pre-application qualifies as a business records exception to the hearsay rule under Supreme Court Rule 236 (87 Ill.2d R. 236); (2) Kearney would testify that it is the practice of Irmco to check employment references; and (3) a previous employer of Bass reported that Bass was "an excellent worker, very good mechanic, and very dependable." On cross-examination, Kearney stated that Irmco had no specific policy regarding the loading and unloading of trucks.

Subsequently, after extensive testimony by several physicians regarding Bass' injuries, treatment and hospitalizations, plaintiffs, outside the presence of the jury, objected to defendant's repeated violations of the order in limine which prohibited raising the subject of workers' compensation. When asked by the court if they wanted to move for a mistrial, plaintiffs declined and failed to make any other motion. The court then advised both counsels to alert their witnesses before they testified that all references to insurance were to be avoided. In response to plaintiffs' objection, defendant argued that Bass had introduced the subject of workers' compensation during direct. Similarly, Idell Bass and Kearney also had used the term during direct.

After plaintiffs rested their case, Bass was called by the defense to testify as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1102), at which time he stated that he had never been treated for loss of sexual function.

Therefore, outside the presence of the jury, plaintiffs' motion to dismiss the truck driver, Michael Allison, as a defendant was granted. In addition, plaintiffs moved, pursuant to section 2-1003(c) of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 2-1003(c)), for disclosure of all defendant's expert witnesses. In response, defendant argued that: (1) plaintiffs' counsel had been given all copies of any and all memoranda, reports, and documents prepared or used by expert witnesses who would be called to testify during discovery; and (2) plaintiffs' own answers to interrogatories contained the names of all attending and consulting physicians. Defense counsel further argued, "The purpose of discovery is to prevent surprise, not to divulge the trial tactics and strategy of the parties * * *." Upon referring to the historical and practical notes following section 2-1003(c), the court interpreted the intent of the legislature to be that parties must disclose the names and addresses of all potential expert witnesses who will testify not from personal knowledge of the facts of the case, but who will render opinions as to hypothetical situations based upon assumed facts. Thus, because defendant's expert witnesses were all treating medical doctors, section 2-1003(c) was inapplicable. The court then denied defendant's motion for a directed finding and plaintiffs' motion to prohibit defense witness, Fred Wertymer, from testifying that he had on occasions smelled alcohol on Bass' breath.

Following extensive medical testimony on defendant's behalf regarding Bass' injuries and treatments, Fred Wertymer, Bass' supervisor at the Sovereign Hotel, testified that on April 19, 1976, he had summoned some of the hotel staff to assist in unloading a forklift from defendant's truck. Wertymer did not recall whether the driver asked for assistance and Wertymer himself never instructed Bass to remove the lift from the truck. In fact, he told Bass that it was not his job to remove the lift and should not get involved. Contrary to everyone else's opinion, Bass insisted that the lift could be removed by moving it onto the tailgate and then lowering the ramp. Wertymer saw Bass standing on the truck bed, next to the forklift, operating the lift controls and also saw him fall off the back of the truck with the lift. At the time of the accident, the ramp, secured by a horizontal chain, was inclined toward the ground, with one or two boards positioned underneath it. The pressure on the ramp forced the chain to slide up the ramp so that the ramp could no longer support the weight of the lift. Wertymer further stated that several months prior to the accident, he had expressed his concern to Bass about working while under the influence of alcohol. On cross-examination, Wertymer testified that the ramp appeared to be too steep and was improperly positioned for the driver to maneuver the forklift off the truck.

Thereafter, following a discussion in chambers regarding jury instructions, defendant rested its case and closing arguments ensued. Subsequently, the jury returned with its verdict, finding for defendant and against plaintiffs, assessing plaintiffs with defendant's costs and charges. Following denial of all post-trial relief, plaintiffs filed their appeal.

OPINION

Plaintiffs first contend that the trial court applied an erroneously narrow concept of proximate cause when it refused plaintiffs' instruction No. 10, which was the long form of Illinois Pattern Jury Instruction (IPI), Civil, No. 15.01 (2d ed. 1971), and accepted defendant's instruction No. 4, which was the short form of IPI Civil No. 15.01.

The long form of IPI Civil No. 15.01 as submitted by plaintiffs states:

"When I use the expression `proximate cause', I mean any cause which, in natural or probable sequence, produced the injury complained of. [It need not be the only cause, nor the last or nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.]"

The short form as submitted by defendant deletes that portion of the instruction which appears in brackets. Plaintiffs contend that by using the short form, the court "held in effect that only the last act could be a legal cause of the injury," thus, ignoring the prior alleged negligent acts or omissions of the defendant. For the following reasons, we find that the trial ...


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