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Ruffiner v. Material Service Corp.





Appeal from the Circuit Court of Cook County; the Hon. Warren D. Wolfson, Judge, presiding.


Rehearing denied July 25, 1985.

Defendant, Material Service Corporation, appeals from a judgment for plaintiff William Ruffiner in this action under the Jones Act (see 46 U.S.C. § 688 (1976)) and general maritime law. The jury awarded plaintiff $1,250,000 as compensation for injuries sustained when he fell from a ladder aboard defendant's vessel, the Irving Crown. Defendant contends that the verdict was based on incompetent evidence, that the jury's award was excessive, and that the trial court submitted erroneous verdict forms to the jury. Facts relevant to our disposition follow.

On March 25, 1977, motor vessel Irving Crown towed a group of barges northward on the Illinois River near Joliet. The Irving Crown was built by the Sturgeon Bay Shipbuilding Company in 1952 and is owned by defendant Material Service Corporation. The vessel is equipped with a retractable pilot house which, when lowered, allows the vessel to pass under obstructions such as bridges, and when raised, affords the captain or pilot a better view of the river. The pilot house is often accessed by dual port side ladders: one ladder is permanently affixed to a lower bulkhead and the other, adjacent to the left of the bulkhead ladder, is attached to the pilot house. The ladders slide alongside one another in order to accommodate the movement of the pilot house.

At approximately 9:15 that morning, plaintiff, chief engineer on the Irving Crown, left the engine room to go to the pilot house, which was at full height. Plaintiff climbed to the top of the bulkhead ladder, and was in the process of moving over to the bottom of the pilot house ladder, when he fell to the steel floor of the ladder well, some seven feet below. He testified that he had placed his left foot and left hand on the pilot house ladder and had just removed his right foot from the bulkhead ladder when he "slipped."

The captain and first mate were in the pilot house at the time. The captain saw plaintiff through the pilot house window, heard the fall, then saw plaintiff lying on the deck. He sent the first mate to see what happened. The first mate testified that he climbed down the dual ladders in about five seconds; the ladders were clean and had no grease or oil on them. Plaintiff was "dizzy" and "groggy," as the mate helped him to his quarters, where plaintiff rested until he could be taken to an ambulance. The captain and first mate stated that plaintiff had always been a good worker, and had never shown signs of neck, back or hip injury before the fall.

Plaintiff's expert, Edward McLean, testified that he was registered as an engineer, that he graduated from the Naval Academy in 1935, that he had studied at several postgraduate institutions, and that he belonged to a variety of professional societies. McLean stated that he had done research and development, including design work, for the Navy. He said that he ran a large naval contracting company from 1938 through World War II, and he had been a consultant since the war. He had participated in the design and construction of some 200 utility and industrial plants, all of which incorporated fixed ladders. He also said that he knew about the types of ladders used on seagoing vessels.

Plaintiff's expert testified that the American National Standards Institute prescribed standards for fixed ladders and that the standards would apply to ladders mounted on seagoing vessels. He stated that those standards require a rung width of at least 16 inches, and a space not less than 7 inches between the ladder and the surface to which it is affixed. McLean had examined the Irving Crown and testified that the dual ladders varied from the standard. The bulkhead ladder's rungs were 9 11/16 inches wide, and the ladder was 6 11/16 inches from the bulkhead; the pilot house ladder's rungs were only 5 11/16 inches wide and the ladder was only 5 3/4 inches from the pilot house. He opined that, "the factors that I have recited would render the ladder as constructed unsafe for use." McLean explained that because the rungs were too narrow, it would be difficult to slide a shoe into place without interference from the vertical rails, and because the ladder was too close to the mounting surface, it would be difficult to place the ball of the foot squarely on the rung.

On cross-examination, plaintiff's expert admitted that he had not designed or constructed ladders for any seagoing vessels. Asked when the standards were promulgated, McLean stated that the earliest standards were issued by the National Safety Council in 1926, and that later, the American Standards Association adopted standards which were accepted in 1970 by the newly formed American National Standards Institute. He did not know what changes were made in the standards over time.

The remainder of plaintiff's case went to causation and damages. After the fall, plaintiff stayed for two days at St. Joseph's Hospital in Joliet, where initial X rays were taken. He rested at his home in Arkansas for a week, then returned to work aboard the Irving Crown. He said that he could not do his job because he was in severe pain, and after a few days, he asked defendant to refer him to a doctor. Defendant sent him to Dr. Greenwall, who prescribed a cervical collar and pain killers. Several weeks later, plaintiff placed himself under the care of Dr. Lester. Plaintiff was admitted to the North Little Rock Memorial Hospital and was X-rayed again. The X rays revealed a fracture of the fifth cervical vertebra; plaintiff was placed in traction and treated with physical therapy.

During the summer of 1977, plaintiff increasingly complained of pain in his neck and arm. Dr. Lester rehospitalized plaintiff for a bone scan and electromyographs; concurrently, Dr. Lester referred plaintiff to Dr. Fletcher, a specialist in neurosurgery. Dr. Fletcher examined plaintiff and found diminished reflex in the right side biceps, weakness in the right biceps and triceps, weakness and atrophy in the deltoid muscle, and restricted neck movement. Dr. Fletcher ordered a myelogram and tomograms, which revealed that plaintiff had sustained a compression fracture with flexion deformity and facet dislocation, in turn causing nerve root compression at the fifth cervical vertebra. After Drs. Fletcher and Lester performed a spinal fusion in November of 1977, plaintiff was required to wear a brace for about six months.

On February 15, 1978, plaintiff first complained to Dr. Lester of pain in the left hip, and a few months later, he again complained of hip pain. Dr. Lester testified that he initially believed that the problem was not serious, and he hoped that physical therapy would alleviate it. Plaintiff returned to work for 19 days in early 1979, but stopped again, complaining of pronounced pain in the lower back and left hip, and stiffness in the neck. Dr. Lester stated that a series of tests indicated plaintiff suffered from a degenerative hip condition called "avuscular necrosis," which would ultimately require replacement of plaintiff's left hip joint. Dr. Lester opined that the hip problem could have been caused by trauma from plaintiff's fall on March 25, 1977. He explained that the timing of the symptoms, the asymmetry of the condition and the progressive seriousness of the problem were all consistent with traumatic origin.

Plaintiff has a limp favoring his left hip, and his range of motion is severely limited in his hip and neck. As for his neck, plaintiff has almost no extension, one-quarter or one-third of normal lateral range, 15% lateral tilt, and limited flexion. Plaintiff suffers pain when he tries to exceed his limited range of motion, and he suffers chronic neck, shoulder, arm and lower back pain. Dr. Lester testified that plaintiff's condition would only worsen.

Dr. Stevens, a clinical psychologist, testified that plaintiff suffered from frustration, anxiety and depression as a result of chronic pain and inability to work. Dr. Stevens administered a series of work tolerance tests and concluded that plaintiff was vocationally disabled. He expected that plaintiff's disability would only increase.

Professor Arthur Dobbelaere, an economist, testified that the present cash value of plaintiff's wages and benefits, if he worked until age 65, amounted to $481,283, and if he worked until age 70, $664,025. On cross-examination, defense counsel asked a number of questions concerning general economic conditions in the transportation and construction businesses. This colloquy ensued:

"DEFENSE ATTORNEY: Professor, do you know what the trends are in the marine industry presently?

A. No.

Q. Whether there are any vessels that are laid up, in full operation or did you make any study of that nature?

A. No.

Q. That would —

PLAINTIFF'S ATTORNEY: This is going to be objected to.

This is assuming that Material Service is only involved in the towboat business. It's a ...

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