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Mcmahon v. Richard Gorazd

OPINION FILED JUNE 27, 1985.

EDWIN MCMAHON, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

RICHARD GORAZD, INC., ET AL., DEFENDANTS-APPELLEES (ILLINOIS POWER COMPANY, DEFENDANT-APPELLANT AND CROSS-APPELLEE; RICHARD GORAZD, INC., ET AL., THIRD-PARTY PLAINTIFFS; VALLIE L. SCHNEIDER, D/B/A WHITEWAY PAINTING & DECORATING COMPANY, THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of St. Clair County; the Hon. William B. Starnes, Judge, presiding. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff, Edwin McMahon, in an incident which occurred April 9, 1975, while he was in the employ of Vallie L. Schneider. Plaintiff alleged that his injuries resulted from the negligence of defendant Richard Gorazd and from Gorazd's wilful violation of the Structural Work Act (Ill. Rev. Stat. 1983, ch. 40, par. 60 et seq.). Plaintiff also joined Illinois Power Company (Illinois Power) as defendant, alleging that his injuries resulted from the negligence of Illinois Power. Subsequently, Gorazd filed a counterclaim against Illinois Power and a third-party complaint against third-party defendant Vallie L. Schneider, in which he sought indemnity from both Illinois Power and Schneider.

Following a jury trial in the circuit court of St. Clair County, the jury returned verdicts in favor of defendant Gorazd against plaintiff and in favor of plaintiff against defendant Illinois Power in the amount of $739,000. The jury found plaintiff's own negligence contributed to his injuries and reduced the award to him by 50%. Judgment was entered on the verdicts. This matter is presented to this court on the appeal of defendant Illinois Power from the judgment in favor of plaintiff, and plaintiff has perfected a cross-appeal from the jury's finding of contributory negligence. Plaintiff separately appeals the judgment in favor of defendant Gorazd.

Plaintiff alleged that he suffered injuries as a result of an incident which occurred April 9, 1975. At the time of his injury, plaintiff was employed as a painter by third-party defendant Schneider. Plaintiff was painting a two-story dwelling which was being constructed by defendant Gorazd in O'Fallon. Gorazd was the general contractor, and Schneider was the painting subcontractor. In order to paint the upper story of the house, plaintiff had erected a scaffold by placing two ladders against the house with a 20-foot aluminum pick board as a cross member between the ladders. One of the ladders was placed against that portion of the chimney of the house that extended at right angles from the side of the house. The pick board was approximately 12 feet off the ground. In the process of painting, plaintiff noticed a spot that he had missed. In order to reach that spot, plaintiff stepped off the pick board and onto the ladder resting against the chimney; then, when he reached for the spot, the ladder on which he had stepped fell. It is alleged that after plaintiff's fall, it was discovered that one of the rails of the ladder had caused the ground to cave in and had fallen into a void under the surface of the ground near where defendant Illinois Power previously, on February 14, 1975, had installed the underground gas line.

• 1, 2 On appeal plaintiff first contends that the circuit court improperly denied his motion for judgment notwithstanding the verdict against defendant Gorazd on plaintiff's claim under the Structural Work Act. In this regard, motions for a directed verdict and judgment notwithstanding the verdict are properly granted "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors 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, 513-14.) As stated by the court in Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App.3d 844, 463 N.E.2d 921, in order for a plaintiff to recover in an action brought under the Structural Work Act, a plaintiff must establish that: "(1) he was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused his injuries; (6) the defendant had charge of the work; and (7) the defendant willfully violated the Act's safety standard. [Citation.]" (Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App.3d 844, 848, 463 N.E.2d 921, 924.) Where several such issues are submitted to a jury, the return of a general verdict, as in the case now before us, creates a presumption that all material issues of fact upon which proof was offered were found in favor of the prevailing party. (Perry v. Saleda (1975), 34 Ill. App.3d 729, 735, 340 N.E.2d 314, 319; see Peoples v. Granite City Steel Co. (1982), 109 Ill. App.3d 265, 270, 440 N.E.2d 363, 368; Moulton v. Shell Oil Co. (1976), 38 Ill. App.3d 524, 526, 347 N.E.2d 825, 827.) Accordingly, in order for plaintiff to prevail on the instant appeal, this court must find that the evidence of defendant Gorazd's liability was so clear that under the rule in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the contrary verdict in favor of Gorazd cannot stand. Thus, if this court determines that plaintiff has failed to meet the Pedrick standard for any one of the above-enumerated elements of proof, we are required to uphold the circuit court's denial of plaintiff's motion for judgment notwithstanding the verdict. An examination of the record in the case at bar leads us to conclude that the evidence introduced at trial presented a disputed question of fact as to the existence of a wilful violation of the Structural Work Act, a question which must therefore be left to the jury for resolution. (Peoples v. Granite City Steel Co. (1982), 109 Ill. App.3d 265, 440 N.E.2d 363.) The grant of judgment notwithstanding the verdict under such circumstances would have been improper, and the circuit court's refusal to do so was thus not error.

• 3, 4 A wilful violation of the Structural Work Act occurs when one having charge of the work knows that a dangerous condition exists or by the exercise of reasonable care could have discovered the existence of the dangerous condition. (Lyle v. Sester (1981), 103 Ill. App.3d 208, 214, 430 N.E.2d 699, 704.) We are unable to say that the evidence overwhelmingly supports the conclusion that the unstable condition of the ground upon which plaintiff erected his scaffold was known to or, by the exercise of reasonable care, should have been known to defendant Gorazd. Indeed, the fact that the plaintiff, who himself erected his scaffold upon that ground, was unable to detect its unstable condition is evidence that the condition was not readily discernible. Plaintiff relies on the case of McInerney v. Hasbrook Construction Co. (1975), 62 Ill.2d 93, 338 N.E.2d 868, a case in which a jury returned a verdict holding the contractor liable for a wilful violation of the Structural Work Act. In McInerney, the plaintiff had sustained injuries as a result of a fall from a ladder which had been placed on a back-sloping driveway which was covered with construction debris. However, the fact that the unstable placement of the ladder was plainly visible to the contractor in McInerney distinguishes it from the case at bar.

Furthermore, in McInerney the circuit court's granting of a motion for judgment notwithstanding the verdict was reversed on appeal to the appellate court, and the supreme court affirmed the appellate court. The supreme court determined that because the evidence presented was sufficient to raise a question of fact and the determination of that question was for the jury, the grant of judgment notwithstanding the verdict was improper. (McInerney v. Hasbrook Construction Co. (1975), 62 Ill.2d 93, 103, 338 N.E.2d 868, 874.) As we have indicated, the evidence concerning whether defendant Gorazd knew or should have known of the unstable condition of the ground on which plaintiff erected his scaffold presents a disputed question of fact. We are not free to reweigh the evidence or assess the credibility of the testimony and set aside a jury's verdict merely because a different conclusion could have been drawn from the evidence. (Katz v. Shaf Home Builders, Inc. (1981), 94 Ill. App.3d 526, 528, 418 N.E.2d 822, 824.) This question was properly left for the jury's determination, and the circuit court correctly denied plaintiff's motion for judgment notwithstanding the verdict.

• 5, 6 Plaintiff next urges that the jury's finding of non-liability under the Structural Work Act is inconsistent with the jury's finding that plaintiff's own negligence contributed to his injuries. Plaintiff contends that the alleged inconsistency exists, due to the fact that any conduct for which plaintiff could be found negligent necessarily implies negligence on the part of defendant Gorazd, which in turn would constitute a wilful violation of the Structural Work Act. Plaintiff reasons that the only possible conduct for which he could be found contributorily negligent would be either his placement of his scaffold on unstable ground or his failure to properly brace his scaffold. Plaintiff maintains that he was in no better a position to detect the unstable condition of the ground than was defendant Gorazd and that, if the scaffold was improperly braced, that fact was known to defendant Gorazd in as much as it was Gorazd's testimony which brought that fact to light. The flaw in plaintiff's reasoning is that it fails to address the possibility that it was plaintiff's improper usage of the scaffold which contributed to his fall. The record contains evidence that the ladder upon which plaintiff stood slipped and plaintiff fell while plaintiff was attempting to paint a spot beyond the area he could safely reach from the scaffold. Based on this evidence, the jury could well have concluded that as between plaintiff and Gorazd, plaintiff's conduct was the sole proximate cause of plaintiff's fall. Where only plaintiff's negligence causes the injuries, no liability arises under the Structural Work Act. (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App.3d 570, 573, 408 N.E.2d 117, 119-20.) So viewed, there is no inconsistency between the jury's verdicts.

• 7 The presence of this same evidence defeats plaintiff's final assertion that the jury's finding that plaintiff's own negligence contributed to his injuries was contrary to the manifest weight of the evidence. The only issues which remain are those raised by defendant Illinois Power.

• 8 In its appeal, Illinois Power initially contends that the circuit court improperly denied its motions for directed verdict and judgment notwithstanding the verdict. As we have indicated previously, such motions are properly granted "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors 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, 513-14.) It is our determination that the circuit court properly denied Illinois Power's motions for directed verdict and judgment notwithstanding the verdict. We find the evidence to be sufficient to support the jury's conclusion that Illinois Power was guilty of negligence proximately causing plaintiff's injuries.

Liability in suits based upon negligence arises only if the defendant is guilty of a breach of duty owed to persons whose injuries proximately resulted from the breach. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 162-63, 456 N.E.2d 116, 118-19; Zimmermann v. Netemeyer (1984), 122 Ill. App.3d 1042, 1044, 462 N.E.2d 502, 504.) In the case at bar, Illinois Power contends that (1) it was under no duty to plaintiff, (2) that even if it were under such a duty, there is insufficient evidence to support the jury's finding that Illinois Power was guilty of a breach of that duty, and (3) that even if such a breach occurred, there is insufficient evidence to support the jury's finding that the breach proximately caused plaintiff's injuries.

• 9 It is our conclusion that Illinois Power was under a duty to prevent or correct subsidence at the site of its excavations and to restore the ground to a state of reasonable safety. It could discharge this duty by backfilling and compacting the earth in the excavation, by returning to inspect the excavation, and by filling in any subsidence caused by the expected settling of the earth after such an excavation. (See McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App.3d 345, 357, 272 N.E.2d 369, 377.) Illinois Power owed this duty to those persons likely to be harmed if the excavation was left in an unsafe condition. It could not seriously be contended that the plaintiff, with his marked need for stable ground on which to place his scaffold, was not among those to whom this duty was owed.

With regard to its contention that there is insufficient evidence to support the jury's finding that Illinois Power was guilty of a breach of this duty, Illinois Power urges that plaintiff did not produce any evidence that the manner in which Illinois Power backfilled the trench it dug to install the gas line was improper. We are of the opinion that, under the facts of the instant case, the lack of any such evidence is unimportant. The backfilling of the trench following excavation, even though it may have made the condition of the ground reasonably safe temporarily, does not fully discharge Illinois Power of its duty. There is testimony that even if properly backfilled and tamped down, the trenches would still settle. An employee of Illinois Power testified that all the trenches dug in that particular subdivision were dug and backfilled in a similar fashion. Other witnesses testified that those trenches were known to settle. Illinois Power admits having never returned to the location to inspect the trench for subsidence or to fill in any subsidence caused by the eventual settling of the earth after excavation. In our opinion these omissions provide a sufficient evidentiary basis for a finding of breach of duty by Illinois Power. See McDonald v. Frontier Lanes, Inc. (1971), 1 Ill. App.3d 345, 357, 272 N.E.2d 369, 377.

Illinois Power further contends that there is evidence to indicate that its excavation had nothing to do with plaintiff's fall. This contention is based on plaintiff's statements that his ladder slipped off of the fireplace and did not itself sink into the ground. However, this is not the only evidence in the record on the issue of causation. Marcel Langenhorst and Willard Bugger, carpenters engaged in the construction of the dwelling, were present when plaintiff fell and both testified at trial. Langenhorst stated that from the position of the ladder after plaintiff's fall, he was of the opinion that the ladder fell into Illinois Power's excavation. Bugger observed that a cave-in existed at the site of Illinois Power's excavation after plaintiff fell but not before. Bugger was of the opinion that the trench was the cause of the collapse of the scaffold. Plaintiff and Langenhorst both testified that the ladder fell away from the house, sideways and forward, which plaintiff urges indicates that the outside portion of the ladder fell into the hole, causing the collapse of the scaffold. Defendant Gorazd testified that the ladder fell into the hole, causing it to turn off the chimney. This evidence supports the jury's finding that the condition of the ground was a proximate cause of plaintiff's injuries. In this regard, the questions of whether there has been a breach of duty and whether that breach proximately caused an injury are factual matters and as such are to be determined by the jury. (Curtis v. County of Cook (1983), 98 Ill.2d 158, 163, 456 N.E.2d 116, 119; Zimmermann v. Netemeyer (1984), 122 Ill. App.3d 1042, 1044-45, 462 N.E.2d 502, 505.) Furthermore, a jury's verdict cannot be set aside merely because there is conflicting evidence on factual questions. Pietka v. Chelco Corp. (1982), 107 Ill. App.3d 544, 554, 437 N.E.2d 872, 879-80.

• 10 Illinois Power also assets that under what it and plaintiff refer to as the "accepted work doctrine," Illinois Power should have been held to be free from liability. The rationale of the accepted work doctrine is that an independent contractor who is employed to construct or install any given work or instrumentality is no longer liable to third persons for injuries received as a result of defective construction or installation after he has completed the contract and his work has been accepted by the employer and he has been discharged. (See Paul Harris Furniture Co. v. Morse (1956), 10 Ill.2d 28, 40, 139 N.E.2d 275, 282-83.) However, Illinois Power's reliance on this doctrine is misplaced for the reason that the accepted work doctrine is no longer determinative of the question of liability in Illinois. Instead, the question of liability is to be determined under traditional principles of negligence. Hunt v. Blasius (1979), 74 Ill.2d 203, 209, 384 N.E.2d 368, 371; Fournier v. 3113 West Jefferson Partnership (1981), 100 Ill. App.3d 820, 822, 427 N.E.2d 408, 410.

• 11, 12 Illinois Power next contends that it was deprived of a fair and impartial trial by the admission or exclusion of certain evidence. The first such error urged by Illinois Power is the decision of the circuit court in overruling its objection to the following questions asked of plaintiff by his attorney:

"Q. Have you worked at all, received any wage at all in 1982?

A. Not a nickel.

Q. What have you been living on?

A. Well, we had a little bit in the bank, but if you got youngins [sic], you don't make much. And then the wife borrowed some from her father. We borrowed some from my ...


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