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Wiedemann v. Industrial Erectors

OPINION FILED SEPTEMBER 23, 1985.

CORRADO WIEDEMANN, PLAINTIFF-APPELLEE,

v.

THE INDUSTRIAL ERECTORS, INC., DEFENDANT-APPELLANT (HUMPHREY ELEVATOR AND TRUCK CO. ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Walter J. Kowalski, Judge, presiding. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

On November 20, 1979, plaintiff, Corrado Wiedemann, assistant food and beverage manager at McCormick Inn, Chicago, sustained severe injuries when he was thrown over the top of the manlift he was riding in the 23rd Street Parking Garage (the garage), situated adjacent to McCormick Inn. Plaintiff filed suit to recover damages for his injuries against three defendants: Humphrey Elevator and Truck Co., Inc. (Humphrey), manufacturer of the manlift, on a strict products liability theory; The Industrial Erectors, Inc. (Industrial), designer, distributor and installer of the manlift, on strict products liability and negligence theories; and 23rd Street Park, Inc., operator of the garage, on a negligence theory. At the conclusion of plaintiff's case in chief, 23rd Street Park, Inc., reached a $50,000 settlement with plaintiff and was dismissed from the action. Following trial, the jury returned a verdict in favor of Humphrey and against Industrial, assessing total damages against Industrial in the amount of $950,000, which was reduced to $807,500 in recoverable damages as a result of a determination that plaintiff was 15% contributorially negligent. Upon motion by Industrial, the trial court further reduced the damages by $50,000, the amount of plaintiff's settlement with 23rd Street Park, Inc. The trial court denied Industrial's post-trial motion for judgment notwithstanding the verdict and also denied plaintiff's post-trial motion for judgment notwithstanding the verdict or for new trial against Humphrey. Industrial's timely appeal followed. Plaintiff did not appeal the judgment entered for Humphrey.

On appeal, Industrial contends that the trial court erred in denying its (1) post-trial motion for judgment notwithstanding the verdict; (2) motions for a directed verdict; and (3) conditional motion for a new trial. For the following reasons, we affirm the judgment of the trial court.

Prior to discussing the events leading up to the accident, a brief explanation of the basic purpose and operation of the garage manlift is necessary. The manlift is a specially designed continuous vertical conveyor belt, principally used to transport car hikers employed by the garage to and from the various parking levels. Occasionally, employees of McCormick Inn also use it to go to and from their own cars. The manlift travels at 72 feet per minute through a shaft from the ground floor of the garage to the three underground parking levels (levels "B", "C", and "D") and back up again.

To board the manlift, the rider grabs onto a handle located on the belt, and stands on a protruding step while facing the belt. To ride to a lower parking level, the rider boards the downside of the manlift, i.e., the side of the belt moving in a downward direction. To ride up from one of the underground parking levels, the rider boards the upside. The belt is not marked as to which side moves upward and which side moves downward. If the belt if moving, the direction is obvious. However, if the belt has been stopped, the only way to determine which side is the upside is to look at the upper curve of the belt, which is approximately 10 feet above the ground floor. The side of the belt equipped with a safety bar immediately below the curve is the upside. The bar is used to prevent someone from riding over the top of the manlift. The evidence is unclear as to whether the upper curve of the belt is visible from the underground levels.

On the ground floor of the garage, the manlift is enclosed in a separate room behind the cashier's cage. Although there is some gating around the shaft at this level, it is not installed so as to prevent a person from inadvertently boarding the manlift on the upside. Because the parking levels are underground, there would be no reason to purposely board the upside of the manlift on the ground floor.

Ordinarily the manlift is continuously moving and a rider will simply jump on and off at the desired parking level while it is in motion. However, if necessary, it can be stopped manually by pulling the start/stop rope in the direction of travel, i.e., pull it down on the downside, up on the upside. In addition, the manlift will stop automatically if any one of three safety devices located on the ground level is triggered. These safety devices shut down the electrical circuitry. Once shut down, the circuitry must be reactivated by a key reset switch which works by inserting a key, turning it and pushing the key inward to depress the reactivation button. The key is then turned again and removed from the switch. After the circuitry has been energized, the manlift is set in motion by pulling the start/stop rope in the opposite direction of travel. The conveyor belt is imprinted with the words: "To stop, pull rope." However, there is no indication as to in which direction the rope should be pulled.

The main purpose of the three safety devices located on the ground level is to prevent someone who is riding on the upside from inadvertently riding over the top of the belt as it curves into the downward direction. The primary safety device is the "split rail device" and is located approximately six inches above the ground floor. If the rider is still standing on the manlift step when the step reaches this point, a wheel on the step will depress a microswitch which shuts down the manlift. The second safety device, a photoelectric cell, is located approximately six feet above the ground floor and casts a beam from right to left across the belt. If any part of the rider's body breaks the beam, the conveyor belt will automatically shut down. The third safety device or "redundant safety device" is the previously-mentioned safety bar, located approximately four feet above the photoelectric cell. The bar lies loosely in two brackets, one on each side of the belt, and is also attached to a chain. One bracket contains a switch; the other is merely a holder. If any part of the rider's body hits the bar and dislodges it from the switch side, the manlift will automatically stop. Once dislodged, the bar will dangle from the safety chain.

The record reveals that on November 20, 1979, approximately 9:30 p.m., plaintiff boarded the manlift on the ground floor of the garage, intending to ride it down to the level on which his car was parked. There is conflicting evidence as to whether the manlift was moving at the time plaintiff boarded it. Instead of boarding the downside of the belt, plaintiff boarded the upside and, consequently, was thrown over the top of the manlift as it curved in the downward direction. Plaintiff hit his head on the brick wall and landed on the concrete floor. None of the safety devices acted to stop the manlift.

At trial, Joseph Pieczara, plant manager for McCormick Inn, testified that he and his maintenance staff were responsible for the daily maintenance of the manlift. On the ground floor of the garage, there were two signs located next to the manlift. One read, "Employees Only, Visitors Keep Off"; and the other read, "Top Floor, Get Off." Stenciling on the belt indicated, "Face the belt, use the hand hold."

Pieczara further testified that when the belt was originally installed by Industrial in 1972, a push-button device, without a key, was used to energize the circuitry. In 1977, a city of Chicago ordinance required that a key reset switch be installed to replace the push-button. This change was initiated after the city learned that the push-button could be jammed into a depressed position which would bypass the safeties.

When Pieczara arrived at the scene of the accident the following morning, the top safety bar was dangling by the chain. It appeared to be out of both brackets. After resetting the bar, Pieczara reactivated the circuitry with the key reset switch, pulled the start/stop rope, and the manlift began to operate. Pieczara then checked all the safety devices and found them to be in good working order. Based upon what he saw that morning, Pieczara surmised that some object had struck the safety bar, but he did not know how the safeties could have been bypassed.

On cross-examination, Pieczara stated that during the period from 1973 to 1979, the McCormick Inn maintenance staff had replaced certain parts on the manlift. Whenever the task required more than mere replacement, Pieczara would call a repairman from Industrial. The McCormick Inn maintenance staff had not substantially changed anything on the manlift since its original installation in 1972. Pieczara further stated that in May 1980, they experienced trouble with the key reset switch, which had been installed in 1977. Specifically, the key would not come out of the switch properly. The maintenance staff notified Industrial of the problem, and Industrial supplied an identical replacement.

Pieczara explained that if a person boards the manlift at ground level when the step is above the split rail safety device, that safety device will be bypassed. In addition, it is possible for a rider to avoid the photoelectric beam while standing in a normal position on the manlift. In fact, Pieczara had been present when Humphrey's expert witness, Frank Walton, avoided both safety devices and almost went over the top of the manlift before someone pulled the start/stop rope.

Bomer Matejka, maintenance man at McCormick Inn, testified that Industrial installed the first key reset switch on the garage manlift in 1977. In 1980, Matejka replaced the switch with an identical one supplied by Industrial. Matejka thought the reason for replacement was the misplacement of one of the keys to the switch. Sometime between 1977 and 1980, Matejka also had replaced a piece of corroded wire in the "D" level safety step. However, the replacement wire did not alter the overall wiring of the manlift and was not related to the functioning of the ground level safety devices. Matejka ...


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