Appeal from the Circuit Court of Sangamon County; the Hon.
Richard E. Mann, Judge, presiding.
JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 6, 1986.
These consolidated appeals are brought from a jury verdict and judgment entered thereon in the circuit court of Sangamon County finding the amounts of contribution for which the several parties are liable under a settlement agreement reached with the original plaintiff.
Sarah E. Hall, as conservator of the estate and person of Paul A. Hall, brought suit under the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) against Archer-Daniels-Midland Company (ADM) and Mid-States General and Mechanical Contracting Company (Mid-States) for injuries suffered by Paul A. Hall when he fell through a catwalk at the ADM plant. ADM, acting as its own contractor, was engaged in a $50 million expansion project at its Decatur plant, known as the North Steep Tank Addition. A "steep" is a large stainless steel silo into which hot water and sulfur dioxide are introduced; the corn in the silo then ferments for a period of time sufficient to extract the solubles and render the rest suitable for grinding, milling, and separation.
ADM contracted with Mid-States to do the structural steel erection around the steep tanks. Corrigan Company (Corrigan) was engaged to do the pipe fitting. Corrigan was Hall's employer. Both Mid-States and Corrigan were engaged on a time-and-material basis rather than on a bid basis. ADM supplied the bulk of the materials and coordinated the work among the various crafts; it had the power to stop the work and issue change orders and, in addition, reserved the right to terminate contractors for any reason.
The accident involving Paul Hall occurred at level 714 on one of the steep tanks. The designation 714 refers to the number of feet above sea level and it appears that level 714 was about 35 feet above the ground. A catwalk surrounding level 714 had been erected by Mid-States but was not finished at the time of the accident. The catwalk was necessary to provide ADM personnel with access to valves controlling the pipes at that level. The catwalk was constructed of open steel grating resting upon the supporting steel structure. In order to gain access to level 714, the design plans called for two stairways to be constructed leading up to that level. Thus, there were two holes in the steel grating to accommodate the stairwells. As of July 22, 1981, the date of the accident, the material for the stairwells had not been delivered by ADM's supplier.
Mid-States' general foreman testified that prior to the accident and after the steel grating had been installed, a "sagging" or "deflection" problem developed relative to the catwalk. In order to remedy it, an ADM project engineer authorized Mid-States to reinforce the structural steel supporting the catwalk. This was to be accomplished by the use of scaffolds positioned beneath the catwalk. At the time of the accident the reinforcement work had not been completed and the grating at level 714 had not been welded to the supporting structure.
Considerable evidence was received concerning the opening in the grating and who was to barricade it. Two of ADM's project engineers inspected the steep tank two days before the accident. They noticed that the handrails and stairs leading to level 714 had not been constructed. One of them indicated that the unguarded openings in the catwalk should be roped off and stated that it was his understanding that the other one would direct Mid-States' personnel to barricade or rope off the openings.
Corrigan's general foreman testified that sometime before the accident he was instructed by ADM's project engineers to begin pipe-fitting work at level 714. One or two days before the accident, he and another Corrigan employee observed the unguarded openings in the catwalk. The foreman instructed the employee to rope off the openings before beginning work on level 714. On the day of the accident, Paul Hall had begun pipe-fitting work on level 714. Another employee had begun roping off the openings but had not reached the one through which Hall fell. There was no eyewitness testimony regarding the fall itself, and Hall did not testify.
The ADM engineer who was to direct Mid-States to barricade the openings testified as to a conversation with Mid-States' general superintendent. He left the conversation with the understanding that Mid-States would either install permanent handrails around the openings or take some temporary measure to safeguard the openings. The Mid-States superintendent testified that he left the conversation with the belief that each of the trades would make the site safe for its own workers and that the area was safe for the steelworkers. He also stated that before any work could be done on safeguarding the openings, ADM would need to authorize additional manpower or the suspension of the reinforcement work to allow Mid-States' employees to do the necessary roping.
Corrigan's union steward in charge of work safety testified that one or two days before the accident, he and Corrigan's general superintendent went to level 714 and observed the unguarded openings. He then contacted Mid-States' union steward to determine whether Mid-States was going to rope off the holes and was informed that Mid-States did not have adequate personnel available to do the job. It was then agreed between Corrigan's steward and its superintendent that part of Corrigan's crew would rope off the openings and the rest would begin moving in equipment. The steward informed the crew members of the arrangement and alerted them to safety factors.
Certain safety experts testified on behalf of ADM. Their testimony and the objections thereto will be discussed later in this opinion. Other facts as necessary to an understanding of the issues raised will be discussed in connection with those issues.
As has been indicated, Hall's conservator, as plaintiff, filed suit against ADM and Mid-States under the Structural Work Act. Her amended complaint sought compensatory damages from both. Later, on the eve of trial and without objection, she filed an additional count against ADM alleging only wilful and wanton misconduct on the part of ADM and seeking punitive damages.
After service of the original complaint, both ADM and Mid-States filed third-party complaints against Corrigan, Hall's employer, seeking contribution under "An Act in relation to contribution among joint tortfeasors" (Contribution Act) (Ill. Rev. Stat. 1983, ch. 70, par. 301 et seq.). ADM also filed a counterclaim against Mid-States for contribution.
Extensive settlement negotiations were conducted involving all parties. A purported agreement was reached to settle plaintiff's claim for $1 million, but the trial court, after an evidentiary hearing, refused to enforce that agreement. Thereafter, a settlement agreement was entered into between the plaintiff, Sarah Hall, conservator, and ADM only. Hall, as conservator, then executed a release which is in words and figures as follows:
"The undersigned, Sarah E. Hall, Conservator of the Estate and person of Paul A. Hall, an incompetent, in consideration of:
1. A payment of One Million, Five Hundred Thousand Dollars ($1,500,000.00) and
2. An agreement by Archer Daniels Midland Company to indemnify and hold harmless Sarah E. Hall, Conservator of the Estate and Person of Paul A. Hall, and her attorneys from all claims upon the above-mentioned cash settlement which are held by, may be held by, or which hereafter may be asserted by Corrigan Company or its insurers with respect to any lien arising from worker's compensation benefits paid to the said conservator or her ward hereby releases and forever discharges Archer Daniels Midland Company, Mid-States General and Mechanical Contracting Corporation, Corrigan Company, the insurers of the aforementioned parties including, but not limited to, United States Fidelity and Guaranty Company, Central National Insurance Company, Home Indemnity Company, Bonger Insurance Company, Optimum Insurance Company of Illinois, Ideal Mutual Insurance Company and the Mission Insurance Company, and the agents, servants, successors, heirs, executors, administrators and assigns, of the aforementioned, and all other persons, firms, corporations, associations or partnerships of and from any and all claims, actions, causes of action, demands, damages, costs, attorneys' fees, expenses, claims for worker's compensation benefits, and all claims of any sort or any description which the undersigned or her ward now has or which may in the future accrue on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen bodily and personal injuries and the consequences thereof resulting or to result from the accident, casualty or event which occurred on or about the 22nd day of July, 1981 at the Archer Daniels Midland Plant, 4666 Faries Parkway, Decatur, Illinois as a result of which Paul A. Hall was injured.
It is further agreed by the undersigned that this document is specifically intended to release the above-mentioned parties, especially including Corrigan Company and its insurers, from all liability for any future payments to Paul A. Hall, his estate, or his personal representative for benefits which may hereafter accrue under the Illinois Worker's Compensation Act.
It is further understood that the above-stated consideration shall be paid on behalf of Archer Daniels Midland Company and its insurers and that Archer Daniels Midland Company intends to retain and pursue its rights of contribution and indemnity against Mid-States General and Mechanical Contracting Corporation and Corrigan Company (and their insurers) as well as any and all other persons, corporations or other entities released from liability to the undersigned pursuant to this instrument.
It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim and that the payment made is not to be construed as an admission of liability on the part of Archer Daniels Midland Company by whom liability is expressly denied, and that Archer Daniels Midland Company intends merely to avoid litigation with the undersigned and to preserve its rights to contribution and indemnity against Corrigan Company and Mid-States General and Mechanical Contracting Corporation.
The undersigned hereby declares and represents that the injuries sustained by Paul A. Hall are or may be permanent and progressive and that recovery therefrom is uncertain and definite and in making this release it is understood and agreed that this release is intended to include all unknown or unanticipated injuries resulting from the above stated accident.
The undersigned further agrees that she will petition the Circuit Court of Randolph County, Arkansas or another appropriate court having jurisdiction of the parties and the subject matter for probate approval of this settlement and that ...