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Mathieu v. Venture Stores





Appeal from the Circuit Court of Cook County; the Hon. Jerome J. Lerner, Judge, presiding.


This appeal arises out of plaintiff Robert Mathieu's suit under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) for injuries he sustained while working on the construction of a Venture store in Norridge on May 17, 1977. Plaintiff sued Venture Stores, Incorporated (the owner), W.E. O'Neil Construction Company (the general contractor), and Hastings & Chivetta (the architects). Venture and O'Neil filed cross-claims against each other for indemnification. Both defendants also filed third-party complaints seeking indemnification from subcontractors North American Masonry and Precast Erectors, Incorporated, and Hufschmidt Engineering Company.

The jury found for Hastings & Chivetta on plaintiff's claim, and it is not a party to this appeal. However, the jury found for plaintiff as against Venture and O'Neil, awarding $450,000. The trial court directed verdicts for O'Neil on Venture's indemnity claim and for Venture on O'Neil's indemnity claim. The court also directed verdicts for Hufschmidt and North American on O'Neil's third-party indemnity claims. In bifurcated deliberations the jury then found for Hufschmidt but against North American on Venture's third-party indemnity claims.

On appeal, Venture contends: (1) the evidence did not establish its liability to the plaintiff; (2) the court erred in directing a verdict for O'Neil on Venture's counterclaim for indemnity; (3) the jury verdict for Hufschmidt on Venture's third-party indemnity claims was contrary to the manifest weight of the evidence; (4) Venture was prejudiced by evidence that Hufschmidt was out-of-business; (5) the court erred in not excusing for cause a juror when that juror learned that he was a defendant in a civil suit; (6) it was error to allow the jury to take notes during opening argument; (7) certain evidentiary errors by the trial court prejudiced Venture; (8) a jury verdict instruction was improperly phrased. North American contends: (9) the court should have granted its motion for a directed verdict on Venture's third-party indemnity claim. O'Neil contends: (10) the court erred in striking the defense of comparative fault from O'Neil's answer; (11) the court erred in directing verdicts for Venture, North American, and Hufschmidt on O'Neil's indemnity claims; (12) the jury award was excessive. Finally, Venture, North American and O'Neil all contend: (13) that the court erred in severing, for separate jury consideration, the third-party indemnity claims.

We affirm.

The plaintiff, a North American employee, was injured while attempting to install a 3,000-pound precast concrete panel. A crane attached to the panel was disconnected because the prior installation of a canopy prevented using the crane in the final stages of the panel's installation. A second device not used to temporarily secure the panel was a pole brace and deadman (a cylindrical 3- to 4-foot hole filled with concrete used to anchor the pole brace attached to the panel). Instead a C-clamp was used to secure the panel. As plaintiff was working on a ladder against the panel, the panel began to fall over, forcing him to jump from the ladder.

John Strong, a graduate engineer, was, in May 1977, vice-president of engineering and construction for Venture. He was also the director of Venture's design and construction department, with a staff that included a construction superintendent, Carl Teare. They solicited proposals from three architectural firms and selected Hastings & Chivetta. A general construction contract was then entered into between Venture and W.E. O'Neil Construction Company.

The O'Neil contract required O'Neil to submit to Venture a construction schedule. This would show starting and completion dates for various stages of construction, including installation of precast concrete and structural steel. Venture had the power to suggest schedule revisions, although it often would accede to the opinion of O'Neil, which had the responsibility for compliance. Venture also had the right, with just grounds, to disapprove the scheduling. Approval of the schedule would have been by Carl Teare or Strong, or both of them. Although Strong could not specifically recall if he approved the schedule submitted by O'Neil, he assumed that it was approved.

According to Strong the decision to include the four precast concrete panels by the main entryway was that of Venture's and the architect's. He could not recall whether he knew in 1977 that the precast concrete panels were to be installed after the canopy. However he conceded that this quite possibly would have been included in O'Neil's master schedule. He also testified that he could have determined the method of installing these panels by looking at the architects' plans. Strong also testified that Venture could have required O'Neil to install the precast concrete panels before the canopy was on. Strong, who was at the job site an average of once a week during the foundation phase and once a month thereafter, stated that he may have been present when the precast concrete panels were being positioned.

Strong also testified that under the O'Neil contract Venture retained the right to review and reject O'Neil's subcontractors or even to hire subcontractors and assign them to O'Neil. O'Neil was required to comply with all Federal, State, and local safety rules. Venture retained the right to terminate O'Neil if it disregarded rules or failed to properly supervise the work. The contract also gave Venture the right to terminate O'Neil for failure to comply with the sequencing schedule.

According to Strong the duties of Venture's construction superintendent, Carl Teare, were supervising compliance with the budget, schedule, and quality levels. In a deposition he had testified more broadly that Teare was to supervise the construction of the building. Strong also conceded that Teare's quality-compliance monitoring duties would include safety. Teare was to bring unsafe practices to the attention of the general contractor, O'Neil, and also could stop any unsafe actions. Teare also conducted job meetings with O'Neil's representative to discuss scheduling problems. On occasion Strong attended these meetings. Both Strong and Teare, as agents of Venture, "most probably" had the authority to stop any unsafe work.

Anthony Chivetta, a partner in the architectural firm of Hastings & Chivetta, testified that Venture had requested that they include the precast concrete slabs in their plans.

Thomas Blazek, general manager of Hufschmidt Engineering in 1977, testified that his firm was the supplier of the precast concrete panels. Before Venture hired its general contractor, O'Neil, Hufschmidt had already begun production of the panels, pursuant to an oral agreement with Carl Teare of Venture. Carl Teare also requested that Hufschmidt select North American as subcontractor for erection of the panels, and Blazek agreed to this.

Subsequently, the actual contracts between O'Neil and Venture, O'Neil and Hufschmidt, and Hufschmidt and North American were executed. The O'Neil-Hufschmidt contract specified that Hufschmidt was to supply the materials and labor to erect the panels, although provision was also made for subletting part of the work with O'Neil's permission. Under the terms of the contract, Hufschmidt also agreed to be solely responsible for compliance with all safety rules. Similarly, the Hufschmidt-North American contract required North American to take all necessary action to ensure compliance with safety and health requirements. According to William Karl, North American's founder, this latter contract was executed after the job had been completed.

William O'Neil, president of O'Neil Construction Company, testified that as general contractor his company coordinated the work of the subcontractors on the job site, including scheduling. Involved in the project for O'Neil Construction were Joseph Bertino, Jim Craig (vice-president of operations), Rich Rogers (project manager), and Jerry Belinski (job-site superintendent).

The job-site superintendent monitored scheduling and compliance with plans, specifications, and all safety rules. He had the right to stop the work until safety violations were cleared up. Specifically, Belinski's job included ascertaining that supports and ladders were placed and used safely and properly.

According to William O'Neil the safest method of securing a precast concrete panel during erection and until final connection would be by keeping it attached to a crane. A deadman and pole brace would be a safe alternative if the deadman were properly installed. The use of the C-clamp as occurred in this case was not safe. If O'Neil's superintendent, Belinski, observed this latter method he should have brought it to the attention of the workers.

North American's foreman on the day of the accident, Gary Maze, testified that the larger precast concrete panels were lifted off a truck by crane and remained attached to the crane until being welded in place to the structural steel beam. But this procedure could not be followed with the four smaller panels to be placed under the canopy because of the structural steel contained in the canopy. Three or four days before the accident Maze had discussed potential problems arising from this with William Karl (of North American) and Jerry Belinski (of O'Neil). Belinski told him that the canopy was up because the ironworkers had already been there and they wanted it up then. When Maze asked why no deadman was there Belinski said he had no time for four little panels. He instructed Maze to "muscle" the panel in and use a clamp. The plaintiff was injured while they were installing the first of the four panels. The procedure used was to maneuver the panel as close as possible to its setting with the crane, then disconnect the crane, push the panel in, and clamp it to the channel directly above it. Plaintiff and another worker held the panel in place with their hands while attempting to put on the C-clamp. They had difficulty putting it on, difficulty which O'Neil's supervisor, Belinski, observed before walking away. William Karl of North American was also present at this time. The panel fell over while plaintiff was on a ladder against it, causing him to jump and sustain injuries.

Maze testified that the only thing holding the panel in place was the C-clamp, which he did not consider a safe securing method. The deadman and pole brace could have been used to support the panel, but Belinski chose the C-clamp method. Maze also testified that based upon his experience in the industry it was the general contractor (O'Neil) that would install the deadman.

William Karl, founder of North American, also testified that the deadman would have been furnished by the general contractor. The safest method of installation would have been to keep the crane attached to the panel the entire time. This could not be done because of the overhead obstructions. The next safest way would have been to use the deadman device. This could not be done because no deadman had been installed. Therefore the C-clamp method was the remaining alternative.

Dennis Puchalski, a construction safety expert called by the plaintiff, testified in response to a hypothetical question underlying the facts of this case. In his opinion the panel was not supported in a safe or suitable manner. The use of a C-clamp to secure the panel did not comply with the standards of the American National Standard Institute (ANSI). The most accepted practice would have been to hold the panel up with the crane while being welded. If a crane could not be used then a deadman's pole brace should have been used. Thus the ladder upon which the plaintiff was standing had also not been placed in a safe or suitable manner.

The plaintiff, who was born in 1932, testified that he had been a bricklayer since 1955. When he jumped off the ladder he suffered an injury to his right heel (established by medical testimony to be a shattered heel bone). As the result of the injury he had lost mobility in his right foot. If he stepped on a rock causing his foot to bend, he would fall down from the pain. Climbing stairs during the day would make him unable to walk at night. In the morning he has to loosen up the foot so he could walk. Working also aggravates the pain, although he had been working full time again since April 1978. Lloyd Coffman, a construction superintendent, testified that he had first worked with the plaintiff in 1957 and knew him to be one of the best in the trade. However, ...

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