Appeal from the Circuit Court of Cook County; the Hon. John J.
Crown, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Defendant, Ideal Roller & Graphics Company (Ideal), appeals from a jury award of $16,000 in punitive damages to plaintiff, William G. Bresland, who was injured when sparks from an acetylene cutting torch ignited Naptha-soaked rugs used by plaintiff to clean heavy machinery at defendant's plant. Ideal, as third-party plaintiff, also appeals from a judgment entered in favor of the third-party defendant, Taft Contracting Company (Taft), in Ideal's action for contribution from Taft.
Plaintiff was a millwright foreman for Taft and, in this capacity, erected, installed, dismantled, and repaired precision machinery. On May 15, 1979, plaintiff was assigned to work at Ideal to examine and repair its rubber mill. George Gaydula, another Taft employee, was to work under plaintiff's supervision and direction on this job.
John Curtin met plaintiff when he arrived at the plant. Curtin was the Ideal employee responsible for the repair job which plaintiff and Gaydula were to perform. Curtin took them to the machinery and thereupon explained the problems with it. In order to better inspect the gears on the machinery, plaintiff removed a large steel cover. Two or three other Ideal employees were in the room when he inspected the gears, and plaintiff testified that he spoke to them about the problems with the machinery. After replacing one of the gears, plaintiff and Gaydula found that the machine continued to have problems. Plaintiff then directed Gaydula to use an acetylene cutting torch on the rubber-mill platform so that they could better reach the gears. When Gaydula began to use the torch, plaintiff was still conversing with the Ideal employees.
Plaintiff subsequently removed the machine's bearing cover but could not see the bearings because of the grease covering them. The parties presented conflicting testimony as to how plaintiff ultimately obtained the solvent he needed to clean the bearings. Plaintiff testified that some Ideal employees indicated they would get the solvent for him, but he could not identify them by name. He did recall that one person was wearing a tie. According to plaintiff, this person then requested another employee to get the solvent, but plaintiff again could not identify that employee.
Curtin testified that he told plaintiff to see an Ideal foreman, Bob Montgomery, for safety solvent used for cleaning electric motors. Curtin further indicated that the particular solvent to which he referred was a nonflammable one. Montgomery stated that no one had requested that he assist plaintiff or provide him with solvent. He was not aware of whether there was nonflammable solvent available in the building where plaintiff was working, and he did not know where any such solvent was stored. He indicated that the Naptha stored in the building was clearly marked in a red five-gallon can with a safety lock.
After plaintiff had obtained the Naptha, he dipped a rag into it, wrapped the rag around his hand, and started to clean the bearings. Plaintiff's right hand caught fire within seconds, apparently resulting from a spark emanating from the cutting torch used by Gaydula. Although plaintiff testified that he did not know Gaydula was using the torch at that time, Gaydula testified that plaintiff was 8 or 10 feet away with no obstructions between them.
Robert Baddeley, an engineer employed by Ideal, and Bruce Hubbard, vice-president of research at Ideal, testified that they were in the room at the time of the incident. Both men had seen Curtin previously speak to plaintiff, but neither heard the conversation. Each man stated that he did not know that plaintiff was using a flammable solvent. Baddeley indicated that it was Ideal's informal policy that flammable solvents were not to be used near an open flame. Hubbard stated that there also was an informal company policy that flammable solvents were not to be used for cleaning purposes. Plaintiff admitted at trial that he did not ask what the solvent was or whether it was of a flammable nature.
Martin Glavach, an Ideal employee and the operator of a calendar machine located next to the rubber mill, testified that plaintiff spoke to him about cleaning solvent. He stated that he brought plaintiff an empty, black five-gallon bucket but did not get the solvent for him. Glavach additionally testified that he told plaintiff that the cleaning solvent stored in the building was Naptha, which was dangerous and flammable.
Plaintiff was taken to a hospital emergency room where he was diagnosed to have second degree burns as a result of the accident. Plaintiff saw the doctor for several follow-up appointments. The doctor's notes indicated that, on June 7, 1979, plaintiff's wounds were completely healed and he was permitted to return to work.
On May 1, 1981, plaintiff filed a complaint against ideal, seeking recovery for his injuries, alleging that Ideal was negligent in supplying him with a highly flammable cleaning solvent. On March 7, 1983, Ideal filed a two-count third-party complaint against Taft, seeking recovery under the theories of active/passive negligence and contribution. Ideal alleged that Taft was negligent in failing to instruct its employees on the proper use of solvents, in allowing its employee to weld in close proximity to where Naptha was being used by a co-worker, and by failing to provide safe or adequate tools or equipment for its employees to perform their work.
On the third day of trial, April 18, 1984, plaintiff made an oral motion for leave to file an amended complaint alleging wilful and wanton misconduct against Ideal. Over Ideal's objections, the trial court permitted plaintiff to file such a complaint.
At the close of plaintiff's case in chief and at the close of all the evidence, Ideal moved for a directed verdict on the ground that plaintiff failed to produce sufficient evidence to establish liability. The trial court denied both motions for a directed verdict. The court, however, granted plaintiff's motion to direct liability against Ideal on the negligence count but not on the wilful and wanton count. It also denied Ideal's motion for a directed verdict on the issue of plaintiff's comparative negligence. At the close of all the evidence, Taft moved for a directed verdict on both counts of the third-party complaint. The court granted the motion as to the active/passive negligence count but permitted the contribution count to stand.
The jury found Ideal liable on both the negligence and wilful and wanton counts. It assessed plaintiff's damages on the negligence count at $15,000, which, after finding plaintiff's contributory negligence to be 20%, was reduced to $12,000. On the wilful and wanton count, the jury assessed $20,000 in damages against defendant. After finding that plaintiff also contributed to his injuries in this regard, the jury reduced the amount to $16,000. The jury also found for Taft and against Ideal in the contribution action.
On appeal defendant Ideal contends that (1) the trial court abused its discretion in allowing plaintiff to add a wilful and wanton count on the third day of trial; (2) the evidence did not support a finding of wilful and wanton misconduct by Ideal as a matter of law, and the trial court erred in failing to enter judgment in its favor; (3) it is entitled to a new trial because the jury verdict was against the manifest weight of the evidence, improper jury instructions were given, and attorney misconduct prejudiced the jury; (4) because plaintiff, who was Taft's agent, was found to be wilful and wanton and to have proximately caused his injuries, the trial court erred in entering judgment in favor of Taft in the contribution action; and (5) erroneous, confusing, and inconsistent jury instructions were submitted to the jury in the contribution action.
• 1, 2 Defendant initially contends that the trial court abused its discretion when it permitted plaintiff, on the third day of trial, to amend his original complaint. Defendant urges this court to strike count II ...