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06/29/87 Thomas Ryan, v. Mobil Oil Corporation

June 29, 1987

THOMAS RYAN, PLAINTIFF-APPELLEE

v.

MOBIL OIL CORPORATION, DEFENDANT-APPELLANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (ERROL C. O'BRIEN, INDIV. AND D/B/A J-B INDUSTRIAL PAINTING, ET AL., THIRD-PARTY DEFENDANTS-APPELLANTS)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

510 N.E.2d 1162, 157 Ill. App. 3d 1069, 110 Ill. Dec. 131 1987.IL.913

Appeal from the Circuit Court of Cook County; the Hon. John M. Breen, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. QUINLAN, P.J., and CAMPBELL, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

This case arises from personal injuries the plaintiff, Thomas Ryan (Ryan), suffered while riding on the sidewall of a pickup truck owned and operated by his employer, J-B Industrial Painting , the third-party defendant. The accident took place while Ryan was being transported on the premises of the defendant, Mobil Oil (Mobil).

On August 20, 1979, Ryan was painting, sandblasting and water-blasting at the Mobil Oil Refinery in Joliet, Illinois. At the time of the accident, Ryan was returning from his afternoon work break. He was riding in the back of a truck owned by J-B and driven by its foreman, John DeFrancesco. The accident occurred when DeFrancesco drove the truck off the main road and through a graveled area. He observed what appeared to be shallow puddles and drove through them. The truck bounced as it proceeded through the puddles, and plaintiff fell down in the bed of the truck and was injured.

Plaintiff was taken to the hospital where he saw Dr. Douglas Adelman. Dr. Adelman testified that he saw Ryan for the first time on the day of the accident. At this time he was complaining of pain in his lower back and left leg. X rays were taken of plaintiff's back, but the results failed to show the cause of his pain. Subsequent tests were taken, but these tests also failed to show the cause of Ryan's pain.

Dr. Adelman saw plaintiff on January 20, 1983, and found persistent back and leg pain. He recommended a CAT scan, which was performed on February 1, 1983. The CAT scan revealed a ruptured spinal disc. Dr. Adelman recommended surgery on plaintiff's back, which was performed on March 7, 1983. The surgery removed the ruptured spinal disc.

Ryan sued Mobil for the injuries he suffered to his back which allegedly have prevented him from working and enjoying everyday activities of life. In his complaint, Ryan alleged that Mobil was negligent in the manner in which it maintained its roads and for failing to make reasonable inspections and necessary repairs. Subsequently, he amended his complaint. The amended complaint alleged that Mobil was negligent because it permitted plaintiff to stand in the pickup truck in violation of Mobil's safety rules. The amended complaint further alleged that Mobil was negligent because it allowed J-B to operate pickup trucks at the refinery in violation of its safety rules. The jury found Mobil liable and awarded a verdict of $520,000, which had been reduced by 25% because of plaintiff's comparative negligence.

Mobil countersued J-B for indemnity and contribution pursuant to a contract between them. Mobil alleged that if it is liable to Ryan, then J-B would be liable to it, because J-B's employee drove at an excessive speed and failed to keep an adequate lookout for unsafe conditions in the graveled area. Mobil also alleged that J-B was negligent in failing to provide seats and safety belts in the truck bed. The latter allegations were never sent to the jury. The jury found J-B 50% liable. J-B and Mobil both appeal the jury's verdict. I

Mobil initially argues that the trial court abused its discretion when it allowed plaintiff to amend his complaint at trial. According to Mobil, the amended complaint presented a new theory of liability unrelated to the original theory. Mobil claims these amendments unfairly prejudiced its case because it had not been allowed to conduct discovery and prepare a defense to meet the new allegations.

It is well settled that the decision whether to allow an amendment to a complaint lies within the sound discretion of the trial court, and its decision will not be disturbed absent a showing of an abuse of that discretion. (Schenker v. Chicago Title & Trust Co. (1984), 128 Ill. App. 3d 488, 491, 470 N.E.2d 1264, 1267.) A trial court's power to allow amendments should be freely exercised in order that litigants may fully present their causes of action. (Scala/O'Brien Porsche Audi, Inc. v. Volkswagen of America, Inc. (1980), 87 Ill. App. 3d 757, 762, 410 N.E.2d 205, 208.) The greatest liberality should be applied in allowing amendments and the most important question is whether the amendment will be in the furtherance of Justice. (Lawson v. Hill (1979), 77 Ill. App. 3d 835, 845, 396 N.E.2d 617, 625.) The court in Lawson explained:

"[While] recognizing that an amendment should not ordinarily be permitted to set up matters of which the pleader had full knowledge at the time of interposing the original pleading and no excuse is presented for not putting its substance in the original pleading, such an amendment will be allowed where Justice is not served by denying leave to amend; doubts should be resolved in favor of allowing amendments. 'The liberal policy of permitting amendments to pleadings is in accord with the salutory principle that controversies ought to be settled on their merits in accord with the substantive rights of the parties.' [Citation.]" (Emphasis added.) Lawson v. Hill (1979), 77 Ill. App. 3d 835, 845, 396 N.E.2d 617, 625, quoting Stevenson v. Maston (1969), 107 Ill. App. 2d 65, 70, 246 N.E.2d 38, 40.

In the instant case, plaintiff failed to give an excuse for the lateness of his amendments. However, as Lawson explained, a party should not be precluded from amending his pleadings even though he has no excuse. If Justice would not be served by denying leave to amend, then the trial court acted properly in allowing the amendment.

The record demonstrates that plaintiff's new theory of liability merely presents issues that Mobil had interjected into the litigation earlier in connection with its claim against J-B. In its original complaint against J-B, Mobil alleged negligence for failure to follow its safety regulations. Before Mobil dropped this allegation from its case, the safety regulations were in controversy.

When Ryan amended his complaint he was not introducing novel issues into the case. Rather, he was reintroducing issues that Mobil had put into controversy. Moreover, these new issues were based on Mobil's own safety regulations; its request for a continuance to conduct more discovery on this point would have served no purpose except to delay the trial.

Allowing the amendments did not cause any undue prejudice or hardship for Mobil. While it is true that Ryan could have amended his pleadings earlier, Justice would not have been served by denying him leave to amend. (Lawson v. Hill (1979), 77 Ill. App. 3d 835, 845, 396 N.E.2d 617, 625.) The trial court did not abuse its discretion when it allowed plaintiff to amend his pleadings. II

Mobil next argues that the jury's verdict is against the manifest weight of the evidence because the evidence did not show it violated any duty that it owed to plaintiff. A reviewing court will not disturb a jury's verdict unless an opposite Conclusion is clearly apparent or the finding of the jury appears to be unreasonably arbitrary and not based on the evidence. (Chapman v. Checker Taxi Cab Co. (1976), 43 Ill. App. 3d 699, 709, 357 N.E.2d 111, 119.) The jury as trier of fact is in a superior position to a reviewing court to determine the witness' credibility and weigh the evidence. Schulenberg v. Signatrol (1967), 37 Ill. 2d 352, 356, 226 N.E.2d 624, 626.

With these general rules in mind, we consider the merits of Mobil's arguments. Mobil claims that it did not breach its duty to maintain its premises. Mobil argues that Ryan failed to show that, "[first], Mobil knew about, or with reasonable care should have known about the puddle in question and that it presented an unreasonably dangerous condition; secondly, that the condition of the puddle was latent and not likely to be discovered by Plaintiff; and thirdly, that despite Mobil's actual or constructive knowledge of the latent defect, Mobil failed to exercise reasonable care to protect Plaintiff from danger." These contentions ignore the testimony of Mobil's transportation supervisor, James Bruno, who was called as an adverse witness by Ryan, and James Madonis, who was a J-B employee riding in the bed of the truck at the time of the incident.

Madonis testified that the pothole in the graveled area looked like a "puddle." Only after the truck drove through the "puddle" did he realize that it was a pothole "shaped like a figure 8," three feet long, a foot and a half wide and six to eight inches deep.

Bruno testifies that in 1979, the year of the accident, it was a part of his job to inspect all roadways in the plant. He further testified that he did not believe that there were signs warning drivers not to drive through the graveled area. In addition, he testified that in the graveled area in question, if the holes were five to eight inches deep, he would do something about it. Furthermore, he testified that prior to the date of the accident, he saw potholes in the graveled area.

This testimony definitely shows that Mobil was aware of potholes in the graveled area and considered a pothole of the dimensions described to be a problem requiring remedial actions. In addition, a pothole of the size described by Madonis would amply support a finding that the condition was unreasonably dangerous.

Secondly, Madonis' testimony showed that the pothole appeared as a "puddle." There is no testimony that demonstrates that any of J-B's employees realized or had reason to know that the "puddle" really was a large and rather deep pothole posing a danger to vehicles. ...


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