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07/20/87 Dale Haberer, v. the Village of Sauget

July 20, 1987

DALE HABERER, PLAINTIFF-APPELLEE

v.

THE VILLAGE OF SAUGET, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

511 N.E.2d 805, 158 Ill. App. 3d 313, 110 Ill. Dec. 628 1987.IL.1017

Appeal from the Circuit Court of St. Clair County; the Hon. Joseph F. Cunningham, Judge, presiding.

APPELLATE Judges:

JUSTICE HARRISON delivered the opinion of the court. KASSERMAN and LEWIS,* JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Defendant, the village of Sauget (Sauget), appeals from a judgment of the circuit court of St. Clair County which awarded plaintiff, Dale Haberer, $209,000 for personal injuries he sustained while working as a laborer for Walbridge, Aldinger/Tarlton Corporation on a construction project for Sauget. For the reasons which follow, we reverse and remand for further proceedings.

The record before us shows that Sauget employed WA/TC as the prime contractor for a new sewage treatment facility it was constructing. Plaintiff, a union laborer, was hired to work on the project by WA/TC and was assigned to serve as a "finishing tender." His job consisted of mixing different types of "grout," a cementitious material used in finishing concrete. No machines were provided for this purpose, and the grout had to be mixed manually.

When handling grout, workers are supposed to wear protective gloves. This is necessary to reduce the risk of burns from or an allergic reaction to the wet mixture. Gloves were not always made available to the workers on the Sauget project, however, and on one or more such occasions Haberer was required to manually mix a type of grout known as Masterflow 713. This type of grout is expressly intended to be mixed by machine and is not to be mixed by hand. Haberer had more than 16 years of experience as a laborer, but claims that he had not used Masterflow before. As a result of his exposure to the product, he contracted cement contact dermatitis. The dermatitis became complicated by infection, and while medical treatment provided some initial relief, the condition persisted. Haberer was ultimately hospitalized for a time and was forced to stop work.

In his complaint, Haberer sought damages from Sauget for his injuries based on common law negligence. Although Haberer was employed by WA/TC and not Sauget, he claimed that liability should be imposed upon Sauget because it (a) "negligently failed to require to provide a powered and rotating type mortar mixer for [his] use," (b) "negligently failed to instruct on the proper use of Masterflow 713 Grout," and (c) "negligently failed to require to follow instructions on the label of Masterflow 713 Grout."

Haberer moved for summary judgment on the issue of Sauget's liability, and Sauget responded by filing a cross-motion for summary judgment on the same issue. The trial court granted Haberer's motion and denied the cross-motion by Sauget, and the case proceeded to trial before a jury for an assessment of damages only. (See Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) The jury determined that Haberer had suffered $220,000 in damages, but found that he, himself, was 5% at fault. It reduced his recovery accordingly, awarding him the sum of $209,000. The trial court entered judgment on the verdict, Sauget's post-trial motion was denied and this appeal followed.

As grounds for its appeal Sauget contends: (1) that the trial court erred in denying its motion for summary judgment and in granting Haberer's summary judgment motion, (2) that it was unfairly prejudiced at trial by certain remarks and arguments made by Haberer's attorney, (3) that the trial court should not have permitted certain evidence to be presented to the jury, (4) that the trial court erred in refusing to direct a verdict or to grant judgment notwithstanding the verdict in its favor, and (5) that the jury's verdict was contrary to the manifest weight of the evidence.

We consider first the propriety of the trial court's Disposition of the parties' cross-motions for summary judgment. The purpose of summary judgment is not to try an issue of fact, but determine whether a triable issue of fact exists. (Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 495-96.) Although summary judgment is recognized as a salutary procedure in the administration of Justice, it should be granted with caution so that the right to trial of conflicting facts and inferences is not usurped. Only when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law should summary judgment be awarded. (Elliott v. Chicago Title Insurance Co. (1984), 123 Ill. App. 3d 226, 231, 462 N.E.2d 640, 644.) Moreover, because it is a drastic remedy, summary judgment should not be granted unless the movant's right to such relief is clear and free from doubt. See Miller v. Smith (1985), 137 Ill. App. 3d 192, 196, 484 N.E.2d 492, 496.

The mere filing of cross-motions for summary judgment, as in the case sub judice, does not establish that there is no issue of material fact, nor does it obligate a court to render summary judgment. (Beverly Bank v. Alsip Bank (1982), 106 Ill. App. 3d 1012, 1016, 436 N.E.2d 598, 602.) While summary judgment may be granted on cross-motions by the parties where "[it] is clear that all material facts [are] before the court; the issues [are] defined; and the parties [are] agreed that only a question of law [is] involved" (Allen v. Meyer (1958), 14 Ill. 2d 284, 292, 152 N.E.2d 576), this is not such a case. The trial court was therefore still required to make an independent determination as to whether a genuine issue of material fact remained. See Allis-Chalmers Corp. v. Staggs (1983), 117 Ill. App. 3d 428, 434, 453 N.E.2d 145, 150.

Having fully examined the record in light of the foregoing standards, we believe that the trial court properly refused to enter summary judgment on the issue of liability in favor of Sauget. Citing, inter alia, the decision by our supreme court in Genaust v. Illinois Power Co. (1976), 62 Ill. 2d 456, 343 N.E.2d 465, and the decision by this court in Longnecker v. Illinois Power Co. (1978), 64 Ill. App. 3d 634, 381 N.E.2d 709, Sauget argues that its liability must be assessed in terms of the liability of ...


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