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08/04/87 James A. Dillon, v. U. S. Steel Corporation

August 4, 1987

JAMES A. DILLON, PLAINTIFF-APPELLEE

v.

U. S. STEEL CORPORATION, N/K/A USX CORPORATION, DEFENDANT-APPELLANT AND THIRD-PARTY, PLAINTIFF-APPELLANT (EDWARD GRAY CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

511 N.E.2d 1349, 159 Ill. App. 3d 186, 111 Ill. Dec. 54

Appeal from the Circuit Court of Cook County; the Hon. James E. Sullivan, Judge, presiding.

As Amended January 15, 1988. 1987.IL.1118

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. SCARIANO, P.J., and HARTMAN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Defendant appeals from the order of the circuit court entering judgment in the amount of $2,109,000 on the verdict of the jury which found in favor of plaintiff James Dillon. The jury also returned a verdict in favor of third-party defendant and against defendant. On appeal now, defendant contends: (1) that plaintiff failed to prove as a matter of law that defendant was negligent; (2) that the trial court improperly admitted evidence of defendant's post-accident remedial measures; (3) that the trial court erred in barring testimony regarding plaintiff's training, experience and competence; (4) that the trial court erred in refusing to tender defendant's special interrogatory and certain instructions to the jury; and (5) that the damage award was excessive.

The record indicates that on June 19, 1979, plaintiff, an employee of Edward Gray Corporation, third-party defendant-appellee, was severely injured while performing his duties as a lancer at defendant's plant in Gary, Indiana, when a quantity of molten metal erupted from a lump of scrap steel and struck him. The scrap metal, known as a strawberry, erupted as he attempted to cut the strawberry into smaller pieces for recycling.

Prior to trial, several evidentiary matters were ruled upon. The court sustained plaintiff's motion in limine to bar testimony regarding plaintiff's job performance during his training period prior to the incident on the grounds that it was irrelevant. Defendant's motions to bar evidence of its post-occurrence remedial measures and to exclude the investigatory committee's report were taken under advisement. Defendant's investigatory committee had issued a report following the accident containing the following recommendations:

1. All burners should wear aluminized coats when burning lumps.

2. No "E" lump will be burned until 24 hours after the lump has been dumped out of the ladle.

3. Investigate the possibility of using a burning shield either portable or stationary.

The court ruled later that reference to two of the committee's recommendations regarding a shield and safety clothing were barred and permitted only the reference to the 24-hour cooling period.

Bernard Jajowka, a former supervisor of the Basic Oxygen Process shop at defendant's plant, testified that during the steelmaking process, after molten steel is poured into molds, excess steel is transferred to an emergency or "E" ladle. A strawberry is formed when leftover steel solidifies in the "E" ladle, then is transferred by a crane to a stand and then to the ground in the slag yard. The strawberry is cooled in the ladle for approximately eight hours and weighs from 10 to 40 tons. The ladles used for this process were made by defendant. Strawberries are quartered and carried back to the vessels where they are remelted.

On the day of the incident, plaintiff and another lancer, Charles "Cedar" Thompson, reported to Jajowka at 8 a.m. Jajowka told them that there were strawberries to be cut. Jajowka stated that defendant kept no records regarding when a strawberry was dumped from the ladle and placed in the yard. Later that morning, Jajowka received orders from his superintendent, Mr. Besich, to lance a small wedge from a particular strawberry and to send the sample to the laboratory for analysis; analysis was sought on this lump because it was "warmer." Jajowka stated that the laboratory had never asked for such a sample from a strawberry before. He added, "nobody ever knows or ever determined whether it [a strawberry] completely solidifies." Jajowka did not know whether defendant's metallurgical laboratory had ever conducted tests to determine when the inside of a strawberry was molten. Jajowka had never known of an incident such as a burst of molten steel spewing from a strawberry occurring before.

Plaintiff's accident occurred at approximately 2:30 p.m. Later that afternoon, Jajowka met as part of the investigatory committee to discuss the accident. At the scene, the committee observed that molten steel had spewed approximately 75 to 100 feet across a roadway and covered a cinder block building with a fine mist. The committee thereafter recommended that as a precautionary measure, in the future, defendant would wait 24 hours after a strawberry was dumped to lance it. The committee never made a determination as to what caused the incident. Jajowka testified that the committee made two additional recommendations, but was not permitted to testify as to these recommendations.

On cross-examination, Jajowka testified that he had never lanced a strawberry in which there was a liquid center. Jajowka stated that the decision to cut a strawberry is that of the lancer. The process of melting the steel, pouring it into molds and removing the excess steel from the "E" ladle is supervised by defendant's employees. Defendant's employees also monitor the temperature of the molten steel and can approximate the amount of excess steel which will be poured into a ladle. Jajowka explained that a warm strawberry was easier and faster to cut.

At the close of Jajowka's testimony, outside the presence of the jury, plaintiff's attorney objected to defendant's attorney's questioning of Jajowka regarding the fact that there were two additional recommendations made by the investigatory committee. Plaintiff's attorney maintained that such questioning prejudiced plaintiff because it inferred to the jury that plaintiff was withholding information. Plaintiff's attorney further argued that such questioning opened the door to the entire investigatory report, in violation of the court motion in limine which excluded evidence of post-occurrence remedial measures. The court denied plaintiff's counsel's request to instruct the jury to disregard the testimony regarding additional recommendations and reserved his ruling on the admissibility of the entire investigatory report for a later date.

Charles Thompson testified that he had been employed as a lancer by third-party defendant at the time of plaintiff's accident and had been so employed for approximately 25 years. Lancing is usually performed with an oxygen lance, a pipe approximately one-half inch in diameter and 20 feet long. The end of the pipe is lit and placed against the strawberry. A lancer would not know whether the strawberry was solid or molten inside. During the lancing process, small bean-sized pieces of steel spew from the strawberry and for this reason, flame-resistant clothing is worn. Ultimately, the strawberry is cut in half. A warm strawberry can be cut in eight hours and may require up to 75 pipes.

On the morning of plaintiff's accident, Thompson was asked to excise a portion of the strawberry which later erupted. Lancers typically wear a flame-retardant green suit, leather leggings, gloves, safety glasses, a face mask and a shield. Thompson and plaintiff were assigned to work as partners and Thompson was to train plaintiff, a less experienced lancer. After Thompson excised a biopsy from the strawberry, they were told by their supervisor, Jajowka, to lance the "hot" strawberry because Jajowka wanted to clear the area for three or four other strawberries due in that evening. He stated that there was no way to know whether the core of the strawberry was molten. Thompson lanced the strawberry for approximately 45 minutes and was then relieved by plaintiff.

Thompson testified that plaintiff did so properly and in the manner taught to him by Thompson and stated that plaintiff lanced "as good as I [Thompson] can do it." Immediately before the accident, a van came down the roadway adjoining the slag yard. Thompson saw plaintiff turn the valve down on his pipe and Thompson began to move a barrel from the roadway when he saw a bright flash of light and heat and then a spray of molten steel spew from the strawberry. Thompson fled from the area and ran to the office to report the incident and to send for an ambulance. Thompson returned to the scene later and saw small pieces of steel covering the ground as well as the sides of a building across the roadway.

As a lancer for over 30 years, Thompson had never seen such an explosion. Thompson had lanced strawberries in which there were molten centers, once or twice, but had never had problems with them, as the molten metal merely ran onto the ground. The decision to burn a particular strawberry was usually that of the lancer, unless he received orders to do otherwise.

An offer of proof was made by defendant. Outside the presence of the jury, Thompson testified that he had worked with plaintiff on two earlier occasions during which plaintiff had had difficulty taking instructions. Thompson told his supervisor that plaintiff was not an experienced lancer and threatened to leave if plaintiff were not removed from lancing work. Plaintiff was fired but returned nine days prior to the accident and asked to work again. Thereafter, plaintiff's attitude changed and he appeared willing to learn and in fact learned well.

J. C. Hodges, an employee of the third-party defendant, testified that he witnessed plaintiff's accident as he arrived at work at 2:15 p.m. on June 19 in a van driven by a co-worker Larry Robinette. The van had stopped approximately 60 feet from plaintiff, who was lancing a strawberry, when the strawberry erupted.

Hodges described the eruption as similar to that of a volcano. Some of the molten metal hit the van's windshield and a building nearby. Plaintiff turned and began to flee, then dropped to the ground. When the metal stopped erupting, Hodges exited the van and ran to help plaintiff. Plaintiff's mask and hard hat had been blown from his head. Plaintiff was conscious. Hodges and several co-workers tried to calm plaintiff and poured several gallons of water on his head and body. Plaintiff's body was smoking and he began to tear clothes from his body. Hodges saw blisters begin to form on plaintiff's arms. An ambulance arrived immediately and took plaintiff away.

William Faison, Jr., a former supervisor of safety at defendant's plant, testified that he arrived at the scene of plaintiff's accident approximately one-half hour after its occurrence. Faison observed steel residue on the ground. After an investigatory committee met, a report was prepared. Plaintiff's attorneys attempted to introduce a copy of this report into evidence but a sidebar was called. After Discussion, the report was admitted into evidence after deletion of the report's references to two of the recommendations made by the committee. Hodges then testified regarding the committee's determination that the core of the strawberry was molten and its recommendation that there be a 24-hour cooling period before a strawberry is lanced. Plaintiff's counsel attempted to question the witness further regarding why the committee's recommendation was made, but defendant's attorney objected and argued during a sidebar that this line of questioning about ...


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