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05/12/88 Ronald M. Selby, v. Danville Pepsi-Cola

May 12, 1988

RONALD M. SELBY, PLAINTIFF-APPELLANT

v.

DANVILLE PEPSI-COLA BOTTLING COMPANY, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

523 N.E.2d 697, 169 Ill. App. 3d 427, 119 Ill. Dec. 941 1988.IL.739

Appeal from the Circuit Court of Vermilion County; the Hon. Paul M. Wright, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

Plaintiff slipped and fell on a sloped, icy parking lot at defendant's plant as he was unloading liquid sugar. At the close of the evidence, the trial court allowed defendant's motion to strike various portions of plaintiff's complaint for failure to state a cause of action. The cause was submitted to the jury on the issue of whether defendant had created an unnatural accumulation of ice where plaintiff fell. The jury found for defendant. Plaintiff appeals arguing the trial court erred in striking portions of his complaint and in refusing to instruct the jury on the stricken allegations; in instructing the jury on proximate cause; and in allowing improper cross-examination. Plaintiff also argues miscellaneous trial errors deprived him of a fair trial.

We affirm.

Pearley Keller, defendant's warehouse manager and former plant manager, stated that on January 10, 1984, he was in charge of production, building maintenance, and ordering liquid sugar. Part of his job was to make sure the exterior walking surfaces were safe. The Danville plant has an asphalt-covered parking lot to the south of the building. A fence runs along the west end of the lot. The sugar delivery area is at the southwest end of the building, east of the fence. It contains two doors, four feet from the ground, with pipes to receive liquid sugar. The employee entrance to the plant is approximately 20 feet from the sugar doors. A small, six-inch drain is situated directly south of the sugar delivery area in a concrete pad. The parking lot slopes from the building to the small drain. A larger storm drain is located 40 feet south of the small drain. The lot slopes to that drain as well. Keller described the slope as "more than a slight slope." Dr. Roger Brauer, plaintiff's safety expert, stated the slope in the area where plaintiff fell was from one to six degrees. The high point of the slope is at the building.

Melting snow piled along the fence would not drain into the work area. Melting snow piled against the building would drain down the slope and into the sugar delivery area.

Keller testified that he expected a delivery on January 10, 1984. It was defendant's policy to remove snow from the sugar delivery area. Keller could not remember the last date prior to January 10, 1984, when snow had been removed from the area. Usually, he would plow the snow to an area along the fence where it would melt into the drain. He did not plow snow up to the building. Another of defendant's employees testified that defendant did not pile snow up against the building but placed it along the fence. Keller could not remember the placement of snow on January 10, 1984.

He placed sand in the sugar delivery area on the day before plaintiff's accident. However, freezing rain covered the sand. Weather reports show that on January 9, 1984, Danville had freezing rain for several hours between the early afternoon and evening. The high temperature for the day was 36 degrees, and the low temperature for the day was 24 degrees. The high temperature for January 10, 1984, was 32 degrees and the low temperature was 11 degrees. One of the exhibits showed freezing rain on both January 9, 1984, and January 10, 1984. The temperature did not rise above freezing prior to plaintiff's fall on January 10, 1984.

Plaintiff arrived at the Danville plant at approximately 7:15 a.m. The temperature was below freezing, but it was not snowing or raining. There was ice and snow on the sides of the road, but the roads in Danville were clear. Plaintiff stated that when he entered the lot, he noticed patches of ice on the driveway and spotty sheets of ice in the parking lot. At one point, as he was turning his truck, he lost traction because of the ice. One of defendant's employees moved his vehicle from the sugar unloading doors and motioned to plaintiff to watch his step.

Plaintiff stated snow had been plowed up against the building. The snow came out two to three feet from the building all along the south side until it reached the sugar delivery area. It was stacked up to approximately a foot beneath the doors. The snow came out five feet into the lot itself, forming a bay area around the sugar delivery doors. Plaintiff stated there was a patch of ice precisely where he had to remove the hoses from the truck. It ran unbroken from the edge of the snow down the slope. It was "black ice," clear to the asphalt. He could not see any sand in it. The slope was similar to a wheelchair ramp. Plaintiff hooked up the first hose but was sliding on the ice. As he was pulling the second hose out of the truck, he lost his footing and fell, breaking his right leg. Ambulance personnel and several of defendant's employees had to carry him over snowbanks to put him in the ambulance. Plaintiff admitted that in 1986 he applied for and was hired by Mercer Trucking. He worked for three weeks, then quit.

Several witnesses testified that the Danville area was snow-covered and icy on January 10, 1984. The ambulance attendants stated the roads were clear but the area in which plaintiff fell was ice-covered. The trip report for the ambulance indicated the road conditions were icy. The ambulance attendants did not remember lifting plaintiff over snow. They did remember people helping lift plaintiff into the ambulance, because of the ice, which made footing uncertain, and plaintiff's size. No ...


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