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11/10/88 Joseph Smith, v. Central Illinois Public

November 10, 1988

JOSEPH SMITH, PLAINTIFF-APPELLANT

v.

CENTRAL ILLINOIS PUBLIC SERVICE COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

531 N.E.2d 51, 176 Ill. App. 3d 482, 125 Ill. Dec. 872 1988.IL.1638

Appeal from the Circuit Court of Sangamon County; the Hon. Richard J. Cadagin, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Plaintiff Joseph Smith was injured on February 9, 1982, when he slipped on some ice and slid down a flight of stairs at the Newton Power Plant. He filed a personal injury action on November 30, 1983, against defendants Central Illinois Public Service Company and Sargent & Lundy Architects, an architectural and engineering firm (Sargent), as well as several other defendants. The third and final amended complaint listed only CIPS and Sargent as defendants. This complaint contained seven counts and alleged causes of action against both CIPS and Sargent for wilful violations of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69), negligence, and wilful and wanton conduct. In addition, plaintiff alleged a cause of action for negligent design against Sargent. The circuit court of Sangamon County directed verdicts for defendants on three counts at the close of all the evidence. The jury returned verdicts for defendants on the remaining four counts. Plaintiff appeals. We affirm.

On appeal, plaintiff argues the following errors occurred at trial: (1) the court erred in not directing a verdict against CIPS on the count alleging a wilful violation of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69); (2) the court erred in allowing Sargent's project manager at the Newton Power Plant to testify as an expert witness when he had not been disclosed as such prior to trial; (3) the trial court erred in allowing defendants to introduce evidence concerning the negligence of plaintiff's employer, Transco, Inc.; (4) the court allowed defendants to interject their defenses into the examinations of adverse witnesses called by plaintiff pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1102); (5) the court erred in refusing to allow plaintiff to introduce into evidence the medical report of one of defendants' examining physicians under the exception to the hearsay rule for an admission against interest; and (6) plaintiff was prejudiced by the manner in which the voir dire was conducted, such that a new trial should be granted. In order to address the issues, it is necessary that we summarize the facts adduced at trial.

On February 9, 1982, plaintiff was employed as a construction worker at the Newton Power Plant. The plant was owned by CIPS and designed by Sargent. Plaintiff worked for Transco, Inc. (Transco), one of the many contractors hired to construct Unit II, the second phase of the overall power plant project. Plaintiff was injured when he fell down an outdoor metal stairway at the plant. The stairway was part of a system of catwalks and stairways known as a "gallery system." The gallery system was a permanent feature designed to aid in maintenance of the facility. During the later stages of construction, it was also used by construction workers to access their work stations.

Plaintiff was a foreman of a four-man team of sheetmetal workers. The team was engaged in constructing a temporary wooden scaffold on the outside of a precipitator, a large structure that was designed to remove particles from the plant's stack emissions. As the temporary scaffold was completed, the workers would stand on the scaffold while welding sheet metal to the sides of the precipitator to cover the insulation.

On the day of the accident, plaintiff and his work team used the stairway and catwalk system in order to access their work area. After ascending the stairs and crossing the catwalk, they climbed over a railing and walked approximately 10 feet across a steel beam, and then onto that portion of the temporary scaffold that they had completed. This procedure was followed, without incident, at 8 a.m. and reversed at noon, when they left their work area for lunch. They returned by the same route to their work site after lunch, at 1 p.m. Although it had been snowing lightly in the morning and there was about one inch of snow on the ground from an overnight snowfall, by approximately 10 a.m., it had become a clear, sunny day. On each of the above trips to and from the work area, the stairway was clear and dry.

Back at work following their lunch break, plaintiff and his team were the only people on the side of the precipitator where they were working. One-half hour later, at approximately 1:30 p.m., plaintiff noticed that the scaffold was becoming slick. The temperature had reached about 40 degrees, and the position of the sun in the sky was causing the accumulated snow to melt from an overhanging duct and drip onto the wooden scaffold. As the melted snow ran down, it began to refreeze on shaded areas of the metal surface. The men attempted to sweep away the ice which was forming. At 2 p.m., plaintiff decided the situation was becoming dangerous. The wet weather was interfering with the welding operation by creating an electrical "feedback." So, plaintiff, as foreman, made the decision to stop work in that area for the day.

The men stored their tools and exited the work area by walking across the steel beam, climbing over the metal railing and onto the permanent catwalk. Plaintiff led them across the catwalk, which was in the sun and had no ice on it. However, when plaintiff reached the top of the stairway, which was in the shade, he saw ice on the stairway. He turned to the other workers, saying, "Watch out, these stairs are icy." Plaintiff stepped onto the stairway, then slipped, fell, and slid down the flight of stairs on his back and buttocks. The three men who were with plaintiff went slowly and descended the stairs without incident. Reaching plaintiff at the landing below, they assisted him the rest of the way down to the ground. Only 1 hour and 15 minutes had elapsed between the time they had gone back up the stairway after lunch and the time of the accident.

At the trial, plaintiff called Ronald Ozment, the safety coordinator for CIPS at the Newton Power Plant in 1982, to testify. He was called as an adverse witness pursuant to section 2-1102 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1102). As safety coordinator, Ozment coordinated safety-related matters between CIPS and the contractors at the jobsite. There were approximately 10 contractors at the site, and Ozment was to make sure the contractors complied with general safety regulations. Ozment made daily inspections of the jobsite and, if he discovered any unsafe work conditions, he would contact the contractors responsible for that portion of the job. His responsibility was to inform the contractors of any problem he discovered, and the contractors were responsible for taking corrective measures. Regular safety meetings were held once per month between Ozment and the safety representatives of the contractors. Ozment was shown minutes from several of these meetings. The minutes from one meeting contained reminders that winter weather brought with it mud, ice, and cold temperatures, and that the workmen should be prepared for these conditions. Minutes from another meeting indicated that certain pipelines had burst in the cold weather. Ice had formed at some of these locations, and sand had been spread over the ice. The minutes from both of these meetings requested those encountering buildups of ice and snow to report such hazards to the safety department. Ozment repeatedly asserted in his testimony that he was never made aware of icy conditions on the walkways and metal stairways of the gallery system. He further stated that there were no preventive measures implemented prior to a buildup of ice and snow. Rather, hazardous conditions of ice and snow were treated as they developed. Ozment stated that if he discovered hazardous conditions caused by inclement weather or, if hazardous conditions were reported to him, he would meet with the safety representatives of the contractors working at the jobsite. The safety representatives would then decide whether to discontinue work.

Gabriel Prete was the field superintendent for Transco at the Newton Power Plant in 1982. As such, he was Transco's senior company official at the plant. He was also Transco's safety representative. Prete's evidence deposition was read into the record as part of defendants' case. Prete discussed the procedure for determining how a decision was made concerning whether work should be halted because of inclement weather. Prete stated the decision was entirely in the discretion of the union stewards and the foremen. The representatives from CIPS and Sargent would not have a part in the decision whether or not to work. Prete stated that the CIPS and Sargent people were "not allowed to even talk to my men let alone tell them what to do."

William Loftus was Sargent's project manager for the construction of Unit II of the Newton Power Plant. Loftus testified that Sargent designed the gallery system for the precipitator. Sargent also prepared the specifications for the materials to be used in constructing the gallery system. Loftus explained that the galleries are designed and constructed to respond to various weather conditions. The surface of the galleries were grated, which allowed moisture to fall through the many small openings. Moreover, the tops of the surfaces were serrated, to provide a person with solid grip as he walked.

Plaintiff's third-amended complaint consisted of seven counts, three against CIPS and four against Sargent, as follows: count I -- Structural Work Act against CIPS; count II -- premises liability negligence against CIPS; count III -- wilful and wanton conduct against CIPS; count IV -- Structural Work Act against Sargent; count V -- premises liability negligence against Sargent; count VI -- wilful and wanton conduct against Sargent; and count VII -- design negligence against Sargent. Both sides filed motions for directed verdicts during the trial. At the close of all the evidence, the circuit court directed verdicts for both defendants on the wilful and wanton counts (counts III and VI), as well as for Sargent on the premises liability negligence count (count V). The jury found for both defendants on the issue of liability on the remaining four counts.

The first issue we address is whether the trial court should have directed a verdict for plaintiff on count I, the cause of action against CIPS for a violation of the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, pars. 60 through 69). A cause of action for a violation of the Act consists of seven elements: (1) the plaintiff must have been involved in a construction activity covered by the Act; (2) the activity was being performed with reference to a structure covered by the Act; (3) a scaffold or other mechanical device as defined by the Act was being used in the activity; (4) the scaffold or device was unsafe, or not safely placed or operated; (5) the unsafe condition proximately caused plaintiff's injury; (6) the defendant had charge of the work, as that phrase has been interpreted under the Act; and (7) the defendant wilfully violated the Act. A wilful violation occurs when the defendant knows or, in the exercise of reasonable care, should know of the existence of the dangerous condition. (Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App. 3d 181, 186-87, 498 N.E.2d 522, 525-26.) At trial, the arguments focused on elements three, six, and seven. Following argument, the trial court found, as a matter of law, that the stairway where plaintiff was injured was a scaffold within the meaning of the Act. Further, the court determined, as a matter of law, that CIPS had charge of the construction work. However, the court concluded that CIPS did not wilfully violate the Act as a matter of law. That issue was submitted to the jury. The jury returned a verdict in favor of CIPS on this count.

On appeal, plaintiff argues that CIPS wilfully violated the Act. Plaintiff argues the evidence showed, as a matter of law, the stairway where plaintiff was injured was not safe, and CIPS knew or should have known of the unsafe condition. He argues the testimony of Ronald Ozment, safety coordinator for CIPS, conclusively proves CIPS knew of the icy condition of the stairway. Further, Ozment's testimony indicates he understood the unsafe nature of ...


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