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02/03/89 Gertrude Bart Et Al., v. Union Oil Company of

February 3, 1989

GERTRUDE BART ET AL., PLAINTIFF-APPELLEE AND CROSS-APPELLANT

v.

UNION OIL COMPANY OF CALIFORNIA, DEFENDANT-APPELLANT AND CROSS-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

540 N.E.2d 770, 185 Ill. App. 3d 64, 132 Ill. Dec. 848 1989.IL.126

Appeal from the Circuit Court of Will County; the Hon. Herman S. Hasse, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. STOUDER, P.J., and SCOTT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Defendant, Union Oil Company of California, operated an oil refinery in Lemont, Illinois. On July 23, 1984, an explosion occurred at the refinery at 5:52 p.m. Subsequently, a second explosion and fire took place at approximately 6:20 p.m. Alex Bart, a security guard at the refinery, was killed in the explosion; his body was discovered at 9 p.m. In all, the remains of 17 victims were found. The decedent's widow, Gertrude Bart, brought suit in the capacity as special administrator of the estate of her husband to recover damages resulting from the accident.

Mr. Bart was employed as a security guard by the Industrial Patrol Service Corporation. Industrial assigned Bart to perform security services in the premises of the defendant's refinery. On the day of the accident, Bart was assigned to the beach patrol, which required him to patrol the defendant's property outside the boundaries of the refinery. Even in the case of emergency (a "222" alarm) he was to remain outside of the refinery. Bart's patrol was to end at 6 p.m. The last time he was seen alive was at 5:30 p.m. while he was inside the plant. There was no explanation for his presence at that location, although the plaintiff contends Bart was responding to the "222" alarm, which was given shortly after 5:16 p.m.

Mr. Bart was 63 years of age at the time of his death. His wife of 45 years was 66 years at the time. The Barts had five adult sons. Bart was earning $6.10 per hour and was working on a part-time basis when the accident occurred.

Mrs. Bart's suit sought damages for personal injury and wrongful death under both the theories of negligence and res ipsa loquitur. The defendant filed a third-party complaint against numerous entities who had designed, built and repaired the vessel responsible for the accident.

On June 4, 1987, a trial commenced. On July 17 the jury reached a verdict in favor of the plaintiff in the total amount of $3 million. Specifically, the verdict reflected $700,000 for conscious pain and suffering; $16,000 for loss of wages; $80,000 for loss of services; $4,000 for funeral expenses and $2,200,000 for loss of love, affection and guidance. On October 29, 1987, the defendant's motion for remittitur was granted in part and the court remitted $1,200,000 of the $2,200,000 amount awarded for loss of love, affection and guidance. The court entered an unconditional judgment for the plaintiff in the amount of $1,800,000.

The defendant brings this appeal raising numerous issues for review pertaining to alleged trial court errors. The plaintiff raises three issues upon cross-appeal. After a thorough review of the trial and court records, this court has determined that this cause must be reversed and remanded for retrial. Due to the quantum of points raised pursuant to that end, we shall address in this Disposition only those matters we considered most meritorious in prompting our determination and which will assist upon retrial. I

Initially, we consider the defendant's contention that Mr. Bart was a "loaned employee" and thus his exclusive remedy lay within the purview of the Workers' Compensation Act (Ill. Rev. Stat. 1987, ch. 48, par. 138.1 et seq.).

The determination of one's employment status is dependent upon a range of specific factors, articulated in the case law of this State. While a cursory appraisal of the facts at bar might conceivably allow a trier to conclude that Bart was a loaned employee, we determine that the trial court's Disposition of the motions seeking summary judgment and directed verdict were based upon the correct legal Conclusion that Bart was an employee of Industrial Patrol. The trial court's holdings will not be disturbed upon this issue, and the defendant's position that a directed verdict or a judgment notwithstanding the verdict was mandated is incorrect as a matter of law.

We next consider whether the $700,000 verdict figure for conscious pain and suffering can stand in light of ...


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