Before this case was submitted to the jury, the trial court entered a partial directed verdict against plaintiff on all of the allegations in his complaint *fn1 except the claim that defendant was negligent in exposing the plaintiff to an unreasonably dangerous condition by failing to raise the dockplate. The court submitted to the jury this single theory of negligence, along with defendant's affirmative defense that plaintiff was contributorily negligent in removing a band from a pallet of items which were not properly stacked, in failing to use a dockplate that was available, in unloading the load from his truck, and in failing to keep a proper lookout for his own safety.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
536 N.E.2d 952, 181 Ill. App. 3d 222, 129 Ill. Dec. 902 1989.IL.401
Appeal from the Circuit Court of Cook County; the Hon. James W. Traina, Judge, presiding.
JUSTICE BUCKLEY delivered the opinion of the court. CAMPBELL and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY
This negligence action is before this court on Ronald Courtney's (plaintiff's) petition for leave to appeal the trial court's order granting a new trial following the judgment it entered for plaintiff from a jury's $277,000 damage award, reduced to $199,040 to correspond to the jury's 28% comparative negligence finding. Allied Filter Engineering, Inc. (defendant), pursuant to Supreme Court Rule 306(a)(2) (107 Ill. 2d R. 306(a)(2)), requests that this court reverse the trial court's order denying its motions for directed verdict and for judgment notwithstanding the verdict. For the reasons set forth below, we reverse the trial court's order granting a new trial and remand this case with directions to the trial court to reinstate the judgment in favor of plaintiff.
The record reveals that defendant, a manufacturer of diesel engine filters, has a shipping and receiving area on its premises at 811 Golf Lane in Bensenville, Illinois, for truck deliveries. This area includes two indoor truck bays, each of which is equipped with a dockplate that forms a bridge between the dock and rear of the trailer when it is placed into an up position and, when down, forms a 90-degree angle with a sharp edge. Defendant followed the standardized procedure in the industry for unloading palletized freight, namely, the company receiving the material unloads the material. Defendant had full-time employees who operated forklift trucks to unload trailers, and it forbad outside drivers from operating its equipment.
Plaintiff, a truck driver for Motor Freight Express, testified to the following. On July 23, 1981, at approximately 10:40 a.m., he arrived at defendant's shipping and receiving area to deliver palletized freight. At the direction of Jimmy Heath, defendant's supervisor in the receiving area, plaintiff pulled into the west truck bay. His trailer was positioned against the bumpers on the dock, leaving a gap of approximately five inches between the trailer's rear and the sharp, exposed edge of the lowered dockplate.
Heath then refused to unload the truck. He placed an empty skid near the edge of the dock and told plaintiff to stack the boxes on it. Heath did not raise the mechanical dockplate or make the forklift available to plaintiff. Plaintiff also did not have a "hand jack" or a "portable dockplate," which Motor Freight truck drivers carried in their trailers when they knew in advance that a customer would not unload.
Upon Heath's refusal, plaintiff telephoned Gerard Anastasia, his supervisor at Motor Freight Express, who told him to solicit defendant's employees to unload the truck or, if unsuccessful, deliver the freight in some other way. Following Heath's second refusal to unload and to raise the dockplate, plaintiff loosened the vertical and horizontal bands which stabilized the 27 cartons that stood six feet high and weighed approximately 40 pounds each.
As plaintiff carried one of the boxes toward the dock and the skid, some of the boxes fell and struck him in the mid-back. The boxes knocked him over, and his right knee landed in the space between the back of the truck and the dockplate. The front of plaintiff's knee forcefully struck the sharp edge of the dockplate, causing him immediate pain and swelling.
Dr. Robert Kaminsky, a board-certified orthopedic surgeon, testified on plaintiff's behalf as his primary treating physician. Kaminsky first examined plaintiff on July 27, 1981, upon a referral from plaintiff's family physician. At that time, plaintiff related his accident at work and complained of pain in his knee. Plaintiff again complained of pain in his knee on a September 10 return visit. Unable to diagnose plaintiff's condition from these examinations, Kaminsky recommended plaintiff undergo an arthroscopic procedure. From this procedure performed on September 24, 1981, Kaminsky diagnosed plaintiff's condition as chondromalacia of the patella, a softening of the cartilage caused by a sudden increase in pressure between the back of the kneecap and the femur. The arthroscopic procedure, however, proved unsuccessful, and plaintiff's kneecap was removed on April 20, 1982.
Kaminsky testified that in his expert opinion the trauma of July 23, 1981, either caused the damage to plaintiff's knee or aggravated a preexisting condition. On cross-examination, Kaminsky admitted that it is possible that chondromalacia could develop from mere wear and tear or a twisting of the knee and also stated that he could not determine from mere observation when or how the condition developed. He further ...