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06/27/89 Eugene Suich, v. H & B Printing Machinery

June 27, 1989

EUGENE SUICH, PLAINTIFF-APPELLEE

v.

H & B PRINTING MACHINERY, INC., DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLEE (CARRIER CORPORATION, THIRD-PARTY DEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

541 N.E.2d 1206, 185 Ill. App. 3d 863, 133 Ill. Dec. 768

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

Rehearing denied August 15, 1989 1989.IL.1002

APPELLATE Judges:

JUSTICE HARTMAN delivered the opinion of the court. SCARIANO and DiVITO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN

On appeal, H & B questions whether the circuit court erroneously struck portions of H & B's assumption of risk and misuse affirmative defenses and erred in denying H & B's motions for judgment n.o.v. or for a new trial.

Carrier identifies error in the court having: denied Carrier's motion for a directed verdict; allowed plaintiff's cross-examination of H & B's expert in excess of the scope of direct examination; allowed H & B to transfer its non-delegable duty to manufacture a reasonably safe product to Carrier; restricted Carrier in its cross-examination of plaintiff's economic expert; issued misleading instructions to the jury; and permitted the verdict against Carrier to stand although contrary to the manifest weight of the evidence.

On January 22, 1982, plaintiff and co-worker Craig Richardson, employees of Carrier, in servicing a Carrier air conditioning unit, were using a portable gantry crane designed and manufactured by H & B and rented to Carrier. A 3,000-pound part called a discharge volute was being removed from an air conditioning unit and, during this operation, the gantry tipped over or collapsed, and dropped the discharge volute on plaintiff's legs.

The H & B portable overhead gantry consists of an I-beam supported by and resting on two upright columns composed of an outer pipe (base pipe) and an inner pipe (telescoping tube), which fits into the base pipe. The telescoping tube can be raised or lowered on each side to set the I-beam at the desired height, to a maximum of 10 feet. Each base pipe is attached to a rectangular base equipped with four casters. Floor locks, which prevent the casters from moving the gantry, are optional equipment. The gantry involved in this accident was not so equipped. A trolley is attached to the I-beam, and a block and tackle chain hoist is then suspended from the trolley. Once a load is lifted by the hoist, it can be moved by rolling the trolley along the beam. The portable gantry can be disassembled and reassembled at the particular site where needed.

Keeping the frame bases at 90-degree (perpendicular) angles to the I-beam in lifting a load gives the gantry the greatest amount of

stability. Rotation of the bases away from a perpendicular angle decreases the stability of the gantry when used to lift heavy objects. The gantry is least stable when these bases are rotated lengthwise and parallel with the I-beam.

Prior to 1979, the design of the H & B gantry only provided for the upper telescoping tubes to have holes drilled in them for placement of height adjustment pins; when the beam was raised to the desired height, a pin was inserted into the hole (one on each side). The pin rested on the top of the base pipe and maintained the beam at the raised height. This design allowed the base pipe and connected frame to be rotated away from an angle perpendicular to the I-beam.

In 1979, as a safety measure, H & B designed the gantry so as to have a set of holes added to the top portion of the base pipe, allowing the pin to be inserted through both the outer base pipe and the inner telescoping tube, effectively locking them together and preventing the bases from being rotated. The instructions accompanying the gantry stated: "Pins should be put through outer holes and through inner tube holes to keep the unit level." The instruction sheet did not warn the gantry user of the danger of tipping if the bases were rotated.

Plaintiff began working for Carrier in 1953 and joined its pipe fitter apprenticeship program four years later. In this apprenticeship, he worked four days each week with Carrier servicemen and one day per week attending classes at Washburne Trade School. The only education plaintiff ever received regarding use of gantries came during on-the-job instruction form Carrier's journeyman pipe fitters. Carrier did not train its service personnel, such as Suich, in the proper use of gantries, relying on journeymen to pass along that information. Suich eventually became a journeyman pipe fitter after the five-year apprenticeship program.

On the date of the injury, plaintiff was servicing a Carrier model 19C commercial air conditioning unit located at Talman Home Federal Savings & Loan in Chicago. He had serviced this unit on prior occasions. Working with Craig Richardson, plaintiff was in the process of dismantling and reassembling the machine in order to effect repairs. The men were using a rented H & B gantry with a 12-foot beam, and had been removing various pieces of the compressor successfully and without incident for several days.

Immediately prior to the accident, the men began removing a 3,000-pound piece called a discharge volute. The gantry had been set up with one leg behind the compressor, its base perpendicular to the beam, and the other leg in front, its base rotated slightly to align the beam directly over the center of the compressor. A concrete pad on the floor prevented proper alignment with both bases of the gantry perpendicular to the I-beam. This gantry setup was identical to one used successfully five

Plaintiff, the lead man on the job, decided not to use a 15-foot I-beam, because the weight of the piece to be removed exceeded the capacity of the longer beam. Also, he did not use a tool called a rigging pedestal (also referred to as a "short leg" or "stiff leg"). This rigging pedestal, developed by Carrier and manufactured for Carrier by H & B, essentially substituted for one leg of the gantry. It would be bolted onto the top of the compressor, eliminating the need for the gantry to span the entire length of the unit; this allowed a shorter I-beam to be used when lifting interior pieces. The rigging pedestal, not devised for safety according to the former Carrier engineer who designed it, but to avoid damage to compressor parts, could be used effectively with the 19C unit. A letter, explaining the design and use of the rigging pedestal, was sent to regional service engineers employed by Carrier, but was not distributed to the mechanics who would be using this tool. Instructions as to how the tool was to be assembled were given to the mechanics, but not as to when the device should or should not be used from the standpoint of safety. A training film produced by Carrier's employees, which included some instructions on the safe use of gantries, was not shown to Carrier's mechanics such as Suich, nor was a safety workbook containing the same instructions.

Using the gantry, the men affixed two hoists to the trolley and attached them to the volute. After disconnecting some bolts, they pushed the volute off of a shaft in the compressor, sliding the load about 18 inches along the trolley, without problem. They intended to lower the volute to the floor, secure it with wood blocks, and clean it. As the volute was lowered, Richardson saw the I-beam start to bend. The volute fell over, pinning plaintiff to the floor and crushing his legs. Richardson used a floor jack to lift the volute, and pulled plaintiff out from underneath. Plaintiff was taken to the hospital; his right foot was "filleted and crushed and split apart," and his left foot was also fractured and seriously injured.

Plaintiff has had four surgeries since the accident, including three attempted fusions of the right ankle, none of which have been successful. Two doctors also testified that if the persistent pain becomes intolerable, the only remaining alternative is a below-the-knee amputation.

Plaintiff filed a complaint alleging products liability against H & B, contending that the gantry was unreasonably dangerous: in that the legs of the gantry could be rotated in positions that were not perpendicular to the beam; it failed to warn users regarding the danger of using the gantry with the legs rotated; and the casters on the gantry supplied to Carrier could not be locked in a fixed position. In response, H & B asserted the affirmative defenses of misuse and assumption of risk. H & B filed a third-party complaint for contribution against Carrier, alleging negligent training, instruction, and supervision of plaintiff. Before trial, plaintiff's motion for summary judgment on H & B's misuse defense was granted.

After plaintiff rested his case, H & B's motion for a directed verdict was denied. After H & B rested its case, Carrier's motion for a directed verdict also was denied. The jury then returned a verdict for plaintiff in the amount of $2,800,707. The jury further determined that there was no assumption of risk by plaintiff, and apportioned 20% of the damages to H & B and 80% to Carrier. After their post-trial motions were denied, H & B and Carrier both appealed. I

Defendant H & B initially asserts on appeal that the circuit court erred in striking portions of its assumption of risk and misuse affirmative defenses. The circuit court permitted H & B to raise the affirmative defense of assumption of risk with respect to plaintiff's conduct in removing the height-adjustment pins on the gantry legs and in rotating the gantry's bases, but struck three other paragraphs that alleged plaintiff assumed the risk by failing to use the ...


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