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09/01/89 Daniel Wheeler, v. Roselawn Memory Gardens

September 1, 1989




Before comparative negligence became law in Alvis v. Ribar (1981), 85 Ill. 2d 1, 421 N.E.2d 886, both assumption of risk and contributory negligence were complete bars to plaintiff's recovery. Alvis held that plaintiff's contributory negligence would no longer bar recovery, but was to be compared with defendant's negligence so as to reduce plaintiff's recoverable damages. Alvis did not address secondary assumption of risk. In consequence, defendants have resorted to using secondary assumption of risk to persuade courts that plaintiff's recovery can be barred completely, comparative negligence to the contrary notwithstanding. We refuse to embrace that argument. Implied secondary assumption of risk is a form of fault resulting from unreasonable conduct by plaintiff. Fault resulting from unreasonable conduct looks and operates exactly like contributory negligence; it is its functional equivalent. Therefore, implied, secondary assumption of risk should operate as does contributory negligence, and probably should be so labelled. We hold, therefore, that secondary assumption of risk does not operate as a complete bar in negligence cases. Duffy, 135 Ill. App. 3d at 435-36, 481 N.E.2d at 1043.


543 N.E.2d 1328, 188 Ill. App. 3d 193, 135 Ill. Dec. 581 1989.IL.1368

Appeal from the Circuit Court of Madison County; the Hon. Paul Riley, Judge, presiding.


JUSTICE HOWERTON delivered the opinion of the court. HARRISON and GOLDENHERSH, JJ., concur.


Plaintiff, Daniel Wheeler, d/b/a as Wheeler Stone Company, a solely owned, unincorporated proprietorship, contracted to do masonry work at defendant Roselawn's premises. Wheeler Stone Company erected scaffolding which was put in place by Daniel Wheeler and another employee of Wheeler Stone Company.

As he was moving the scaffolding, plaintiff noticed a board dangerously close to a crossmember and climbed the scaffold to move the board. He tried to push the board, but it fell and plaintiff twisted his back. Plaintiff sued Roselawn in Madison County under two theories: (1) violation of the Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) and (2) negligence in failing to provide a reasonably safe workplace. Roselawn filed a third-party complaint for contribution and indemnity against Daniel Wheeler, d/b/a Wheeler Stone Company.

While Wheeler v. Roselawn was pending, plaintiff slipped on the steps of his home in Bond County and further injured his back. He sued his landlords, Harry and Velma Henkhaus, claiming they negligently allowed a handrail on the steps to be loose. Plaintiff joined the Henkhauses' case with the Roselawn case in Madison County.

The circuit court of Madison County denied the Henkhauses' motion to sever and transfer their case to Bond County. Both cases proceeded to trial.

Plaintiff settled with Roselawn immediately before opening statements. Roselawn tendered to Daniel Wheeler, d/b/a Wheeler Stone Company, the opportunity to participate in the settlement so as to settle Roselawn's third-party complaint against Wheeler Stone. Wheeler Stone, represented by counsel different from counsel representing plaintiff, Daniel Wheeler, refused to participate. The settlement agreement, therefore, expressly reserved Roselawn's rights against Daniel Wheeler, d/b/a Wheeler Stone Company.

Wheeler v. Henkhaus proceeded to trial together with Roselawn's third-party claim against Daniel Wheeler, d/b/a Wheeler Stone Company.

The circuit court entered judgment for Roselawn on its third-party complaint against Daniel Wheeler, d/b/a Wheeler Stone Company, for 95% of the damages paid by Roselawn to plaintiff, Daniel Wheeler.

The jury returned a verdict for plaintiff, Daniel Wheeler, against the Henkhauses, but found plaintiff 80% at fault and reduced his recoverable damages accordingly. I Roselawn v. Daniel Wheeler, d/b/a Wheeler Stone Company

Daniel Wheeler, d/b/a Wheeler Stone Company, appeals, claiming that the circuit court erred in refusing to dismiss Roselawn's third-party complaint for indemnity and contribution.

Ordinarily the dispositive issue in cases wherein plaintiff is a sole proprietorship is whether plaintiff is within the protection of the Structural Work Act. If not, there can be no recovery. If so, no counterclaim for implied indemnity or for contribution is allowed. (Brown v. Village of Shipman (1980), 89 Ill. App. 3d 162, 411 N.E.2d 569.) Whether plaintiff is within the protection of the Act, however, has been waived by the settlement entered between plaintiff and defendant, Roselawn.

Roselawn argues instead that the circuit court properly allowed its third-party claim under the doctrine of "dual capacity" announced in National Oats Co. v. Volkman (1975), 29 Ill. App. 3d 298, 330 N.E.2d 514, because Daniel Wheeler, d/b/a Wheeler Stone Company, has a legal status and economic identity separate from that of Daniel Wheeler, namely: Daniel Wheeler, as plaintiff, sued in the capacity of employee, but defended the third-party complaint as an employer. (See Palier v. New City Iron Works (1967), 81 Ill. App. 2d 1, 225 N.E.2d 67.) We reject Roselawn's argument.

Daniel Wheeler, d/b/a Wheeler Stone Company, is neither a corporation nor a partnership, but merely a trade name, a name under which Daniel Wheeler does business as a sole proprietor. Wheeler Stone Company has no life of its own and cannot be sued. Plaintiff, Daniel Wheeler, was the real party in interest. (Moskal v. New Era Commercial Association (1923), 228 Ill. App. 278.) Therefore, Roselawn's so-called third-party complaint was, in actuality, a counterclaim against Daniel Wheeler (Ill. Rev. Stat. 1985, ch. 110, par. 2-608(a)), which attempted to reduce Roselawn's damages in whole or in part, either under implied indemnity or under the Contribution Act.

One who is liable under the Structural Work Act cannot shift responsibility to the plaintiff by claiming a right to indemnity or contribution, because the Structural Work Act is a safety statute causing the "sole inquiry [to be] an assessment of the defendant's culpability and not the plaintiff's conduct." (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 459, 473 N.E.2d 946, 953.) Therefore, Roselawn's claim must fail.

In addition to a Structural Work Act claim, plaintiff also had a negligence claim. Insofar as that claim is concerned, Roselawn has attempted to raise plaintiff's own negligence as a counterclaim to plaintiff's negligence claim against it. No such counterclaim will lie. ...

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