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12/28/89 Michael Kosinski, v. Teel Company

December 28, 1989





549 N.E.2d 784, 192 Ill. App. 3d 1017, 140 Ill. Dec. 133 1989.IL.2038

Appeal from the Circuit Court of Cook County; the Hon. Jerome Lerner, Judge, presiding.


JUSTICE McMORROW delivered the opinion of the court. LINN, J., concurs. PRESIDING JUSTICE JIGANTI, specially Concurring.


Defendant Inland Steel Company (Inland) appeals from judgment entered against it upon a jury verdict in the amount of approximately $235,000 finding Inland liable for personal injuries suffered by plaintiff Michael Kosinski (Kosinski). Upon review, we affirm, finding that: (1) the trial court properly denied Inland's motion for a directed verdict at the close of Kosinski's case in chief; (2) the trial court did not abuse its discretion when it denied Inland's motion to bar testimony of Kosinski's medical expert for Kosinski's alleged violation of Illinois Supreme Court Rule 220 (107 Ill. 2d R. 220); (3) remarks by Kosinski's counsel in closing argument regarding a special interrogatory pertaining to Kosinski's alleged contributory negligence were not reversible error; and (4) the trial court did not abuse its discretion when it permitted one of Kosinski's exhibits, a jar containing graphite, to be taken into the jury room.

The evidence presented by Kosinski in his case in chief established the following pertinent facts. At the time of Kosinski's injury on June 17, 1976, Kosinski was employed by Three Star Construction Company (Three Star) as an apprentice ironworker. Three Star had been awarded a subcontract to erect pipe supports on plant property owned by Inland in East Chicago, Indiana. Kosinski and other Three Star journeymen ironworkers had been working to erect these supports on the roof of an Inland slabbing mill for approximately two weeks prior to Kosinski's injuries. The mill was used to process steel. The steel processing caused the mill to emit an impurity, known as graphite, which accumulated on the mill roof. The mill operated on a 24-hour basis throughout the time Three Star worked to erect steel pipe supports on the mill roof.

The ironworking crew employed by Three Star, including Kosinski, noticed the graphite on the sloped roof, and noticed that the graphite caused the roof to be more slippery than normal. Screws had been placed in the roof by the ironworking crew, as was their customary procedure on any roof job, and these screws allowed the crew to obtain a more secure footing despite the graphite. Kosinski testified that if graphite accumulated to the level of several inches in the area where he was working, he would remove it with a shovel, since its presence in such an amount rendered it impossible to perform his work. Kosinski stated that if the graphite were only a light coat on the roof, he would take no action to remove it.

Inland's safety manual for outside contractors specified that it was the contractor's responsibility to clean up debris caused by the contractor's work on Inland property. Inland's safety guidelines for its own employees directed that employees should be alert to maintaining a clean and orderly workplace, especially with regard to "traction robbing" substances. Robert Feckler, Inland's field engineer who checked Three Star's work progress, and who was on the roof when Kosinski was injured, testified that, in his experience and based on Inland's safety manuals, it was the responsibility of a contractor to maintain its workplace regardless of the source of any waste or debris, including graphite. Michael Oliver, an Inland safety engineer, testified that based upon his experience at Inland, it was "implied" that the contractor would be responsible for the condition on the contractor's worksite, regardless of the source of the debris, including graphite.

The day on which Kosinski was injured was warm and sunny. Hugh Orr, Three Star's temporary steward that day, noticed that the graphite was particularly slippery because of the warm weather. He complained to Three Star's superintendent about this condition, but was told to return to work. Orr did not complain to Inland regarding the presence of the graphite on the roof. Kosinski arrived for work at 8 a.m., and he and the other members of his crew proceeded to erect steel beams above a portion of the slabbing mill roof that was sloped at a 30 degrees angle and was covered with a thin coat of graphite. Because the portion of the roof on which the crew was working was close to an Inland office building, the crew foreman decided that, in order to hoist the beams to the roof, it would be necessary to position a Three Star crane over a section of Inland railroad track. Inland personnel complained of this location of the crane, and insisted that the ironworkers speed up their work so that the crane could be moved as soon as possible. The ironworkers attempted to comply with this directive from Inland personnel.

The location of the Three Star crane rendered it impossible for the ironworkers to lower a metal beam directly into place on the slabbing mill roof. As a result, once a beam had been raised by the crane, the ironworkers would manually pull the beam into position. Each metal beam weighed approximately 1,200 to 1,500 pounds. Kosinski, who was directed to work alone at one end of the beam, would hold the beam in place with one arm and use a spud wrench to facilitate attachment of the beam to a separate piece of structural steel that had already been placed upon the roof. As Kosinski was doing so, a beam with which he had been working slid out of position. Kosinski attempted unsuccessfully to replace the beam in its proper position. He then turned to his left in an effort to avoid the beam as it began to fall. The graphite prevented him from obtaining a secure footing, however, and the beam fell upon his right leg and left foot, injuring him.

Kosinski was taken to St. Catherine Hospital in East Chicago, Indiana, where he was seen and treated by Dr. D.A. Campagna. It was determined that Kosinski had sustained compound, comminuted fractures in his right leg, and simple fractures in his left foot. The leg fractures were placed in their proper position without surgery, and a cast was placed upon the leg from Kosinski's hip to ankle. His left foot was later placed in a cast after his transfer to a hospital in Illinois.

Dr. Campagna, Kosinski's original treating physician, testified that, at the time of Kosinski's injuries, a considerable portion of his private practice was concentrated in industrial and accident medicine and surgery, including the treatment of injuries sustained by ironworkers. Dr. Campagna testified that when he examined Kosinski again in February 1988, Kosinski complained of pain in his right leg and hip, of instability in his right leg, and restricted motion in his right ankle. Dr. Campagna found that Kosinski's right leg was three-eighths of an inch shorter than his left leg, and that his right calf was three-fourths of an inch smaller in circumference than his left calf. The physician testified that these disabilities, caused by Kosinski's accident at the Inland slabbing mill in June 1976, would be permanent. Dr. Campagna also testified that it would be "risky" for Kosinski to return to work as an ironworker, since it would be difficult, and sometimes impossible, for Kosinski to do most of the climbing associated with such work.

Kosinski returned to work for Three Star at the Inland slabbing mill several months after his injury. Kosinski stated that he ceased working as an ironworker in 1984, and eventually took employment selling insurance, since most of the ironworking jobs available were ones he could not perform because of his leg and foot injuries. Kosinski testified that his income since the injury has been substantially less than what he would have received had he continued doing the kind of ironworking job allocated to him prior to his accident.

Dr. David Fischer, a medical physician specializing in orthopedic surgery, examined Kosinski on March 16, 1984, and reviewed records pertaining to Kosinski's medical treatment. Dr. Fischer testified that Kosinski's right leg was one-half inch shorter than his left leg and was bowed outward at approximately 20 degrees beyond normal. Kosinski's right calf had atrophied and was one inch smaller in circumference than his left calf. His right ankle was also twisted approximately 15 degrees from normal alignment. Dr. Fischer stated that these circumstances caused Kosinski's right leg to appear to be 1 1/4" shorter than his left leg. He testified that it also caused Kosinski to walk with a limp and rendered Kosinski to be predisposed to injury, back pain, and future degeneration of the knee and ankle. Dr. Fischer stated that these disabilities were permanent and made it hazardous for Kosinski to return to employment as an ironworker. He also testified that surgery to correct the improper angulation of Kosinski's leg and ankle might alleviate the extent of Kosinski's disabilities.

Donald Carter, who was the general foreman for Three Star at the time of Kosinski's accident, testified on behalf of Inland. Carter stated that, to the best of his recollection, no Three Star worker ever complained to him about the graphite on the slabbing mill roof. Carter also testified that Three Star, because it had its own tools and equipment to do so, would clean graphite ...

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