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01/13/94 PAUL T. PAGANO v. OCCIDENTAL CHEMICAL

January 13, 1994

PAUL T. PAGANO, PLAINTIFF-APPELLANT,
v.
OCCIDENTAL CHEMICAL CORPORATION, DEFENDANT-APPELLEE, AND DIAMOND SHAMROCK CHEMICALS COMPANY, A CORPORATION, DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PADDY H. McNAMARA, JUDGE PRESIDING.

Released for Publication March 18, 1994. Petition for Leave to Appeal Denied April 6, 1994.

Hoffman, Cahill, Theis

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The plaintiff, Paul T. Pagano, was injured on February 7, 1986, when he was loading 55-gallon drums of liquid ink onto a truck from a dock at Diamond Shamrock Chemical Company (Diamond), the predecessor in interest of Occidental Chemical Corporation (Occidental). Counts I and II of the plaintiff's third-amended complaint sought recovery against the defendants, Diamond and Occidental, for negligence and strict tort liability. On August 31, 1990, the circuit court of Cook County granted summary judgment against the plaintiff on the strict tort liability claim and no appeal was taken from that order. On June 5, 1992, the trial court granted summary judgment in favor of the defendants on the plaintiff's negligence claim and the plaintiff has appealed. For the reasons which follow, we affirm the judgment in part, reverse in part, and remand for further proceedings consistent with this opinion.

All of the parties relied upon the plaintiff's discovery deposition during the summary judgment proceeding. In his deposition, the plaintiff testified that he was employed as a truck driver for N & M Transfer Company (N & M) on the day he was injured. He was dispatched to Diamond to pick up 16 drums of liquid ink. The plaintiff expected that his truck would be loaded by Diamond's dock employees, but when he arrived he was informed that Diamond's employees were too busy to load the truck. When the plaintiff requested assistance, one of Diamond's employees brought him a barrel dolly. A Diamond employee brought the drums of ink to the loading dock using a forklift, but refused to use the device to load the drums onto the plaintiff's truck citing safety reasons. The plaintiff described the drums of ink as 55-gallon steel barrels which weighed 526 pounds each. The plaintiff positioned the drums on the barrel dolly and individually loaded them onto his truck. After loading a drum on the dolly, he would push it from the dock over a dock plate and onto the bed of his truck. The plaintiff successfully loaded 14 of the drums in that manner. While moving the 15th drum, he was injured when the clamping device, which holds the top of the drum to the dolly, slipped allowing the drum to shift. The shifting motion of the drum caused the dolly to move backward toward the plaintiff. He pushed the dolly, but the force caused him to fall and sustain injury. However, neither the dolly nor the drum fell on the plaintiff. The plaintiff was standing on the bed of his truck at the time he fell.

In paragraph 9 of count I of his complaint, the plaintiff charged that the defendants were negligent in one or more of the following ways:

"a. Failed to provide the necessary and proper help to load the barrels of ink onto trucks.

b. Failed to provide the proper equipment necessary to safely load the barrels of ink onto the truck.

c. Failed to warn the truck driver that the 'claw' dolly was inadequate to load the barrels of ink.

d. Provided a 'claw' dolly which was inadequate to safely load the barrels of ink.

e. Directed the loading of barrels of ink without the necessary and proper equipment to safely perform the job.

f. Failed to instruct plaintiff on the proper use of ...


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