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January 28, 1994


Appeal from the Circuit Court of the 12th Judicial Circuit Will County, Illinois. No. 90-L-8823. Honorable Edward F. Masters, Judge Presiding.

Rehearing Denied March 21, 1994. As Corrected. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The defendant, Personal Products Company, appeals from a judgment in favor of the plaintiff, Jerome Fris. We reverse.

Though this case involves a relatively simple incident, the record is extremely lengthy. The facts as testified to by the witnesses are often contradictory and less then clear. Given the nature of the numerous issues raised by Personal Products, we have thoroughly reviewed the record in this case.

In 1988, Personal Products was in the process of converting warehouse space at its Wilmington, Illinois, plant into a manufacturing facility. The project was known as the W&D warehouse conversion. "W" and "D" were the initials of the West German company, Winkler & Dubibeir, which manufactured the machinery which was being installed on the new assembly line. Acting as its own general contractor, Personal Products, subcontracted out various aspects of the project. One of those contracts was with Stephen Construction Services, Inc. (Stephen), which was to do the HVAC work on the project. The plaintiff, Fris, was a sheet mental worker employed by Stephen.

In December 1988, Stephen entered into a contract with Sam J. Chellino Crane Rental, Inc., for crane services to lift certain large HVAC units onto the roof of Personal Products. On December 22, 1988, a large Chellino crane was placed on the west side of the building. Two of the crane's outriggers were resting on a grassy surface. Outriggers help to stabilize the crane. Because conditions were wet and relatively mild, the outriggers sank into the soft ground. Attempts to use the "cribbing" materials brought by Chellino proved inadequate, with the outriggers pushing these pieces of wood into the ground. Eventually wooden pal lets taken from inside the Personal Products plant were used to crib or support the outriggers. The W&D machinery had been delivered on these pallets. Fris injured his right shoulder and arm when he and two other Stephen employees attempted to push one of these pallets.

Fris filed a two-count complaint against Personal Products and Chellino Crane. Stephen was brought in as a third-party defendant. Count I, premised on a Structural Work Act claim, was dismissed prior to trial. The remaining count alleged various negligent acts on the part of Personal Products and Chellino Crane. During the jury trial, Chellino and Stephen settled with Fris, and the trial continued as to Personal Products' liability.

At trial, the plaintiff, Fris, testified he was a sheet metal worker employed by Stephen. On December 22, 1988, he was working at the Personal Products facility. On that day a Chellino crane had been brought in and placed on the west side of the building in order to lift four large HVAC units onto the roof. Fris testified that in trying to stabilize the crane, plywood "pads" had been placed under the outriggers. Because of the soft ground conditions, when the outriggers were lowered, the pads were pushed into the ground. Fris testified the crane operator from Chellino told him they were going to need more cribbing for the outriggers. Fris then told his foreman, Gary Granger, what the operator had said. Fris testified that Personal Products project engineer, Gary Younger, was standing next to Granger when he relayed this information to Granger.

Fris testified that Younger stated they might have some pal lets in the plant which could be used. Fris and another man then tried to use some pieces of wood found near a dumpster, but that proved unsuccessful. Fris testified that Granger and Younger went into the plant. Fris testified he later went into the plant and encountered Younger near the door to the plant. No one else was present. Fris asked Younger where the pallet was he was talking about and Younger told him it was in the rail dock area.

In the northwest portion of the plant was an area in which railroad cars could be brought into the plant to load and unload materials. Fris went to this area and saw Granger and a fellow Stephen employee, Chester Reader. On the rail dock, the men found a large wooden pallet measuring approximately 10 feet by 5 feet, composed of 4 by 4s and 2 by 6s. A forklift truck was to be driven in on the railroad tracks. The pallet was going to have to be moved 15 or 20 feet to the edge of the dock and placed on the forks of the forklift.

Over defense counsel's objection, Fris testified Granger told him Personal Products had placed the pallet on the rail dock and that Granger had gotten permission to use the pallet. Fris testified they were going to try and push the pallet over to the edge of the dock. Over objection, Fris was allowed to testify that he asked Granger if he thought they might need more men to move the pallet. Fris testified that Granger said they should try to move it and that they had to get it outside. Then he, Reader and Granger bent down and tried to pick one end of the pallet up and push it toward the edge of the dock. Fris immediately "felt a loud pop" in his shoulder and let go of the pallet.

Thereafter, using pipes the men were able to get the pallet onto the forklift truck. However, the forklift truck got stuck in the mud and the pallet had to be manually carried to the crane outriggers. A number of men, including the plaintiff, carried the pallet from the ...

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