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05/02/94 ROBERT GOOD AND DOREEN GOOD v. BLOUNT

May 2, 1994

ROBERT GOOD AND DOREEN GOOD, PLAINTIFFS-APPELLEES,
v.
BLOUNT CONSTRUCTION COMPANY OF BLOUNT, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (CECO CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Lake County. No. 90-L-1013. Honorable William D. Block, Judge, Presiding.

PECCARELLI, Doyle, Colwell

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Plaintiff Robert Good brought a personal injury action under the Structural Work Act (740 ILCS 150/9 (West 1992)) against defendant, Blount Construction Company of Blount, Inc. (Blount), for injuries suffered by Good when the concrete formwork upon which he was working collapsed. Plaintiff Doreen Good brought an action against Blount for loss of consortium. Blount filed a third-party complaint for contribution against Good's employer, Ceco Corporation (Ceco), which the trial court severed from the underlying action prior to trial. Following trial, the jury found in favor of plaintiffs, awarding Good $3,190,000 in damages, and awarding his wife, Doreen, $50,000. The trial court entered judgment on the jury's verdict. Blount's post-trial motion for judgment notwithstanding the verdict, for a new trial, or for remittitur of the verdicts was denied.

Blount appeals, contending that it was entitled to a new trial because: (1) the trial court erred in granting plaintiffs' summary judgment motion on Blount's defense of sole proximate cause; (2) the trial court erred in denying Blount's motion to amend its answer to paragraph 5 of plaintiffs' fifth amended complaint; (3) the trial court erred in granting Ceco's motion for a good-faith finding as to its settlement with plaintiffs and in dismissing Blount's third-party complaint against Ceco; (4) the trial court erred in severing Blount's third-party action from the original action; (5) the trial court erred in allowing testimony regarding prior OSHA (Occupational Safety and Health Administration) inspections; (6) the jury's verdict was against the manifest weight of the evidence; and (7) the verdict was excessive and the result of passion or prejudice. Our Disposition, however, obviates the need to consider the last three issues.

On December 13, 1989, Blount, a general contractor, was engaged in the construction of a project known as the Environmental Improvements, Patient and NHCU Building, Phase I, Veterans' Administration Medical Center in North Chicago (the V.A. project). Robert Good, a carpenter and foreman for Ceco, was working on the project. On the morning of the incident in question Good was advised by Russ Romine, Blount's field superintendent, that Good had the use of Blount's tower crane for about an hour until it would be needed for a concrete pour at 8 a.m. Good and his crew would form plywood decks for the concrete. Good needed to get all his materials upon the decking prior to 8 a.m. Shortly after 8 a.m., Good, who was standing on top of the concrete formwork, directed the crane operator, Mark Rasmussen, to land the last load, a bundle of 4 by 4s, on the formwork. As Good unhooked the load from the crane, the formwork collapsed. Good fell about 12 or 13 feet, landing on the ground and sustaining multiple fractures and dislocations of the left knee and the right ankle. As a result, Good underwent numerous surgeries and at the time of trial in August 1992 still used a cane to ambulate.

James Holcomb was working for Blount on the date of the accident as general carpenter foreman. At trial Holcomb testified that he had been involved in the erection and construction of concrete formwork for many years. Holcomb stated that he had observed the collapse of the formwork on December 13 because he had gone over to talk to Good regarding whether Good could use another carpenter for whom Holcomb had no work. Good told Holcomb he would be down after he got a load of 4 by 4s landed and unhooked from the crane. Holcomb recounted that he waited approximately 10 minutes.

Holcomb testified that he is familiar with the bracing used in the erection of concrete forms and that, generally, X-bracing is used. Holcomb used a model to show the stage of erection of the formwork during the time Holcomb watched Good work. No X-bracing was shown.

Holcomb said he saw Good land a load of 4 by 4s on the formwork, unhook the crane, and start to walk to safety. The formwork started to give, lumber snapped, and the formwork collapsed. Holcomb stated that he observed Russ Romine approximately 75 feet from the scene of the accident and that Romine had been at that location for about 10 minutes.

Raymond Beukeme, a carpenter specializing in the building of concrete decks or formwork, was working for Ceco on the V.A. project on December 13, 1989, and specifically on the erection of the formwork in question. Beukeme looked at the model, as previously set up by Holcomb, and testified that it depicted the formwork at the time Good landed the load on it. Beukeme then used the model to show how formwork should be built using X-bracing. Beukeme explained that the purpose of the X-bracing is to hold up the formwork and to prevent it from tipping over.

Beukeme related that he saw the collapse of the formwork on December 13. At the time, it was not completely X-braced. Beukeme and the other carpenter involved in erecting the formwork had put up half X's on three sides of the form and were just putting up the one-half X on the fourth side when it collapsed. Beukeme recalled that Good had just unhooked the load of 4 by 4s when the formwork started wiggling. Good told everyone to get out from under the form. Beukeme saw Good run across the top of the formwork towards another existing deck, but he missed and fell to the ground.

Beukeme had worked for Blount nearly one year prior to the accident. When asked if the lumber had been placed by the crane on partially braced concrete formwork on other occasions, Beukeme responded that it occurred frequently, probably every week. A load would be landed before the formwork was one-half completed or tightened up. Beukeme stated that on these occasions Blount personnel were in the area. According to Beukeme, Romine or Doug Scott were "always around somewhere." Also, a "safety guy," whose name Beukeme could not recall, was always walking around.

Beukeme recalled that on the morning of the accident Romine told Good about one-half hour before the collapse of the formwork that he had the crane only until it was needed for pouring concrete in another spot. Beukeme acknowledged that it was not unusual to experience time constraints on the job.

William Culhane, a carpenter, was also involved in erecting concrete formwork at the V.A. project. Culhane stated that he was familiar with the bracing used with formwork, but he did not recall how much bracing was on the form at the time it collapsed. Culhane said that when concrete forms are completed, usually all four sides are X-braced.

Prior to December 13, 1989, Culhane had observed instances where materials or men were placed on partially erected concrete forms. Sometimes, there would be only one brace on a couple of the sides. Culhane said that this occurred when the individuals erecting the formwork were in a hurry. Culhane recounted that he and Beukeme were in a hurry on December 13 because they were going to lose the use of the crane at 8:30 a.m. for a concrete pour. According to Culhane, Beukeme and he had put X-bracing on the formwork and thought it was ready to land a load. Culhane stated that there was nothing unusual about the method of construction of the formwork on December 13 except that they were in a little more of a hurry. When the load was landed, stringer or horizontal beams at the top broke, the whole formwork shifted, and the platform collapsed.

Culhane recalled that Romine was around the formwork "all the time." Other foremen for Blount also inspected the concrete formwork. Culhane could not recall if he saw Romine at 7 a.m. on December 13. Culhane acknowledged that the formwork did not exist at 7 a.m. Culhane did recall that he saw Romine within a minute or so after the accident.

Mark Rasmussen, a crane operator for 20 years, was working for Blount on December 13, 1989, and using a tower crane. Romine was Rasmussen's supervisor although the witness did not report to anyone. People on the ground would communicate with Rasmussen by two-way radio. On the date of the accident, Rasmussen was told to work with Good until the concrete arrived and to rush because the concrete was on its way.

Rasmussen acknowledged that he had the authority to stop working if he observed an unsafe construction practice in conjunction with his operation of the crane but that he did not observe any such practice on December 13. Rasmussen related that he saw the collapse of the formwork. Good had unhooked the load and was waving Rasmussen off. Within seconds, the floor collapsed. Rasmussen said that he was familiar with the erection and construction of concrete formwork and the process of X-bracing. After the accident, Rasmussen looked at the collapsed formwork. According to Rasmussen, the formwork was not completely braced; sections were missing.

Rasmussen acknowledged that he did not decide where to land a load and that he did not know the weight-bearing capabilities of a partially erected formwork prior to putting a load on it. Rasmussen could not recall whether the load which he landed prior to the collapse was the first and only load placed on that particular portion of the formwork.

John Zervic testified that, as Blount's staff engineer on the V.A. project, he made certain that the work of the subcontractors complied with the plans and specifications for the project. Zervic also was the safety engineer. He conducted jobsite safety meetings and inspected the site daily for conformance to OSHA and company regulations. Zervic acknowledged that he was familiar with the construction of concrete formwork and could apply OSHA regulations to the erection and construction of it.

Zervic was asked about other Blount supervisors. He stated that Ron Gardener was the project manager; he supervised the entire project and everybody involved. Doug Scott was the project superintendent; he made certain that the subcontractors were on the site when scheduled and that they did what they were contracted to do. Russ Romine was the area superintendent and was responsible for the erection of concrete formwork and the placement of concrete. According to Zervic, quality control and safety were the responsibilities of all of Blount's supervisors and engineers. If a safety problem occurred that needed correcting, Zervic was told about it. Zervic related that Blount had the authority to stop work if an unsafe construction practice was being utilized.

Zervic recounted that he became aware of Good's accident about 5 or 10 minutes after it happened. Zervic proceeded to the accident site to investigate the incident. He spoke with individuals at the site and looked at the area where the accident occurred. Based on the information he gathered at the scene, his own observations, and his knowledge about the construction of concrete formwork, Zervic opined that the structure had collapsed because it had not been braced properly.

Zervic acknowledged that the instant occurrence did not constitute the first time he had notice of the fact that formwork was not being braced properly. During an inspection of the jobsite conducted by OSHA on October 3, 1989, the subject of bracing arose. At the time of the inspection the OSHA inspectors pointed out areas on an existing formwork which were not properly braced. The formwork was cross-braced but not in each direction as it should be when landing concrete on the platform.

Zervic acknowledged that the OSHA inspectors raised other safety concerns regarding the concrete formwork besides bracing. They mentioned the quality of the posts being used and load calculations. Zervic recalled that after the inspection he prepared a memo regarding the inspection and placed it in Blount's file. He believed he informed both Romine and Scott of the inspection.

On cross-examination, Zervic acknowledged that the concrete formwork observed by OSHA was in a substantially more advanced degree of construction, or completion, than was the formwork involved in the December 13 accident. Zervic also acknowledged that in erecting formwork a portion of it is erected and then some bracing put on it. As the work progresses, more bracing is used as needed. Zervic knew of no OSHA regulations stating how much and where bracing should be placed during the construction of formwork. He agreed that OSHA regulations apply to the erection and construction of concrete formwork and that it was apparent that the regulations were violated when the formwork collapsed. When asked if formwork should be completely braced, Zervic responded negatively and said that it should be braced to support the particular load on it.

On the date of the accident, Russ Romine was the field superintendent for Blount. He coordinated and oversaw all of the work and was responsible for inspecting work as it progressed. Romine testified that construction was going on at about eight separate sites at the same time. Romine had two area superintendents who worked under him, but the area in which the formwork collapsed was primarily his responsibility. As part of coordinating the work, Romine stated that, usually, he had meetings every morning with various personnel, primarily to ...


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