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06/03/94 SAMUEL A. PETTY v. CHRIS-KARE

June 3, 1994

SAMUEL A. PETTY, JR., PLAINTIFF-APPELLANT,
v.
CHRIS-KARE, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable Joseph Casciato, Judge Presiding.

Released for Publication August 2, 1994.

Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

The plaintiff, Samuel Petty, appeals from an order granting summary judgment in favor of the defendant, Chris-Kare, Inc., on the plaintiff's complaint for personal injuries.

Petty's complaint alleged that Chris-Kare, a general contractor, negligently placed and maintained an eight-foot tall dumpster on its property and directed Petty to use the dumpster. Petty was injured while placing a window into the dumpster. At the time of his injury, Petty was employed as a glass and window installer for D & D Installation (D & D). D & D was a subcontractor of Chris-Kare.

At his deposition, Petty testified that he was 5 feet, 9 inches tall and weighed approximately 290 pounds at the time of his injury. He had worked for several years in garbage disposal jobs and had used dumpsters similar to the Chris-Kare dumpster "quite often." In fact, he agreed that he was "very experienced" at placing garbage into eight-foot tall dumpsters and had "put 10,000 windows in those dumpstersover the years." While he was employed by D & D, Petty used the Chris-Kare dumpster "every day, six days a week," because he and his supervisor drove to the dumpster every day to deposit garbage.

George Polaski, an employee of another Chris-Kare subcontractor, testified that Chris-Kare provided the dumpster for its minimal office garbage and as a convenience for the subcontractors, who otherwise would have to pay to dump their materials elsewhere. Chris-Kare rented its dumpsters from a garbage service, which removed the dumpster and replaced it with the same size empty dumpster on Monday afternoons. Therefore, the dumpster was often quite full on Monday mornings. Chris-Kare employed a "young kid" who was in high school to help "clean up around the dumpster." Nonetheless, there was always some debris on the ground around the dumpster, and Petty admitted that he had to "navigate around this kind of debris" every day in order to reach the dumpster.

Petty testified that, on August 21, 1989, a Monday morning, there was more garbage than usual in and around the dumpster and it was "full to capacity." There were several cardboard boxes as well as pieces of wood and aluminum siding around the dumpster on the ground. However, Petty said there was still room to place more garbage into the dumpster.

Petty was told to throw away several windows on August 21, including a large picture window approximately five feet square with a wooden frame. Petty had thrown glass pieces of this size into the dumpster before without incident and testified that it was not unusual for him to "carry windows of this size over [to the dumpster] and throw them in the dumpster." On August 21, he unloaded the picture window and carried it toward the dumpster with no difficulty. He noticed the cardboard and other garbage beneath his feet, and "kicked it out of the way." He stated that there "probably" was a ladder on the dumpster, although he did not use the ladder.

When Petty reached the dumpster, he cleared a spot on the ground for his feet. He had sufficient room to stand. Therefore, when he reached up to place the glass into the dumpster, both of his feet were flat on clear ground. The debris including the cardboard was approximately one foot deep. In his years of garbage disposal, Petty had placed windows into dumpsters and seen the windows break while going into the dumpsters. He was always able to get out of the way of any falling glass before August 21, 1989. He testified that, based on his training and experience, he knew that he had to clear a sufficient space on the ground so that he could move away from falling glass. However, when asked if he believed he had cleared asufficient space on August 21, Petty stated that he "probably * * * went ahead and put the window in * * * [and] never thought of it."

Petty reached under the bottom of the window and began to slide it up the side of the dumpster toward the top of the dumpster. He did not move his feet. As he was lifting the window, the glass "snapped right in half," and the top third of the window fell out of the wooden frame toward Petty. Petty "tried to jump out of the way" of the falling glass but "the garbage that was on the ground stopped [him] from getting out of the way." He "pushed away from the window" but could not move his feet because "then [his] feet were like caught." Petty was "pretty sure" that, as he was turning away from the broken window, he tripped on the garbage and was pushed onto the garbage by the glass. The glass severely cut Petty's left wrist.

Chris-Kare moved for summary judgment, arguing that it did not owe any duty to Petty. Applying the Restatement (Second) of Torts, the trial Judge found that the material around the dumpster presented an open and obvious danger and that Chris-Kare owed Petty no duty. Therefore, he granted summary judgment in favor of Chris-Kare.

To recover for the injury to his wrist, Petty must prove all the elements of negligence, including "a breach of a duty owed to him." ( Wadycki v. Vanee Foods Co. (1990), 208 Ill. App. 3d 492, 496, 567 N.E.2d 423, 153 Ill. Dec. 465.) Petty concedes in his reply brief that the dumpster and the garbage around the dumpster presented an open and obvious danger. He also concedes that he was not ...


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