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08/19/94 DENNIS SALEMI v. KLEIN CONSTRUCTION

August 19, 1994

DENNIS SALEMI, PLAINTIFF-APPELLANT,
v.
KLEIN CONSTRUCTION COMPANY, A DOMESTIC CORPORATION, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JEROME T. BURKE, JUDGE PRESIDING.

Rehearing Denied September 21, 1994. Petition for Leave to Appeal Denied February 1, 1995.

Gordon, Murray, McNULTY

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of the court:

Plaintiff filed a two count complaint for injuries sustained as a laborer on a construction project. Count I was for violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60-69, now codified at 740 ILCS 150/1-9 (West 1992)) and Count II was for negligence. A third party complaint for contribution was filed by the Defendant, Klein Construction Company, against Nu-Way Contracting Corporation, Standard King, Inc., and King/Nu-Way, a joint venture.

On April 22, 1991, summary judgment was entered in favor of Defendant on Count I. Subsequently, Plaintiff filed a motion to reconsider which the trial court denied in an order entered on November 26, 1991. In its order of November 26, 1991 the court also granted the oral motion of the Plaintiff to withdraw his negligence count (CountII), thus eliminating all pending counts in the primary action. The third party action remains pending, although the parties have raised no issues in this appeal pertaining to it.

The following pertinent facts are gleaned from the submissions of the parties in connection with Defendant's motion for summary judgment and are undisputed. The Defendant, Klein Construction Company (hereinafter Klein), was a general contractor in charge of the erection of a bus barn structure on behalf of the Chicago Transit Authority. The project site as described by the Plaintiff in his deposition, was as large as two football fields surrounded by a fence and contained an interior temporary dirt road with branches radiating to various portions of the site. Plaintiff was an employee of Nu-Way Construction Company, a subcontractor hired to perform the sewer work for the project. According to the Plaintiff, this work required, among other things, excavation of a trench around the perimeter of the site, grading the trench, laying sewer pipe in the trench, and moving pipe from the stockpile on the site to the portion of the trench where it would be installed.

At the time of this occurrence, other construction digging unrelated to the sewer trench was in process. This resulted in an accumulation of spoil, 14 feet high and 150 feet long along the edges of the dirt construction road. No barrier or shoring was provided for this accumulation. As the sewer pipe was lowered into place, the sewer trench was refilled, but certain portions of that trench, including the area where Plaintiff's injury occurred, were not compacted after refilling.

Plaintiff was injured as he was helping to move sewer tile from the stockpile to the edge of the portion of the sewer trench where these tiles were to be installed. A backhoe was used to move those tiles. Apparently, the tiles were suspended in a bundle from a cable which was attached to the bucket of the backhoe. According to the Plaintiff, his assignment was to prevent the tiles from swinging into the machine. To prevent such contact, Plaintiff stated that he was required to walk between the suspended tiles and the backhoe to the left of the machine. The Plaintiff points out without challenge that because there were no tag lines, Plaintiff was required to reach out to try to steady the suspended load manually. The suspended load was heavy and could not be completely steadied, but Plaintiff was able to keep it from turning. When the backhoe crossed over any soft spots in the dirt road resulting from the failure to compact the dirt used as refill, the whole machine would lurch and require the Plaintiff to hold onto the load to protect it. As the Plaintiff and the backhoe were passing one of these soft spots near the dirt hill, a chunk of spoilrolled down the hill and struck Plaintiff's leg causing him to stumble. The Plaintiff's foot was then caught in the tire of the backhoe which seemed to suck in his foot, trapping it there. To free his foot, his fellow workers had to back the machine off.

Plaintiff brings this appeal from the order of April 22, 1991 granting partial summary judgment with respect to Count I of his complaint and from the order of November 21, 1991 denying Plaintiff's motion for reconsideration of that order. Although the third party action for contribution remains pending no findings pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R.304(a)) were obtained from the trial court.

Although not raised by the parties, the court is obligated to consider its own jurisdiction sua sponte. See Ferguson v. Riverside Medical Center, (1985) 111 Ill. 2d. 436, 490 N.E.2d 1252, 96 Ill. Dec. 47. It would seem that the pendency of a third party action for contribution or indemnity would necessitate a finding under Rule 304(a)(107 Ill. 2d R. 304(a)) before an appeal from a judgment entered in the primary action may be taken. (See Petersen Brothers Plastics Inc. v. Ullo (1978), 57 Ill. App. 3d 625, 15 Ill. Dec. 70, 373 N.E.2d 416.) In Ullo, the plaintiff, Peterson Brothers Plastics, Inc., sought judgment against the defendant for the purchase price of goods sold to the defendant, Ullo. The defendant filed a third party action against Beginnings, Inc., a third party defendant, claiming that Beginnings undertook to pay Peterson for the goods purchased from Peterson by Ullo. Judgment was entered against Ullo in the primary action. Approximately five months later the trial court vacated its judgment against the primary defendant, Ullo, from which Plaintiff appealed. In dismissing that appeal the court stated that the appeal was not final for two reasons: (1) the third party action by the primary defendant against the third party defendant was still pending, and (2) the order vacating the judgment still left the primary plaintiff's action against Ullo pending, and, therefore, the primary action itself was not terminated.

While the court in Ullo considered that the pendency of the third party action was in itself sufficient to bar an appeal from the order entered in the primary action, we do not believe that the holding in that case controls the facts in the case at bar. In this case the entire primary action against the Defendant was terminated. Count I (the Structural Work Act count) was adjudicated in Defendant's favor, and Count II (the negligence count) was withdrawn. Therefore, no basis whatsoever was left for any claim of contribution or indemnity by the Defendant against the third party defendantsince no liability could attach against the primary defendant for which it could claim a right of contribution. Thus, the Disposition of the primary action in effect disposed of the claim for contribution in the third party action even though that claim was not formally terminated. Where the adjudication of the rights and liabilities in one action effectively disposes of the rights and liabilities in another, no Supreme Court Rule 304(a)(107 Ill. 2d R. 304 (a)) finding is required even though the second action is not formally terminated. Lynch Imports, Ltd. v. Frey (1990) 200 Ill. App. 3d 781, 558 N.E.2d 484, 146 Ill. Dec. 521.

In Lynch, an appeal was taken from a summary judgment entered in favor of a seller in his primary action against the buyer for the purchase price of an automobile. The Defendant buyer counterclaimed for damages resulting from the failure of the seller to deliver an acceptable car. The counterclaim was still pending when the Defendant appealed the judgment entered in the primary action and no finding under Supreme Court Rule 304(a) was obtained. The court held that a Rule 304(a) finding was unnecessary since the summary judgment favoring the seller in its action for the purchase price in effect determined and disposed of all dispositive issues involved in the counterclaim as well, even though no formal order with respect to the counterclaim was entered. Here, too, once the primary action against the Defendant was terminated, with no liability accruing to him, the Defendant's third party action for contribution must likewise fall since there can be no liability on the part of the Defendant for which any contribution would be owing. Consequently even though the third party action was not formally terminated, the appeal from the primary action is not piecemeal since no further appeal from the third party action for contribution can reasonably be anticipated where no viable primary action against Defendant remains.

This effectively distinguishes the decision in Peterson Brothers Plastic v. Ullo since in that case the primary action against Defendant for damages remained alive and consequently the third party action for indemnity remained viable as well. Thus in Ullo an appeal from the primary action alone would have been piecemeal since it left open the possibility of another appeal being taken from the third party action after it was adjudicated. Therefore, the ...


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