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02/03/95 THOMAS FLYNN v. GOLDEN GRAIN COMPANY AND

February 3, 1995

THOMAS FLYNN, PLAINTIFF-APPELLANT,
v.
GOLDEN GRAIN COMPANY AND FACILITIES ENGINEERING COMPANY, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 87 L 27004. HONORABLE FRANK J. ORLANDO, JUDGE PRESIDING.

Released for Publication March 21, 1995.

Presiding Justice McNAMARA delivered the opinion of the court: Egan and Zwick, JJ., concur.

The opinion of the court was delivered by: Mcnamara

PRESIDING JUSTICE McNAMARA delivered the opinion of the court:

Plaintiff, Thomas Flynn, brought this Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) action against defendants, Golden Grain Company and Facilities Engineering, for injuries he sustained when he fell from a plywood platform while removing asbestos panels from an oven located within Golden Grain's Bridgeview, Illinois, manufacturing facility. A jury found in favor of defendants and against plaintiff, and the trial court entered judgment on the verdict. Subsequently, plaintiff filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The trial court denied the motion. Plaintiff appeals, contending that the trial court erred in (1) refusing to give the jury his tendered instruction based on Illinois Pattern Jury Instructions, Civil, No. 180.15 (3d ed. 1990) (hereinafter IPI Civil 3d), which encompasses violation of the Structural Work Act by omission; (2) giving the jury an instruction which paraphrased certain Occupational Safety and Health Administration (OSHA) regulations dealing with asbestos abatement; (3) refusing to admit into evidence an investigative report prepared by an employee of Facilities Engineering; and (4) admitting into evidence documents addressing the practices and procedures of plaintiff's employer pertaining to asbestos abatement.

The relevant facts are as follows. At the time plaintiff was injured, Golden Grain, a division of the Quaker Oats Company, was in the process of making extensive capital improvements at its Bridgeview facility. One such improvement consisted of removing and replacing a large dryer used to make pasta. Plaintiff was injured while removing asbestos from the dryer prior to its demolition.

To coordinate the various capital improvement projects occurring within the plant, Quaker Oats assigned to the plant a full-time project engineer named Royal Tischendorf. Tischendorf was responsible for overseeing the completion of various projects, including the removal of the dryer. Golden Grain contracted with Facilities Engineering for the services of Greg Mulac, who had daily supervising responsibilities at the site for the dryer removal project. He reported regularly to Golden Grain management regarding the progress of that particular project. Golden Grain also contracted with Intrastate Millwright Services, Inc. to perform the actual removal of the dryer. Intrastate Millwright worked under the supervision of Tischendorf and Mulac.

Tischendorf solicited bids from various asbestos abatement contractors and ultimately selected the bid submitted by Brand Asbestos Control Company, plaintiff's employer. Before Brand's bid was accepted, representatives conducted a walk-through of the pasta dryer. During the walk-through, Brand assessed the jobsite conditions, manpower needs, accessibility problems, and scaffolding needs. Tischendorf and Mulac accompanied the Brand representatives during the walk-through. Mulac testified that the Brand representatives told him and Tischendorf that no one from Golden Grain or Facilities Engineering was allowed in the work area. They were informed that Brand would assign a "lead person" to be in charge of the work and that Brand would "take care of it all."

In its May 5, 1987, proposal, Brand proposed to "furnish all necessary labor, supervision, tools, equipment and materials required for the removal of asbestos-containing insulation from the spaghetti dryer," and agreed that all work would be performed "in complete and legal accordance with OSHA Regulations ***, U.S. Environmental Protection Agency (EPA) Regulations for Asbestos ***, acceptable industry practices and project specifications and requirements, as applicable." The proposal also incorporated by reference the requirements of Brand's Respiratory Protection Program, with which Brand promised to comply. This proposal, along with a two-page standard form Quaker Oats contract, constituted the parties' asbestos abatement contract. Plaintiff introduced this contract into evidence at trial.

With respect to Golden Grain and Facilities Engineering's involvement in the asbestos removal work, the contract stated:

"For the purposes of safety and in order to minimize the potential for the contamination of individuals, access to the actual work area shall be completely restricted once work has commenced. No personnel will be allowed access to any designated work area without proper attire and respiratory protection. Respiratory protection and proper attire shall be made available at all times during the project for use by designated representatives of the owner, the consultant and/or engineer, or, if applicable, the independent air monitoring hygienist who may require entrance to the work area for the purpose of sampling, inspection or some other function. All individuals who enter the work area shall be subject to the requirements of The Brand Companies' Respiratory Protection Program and all other appropriate programs."

The terms of Brand's Respiratory Protection Program specified that respirators would not be issued to "individuals (including company officials, sub-contractors or visitors) who have not received appropriate respirator training and a medical clearance." The medical clearance would be given only after a comprehensive examination, a urinalysis, a chest X ray, and a pulmonary function test.

The standard form Quaker Oats contract set forth the following conditions and requirements regarding Golden Grain's involvement in the asbestos removal project:

"7. CHANGES IN THE WORK - OWNER may order changes in the work, the contract sum being increased or decreased accordingly. All such orders and adjustments shall be in writing and signed by OWNER'S Contracting Authority, and shall be executed under the conditions of the Contract Documents. Claims by Contractor for extra cost, including changes in completion date, must be made in writing before executing the work involved and no claim for an addition shall be valid unless so ordered.

8. CONDUCT OF WORK - All work done in performance of this contract shall be done in accordance with the requirements and instructions of the OWNER respecting hazards of all kinds. CONTRACTOR further agrees that the work shall be performed with a minimum of interference with OWNER'S operations.

9. GUARANTEE, INSPECTION AND CORRECTION OF THE WORK - CONTRACTOR shall permit and facilitate inspection of the work by OWNER and public authorities at all times. CONTRACTOR shall re-execute any work that fails to conform to the requirements of the contract and that appears during the progress of the work and shall remedy any defects due to faulty materials or workmanship and pay for any damages resulting therefrom which appear within a period of one year from date of acceptance and final payment regardless of whether the work is done by subcontractors or direct employees of CONTRACTOR.

10. OWNER'S RIGHT TO TERMINATE - OWNER may terminate this contract for any reason at any time upon written notice to CONTRACTOR. In such event OWNER shall pay to CONTRACTOR actual cost of direct labor, material incorporated in the work and transportation to the site plus 15 percent thereof for overhead, plus 10 percent, plus $100.00, less any payments previously made."

The OSHA regulations in effect in May 1987 governing the demolition of asbestos-containing structures required Brand to establish a regulated work area which was segregated in such a manner as to minimize the number of persons within the area. The regulations also required Brand to restrict access to the area to authorized persons, who were defined as "any person authorized by the employer and required by work duties to be present in regulated areas." All persons entering the regulated area were to be supplied with a respirator, and no person was to be assigned to a task requiring use of a respirator unless it had first been determined that he was physically able to perform the work and use the equipment. The regulations also required the use of protective clothing in the regulated area.

In accordance with its contractual obligation and its own Asbestos Abatement Guidelines, Brand supplied all of the equipment and tools for the job. The guidelines as well as Brand's Respiratory Protection Program were part of the "Brand Safety Book" which the Brand job superintendent, Doug Weaver, and foreman kept at the jobsite.

When Brand arrived at the plant to begin the asbestos removal project, Golden Grain instructed Brand employees as to which doors to enter and exit through and what clothing to wear when moving about the facility. When Golden Grain instructed Brand to commence work, Brand enclosed in plastic the containment structure which Intrastate Millwright had constructed at Mulac's direction. Within the containment area was the partially dismantled dryer from which Brand was to remove the asbestos. A sign was placed on the entrance to the containment area, as required by Brand's Asbestos Abatement Guidelines, which read: "DANGER. ASBESTOS. CANCER AND LUNG DISEASE HAZARD. AUTHORIZED PERSONNEL ONLY. RESPIRATORS AND PROTECTIVE CLOTHING ARE REQUIRED IN THIS AREA."

Plaintiff testified that after Brand sealed and restricted the containment area and just prior to beginning the actual asbestos removal, Weaver, Brand's hygienist and a Golden Grain representative walked through the area. Brand posted a daily job sign-in/sign-out and visitors log at the entrance. All persons entering and leaving the work area were required by Brand to sign in and sign out.

Weaver stated that he maintained the logs and enforced their use. He was also responsible for enforcing Brand's Respiratory Protection Program and applicable OSHA regulations at the site. Weaver enforced the requirement that all ...


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