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03/21/95 TOM TINDELL v. ROBERT MCCURLEY

March 21, 1995

TOM TINDELL, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
ROBERT MCCURLEY, DEFENDANT-THIRD PARTY-PLAINTIFF-APPELLEE AND CROSS-APPELLANT, V. ROBERT CALHOUN D/B/A CALHOUN PLUMBING, THIRD PARTY DEFENDANT-APPELLEE AND CROSS-APPELLANT.



Appeal from Circuit Court of Sangamon County. No. 91L435. Honorable Richard J. Cadagin, Judge Presiding.

As Corrected July 18, 1995.

Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Concurring, Honorable Robert W. Cook, J., Dissenting

The opinion of the court was delivered by: Lund

JUSTICE LUND delivered the opinion of the court:

Plaintiff Tom Tindell was injured on a construction job in October 1989 when he fell from a stepladder. He brought an action under the Structural Work Act (Act) (Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq.) against the general contractor on the job, defendant Robert McCurley. Defendant McCurley brought a third-party complaint against plaintiff's employer, Robert Calhoun, who was the plumbing subcontractor for the job.

Following trial, the jury returned a verdict in favor of plaintiff and apportioned liability equally between defendant McCurley and third-party defendant Calhoun. The jury awarded plaintiff no damages, however. Plaintiff appeals, arguing the jury's verdict was manifestly inadequate, and seeks a new trial limited to the issue of damages. Defendant McCurley argues the verdict was erroneous in that it found a violation of the Act. He seeks a ruling there was no violation of the Act or, in the alternative, a new trial on all issues. Third-party defendant Calhoun filed a cross-appeal, requesting that in the event a new trial is ordered, the third-party liability issue also be retried. McCurley moved to dismiss Calhoun's cross-appeal, arguing the issue was waived by not being raised in a post-trial motion. We reverse and remand to the trial court for a new trial on all issues, including the third-party claim.

Plaintiff was attempting to drill water lines from the main floor to the basement when the drill bit hit an obstruction. Plaintiff started to the basement to see what was obstructing his drilling. At thattime the stairs from the first floor to the basement had not been completed. McCurley had placed a six-foot stepladder in the opening to the basement and used it to get to the basement to begin working on the stairs between the basement and first floor. As he approached the basement, plaintiff saw a stepladder in the entry. He stepped onto the top of the ladder and as he placed his second foot on the ladder, it moved, causing him to fall. Plaintiff testified he fell face down on the concrete basement floor. Immediately after the fall, he noticed pain in his right knee and left elbow.

Plaintiff introduced uncontradicted evidence of his medical expenses and lost wages as a result of the injury. He also testified as to the pain he suffered and the remaining disabling effects of his injury.

At the close of plaintiff's evidence, defendant moved for a directed verdict arguing that since plaintiff was not performing actual construction work on the ladder, but using it as a means of access to the basement, plaintiff's accident was not within the coverage of the Act. The court denied the motion. Following testimony from defendant's witnesses, all three parties moved for directed verdicts and all were denied.

The jury returned the verdict. The effect of the verdict was a finding for defendant McCurley in his contribution claim against third-party defendant Calhoun and the allocation of 50% of the fault for plaintiff's injuries to each of them.

In May 1994, plaintiff filed a motion for a new trial on damages only or, in the alternative, a new trial on all issues. Defendant filed a motion in which he asserted the court erred in denying his motions for directed verdict at the close of plaintiff's case in chief and at the close of all evidence. The motions were denied June 17, 1994. Plaintiff filed a notice of appeal to this court June 29, 1994. Defendant filed a notice of cross-appeal July 6, 1994. On July 7, 1994, third-party defendant Calhoun filed a cross-appeal asking that in the event the trial court's decision is reversed, a new trial on McCurley's third-party complaint be granted as well.

Defendant argues plaintiff's injury is not covered by the Act since plaintiff was using the ladder as a means of access from the first floor to the basement at the time of his injury. The question of whether a particular device is covered by the Act is a question law for the court. ( Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223, 1224, 111 Ill. Dec. 586; Miller v. Archer-Daniels-Midland Co. (1994), 261 Ill. App. 3d 872, 876, 634 N.E.2d 1108, 1111, 199 Ill. Dec. 754.) Section 1 of the Act provides:

"All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." Ill. Rev. Stat. 1989, ch. 48, par. 60.

In determining whether a particular device is covered under the Act, a court must ascertain the intended use of the device at the time of the injury. ( Lafata v. Village of Lisle (1990), 137 Ill. 2d 347, 354, 561 N.E.2d 38, 42, 148 Ill. Dec. 732; Vuletich, 117 Ill. 2d at 422, 512 N.E.2d at 1225.) "It is the use of the device in question, not the nature of ...


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