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November 15, 1995


Appeal from the Circuit Court of Cook County. Honorable Aaron Jaffe, Judge Presiding.

Released for Publication December 21, 1995.

The Honorable Justice Tully delivered the opinion of the court: Rizzi, J., and Cerda, J., concur.

The opinion of the court was delivered by: Tully

JUSTICE TULLY delivered the opinion of the court:

Plaintiffs, Loren Boyce (Loren) and Marleen Boyce (Marleen) filed this action against defendants, Theodore J. Risch and Leo S. Deutsch, Inc. (Deutsch), for personal injuries sustained on October 19, 1984. Plaintiffs' fourth amended complaint alleged the following three counts: (1) that Risch violated provisions of the Illinois Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.); (2) negligence on the part of Risch and Deutsch; and (3) Marleen's loss of consortium. The case proceeded to trial and the jury returned a verdict in favor of defendants upon which the trial court entered judgment. Plaintiffs now appeal from the judgment pursuant to Supreme Court Rule 301 (134 Ill. 2d R. 301.)

For the reasons which follow, we affirm.


The following relevant facts were presented at trial. On October 19, 1984, Loren was employed by Mortenson Roofing Company (hereinafter Mortenson), a company in the business of installing roofs. Risch was a homeowner who was adding a garage to his property. Risch contacted Mortenson and entered into a contract whereby Mortenson provided roofing services. Loren and his brother Fred Boyce (Fred) were to work on the garage.

Prior to hiring Mortenson to install the garage roof, Risch had employed Deutsch to lay the foundation for the garage. Deutsch laid the foundation, and afterwards, sprayed the concrete with a sealant in order for it to cure properly. The sealant, which created an invisible impenetrable film barrier, would help retain the concrete's moisture and prevent it from cracking by drying too fast. The installation of the new concrete garage floor and driveway had been completed by Deutsch before October 1, 1984.

Loren and Fred testified that they began working, side-by-side, on Risch's garage on October 19, 1984, 18 days after Deutsch completed its work. Loren and Fred testified that they had begun their roofing work on the rear or south side of the garage first and then moved to its east side. Prior to working on the north side of the garage, the men had been placing their ladders on the soil. However, upon moving to the north side, Loren positioned his 16-foot wooden extension ladder on the concrete driveway containing the sealant. Loren was standing on his ladder, and without warning, his ladder slipped straight out from underneath him, causing him to fall onto the driveway. Loren was taken to the hospital where he was treated for a comminuted fracture of his distal humerus and distal tibia. Plaintiff testified that it has been difficult to work due to his injuries.

Loren testified that he had not received any warning of or had knowledge of the possible dangers of the concrete sealant. He further testified that when he climbed the ladder, he was about waist-high with the gutter line and that he positioned the base of the ladder approximately 3 feet from the gutter line. Moreover, he testified that the ladder did not have safety shoes nor did Mortenson provide them. It is plaintiffs' theory that the concrete sealant had caused the driveway to become slippery, even though neither Loren or Fred noticed the slipperiness.

At trial, Lee Hamm testified for plaintiffs. Hamm testified that he was a salesperson for the construction supplier who sold the W.R. Meadows CS-309 concrete sealant to Deutsch, although he had not begun working for the supplier until 3 years after the sale of the product in this case. Hamm testified that he has been acquainted with the product for 13 years, attended a seminar on the product and used it on one occasion. Hamm further testified that the sealant is an acrylic-based product designed to retain sufficient moisture to prevent it from drying too quickly and cracking. In addition, Hamm testified that the sealant does not create a sheen or shine on the concrete surface nor does it change the texture and slip resistance of the concrete.

Imants Lukis, Mortenson's superintendent estimator for 32 years, testified at trial that his responsibilities for Mortenson included giving advice on projects or going to job sites to work with the roofers. Lukis further testified that he used the rubber safety feet for ladders and that Mortenson supplied them to its employees. Lukis recollected that he had a conversation with Fred, where he said Loren had ...

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