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12/29/95 JAMES O. JACKSON AND MARY JACKSON v.

December 29, 1995

JAMES O. JACKSON AND MARY JACKSON, PLAINTIFFS-APPELLANTS,
v.
HILTON HOTELS CORPORATION, DEFENDANT-APPELLEE.



Appeal From The Circuit Court Of Cook County. The Honorable Kenneth L. Gillis, Judge Presiding.

Petition for Leave to Appeal Denied April 3, 1996.

The Honorable Justice Gordon delivered the opinion of the court: Cousins, Jr., P.j., and T. O'brien, J., concur.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court:

BACKGROUND

The plaintiffs-appellants James Jackson and his wife Mary Jackson appeal from the trial court's dismissal with prejudice of their two-count second amended complaint. In Count I James Jackson sought damages from the defendant-appellee Hilton Hotels Corporation for its alleged negligence in causing a back injury he received in attempting to lift an object from its loading dock onto a truck. In Count II, Mary Jackson sought recovery from the defendant for loss of consortium arising from James Jackson's injury.

FACTS

The second amended complaint alleged as follows: On April 4, 1991 the defendant owned or operated the Palmer House Hotel located at 17 East Monroe in Chicago. On that date, James Jackson was lawfully on those premises in the course of performing his duties for his employer (apparently an entity other than the defendant) at which time he injured his back in attempting to lift a "gang box" from the Palmer House loading dock onto a truck, the bed of which was approximately ten inches higher than the dock. At the time of Jackson's injury the defendant maintained a "portable dockplate" in the loading dock area but that portable dockplate was not available for his use by reason of its being chained and locked. (At oral argument the plaintiffs informed us that a dockplate is a device which is used as a ramp between the bed of a truck or trailer and the surface of a loading dock.)

The second amended complaint further alleged that the Palmer House loading dock was defective in that it did not meet flush with the rear of delivery trucks, that the defendant failed to provide him with access to a dockplate (portable or otherwise), that the defendant failed to provide him with supervision or assistance in lifting the gang box onto the truck, and that the defendant failed to warn him of the danger of lifting the gang box. The complaint averred further that the defendant assumed a duty to provide a portable dockplate by maintaining the chained and locked portable dockplate in the loading dock area.

The trial court dismissed the second amended complaint, with prejudice, for failure to state a cause of action pursuant to the defendant's 2-615 motion. (See 735 ILCS 5/2-615 (West 1992).) The original and first amended complaints had earlier been dismissed, with leave to amend, for failure to state a cause of action.

The plaintiffs subsequently filed a motion to reconsider to which they appended the affidavit of James Jackson as an offer of proof of facts which could be plead if the court were to allow further amendment. That affidavit contained the following averments beyond those which were contained in the second amended complaint. At the time and place of his injury James Jackson was accompanied by a helper and had backed his employer's truck, the rear of which was equipped with a hydraulic lift, into one of the loading dock's bays to within several feet of the dock itself. The loading bay sloped downward, causing the front of the truck to be at least one foot higher than its rear. Jackson determined that, due to the downward incline of the bay, the edge of the hydraulic lift would have been several inches below the edge of the loading dock even when fully raised. The design of the loading dock, moreover, made it impossible to roll or drag materials from the dock's surface to the ground level so that the hydraulic lift could be used. Jackson then backed the truck flush against the loading dock.

The affidavit further averred that Jackson then looked at the security booth on the loading dock and noticed that no one was inside of it. Jackson and his helper then looked for wood in the loading dock area with which to make a ramp but, upon finding none, they went to a storage area on the premises and rolled the gang box (it was equipped with casters) to their truck. Jackson then looked at the loading dock security booth again, saw that it was still empty, and further noticed that he and his helper were the only persons in the loading dock area.

Jackson and the helper then attempted to lift the gang box from the loading dock onto the truck whereupon Jackson injured his back. After the gang box was unlocked Jackson discovered that it had been filled to capacity with pipe fittings and other materials, "making it much heavier than [he] had expected." The trial court denied the plaintiffs' motion to reconsider, stating that the matters contained in James Jackson's affidavit would not suffice to cure the second amended complaint's deficiency.

The sole issue in this appeal is whether the second amended complaint sufficiently alleged a duty owed by the defendant to the plaintiffs. As in all 2-615 dismissals, the appeal is from a determination of issues of law and therefore appropriately subjected to a de novo review. See Baker v. Miller (1994), 159 Ill. 2d 249, 255, 636 N.E.2d 551, 554, 201 Ill. Dec. 119; Fulton-Carroll Center, ...


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