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June 21, 1996


Appeal from the Circuit Court of Cook County. No. 90 L 11036. The Honorable Walter J. Kowalski, Judge Presiding.

The Honorable Justice Hourihane delivered the opinion of the court:* Mcnulty, P.j., and Cousins, J. concur.

The opinion of the court was delivered by: Hourihane

The Honorable Justice HOURIHANE delivered the opinion of the court:*

Plaintiff, Bruce Cockrell, filed a two count complaint against defendant, Koppers Industries, Inc. (Koppers), sounding in negligence and wilful and wanton misconduct. In the complaint, plaintiff alleged that he was severely burned while working on Koppers' property. The case eventually proceeded to trial, and a jury returned a verdict finding defendant negligent. Koppers then filed a Motion for Judgment Notwithstanding the Verdict (JNOV) or Alternatively for a New Trial. The circuit court denied the motion, and Koppers appealed. 134 Ill. 2d R. 303(a). We reverse the denial of the motion JNOV and remand the matter to the circuit court with directions to enter judgment for defendant.


Plaintiff was a certified hazardous material worker (which, as defined by OSHA, means that plaintiff had completed certain minimum training in handling hazardous materials) employed by F.G. Enterprises (F.G.), a company which provides various on-site maintenance services. Koppers, a coal tar producer, operates an industrial facility in Stickney, Illinois. The facility consists of, among other things, several tanks capable of holding 500,000 gallons of tar. Pursuant to an agreement between the parties, F.G. agreed to assign workers to Koppers on a purchase order -- or as needed -- basis. Under this arrangement, Koppers' Tar Plant Maintenance Supervisor would issue a general work assignment to F.G.'s on-site supervisor, who would then direct F.G.'s employees as to the particulars of the task. In this way, F.G. retained control over its employees as to the specific details of each project and Koppers never gave any direction to or exercised any control over plaintiff or F.G.'s other employees.

Beginning in early May 1989, Al Tolbert, F.G.'s on-site supervisor, instructed plaintiff and other co-workers to dig a series of holes in the area near the holding tanks. The holes, which measured approximately three feet in diameter and six feet in depth, were to be used for anchoring posts. These posts would, in turn, support a new tar pipeline. However, due to a high water table, ground water inadvertently seeped into the holes. As a result, Tolbert further directed plaintiff and others to pump the water out of the holes and "squeegee it" toward a trench drain located approximately 100 feet away.

On the evening of May 8, 1989, a valve gasket on an existing pipeline failed, spilling hot tar onto the ground and into the holes. Some of the tar eventually accumulated along the drain near a railroad track designated as "Track 5". Once the tar cooled, it became more viscous and blocked further drainage. To remedy the situation, William DePue, Koppers' Tar Plant Maintenance Supervisor, placed hot water and steam hoses in the holes. DePue intended to "steam purge" the tar and water mixture out of the holes and into the drain.

On the next day, DePue and other Koppers' employees tried to pump out the tar and water mixture. After several unsuccessful attempts to pump out the tar, DePue decided to leave the hoses in the holes and continue the steam purging. In the meantime, DePue placed forklift pallets over the holes and blocked access to the area with barricade horses and yellow caution tape.

On the following morning, DePue met with Tolbert and Duane Grahovec, F.G.'s owner, informed them that Koppers had been steam purging the holes throughout the night and told them of the hazards. He also instructed them to have their workers clean "between 1 and 2 tank center lines", an area approximately 50 feet away from the designated area where the holes were being steam purged.

Later that same morning, plaintiff arrived at Koppers' plant and met with Tolbert at F.G.'s on-site "bungalow" or work station. Contrary to DePue's instructions, Tolbert directed plaintiff and a co-worker, John Woodward, to "squeegee out" the tar-filled holes and force the liquefied tar down to Track 5. Tolbert did not inform plaintiff or Woodward that the holes were being steam purged.

In order to reach the holes, plaintiff and Woodward stepped over one of the pipelines and under the caution tape. By now, the area surrounding the holes was covered by approximately one inch of tar. According to plaintiff, the site appeared as if it were a "black lake", and visibility was hampered by the steam.

Once the men reached the holes, they each removed a pallet and began clearing off the tar. At that point, plaintiff saw Woodward partially slip into one of the holes and cry out, "This shit is hot". Plaintiff told Woodward that they should not be working in the area, and he then left to get Woodward a new set of work boots. Upon returning, plaintiff lost his balance and fell into one of the uncovered holes. Plaintiff suffered severe injuries.

At the close of all the evidence, the circuit court instructed the jury as follows:

"Koppers Industries, Inc., owed Bruce E. Cockrell, a person on its property at its invitation or with its permission, the duty to use ordinary care to see that the premises were in a reasonably safe condition. That duty extends only to that portion of the premises onto which the person has either expressly or impliedly been given an invitation or permission to use or to that portion the owner ...

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