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07/19/96 JOSEPH J. KELLY v. HCI HEINZ CONSTRUCTION

July 19, 1996

JOSEPH J. KELLY, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
HCI HEINZ CONSTRUCTION COMPANY, DEFENDANT-APPELLEE AND CROSS-APPELLANT, AND PLEASANT RIDGE MASONRY, INC., DEFENDANT-APPELLEE.



Appeal from Circuit Court of Livingston County. No. 90L60. Honorable Charles H. Frank, Judge Presiding.

As Corrected August 29, 1996.

Honorable Robert W. Cook, P.j., Honorable Frederick S. Green, J., Honorable James A. Knecht, J., Concurring. Presiding Justice Cook delivered the opinion of the court:

The opinion of the court was delivered by: Cook

PRESIDING JUSTICE COOK delivered the opinion of the court:

Plaintiff, Joseph J. Kelly, a bricklayer, was injured when the scaffold on which he was working collapsed. Kelly brought suit against HCI Heinz Construction Company (Heinz), the general contractor, under the Structural Work Act (Act). 740 ILCS 150/0.01 et seq. (West 1992). Heinz in turn filed a third-party action against Kelly's employer, Opperman Construction Company (Opperman), the subcontractor in charge of masonry. Kelly also sued Pleasant Ridge Masonry, Inc. (Pleasant Ridge), with whom Opperman had subcontracted to provide scaffolding and equipment and supervise the bricklayers and laborers. Pleasant Ridge then brought a third-party action against Opperman.

On the day of trial, Opperman was dismissed out when it unilaterally waived its workers' compensation lien against any judgment. 820 ILCS 305/5(b) (West 1992). At the conclusion of the trial, the jury found Pleasant Ridge not liable, but found Heinz liable and set damages in the amount of $82,500. The award included $23,400 for past medicals and medically related expenses, $21,600 for disability and disfigurement, $25,000 for past and future pain and suffering, and $12,500 for past and future lost wages. Kelly appeals the verdicts against both defendants. Heinz cross-appeals. We affirm the jury verdict in favor of Pleasant Ridge. We affirm the jury's verdict that Heinz was liable, but reverse and remand for a new trial on the amount of damages.

On August 7, 1990, Kelly was working on a Wal-Mart store project in Pontiac, Illinois. The construction was being done with Morgen scaffolding, which consists of towers strung together along a wall, connected by braces. The towers support the platform on which the bricklayers stand. The platform moves between the top and bottom of the towers, but a set of braces must be removed in order to move the platform more than a few feet.

Laborers, not bricklayers, were assigned the duty of raising and lowering the platforms. After lunch on August 7, the only laborer working the platform in question was Danny Bellott, an Opperman employee. Bellott had worked for a little over a month before the accident but had never been the only laborer on a platform before. When the crew returned after lunch, the top set of braces was off. The platform had to be lowered, and when it reached the point where the middle braces had to be removed in order to continue descent, Bellott removed them without replacing the top braces. After the platform descended further, Bellott attempted to remove the bottom set of braces and the scaffold collapsed. Kelly fell to the ground and was injured.

Bellott testified he never had anything to do with operating a Morgen scaffolding until the Wal-Mart job, although he had gone up on the scaffolding at the previous job "once in awhile." There were never any safety meetings at the site, Bellott never received any written instructions on the Morgen scaffolding and was never given any training how to operate it. He testified he did not know that when the middle braces were taken off they should be put back on top, although he was impeached with his deposition.

Dave Viebrock was Heinz' superintendent on the project. Under the contract between Wal-Mart and Heinz, Viebrock was responsible for monitoring safety and for accident prevention. The contract provided that Heinz was responsible for "initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract"; "taking reasonable precautions for safety of, and [providing] reasonable protection *** to: (1) employees on the Work and other persons who may be affected thereby"; complying with safety-related "laws, ordinances, rules, regulations and lawful orders of public authorities"; and was not to "permit employment of unfit persons or persons not skilled in tasks assigned them."

Perry Augsburger, an employee of Pleasant Ridge, was a working foreman on the site. He acknowledged Viebrock relied on him for the safety and use of the scaffolding, but noted that if Viebrock saw problems he would bring them to Augsburger's attention. Augsburger admitted he had responsibility for providing training on the Morgen scaffolding, and he did that by hands-on instruction, rather than conducting "classes." He thought Bellott had lowered the platform on the previous job, but admitted there "could be a chance [he] didn't talk one on one with" Bellott about how to operate the scaffold. He did not see the scaffolding at the time of the accident because he was cutting a block on the other side of the wall. Augsburger testified he would "have a hard time believing that anybody could understand a scaffold could stand up without cross braces."

Plaintiff's expert testified Bellott was not properly trained and there was not a competent person supervising.

Both Kelly and Heinz argue that they are entitled to judgment n.o.v. or to a new trial. We reject those arguments as they apply to the question of liability. Based on the contract and Augsburger's testimony, the jury could have found that Heinz had charge of the work and wilfully violated the Act in that it knew of the dangerous condition or in the exercise of ordinary care could have discovered the situation. Although Pleasant Ridge's employee, Augsburger, was a foreman on the project, he was a working foreman with duties in addition to supervision. Bellott was an Opperman employee. It is possible for more than one person to "have charge of" the work, and the jury could have found against Pleasant Ridge on that issue. Simmons v. Union Electric Co., 104 Ill. 2d 444, 454, 473 N.E.2d 946, 951, 85 Ill. Dec. 347 (1984). On this record we cannot say, however, that a contrary decision is against the manifest weight of the evidence. The jury could have found that only Heinz, and not Pleasant Ridge, had the supervision and control of the work.

During opening statements, Kelly's attorney told the jury there would be testimony as to Kelly's need for future surgery and the approximate cost of that future surgery. Pleasant Ridge's attorney objected that because Opperman, the employer, had waived its compensation lien, and future medical expenses would be paid under the Workers' Compensation Act (Compensation Act) (820 ILCS 305/1 et seq. (West 1992)), recovery of future medical expenses would constitute a double recovery. The court sustained the objection and ruled that Kelly could not present any evidence pertaining to the cost of future medical care and treatment. The court also refused Kelly's verdict form which included future medical expenses. All of this was completely unnecessary on the trial court's part. The trial court could have allowed the evidence in, could have allowed the jury to have entered a verdict for future medical expenses, and then deleted that amount when it entered judgment on the verdict. The court in fact did that with past medical expenses, allowing the jury to consider those expenses and render a verdict on them in the amount of $23,400, even though they had already been paid under the Compensation Act. Then when the trial court entered judgment, the amount was reduced by the $23,400, as a good-faith settlement under the Joint Tortfeasor Contribution Act (740 ILCS 100/1 through 5 (West 1992)). See Wilson v. Hoffman Group, Inc., 131 Ill. ...


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