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08/09/96 FERNANDO LAJATO v. AT&T

August 9, 1996

FERNANDO LAJATO, PLAINTIFF-APPELLANT
v.
AT&T, INC., DEFENDANT-APPELLEE. AT&T, INC., THIRD PARTY PLAINTIFF, V. QUINN DELIVERY SERVICE, INC., THIRD PARTY DEFENDANT.



Appeal from the Circuit Court of Cook County. Honorable Anthony J. Bosco, Judge Presiding.

Released for Publication September 16, 1996.

The Honorable Justice Gordon delivered the opinion of Court. McNULTY, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Gordon

JUSTICE GORDON delivered the opinion of Court:

This is an action for damages brought by the plaintiff, Fernando Lajato, arising from injuries he incurred while working as an independent contractor for third-party defendant Quinn Delivery Service, Inc. (Quinn) to move a battery hoist owned by defendant AT&T. AT&T filed a contingent third-party complaint against Quinn, not at issue in this appeal, seeking indemnification pursuant to the delivery service contract between Quinn and AT&T, in the event plaintiff recovered a judgment in his tort action against AT&T. AT&T subsequently filed a motion for summary judgment against plaintiff which the trial court granted. In that order, the court also denied plaintiff's oral motion requesting leave to amend his complaint. Subsequently, plaintiff filed a motion to reconsider, which the court ultimately struck by reason of its alleged lack of jurisdiction to hear it. Plaintiff appeals from the orders granting summary judgment to AT&T, denying his motion to amend his complaint, and refusing to hear his motion to reconsider. AT&T has moved to dismiss this appeal for lack of appellate jurisdiction.

In November 1989, plaintiff filed a complaint against AT&T, wherein he alleged that on July 1, 1988, he was on the premises of AT&T on behalf of Quinn in order to move an AT&T battery hoist. The complaint further alleged that while performing that task, the hoist fell upon him, causing him injuries for which he sought damages. The complaint averred that AT&T was negligent in its failure to maintain, inspect, and repair the battery hoist, and for AT&T's failure to warn plaintiff of the propensity of the hoist to fall. In April 1990, AT&T filed its answer, specifically denying each basis for recovery alleged in plaintiff's complaint. The matter was scheduled for trial in June 1995.

On April 25, 1994, AT&T filed a motion for summary judgment, alleging that, based upon the undisputed facts, it was clear that it owed no duty of care to plaintiff with respect to his injuries. In support of its motion, AT&T submitted excerpts of the deposition testimony of plaintiff and a copy of the delivery services contract between AT&T and Quinn. In his deposition, plaintiff testified that on the date of the accident, July 1, 1988, he was making pick-ups and deliveries of telephone equipment at various AT&T locations as an independent contractor for Quinn. He stated that he had received instructions from Quinn via radio to go to an AT&T property in Rolling Meadows, Illinois, the scene of the accident, to pick up a battery hoist and to transport it to another AT&T location in Rockford, Illinois. Approximately 99% of plaintiff's delivery work for Quinn involved pick-ups and deliveries of AT&T equipment. The plaintiff stated that AT&T did not direct him in his moving work, but, rather, allowed him to use his own expertise to determine how each move would be accomplished.

Plaintiff further testified that the battery hoist, which weighs approximately 500 pounds, was used to lift batteries weighing approximately 300 pounds up onto shelves. Plaintiff described the hoist as being rectangular in shape, on wheels, and consisting of a large, black metal frame with a motor and hoist accessories suspended from the top-middle of the frame. The hanging motor and accessories could be pulled to one side of the hoist frame and secured thereto with a nylon strap and a chain, both of which were also attached to the hoist, in order to stabilize the hoist during transport and when not in use to perform its battery-lifting function. It was plaintiff's customary practice to inspect the hoist to ensure that the motor and accessories were firmly secured with the strap and the chain prior to moving the hoist. Plaintiff had moved this particular hoist on at least 10-15 different occasions.

Plaintiff's deposition further revealed that when he reached the AT&T Rolling Meadows location, an AT&T employee directed him to the hoist, and that after that brief conversation, plaintiff had no further discussions with anyone, AT&T employees or otherwise, until after the accident. When plaintiff approached the hoist, he observed that its motor and accessories were already strapped and secured to the hoist's frame. He also testified that he personally examined the strap to ensure that the hanging apparatus was firmly secured to the frame of the hoist with the nylon strap and the motor chain before attempting to move the hoist. Plaintiff then wheeled the hoist to the back of his truck and onto his truck's hydraulic lift platform, which he had lowered to ground-level in order to lift the hoist into his truck. After raising the lift and the hoist from ground-level up to the truck's bed, plaintiff climbed into the truck bed and began to pull the hoist into the bed.

Plaintiff further testified that while pulling the hoist into the truck, the strap around the motor and hoist accessories loosened for reasons beyond his knowledge, permitting the motor and the accessories to swing free and the weight of the hoist to shift towards him. Immediately thereafter, the hoist fell onto plaintiff, causing him various injuries. Plaintiff stated that there were no known witnesses to the accident. He also stated that about two months after the accident, he heard from an AT&T installer that certain fellow laborers at AT&T had told him that after plaintiff's accident, they would not use that hoist because it was unsafe, and that AT&T ultimately shipped the hoist back to the manufacturer.

In addition to plaintiff's deposition testimony, AT&T submitted the Quinn-AT&T delivery contract in support of its motion for summary judgment. That contract reveals that Quinn, through its own independent contractors, performed moving services for defendant AT&T. The contract required Quinn to

"receive, pick up, load, transport, unload, and deliver telephone equipment and other material (the "Material"), and perform the other services provided for in this agreement as ordered by [AT&T] from April 1, 1987 to March 31, 1989."

The contract further provided that Quinn or its agents

"shall have the sole and exclusive care, custody and control of the Material from the time it is tendered to [Quinn], [Quinn's] agents or servants, until it is delivered to and accepted by [AT&T] ***."

In his response to AT&T's motion for summary judgment, plaintiff argued that AT&T had voluntarily assumed and breached a duty to him to keep its premises safe and to maintain the hoist such that it would not do harm to those moving it. In support of his position, plaintiff attached additional excerpts from his own deposition, pointing to his testimony that the AT&T hoist's motor and accessories were already secured to the frame of the hoist by the nylon strap and the motor chain when he arrived at the site to move the hoist. He also referred to his testimony that there was no motor lock securing the motor to the frame, and that the motor and accessories would not have swung free after the strap loosened if there had been such a motor lock.

In a hearing on July 27, 1994, the trial court granted AT&T's motion for summary judgment with prejudice. Later at that same hearing, the trial court heard plaintiff's oral request for leave to amend his complaint pursuant to section 2-1005(g) of the Illinois Code of Civil Procedure (735 ILCS 5/2-1005(g) (West 1994)), where plaintiff argued that he should be allowed to amend his complaint to show that AT&T voluntarily undertook to secure the hoist and did so negligently. The court denied plaintiff's motion to amend, stating as its reason that "it's an '89 case."

On August 25, 1994, within 30 days of the July 27 order granting summary judgment and denying leave to amend, plaintiff filed a motion to reconsider. However, plaintiff did not serve AT&T with that motion until September 18, 1994, at which time he transmitted that motion to AT&T via facsimile at AT&T's request. No notice of motion was served upon AT&T until November 9, 1994, and plaintiff did not file a certificate of service for that motion until November 17, 1994.

AT&T subsequently filed a motion objecting to plaintiff's motion to reconsider, arguing that the trial court had no jurisdiction to hear it based on plaintiff's failure to file a proof of service within 30 days of the July 27 order. On January 13, 1995, the trial court sustained AT&T's objection, finding that it had no jurisdiction to hear plaintiff's motion to reconsider, and therefore did not address the merits of that motion. On January 25, 1995, within 30 days of the trial court's January 13 order, plaintiff filed his ...


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