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May 13, 1997


Appeal from the Circuit Court of Kane County. No. 92--LKA--0080. Honorable R. Peter Grometer, Judge, Presiding.

Released for Publication June 17, 1997.

Presiding Justice Geiger delivered the opinion of the court. Colwell and Thomas, JJ., concur.

The opinion of the court was delivered by: Geiger

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The plaintiff, William Burse, appeals from the May 13, 1996, order of the circuit court of Kane County denying his motion to reconsider an earlier order granting summary judgment on behalf of the defendants, CR Industries, Inc., CR Investments, Inc., and Chicago Rawhide Manufacturing Company (collectively referred to as Chicago Rawhide). In granting summary judgment, the trial court found that Chicago Rawhide owed no duty to the plaintiff as a matter of law. We affirm.

The facts necessary to the disposition of this appeal are as follows. In February 1990, the plaintiff was a truck driver employed by Wheeling Transportation (Wheeling). Wheeling had contracted for the exclusive right to haul Chicago Rawhide's goods and freight. The plaintiff's primary job responsibility was to haul Chicago Rawhide's freight from Chicago Rawhide's plant in Elgin to locations in Oklahoma, Ohio, Toronto, North Carolina, South Carolina, South Dakota, and Illinois.

Under the written transportation agreement between Wheeling and Chicago Rawhide, Wheeling's transportation services were described as those of an independent contractor. The agreement provided that Wheeling would furnish drivers and tractors to Chicago Rawhide for the purpose of shipping its goods to various destinations. The agreement further provided that Chicago Rawhide would load and unload the goods from the trailer at the points of pick up and delivery.

On February 5, 1990, Wheeling's dispatcher instructed the plaintiff to pick up a Wheeling tractor and go to Chicago Rawhide's Elgin plant. Once at the plant, the plaintiff was to tarp a load of steel pallet racks and to haul the load to Toronto. Tarping is a process in which a tarp is rolled over the load and secured at all sides. Although Chicago Rawhide was responsible for determining whether a load was to be tarped, Wheeling was responsible for performing the actual tarping. The plaintiff had tarped and hauled steel for Chicago Rawhide on numerous prior occasions and was familiar with the operation of the Elgin plant and yard. The plaintiff understood that Chicago Rawhide employees were forbidden to provide assistance in the tarping of any loads.

After the plaintiff arrived at the yard, he hooked his tractor to a Chicago Rawhide flatbed trailer that had already been loaded with steel. He then backed the truck into the loading bay of the receiving dock, so that he could have a place to stand while tarping the load. The dock, however, was not of a sufficient height for the plaintiff to reach the top of the load; the dock was 3 feet above the ground, while the top of the load was 13 feet above the ground. Due to this height difference, the plaintiff encountered difficulty in tarping the load.

After making several unsuccessful attempts at tarping the load, the plaintiff went to speak with Orley Cain, who was Chicago Rawhide's traffic manager. The plaintiff told Cain that the load was very high for a flatbed trailer and that there was no suitable platform or other place for tarping. He asked Cain whether it would be necessary to tarp the load before leaving the yard. Cain replied that the load had to be tarped and that, if the plaintiff needed help he should contact Wheeling.

Two other Wheeling drivers, who happened to be at the Elgin plant at the time, assisted the plaintiff with the tarping procedure for 15 or 20 minutes. Even with this assistance, however, the plaintiff was only able to tarp a small portion of the load. After the other drivers departed, the plaintiff contacted Wheeling's dispatcher and explained that it was almost impossible to tarp the load. The dispatcher told the plaintiff to "do the best you can."

At no time did the plaintiff ask Cain or any other Chicago Rawhide employee for assistance in tarping the load. Nor did he ever request any type of support device or equipment from Chicago Rawhide. The plaintiff did not make such requests because it was his understanding that Wheeling personnel were to "keep a low profile" and were not to bother Chicago Rawhide personnel. Wheeling had instructed the plaintiff to keep Chicago Rawhide happy "or else you walk."

It took the plaintiff approximately five hours to tarp the load. In order to tarp the load, the plaintiff allegedly had to climb up on top of the load, place his shoulder against part of the steel, and brace himself with one foot while holding the tarp with one hand. Although plaintiff slipped several times while climbing on the load, he never fell to the ground. The plaintiff asserts that he suffered a wrenching injury to his back from twisting and turning his body while standing with one foot on the dock and one foot up on the load.

On January 31, 1992, the plaintiff filed a negligence action against Chicago Rawhide. On February 5, 1996, he filed a second amended complaint. In the second amended complaint, he alleges that Chicago Rawhide breached its duty to provide him with a safe place to work. He alleges that this duty arose when Chicago Rawhide, through its employees, became aware that he was having difficulty tarping the load and that he did not have a platform of sufficient height to perform his work. He alleges that Chicago ...

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