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September 26, 1997


Appeal from the Circuit Court of Cook County. No. 91-L-16362. Honorable James S. Quinlan, Jr., Judge Presiding.

As Modified on Denial of Rehearing December 12, 1997. Released for Publication December 24, 1997.

The Honorable Justice Theis delivered the opinion of the court. Greiman and Zwick, JJ., concur.

The opinion of the court was delivered by: Theis


The Honorable Justice THEIS delivered the opinion of the court:

Defendant and third-party plaintiff, Kemlite Company, a division of Dyrotech Industries, Inc., a wholly owned subsidiary of Crane Company, a New York corporation (Kemlite), appeals the jury verdict against it awarding damages for injuries sustained by plaintiff, Carl LaFever (LaFever), at Kemlite's fiberglass plant in Joliet, Illinois. LaFever worked as an industrial waste disposal truck driver for Waste Management of Illinois, Inc., d/b/a Banner/Western Disposal (Banner/Western). LaFever was injured when he slipped and fell while servicing the Kemlite facility for Banner/Western and filed suit alleging that Kemlite failed to maintain a walkway, failed to warn LaFever of a dangerous condition, and negligently allowed fiberglass waste, oil or hydraulic fluid, or fiberglass dust to accumulate on the walkway. Kemlite filed a third-party action against Banner/Western alleging that LaFever's injuries were proximately caused by Banner/Western's negligence. The case proceeded to trial and the jury awarded LaFever $1,122,261.21.

On appeal, Kemlite alleges several trial errors and seeks reversal of the entire jury verdict, reversal for a new trial on all issues, or reversal and remand for a remittitur of the entire future lost earnings award. Kemlite first argues that LaFever did not establish either duty or proximate cause to hold Kemlite liable in tort. Kemlite also claims LaFever's counsel made improper remarks in closing argument. In addition, Kemlite contends that the trial court erroneously instructed the jury as to LaFever's future lost earnings, and calculation of LaFever's life expectancy. In the third-party action, Kemlite argues that the trial court erred by refusing to admit into evidence the contract between Kemlite and Banner/Western to show the contractual allocation of liability. On cross-appeal, LaFever argues that the trial court erroneously allowed Banner/Western to waive and set off its workers' compensation lien in satisfaction of its contribution liability to Kemlite, post-trial. For the following reasons, we affirm in part, reverse in part, and remand.

Kemlite manufactures fiberglass reinforced polyester resin panels used in the transportation and building products industry. At the Joliet facility, the panels are manufactured on eight production lines, 24 hours a day, in three shifts of eight hours each. The edge trim of the hardened resin panels is the waste byproduct which is thrown into the compactor. Kemlite contracted with Banner/Western to haul away all of Kemlite's waste. At trial, the parties referred to the large industrial dumpster at issue as a closed compactor unit, a hydraulic unit with a ram located at one end. Kemlite employees would dump the fiberglass debris into a four-foot pit in the top of the unit and the ram would then compact the debris from the side.

To remove a filled container, a Banner/Western driver would secure the container to keep the debris from spilling out. The driver would then attach a cable in order to pull the waste container onto the back of the truck, first removing the pinning bar from the side of the container. After removing the bar, which weighed approximately 40 pounds, the driver would disconnect the container by loosening two buckles that held the container to the compactor. The driver would then climb back onto the truck and drive the truck forward to pull the container away. Finally, the driver would get out of the truck and clean up any debris that spilled during removal. Once the container was on the truck, the driver would take it to a landfill, empty it, and return the empty container back to the customer's site. Banner/Western provided the containers and would pick up the full containers once a day. If Kemlite requested, Banner/Western would make a second pick up on any given day.

At trial, much of the testimony concerned the fiberglass debris, how it was generated, and who was responsible for cleaning it up. It was undisputed that the debris was slippery, like ice, and hard to handle because it was razor sharp. Likewise, walking in the debris was unavoidable because all roll-off drivers had to walk through the debris to reach the back of the container in order to disconnect it from the compactor. Debris often would spill as the Banner/Western drivers removed the container. In those instances, the roll-off drivers acknowledged that it was their job to clean up the spilled debris. If a lot of debris spilled during removal, the Banner/Western drivers would ask Kemlite for help to clean up the mess.

In addition, however, several Banner/Western employees testified regarding the condition of the area around the compactor upon their arrival to the Kemlite plant. For example, Raymond Richards testified:

"Q Mr. Richards, to your understanding, is it Kemlite's job to maintain and clean that compactor area?

THE WITNESS: What I could say is when we leave, we clean it up the best way possible, but the mess is there when we get there, so it's really not my responsibility. It's their's.

Q Would it also be fair to say that it was a problem area and you did encounter debris when you tried to do your job?

A Yes.

Q Sometimes it would be fine for a couple days and then be right back to the way it was?

A Yes.

Q Did you ever ask the Kemlite people either in the dock, loading dock area, or the people who signed your ticket to try not to over stuff that box?

A Yes.

Q Why did you do that?

A It's dangerous, number one, and it just makes a complete mess when it's over packed.

Q It makes what?

A Just a complete mess when it's over packed. There is no way in controlling what's in that hopper.

Q Would you let the dispatcher know every time when the packer was overloaded?

A Yes."

Lynn Smith, a Banner/Western dispatcher, confirmed that the drivers often called her to report that debris was on the ground when the drivers arrived. Smith never received a complaint from Kemlite that the Banner/Western drivers were not doing their job cleaning up spills they themselves caused during removal.

Regarding Kemlite's responsibility to maintain the compactor area, Kemlite's production superintendent, Edgar Johnson, testified:

"Q All right, okay. And it's the job of the utility workers within the Production Department of Kemlite to maintain that compactor area, correct?

A If they see something that needs cleaned, yes.

Q And if there was a necessity out there for a cleanup, if you've got a mess that people can trip on that was a hazard, somebody should be assigned to ...

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