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12/05/97 LEE CIHON v. CARGILL

December 5, 1997

LEE CIHON, PLAINTIFF-APPELLANT/CROSS-APPELLEE,
v.
CARGILL, INCORPORATED, A FOREIGN CORPORATION, DEFENDANT-APPELLEE/CROSS-APPELLANT, LEE CIHON, PLAINTIFF-APPELLANT/CROSS--APPELLEE, V. CARGILL, INCORPORATED, A FOREIGN CORPORATION, DEFENDANT-APPELLEE/CROSS-APPELLANT, (JOHN AMBROSE, CONTEMNOR-APPELLANT).



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CYRIL J. WATSON, JUDGE PRESIDING.

The Honorable Justice Hoffman delivered the opinion of the court. Hartman, P.j., and South, J., concur.

The opinion of the court was delivered by: Hoffman

The Honorable Justice HOFFMAN delivered the opinion of the court:

The plaintiff, Lee Cihon, filed a two-count complaint against the defendant Cargill, Incorporated (Cargill), alleging common law negligence and violations of the Structural Work Act. A jury returned a verdict in favor of Cihon and against Cargill on both counts and assessed damages totaling $780,000. However, the jury also found Cihon 35% comparatively negligent and reduced the damages to $507,000 on the negligence count. The trial judge granted Cargill's motion for a judgment n.o.v. on both counts. Cihon appealed that judgment and Cargill cross-appealed to preserve its rights to certain setoffs (No. 1-96-1733). Cihon's counsel appealed from a judgment finding him in contempt (No. 1-96-0269).

In February 1991, Cihon, an electrician in the construction trade for 29 years, was working at the construction site of a new tank farm at the Cargill premises in Chicago Heights. Cargill had hired Glen Oaks Electric (Glen Oaks) and M & W Contractors (M & W) to perform the work. Cihon was a general foreman for Glen Oaks.

Cargill's tank farm contained several storage tanks in rows of two, each resting on separate concrete "pads" that were anywhere from 16 to 24 inches high. A concrete wall had been built around the perimeter of the tanks to contain spills. The tanks were clean, empty, and dry at the time of the incident. The floor of the tank farm pitched downward from north to south--the north wall being approximately 31 inches high and the south wall approximately 48 inches high. The south end of the tank farm, the area where Cihon was working, contained a sump area which angled 6 to 8 inches below the floor of the tank farm. There was a liquid that appeared to be water inside the sump area at the time of Cihon's accident.

On February 21, 1991, Cihon had obtained a verbal welding permit from Paul Wenger, an engineer at Cargill. Cihon intended to "cad weld" a copper cable to a piece of steel on the side of each of the storage tanks in order to "ground" them if they were struck by lightning. According to Cihon, the cad welding process required the use of an electric grinder to clean any burrs off the cable. Cihon would then ignite gunpowder in a mold to cause it to weld, and this required a clean, dry surface.

Sometime before Cihon's accident, the construction workers at the site had placed a 2 x 10 or 2 x 14 inch plank which ran from the south wall of the tank farm to the concrete pad in the southwest corner. The testimony indicates that the plank was anywhere from eight to fourteen feet long. Cihon's coworker, Edward Hunt, testified that various workers at the site had used the plank to enter the tank farm. Hunt believed that the plank had been used in that manner for a few weeks. The plank sloped downward from the south wall to the top of the tank pad and ended at least two feet from the spot where Cihon intended to cad weld the cable to the metal flap on the tank.

On the day of the occurrence, Cihon walked across the plank into the tank farm to look at the flap where the welding was to be done. He set down the mold on the concrete pad and exited the tank farm via the plank. While Hunt rolled out an extension cord to get power to the tank farm for the electric grinder, Cihon went to a trailer to get supplies for the cad welding. As Cihon again walked down the plank with the cad welding equipment in his hands, the plank "tipped" and he fell to the floor of the tank farm. Hunt found Cihon lying on his back partly in the water in the sump area and about three or four feet north of the south wall. Cihon testified that he passed out for awhile and awakened in extreme pain. He sustained serious injury to a ligament in his knee.

On July 1, 1991, Cihon filed a two-count complaint against Cargill and M & W, setting forth claims under the Structural Work Act and common law negligence. Prior to trial, Cargill filed a counterclaim against M & W and a third-party complaint against Glen Oaks, both seeking contribution. Glen Oaks waived its workers compensation lien of $177,122.06, and obtained a dismissal. M & W settled with Cihon for $240,000 and was dismissed after the judge made a finding that its settlement with Cihon was in good faith.

The trial commenced on October 23, 1995. Cargill stipulated before trial that it had control of the premises and charge of the work, which effectively removed those issues from the case.

At trial, Ellen Brady, plant superintendent of Cargill's Chicago Heights plant at the time of the accident, testified that she was responsible for the overall operations of the facility. She said that Cargill relied on a permit system and contractor checklist to prevent unsafe practices. According to Brady, Cargill's plant engineer, Paul Wenger, visited the tank farm two or three times a week and reported to her on the progress of the construction. Brady testified that she or Wenger could stop the work if they saw something done in an unsafe manner. She admitted that Cargill was responsible for providing a safe work site.

Brady said she had seen a plank running from the south wall of the tank farm to one of the tank pads and had observed workers using it to walk in and out of the tank farm. She admitted that there was water in the sump area on the day of Cihon's accident and that it would have been Cargill's responsibility to remove it.

Cihon's expert, Kenneth Yotz, testified that he was an expert in occupational and environmental health and safety and was a former regional director for the Occupational Safety and Health Administration (OSHA). Yotz opined that the plank here was unreasonably dangerous in that it violated OSHA standards, custom and practice in the industry, and the Structural Work Act. Yotz also testified that, even if the fall distance did not require a handrail, OSHA still required the securing of the scaffold to prevent movement. Yotz said that he had previously seen such planks used to provide a walking or working surface for workers or materials. He opined that a plank used in the manner described here was not a safe practice because it was not secured, it was not erected by a competent person, it did not have guardrails, and the workers were not properly trained to recognize the hazard.

Cargill's expert, Eugene Holland, a structural and consulting engineer in the construction industry, testified that the plank was not a scaffold since it served only as an access to the tank farm. He opined that Cargill had no responsibilities for the direct supervision of Cihon's work, and that Cihon himself was in sole control of his work. According to Holland, OSHA places safety responsibility on both employers and employees. He concluded that Cihon would not have welded while standing on the plank because the plank did not extend to the area to be welded. Holland said that the water in the sump area would have had no impact on cad welding, although he admitted he was unaware that Cihon would have been using an electric grinder.

The jury returned verdicts in favor of Cihon and against Cargill with respect to both counts, awarding Cihon $780,000. The jury found Cihon 35% negligent and, accordingly, reduced the damages on the negligence count to $507,000.

Cargill filed a motion for judgment n.o.v., arguing that it had no duty to Cihon under the negligence count and that the plank was not a support within the meaning of the Structural Work Act. Cihon filed a post-trial motion arguing that there was insufficient evidence of comparative negligence and that the trial court's finding of direct criminal contempt against Cihon's counsel, John Ambrose, was erroneous. Ambrose also filed a motion to vacate the trial ...


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