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Dodds v. Western Kentucky Navigation (Ill.App. 07/06/1998)

July 06, 1998

CHRIS DODDS, PLAINTIFF-APPELLANT,
v.
WESTERN KENTUCKY NAVIGATION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE AND CROSS- APPELLANT,
v.
OCCIDENTAL CHEMICAL CORPORATION, INC., THIRD-PARTY DEFENDANT- CROSS-APPELLEE.



The opinion of the court was delivered by: Justice Goldenhersh

Appeal from the Circuit Court of Madison County. No. 94-L-130 Honorable P. J. O'Neill, Judge, presiding.

JUSTICE GOLDENHERSH delivered the opinion of the court:

Plaintiff, Chris Dodds, appeals from the trial court's denial of his motion for directed verdict and his posttrial motion for a new trial. Plaintiff, an employee of defendant, Western Kentucky Navigation, filed a complaint under the Jones Act (46 U.S.C. §688 et seq. (1975)), alleging that defendant negligently caused injuries to his back and arm. The jury returned a verdict for plaintiff in the amount of $200,000, which was reduced by 50% to $100,000 based upon plaintiff's contributory negligence. Defendant moved for a setoff of $190,000 as a result of an earlier settlement between plaintiff and third-party defendant Occidental Chemical Corporation, Inc. (Occidental). The circuit court granted the setoff and entered a net judgment of zero dollars.

On appeal, plaintiff presents the following issues: (1) whether the trial court erred in failing to grant plaintiff a directed verdict and (2) whether the trial court improperly admitted into evidence collateral matters such as collateral source payments, surrebuttal as to a nurse's gender, and the disciplinary consequences of professional conduct. We reverse and remand for a new trial on the issue of damages.

I.

On April 26, 1993, plaintiff was engaged as a first mate aboard the motor vessel Bill McCormick, operated by defendant. On the day of the incident, plaintiff was working with three other crew members, pilot Tom Flowers and deckhands Steve "Ninja" Martin and Kevin Edwards. The McCormick was headed southbound on the Illinois River towing barges, three barges wide and four barges deep in the front, and three barges, four deep across the back. When the McCormick arrived at the Marseilles Lock in Ottawa, the tow prepared to enter the lock, which is 110 feet wide. The tow was 105 feet wide, leaving only a five-foot clearance. Plaintiff, Martin, and Edwards were on the front barge, OCC 119, owned by Occidental. OCC 119 is a covered barge with a steel deck and had been freshly painted, including its timberheads. As the McCormick approached the long wall of the lock, plaintiff and Martin were on the starboard bow corner and Edwards was on the port bow corner. Plaintiff and Edwards had radios so the crew could communicate with Flowers in the pilothouse. Due to the pilot's limited visibility, plaintiff and the other deckhands informed Flowers of the distance of the tow relative to the long wall.

As the barges entered into the lock area, the crew had to get the tow lined up square along the long wall of the lock. A line was taken off the head of the tow and thrown to the lockman on the long wall. The lockman secured the line. Martin caught the line and wrapped the timberheads on OCC 119. This line is not tied off because it feeds through as the tow flattens along the long wall. A deckhand's job is to hold the unsecured end of the line as it feeds through the timberheads.

The mishap at issue here occurred as the tow began moving along the long wall. Plaintiff was watching the stern when Flowers radioed him to let the line loose. Plaintiff told Martin to take the line off. Martin took the line off the front timberhead and began to throw the wraps off the second timberhead when the line jerked out of Martin's hand. Martin was having difficulty releasing the line because the line was seizing or sticking to the paint on the timberhead. Plaintiff came over to Martin. There is a dispute regarding whether Martin told plaintiff the line was "fixing to shoot," meaning the line would release suddenly and with tremendous force. Plaintiff attempted to free the seized line by throwing off wraps from the timberhead. The first wrap came off, but the second only went halfway around the timberhead, sending a cloud of white paint into plaintiff's face. The line "shot," throwing plaintiff into the steel deck of the barge. Plaintiff sustained serious injuries to his left arm and was removed by emergency personnel and taken to a nearby hospital for medical treatment.

At Ottawa Community Hospital, plaintiff was treated by Dr. Bok Choi, an orthopedic surgeon, for a fractured left forearm. Treatment included the insertion of a metal rod. Plaintiff also received treatment for injuries to his left knee. On May 10, 1993, plaintiff was seen by Dr. Mark Greatting, an orthopedic surgeon in Springfield, for postsurgery follow-up care. Dr. Greatting performed additional surgery on plaintiff's left forearm on August 27, 1993.

Plaintiff first complained of pain associated with his back on his December 14, 1993, office visit with Dr. Greatting. On this visit, plaintiff stated that the neck pain began about one month after the accident. Dr. Greatting examined plaintiff's neck and found no abnormalities. Plaintiff did not specifically complain of lower back pain to Dr. Greatting. Prior to this office visit, there are no medical reports indicating that plaintiff complained of back or neck pain to either Dr. Greatting or the nurses from Comprehensive Rehabilitation Associates, who were assigned to accompany plaintiff on checkups for his arm injury.

Subsequently, plaintiff was examined by Dr. George Schoedinger, an orthopedic surgeon, for back pain. Plaintiff was diagnosed as having herniated disks in his lumbar spine at the L4-5 and L5-S1 levels. Plaintiff underwent back surgery on January 24, 1995. Plaintiff was unable to return to his job as first mate, which involves heavy labor. At the time of the trial plaintiff was engaged in light duty at a lumberyard.

On March 13, 1996, the jury returned a verdict in favor of plaintiff in the total amount of $200,000, which was reduced by 50% based upon plaintiff's contributory negligence. The net amount of the verdict was $100,000. Defendant moved for a setoff of $190,000 based upon plaintiff's earlier settlement with Occidental at the outset of the trial. The trial court granted the setoff and entered a net judgment of zero dollars. Plaintiff filed his posttrial motion, which was denied. Plaintiff appeals.

The following facts are pertinent to defendant's cross-appeal. Defendant filed contribution and indemnity claims against third-party defendant Occidental, which owned the barge plaintiff was on at the time of his injury. Defendant also filed a maintenance-and-cure claim against Occidental for payments made to plaintiff as a result of Occidental's negligence in providing a tow with a painted timberhead. On March 4, 1997, plaintiff settled with Occidental. Plaintiff moved to dismiss his unseaworthiness claims against defendant and proceeded on a negligence theory under the Jones Act. Defendant filed an amended answer in which defendant admitted that "a barge with a painted timberhead was in its tow and that said timberhead created an unsafe condition by causing the line to seize." The trial court dismissed defendant's maintenance-and-cure action against Occidental and barred defendant from discussing Occidental during the trial and from having the jury assign a portion of fault to Occidental. The trial court further determined that the Illinois ...


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