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Lafever v. Kemlite Company

December 31, 1998


The opinion of the court was delivered by: Justice McMORROW

28-September 1998.

Plaintiff Carl LaFever sued defendant/third-party plaintiff Kemlite Company (Kemlite) for injuries sustained while working on premises owned by Kemlite. Kemlite filed a third-party action for contribution (740 ILCS 100/0.01 et seq. (West 1996)) against plaintiff's employer, third-party defendant Banner Western Disposal (Banner). A jury awarded plaintiff damages and found Banner liable for contribution. The appellate court partially affirmed and partially reversed the circuit court of Cook County's judgment. 293 Ill. App. 3d 260. We granted petitions for leave to appeal filed by Kemlite and by Banner (166 Ill. 2d R. 315), and plaintiff cross-appealed (155 Ill. 2d R. 318). The issues raised for our review are whether (1) the circuit court erred by ruling as a matter of law that Kemlite owed a duty of care to plaintiff, (2) the circuit court erred by granting Banner's motion to waive its lien on plaintiffs' workers' compensation (820 ILCS 305/1 et seq. (West 1996)) after the return of the jury's verdict, and (3) the circuit court abused its discretion by instructing the jury on plaintiff's claim for future lost income. We affirm in part and reverse in part.


Kemlite operates a manufacturing facility in Joliet, Illinois. Kemlite produces a fiberglass reinforced polyester resin panel for transportation and building products industries. The product, which is made of chopped fiberglass, resin and fillers, starts as a liquid, poured on a manufacturing line, and cures on the line into a hardened product.

As the panels are cut to fit customer specifications, the manufacturing process produces "edge trim," a waste product. The edge trim is very slippery and difficult to grasp by hand. Edge trim is cut into one- to two-foot lengths, deposited in containers or buggies and taken to a compactor at the southern edge of the facility. The compactor unit is four to five feet wide and four feet deep. Kemlite employees activate a ram attached to the compactor, which presses the waste into a compactor box or container. The ram retracts until more waste is dumped into the compactor, and the process is repeated.

At the time of the accident, Kemlite contracted with Banner to dispose of the waste collected in the compactor container. Kemlite is a 24-hour-per-day facility, requiring daily pick up of the container, and sometimes multiple pick ups in one day. Banner employed "roll-off" drivers, including plaintiff, to pick up the debris at the Kemlite facility and dispose of the debris at a dump site. Roll-off drivers testifying at the trial of this matter described their duties at the Kemlite facility as follows. A roll-off driver backs his truck up to the compactor container, gets out of his truck and walks into the compactor box containing the debris. Going to the back of the box, the driver secures a wooden skid at the end of the container in order to prevent refuse from spilling out of the box. The driver then removes a "pinning" bar from the side of the container and attaches the container with a cable to the back of the truck. The driver loosens and detaches two turn buckles, each weighing 20 to 25 pounds, that secure the container to the compactor. The driver returns to the cab of his truck and drives the truck forward, pulling the container away from the compactor. The driver then gets out of the truck again, in order to shovel and clean up any debris that has fallen out of the truck as he moved the container away from the compactor. After dumping the container in a landfill, the driver returns the container to Kemlite.

While plaintiff and the other drivers testified before the circuit court that they, as roll-off drivers, bore the responsibility of cleaning up any debris they created or spilled in the course of removing and emptying the waste containers at Kemlite, they maintained that considerable debris was often already on the ground near the container when they arrived at Kemlite. The drivers understood that cleaning up this debris was not Banner's responsibility, and that Kemlite had its own maintenance staff to tend to the Kemlite premises. The drivers averred that Kemlite employees would fill the compactor container to overflowing. Banner drivers, including plaintiff, described occasions when they saw open carts sitting near the compactor container, which was too full to receive any more edge trim. The carts, used by Kemlite employees to haul trim to the compactor container, were themselves open, and the edge trim slid out of the sides and back of the carts onto the ground near the compactor container.

All of the drivers complained to Banner personnel about the danger posed by the edge trim at Kemlite. Sometimes, they directed their complaints to the Banner dispatcher on duty, who they asked to call Kemlite and request help from a Kemlite employee in cleaning up the container. Sometimes they complained to their superior at Banner, Terry Wilder. According to Wilder, he informed Kemlite personnel of the drivers' concerns that they might injure themselves on the debris. Banner drivers Jerome Blackwell and Larry Graves testified that they informed Kemlite employees of the "mess" at the compactor location. Lynn Smith, a dispatcher for Banner, received calls from Banner drivers before June 22, 1990, concerning "material all over the ground [at Kemlite] that was dangerous for the drivers to walk on." Smith would call Kemlite and ask Kemlite employees to clean the area around the compactor. Generally, Kemlite would respond that "they'd take care of it." Terry Wilder also forwarded complaints to Kemlite regarding the area around the compactor container.

Edgar Johnson, production superintendent for Kemlite, also testified below. He affirmed that Kemlite employees were responsible for ensuring the orderliness of the facility, including the area around the compactor container, and that Kemlite had in the past received requests for help from Banner in cleaning "major spills" around the compactor area. While picking up a compactor container at Kemlite on June 22, 1990, plaintiff slipped on some edge trim and fell, causing injury to plaintiff's back.

On October 10, 1991, plaintiff filed a single count complaint against Kemlite. As amended, the complaint alleged that Kemlite "carelessly and negligently caused and permitted [the Kemlite] premises to become and remain in a dangerous condition for persons using said premises, although [Kemlite] knew, or in the exercise of ordinary and reasonable care should have known, of said dangerous condition." Specific instances of alleged negligent acts or omissions committed by Kemlite included accumulation of fiberglass waste and dust on a walkway located "at or near" the compactor container, failure to maintain and inspect the walkway, and failure to warn plaintiff of the dangerous condition of the walkway.

By order entered June 17, 1992, the circuit court granted Kemlite leave to initiate a third-party action against Banner. In pertinent part, Kemlite asserted that Banner negligently failed to: provide plaintiff with a safe place to work, warn plaintiff of conditions inherent in the work performed, provide plaintiff with adequate equipment to complete his work, and properly train plaintiff. Kemlite sought recovery pursuant to the Joint Tortfeasors Contribution Act (Contribution Act) (740 ILCS 100/0.01 et seq. (West 1996)) for Banner's alleged liability for plaintiff's injuries.

A jury returned a verdict for plaintiff in his personal injury action, awarding him $1,122, 261. 21 in damages. The jury also found for Kemlite in its third-party action against Banner. Among the litigants, the jury apportioned liability as follows: plaintiff, 5%; Kemlite, 75%; and Banner, 20%. Accounting for the jury's finding of plaintiff's comparative negligence, the circuit court entered a judgment order awarding plaintiff $1,066,148.15.

Banner filed a timely post-judgment motion seeking, among other things, leave to waive its lien of $222,267.02 on plaintiff's recovery, an amount equivalent to workers' compensation paid by Banner to plaintiff, pursuant to the Workers' Compensation Act. 820 ILCS 305/5(b) (West 1996). Banner maintained that, by waiving the lien, Banner could relieve itself of any liability to Kemlite for contribution. Further, and pursuant to Lannom v. Kosco, 158 Ill. 2d 535 (1994), the $222,267.02 workers' compensation lien acted as full satisfaction of Kemlite's $224,452.24 liability for contribution.

The circuit court granted Banner's motion over plaintiff's objection, dismissed Kemlite's third-party claim against Banner, and reduced the judgment against Kemlite by $222,267.02, to $843,881.13.

On appeal, the appellate court affirmed the jury's verdict in favor of plaintiff, but reversed the circuit court's order granting Banner's post-trial motion. 293 Ill. App. 3d 260. In relevant part, the appellate court ruled that the statutory lien on an injured worker's compensation payments could not be waived after the entry of a verdict in the worker's personal injury action. The appellate court held as well that Kemlite owed plaintiff a duty of care despite the open and obvious hazard posed to plaintiff by the edge trim on Kemlite's premises, and that the circuit court erred when it instructed the jury on the elements of plaintiff's claim for future wages. Consequently, the appellate court remanded the action for recalculation of the judgment.


1. Whether the Circuit Erred by Ruling That Kemlite Owed aDuty of Care to Plaintiff Kemlite urges that the circuit court erred by refusing to direct a verdict for Kemlite on the question of whether Kemlite owed a duty of care to plaintiff. Specifically, Kemlite contends that plaintiff encountered an "open and obvious" hazard on Kemlite's property in the form of the fiberglass edge trim, and that Kemlite owed no duty of care to protect plaintiff from injuries arising from open and obvious dangers. Kemlite argues further that, in affirming the judgment of the circuit court, the appellate court misapplied four factors controlling the imposition of a tort duty in Illinois.

"Unless a duty is owed, there is no negligence." American National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14, 26 (1992). Whether a duty exists is a question of law. Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990). Whether a duty exists is also an inquiry shaped by public policy (Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987); Ward, 136 Ill. 2d at 140) since we must decide whether defendant and plaintiff stand in such a relationship to one another that the law imposes on defendant an obligation of reasonable conduct for the benefit of plaintiff (Ward, 136 Ill. 2d at 140). Accordingly, we consider not only the reasonable (1) foreseeability and (2) likelihood of injury, but also (3) the magnitude of the burden on defendant in guarding against injury and (4) the consequences of placing that burden on defendant. Ward, 136 Ill. 2d at 140-41.

In the case at bar, the appellate court resolved the duty question solely by applying the four factors enumerated above. 293 Ill. App. 3d at 270-71. While we agree with the appellate court that Kemlite owed plaintiff a duty of care, we conclude that the appellate court reached that holding by a flawed analytical route. The court improperly discounted the relevance of section 343A of the Restatement (Second) of Torts (1965) to the outcome of this case.

When, as here, plaintiff alleges he was injured by a condition on defendant's property while on the property as an invitee, *fn1 we decide the foreseeability prong of the duty test by reference to section 343 of the Restatement (Second) of Torts. Genaust v. Illinois Power Co., 62 Ill. 2d 456, 468 (1976); Ward v. K mart Corp., 136 Ill. 2d 132, 151 (1990); Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430, 438 (1990). Section 343 states in relevant part:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts §343 (1965). Despite the duty set forth in section 343, Kemlite insists that the edge trim hazard encountered by plaintiff was "open and obvious" and therefore negated any duty Kemlite owed to plaintiff. In Ward, this court adopted section 343A of the Restatement, which states an "open and obvious hazard" exception to the duty of care set forth in section 343. American National Bank & Trust Co., 149 Ill. 2d at 26; Ward, 136 Ill. 2d at 150-51; Restatement (Second) of Torts §343, Comment a, at 216 (1965). Kemlite is correct that section 343A relieves possessors and owners of land from liability for open and obvious dangers. However, the exception stated in 343A is not limitless; section 343A states in relevant part: "A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." (Emphasis added.) Restatement (Second) of Torts §343A(1) (1965).

See also Ward, 136 Ill. 2d at 145 ("[T]o the extent that the rule may have held that the duty of reasonable care owed by an owner or occupier to those lawfully on his premises does not under any circumstances extend to conditions which are known or obvious to such entrants, that rule is not the law in this State" (emphasis in original)).

No party to the present appeal disputes the danger presented by the edge trim at the Kemlite facility, or that it was obvious and known to Kemlite and Banner employees alike. Plaintiff and other drivers employed by Banner described the edge trim as "slippery" and that walking on the edge trim was like "walking on ice." A compressor located near the compactor produced condensation, and water was frequently present in the area near the compactor container. As a result, the edge trim regularly became wet, thereby increasing its slipperiness. Three other roll-off drivers, in addition to plaintiff, testified that they had slipped on the edge trim debris near the container prior to June 22, 1990, and one testified that he had fallen. Kemlite employee Edgar Johnson stated that he, too, was familiar with the slipperiness of the edge trim. Moreover, Johnson confirmed that the edge trim was sometimes on the ground around the compactor container and that condensation collected at that site. Whether the possessor of the premises should guard against harm to the invitee, despite the obviousness of the hazard, depends on two considerations. According to committee comments appended to section 343A (Restatement (Second) of Torts §343A, Comment f, at 220 (1965)), the possessor of the premises should anticipate harm to an invitee when the possessor "has reason to expect that the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget what he has discovered, or fail to protect himself against it." Ward, 136 Ill. 2d at 149-50. Similarly, harm may be reasonably anticipated when the possessor "has reason to expect that the invitee will proceed to encounter the known or obvious danger because to a reasonable man in his position the advantages of doing so would outweigh the apparent risk." Restatement (Second) of Torts §343A, Comment f, at 220 (1965). Some courts refer to the second exception as the "deliberate encounter exception." Jackson v. Hilton Hotels Corp., 277 Ill. App. 3d 457, 464 (1995).

In the present appeal, the appellate court correctly found no proof of a foreseeable distraction that would place a duty of care on Kemlite. In fact, plaintiff testified that, although he was carrying a metal bar at the time of his fall, he was not distracted and could see where he was going. However, the appellate court errantly concluded that the "deliberate encounter" exception to the open and obvious doctrine is inapplicable to this case. Retrieving edge trim from the Kemlite facility was plaintiff's job. In order to unhook and load the container onto his truck, plaintiff had to walk through any edge trim that was on the ground, as it frequently was. Despite Johnson's testimony that Kemlite never received any complaints from Banner employees about the area around the compactor, he admitted that drivers had to traverse the Kemlite premises in order to do their jobs and that calls had been made to Kemlite by Banner when drivers were seeking "assistance *** cleaning up" a "major spill." Kemlite knew that the edge trim posed a hazard, and knew, at least implicitly, that edge trim collected in the area around the compactor, since Johnson testified that Kemlite utility workers would clean it up whenever Kemlite was aware of it. We find that Kemlite could have reasonably foreseen that plaintiff would risk walking through the edge trim, because it was necessary for plaintiff to fulfill his employment obligations.

Kemlite urges the court to adJudge foreseeability from the perspective of what the landowner may "reasonably expect of the entrant in terms of knowledge of the danger, rather than *** focusing on what the entrant expected or desired the landowner to do to protect him." Kemlite is correct. The Restatement directs that with regard to open and obvious hazards, liability stems from the knowledge of the possessor of the premises, and what the possessor "ha[d] reason to expect" the invitee would do in the face of the hazard. Restatement (Second) of Torts §343A, Comment f, at 220 (1965); R. Ferrell, Emerging Trends in Premises Liability Law, 21 Ohio N.U.L. Rev. 1121, 1137 (1995).

Nonetheless, Kemlite abandons the Restatement's directives when Kemlite next contends that a "deliberate encounter" like plaintiff's cannot give rise to liability unless "there is no reasonable alternative available to the worker other than encountering the dangerous condition and the worker's continued employment is at stake if he doesn't encounter the condition," citing Jackson v. Hilton Hotels Corp., 277 Ill. App. 3d 457, 465 (1995), and Burse v. CR Industries, Inc., 288 Ill. App. 3d 48 (1997). The test proposed by Kemlite would require a court to decide foreseeability by measuring the reasonableness of the entrant's actions, and not those of the landowner, even though the Restatement plainly requires otherwise.

Further, to the extent Kemlite suggests that a plaintiff cannot raise the deliberate encounter exception without furnishing proof of an actual threat of termination, we believe that Kemlite confuses evidence relevant to a determination of duty with evidence material to an entirely distinct concept, i.e., whether plaintiff assumed the risk of the danger ...

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