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Ewanic v. Pepper Construction Co.

May 25, 1999

MICHAEL EWANIC AND PATRICIA EWANIC, PLAINTIFFS,
v.
PEPPER CONSTRUCTION COMPANY AND KELSO-BURNETT COMPANY, DEFENDANTS (PEPPER CONSTRUCTION COMPANY,) THIRD-PARTY PLAINTIFF; KELSO-BURNETT COMPANY FOR THE USE AND BENEFIT OF ITS INSURERS, RISK ENTERPRISE MANAGEMENT AND CRUM AND FORESTER, THIRD-PARTY PLAINTIFFS-APPELLEES; F.E. MORAN, INC., THIRD-PARTY DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Mcnulty

Honorable Edward Burr, Judge Presiding.

Appeal from the Circuit Court of Cook County

Michael Ewanic and his wife, Patricia, sued Kelso-Burnett Company and Pepper Construction Company, seeking compensation for an injury he suffered while working on a construction project. Kelso-Burnett sued Ewanic's employer, F.E. Moran, Inc., under the Joint Tortfeasor Contribution Act (the Act) (740 ILCS 100/0.01 et seq. (West 1992)). Pepper Construction agreed to pay the Ewanics $250,000 in settlement. Kelso-Burnett's insurers, Risk Enterprise Management and Crum & Forester, also reached a settlement with the Ewanics, and the case proceeded to trial on Kelso-Burnett's contribution claim against Moran. Moran appeals from judgment entered on the jury's verdict holding Moran liable for 12% of the amount Kelso-Burnett's insurers paid in settlement.

Pepper Construction, the general contractor, hired Kelso-Burnett as the electrical subcontractor and Moran as the plumbing contractor. Ewanic worked for Moran as a pipefitter.

Prior to trial Moran asked the court to permit evidence of Ewanic's contributory negligence. The court held that the settlement already included a reduction from the Ewanics' total damages based on Kelso-Burnett's affirmative defense of contributory negligence. Therefore, the court concluded that permitting the jury to allocate part of the fault to Ewanic and deducting that percentage from the settlement amount would give Moran a double deduction from the Ewanics' actual damages.

However, the court agreed that the argument presented a novel legal issue. The court disallowed the evidence but held that, following trial without allocation of fault to Ewanic, the court would permit the parties to introduce evidence on the issue and argue to the jury for an allocation of responsibility to Ewanic. The jury would then return a second verdict allocating responsibility to the tortfeasors and Ewanic.

Ewanic testified that on January 2, 1992, while he was installing a gas pipe in an office on the top floor of the building under construction, he suddenly felt an electric shock run into one arm, through his body, and out to the pipe. He found himself on the floor, looking up at an open electrical junction box with wires hanging down. He had not noticed the wires before, but he saw such junction boxes frequently in his work. He expected the power to be off because the building was still under construction. Someone at the scene tested the uncapped wires and found that the power was on.

Fred Miller, Ewanic's foreman, could not remember Moran supplying any safety manual or other written information concerning electrical hazards. He saw the electrical junction box before Ewanic started installing the gas pipeline. He testified that he did not mention the junction box to anyone because "the power's never turned on in new construction." Especially as the office had temporary lighting, not powered through the building's electrical system, he had no reason to suspect the power might be on.

Clifford Van Wormer, Kelso-Burnett's job superintendent, admitted that Kelso-Burnett, as the electrical contractor, had sole responsibility for making sure junction boxes remained covered and wires remained capped during construction. He testified that permanent lighting had been installed in the office where Ewanic worked "maybe a month, maybe six weeks" before the accident. He added that part of "that ceiling [would] have been powered up" at the time of lighting installation. He admitted that Kelso-Burnett had a responsibility to notify the general contractor when permanent lighting received power, but he did not know when Kelso-Burnett so informed Pepper. [Material omitted is nonpublishable under Supreme Court Rule 23].

Moran proposed two special interrogatories:

"We the jury believe that the conduct of Michael Ewanic, who is not a party to this suit, was the sole proximate cause of Michael Ewanic's injuries.

YES ____NO ____"

and

"Did Kelso-Burnett Company, for the use and benefit of its insurers, Risk Enterprise Management and Crum & Forester Managers Corporation, pay in excess of its pro rata share of the ...


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