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Frank v. Edward Hines Lumber Company

December 26, 2001

KENNETH FRANK, PLAINTIFF-APPELLANT
v.
EDWARD HINES LUMBER COMPANY, DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice Wolfson

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Thomas E. Flanagan, Judge Presiding.

Plaintiff Kenneth Frank (Frank) filed this products liability suit after a wood roof truss system manufactured by defendant Edward Hines Lumber Company (Hines) collapsed during installation. Plaintiff was one of three carpenters who were installing the roof when it collapsed. *fn1 A jury found in favor of defendant and against all three carpenters.

Plaintiff appeals, contending: (1) the trial court erred in denying a jury instruction tendered by plaintiff; (2) the trial court erred in excluding one of plaintiff's exhibits; (3) the trial court erred in allowing two of defendant's exhibits to go to the jury and denying plaintiff's "countervailing exhibits" to go to the jury; (4) the trial court erred in allowing the issue of assumption of risk to be submitted to the jury; (5) the trial court erred in directing the verdict for defendant on the breach of warranty count; (6) the trial court erred in granting defendant's summary judgment motion on the Structural Work Act (740 ILCS 150/1 et seq. (West 1998)) count.

We affirm.

FACTS

On June 24, 1991, three carpenters installing a wood roof truss system at the Evergreen Plaza Shopping Center in Vernon Hills were injured when several trusses collapsed. Hines designed, built, and furnished the truss system to comply with the architect's plans.

Frank filed a products liability suit against Hines. In his complaint, Frank included a count alleging violation of the Structural Work Act. The trial court summarily dismissed this count, finding plaintiff could not show Hines was in charge of the work within the meaning of the Act.

The Sixth Amended Complaint, filed after the court granted summary judgment in defendant's favor on the Structural Work Act count, alleged the roof truss system was defective in its design and engineering. Plaintiff also alleged the truss was improperly packaged, stacked, and delivered and was given to Frank in a deformed, bowed and unsafe condition. The complaint alleged Hines failed to give Frank adequate instructions for erecting the roof and that Hines did not provide adequate warnings of the dangers posed by the product. Plaintiff also included counts alleging breach of UCC warranties.

At trial, the evidence established that Antonio Fanizza was the architect and general contractor for the Evergreen Plaza project. Fanizza created Artech, Inc. and hired subcontractors through Artech. Artech employed Louis Garcia (Garcia) as a laborer. It did not have any other employees.

Fanizza's building plans called for prefabricated roof trusses. Fanizza accepted a bid from Hines for a wood roof truss system. According to the terms of their contract, Hines was to manufacture, design, build, deliver, and provide instructions for the erection of the trusses. Hines included lumber to be used as temporary bracing with the package.

After Hines designed and manufactured the trusses, they were delivered on a flatbed truck. Hines provided instructions for erecting the trusses, referred to during trial as the "Green Sheet." Hines also provided structural drawings bearing a structural engineer seal. Both the Green Sheet and the structural drawings were admitted as exhibits at trial.

Artech hired C. Bentley Construction (Bentley) to install the trusses. Frank was employed by Bentley. Frank testified that on the day of the accident, the last thing he remembered was telling another worker to get some bracing. Frank said they had problems installing the trusses because they were bowed or bent. Frank testified they were delivered bowed and the bowing remained after they were removed from the truck. Frank said he applied lateral bracing to straighten out the bowing, but did not apply cross-bracing. Frank said nobody told him the bracing was inadequate during the installation of the trusses. Frank said he looked at the Green Sheet briefly, but did not have a copy of it.

Plaintiff used several exhibits as feasible alternative warnings. Frank's witnesses noted the differences between these exhibits and the Green Sheet and concluded the information and warnings in these exhibits were more complete than the Green Sheet. Several witnesses testified that flourescent stickers showing where to use temporary bracing were sometimes affixed to trusses. However, Hines did not use stickers of this type at the time that the accident occurred.

Plaintiff's witnesses testified the trusses were bowed upon delivery. Fanizza testified he contacted Hines about the bowing and was told it was not a problem. Plaintiff's witnesses said the bowing made installation difficult.

Plaintiff's expert witnesses testified the Green Sheet did not provide adequate instructions and warnings and that the trusses were shipped in a manner that allowed them to bend excessively. The experts opined the bowing and the inadequate instructions regarding temporary bracing caused the collapse. They testified there were better instructions and warnings available at the time of the accident. They agreed that flourescent warning tags placed on the trusses would have helped warn and instruct plaintiffs as to proper bracing and installation.

Hines' defense centered around its claim that the truss system was not defective and provided adequate instructions and warnings to Frank. Hines claimed the accident occurred because the contractors did not read the instructions and warnings before attempting to assemble the roof truss system.

Hines' witnesses testified the builder was responsible for erection and bracing of the trusses. The bracing materials were provided to the builder along with the trusses.

Arthur Gurevich, the building commissioner for the Village of Vernon Hills, testified he went to the job site before the accident occurred. He said he was concerned about the way the trusses were stored. Once the building crew began to erect the trusses, Gurevich became concerned that they were not adequately braced. He told a worker named "Kenny" that the crew needed to install cross-bracing.

Hines' experts testified the Green Sheet adequately instructed and warned plaintiff about proper temporary bracing and installation of the truss system. They said if the erection crew had properly braced the trusses, they would not have collapsed. They said the trusses collapsed because the erection crew failed to use the temporary bracing specified in the Green Sheet. They did not believe the bowing in the trusses caused the collapse.

Defendant filed a motion for a directed verdict on the breach of warranty counts of the complaint. The trial court granted defendant's motion, finding Frank was not an employee of Artech or Fanizza, and was not covered by the UCC warranties that extended only to the buyer and its employees.

The jury ruled in defendant's favor on the remaining counts.

DECISION

Failure to Give IPI Civil No. 400.10

Frank contends the trial court erred in refusing to give Illinois Pattern Jury Instruction, Civil, No. 400.10 (2000 ed.)(hereinafter IPI Civil No. 400.10).

The decision to give or deny a jury instruction is within the trial court's discretion and a new trial should not be granted unless a party's right to a fair trial has been seriously prejudiced. Carey v. Lazzara, Inc., 277 Ill. App. 3d 902, 906, 661 N.E.2d 413 (1996). "The standard for determining whether a trial court abused its discretion in giving or refusing a jury instruction is whether, taken as a whole, the instructions fully, fairly and comprehensively informed the jury of the relevant legal principles." Carey, 277 Ill. App. 3d at 906.

IPI Civil No. 400.10:

"400.10 Strict Product Liability - Due Care Not a Defense -Personal Injury - One ...


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