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Hernandez v. Paschen Contractors

November 15, 2002

OMAR HERNANDEZ, PLAINTIFF-APPELLANT,
v.
PASCHEN CONTRACTORS, INC., A CORPORATION, AND PASCHEN/RAUSCH, A JOINT VENTURE, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 95 L 4845 The Honorable Daniel M. Locallo, Presiding Judge.

The opinion of the court was delivered by: Justice Buckley

UNPUBLISHED

Plaintiff Omar Hernandez appeals from the jury's verdict in favor of defendants Paschen Contractors, Inc., and Paschen/Rausch (hereinafter both defendants shall be referred to a Paschen) on plaintiff's Structural Work Act (740 ILCS 150/0.01 (West 1992)) claim. Upon appeal, plaintiff contends the trial court erred in: (1) admitting evidence in a Structural Work Act case that plaintiff acted negligently; (2) admitting evidence that plaintiff received written rules and warnings concerning ladder safety prior to the accident; (3) admitting evidence that Paschen delegated its responsibility for safety to plaintiff's employer, JWP/Hyre (Hyre); (4) allowing Paschen's expert witness to interpret a contract; (5) barring plaintiff's witness's testimony that the ladder used by plaintiff was "shaky" and "unsteady"; (6) denying plaintiff's motion for a directed verdict on the issue of whether Paschen had charge of the work; and (7) denying plaintiff's motions for a judgment notwithstanding the verdict (judgment n.o.v.) or, alternatively, for a new trial. We affirm.

Paschen was the general contractor for a large renovation project at the Cook County Juvenile Detention Center. Paschen subcontracted work on the installation of a fire alarm system to Hyre, which employed plaintiff as an apprentice electrician. On August 27, 1994, plaintiff sustained injuries when he fell from a ladder while working on the project. Plaintiff filed a claim against Paschen, alleging that its violations of the Structural Work Act (the Act) (740 ILCS 150/0.01 (West 1992)) *fn1 caused plaintiff's injuries.

At trial, plaintiff testified that on the day of his injury, he was an apprentice electrician employed by Hyre. His job that day was to install a conduit into a box in an electrical closet. The box was located approximately 10½ feet from the floor and plaintiff used an 8- foot ladder to access the box. Plaintiff stated that as he climbed the ladder, it seemed a little shaky. Due to the small dimensions of the room, plaintiff placed the ladder parallel to the wall and underneath the box in order to work. Although plaintiff initially testified that he had both feet on the third or fourth rung of the ladder at the time of the acci-dent, when confronted with his earlier deposition testimony plain-tiff admitted he was straddling the ladder and rocking it back and forth when he fell. As he was putting the conduit into the connec-tor, he heard a cracking sound just before the ladder gave way underneath him. Plaintiff fell onto the concrete slab floor, sustaining injuries.

Upon cross-examination, plaintiff admitted that as part of his apprenticeship he was taught how to use tools safely and how to recognize hazards and dangers in the job. Plaintiff also stated that he had climbed the ladder in question at least six times on the night of his accident and found it safe enough to perform his work.

Richard Kelly testified that he was the Hyre foreman and electrician working with plaintiff at the time of plaintiff's injury. He was not present when plaintiff fell from the ladder. After plaintiff was taken away, Kelly noticed that two rubber feet were missing from the ladder and that the ladder had a broken leg. Although he stated he was not an expert on ladders, Kelly agreed that an electrician uses a ladder often in his work. Kelly testi-fied that he used the ladder in question four or five times the night plaintiff was injured and found the ladder to be safe and stable. Plaintiff never complained to Kelly that the ladder was unsafe.

Plaintiff's expert witness, Jon Ver Halen, testified that the ladder in question showed signs of heavy use and was at the end of its useful life. Ver Halen stated that the fatigue fractures and loose braces he found on the ladder existed before the time of plaintiff's accident and indicated long-term, heavy use. As a result, whenever someone used the ladder, it would have "a fair amount of sway in it." Ver Halen also found that the "friction feet on the front are gone." He concluded that the ladder was unsafe for use at the time of plaintiff's accident. Further, given the set-up of the electrical closet in which plaintiff worked, Ver Halen testified that plaintiff had no alternative but to position the ladder in such a way as to apply a heavy side load. He stated that, given the condition of the ladder, plaintiff's straddling of the ladder did not contribute to his fall. Ver Halen admitted that he had examined the ladder only after it had been stored in a warehouse for five years.

Paschen's expert witness, John Earl Meyers, testified that straddling a ladder and rocking back and forth puts an inappropri-ate side load on the ladder, causing it to become less stable. He concluded that this action caused the ladder to fall in plaintiff's case. Meyers further testified that even a new ladder, used in this manner, could tip over.

Paschen's expert witness, Thomas Toole, testified that he recreated plaintiff's working conditions at the time of his accident. Toole found that the ladder could be used safely to perform the work and became unsafe only when plaintiff improperly "straddled the ladder and in combination with the pushing and pulling *** put a side load on that ladder which was almost inevitable that it was going to go over. But it had nothing to do with the ladder."

Michael Gartland, a vice president at Hyre and an electrician, testified that Hyre did not inform Paschen that Hyre's electricians were rocking or straddling ladders. Gartland stated that it was not Hyre's practice or procedure to engage in such activity.

William Huffman, director of facilities management in Cook County, testified that although the contract between Paschen and Cook County required Paschen to "take all necessary precautions for the safety of employees on the work" and to "coordinate all of the work on the project," the contract did not require Paschen to be present for all work performed by subcontractors, nor did the contract require Paschen to inspect subcontractors' equipment or instruct a subcontractor as to the "manner, means and method" of its work.

The jury returned a verdict in favor of Paschen. Plaintiff filed a motion for a new trial or, alternatively, for a judgment n.o.v. and a new trial on damages, which the trial court denied. Plaintiff filed this timely appeal.

Initially, plaintiff moves that we strike portions of Paschen's brief as violative of Supreme Court Rule 341 (155 Ill. 2d R. 341). We deny the motion to strike, but we disregard any inap-propriate materials contained therein.

Next, plaintiff contends that the trial court erred when it admitted evidence of his conduct in straddling and rocking the ladder and of the written rules and warnings he received prior to the accident. The relevance and admissibility of evidence at trial are within the sound discretion of the trial court, and a reviewing court will not disturb the trial court's determination absent a clear abuse of discretion. Wojcik v. City of Chicago, 299 Ill. App. 3d 964, 971, 702 N.E.2d 303, 309 (1998). "Relevant evidence" is evidence "having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence." Wojcik,299 Ill. App. 3d at 971, 702 N.E.2d at 309.

To sustain a cause of action under the Act, plaintiff here must show, among other factors, that a defect in the ladder created an unsafe working condition which proximately caused his injuries. Bakkan v. Vondran, 202 Ill. App. 3d 125, 128, 559 N.E.2d 815, 817 (1990). Plaintiff's injury must have some connection with the hazardous nature of the mechanical device. Bakkan, 202 Ill. App. 3d at 128, 559 N.E.2d at 817. "Where the statutory violation does not contribute to proximately cause plaintiff's injury, and where only plaintiff's negligence causes the injury, then no liability arises under the terms of the statute." Smith v. Georgia Pacific Corp, 86 Ill. App. 3d 570, 573, 408 N.E.2d 117, 119 (1980). See also McMahon v. Richard Gorazd, Inc., 135 Ill. App. 3d 211, 219, 481 N.E.2d 787, 793 (1985) (where only plaintiff's negligence causes his injuries, no liability exists under the Act).

In the case at bar, plaintiff argued that the ladder he used on the night of his injury was defective and the defect caused the ladder to break resulting in injuries to plaintiff. Plaintiff also testified that he had no choice but to use the ladder improperly in order to perform his work. Paschen, however, maintained through-out trial that the ladder was safe and stable and only plaintiff's inappropriate straddling and rocking of the ladder caused it to fall. Further, Paschen argued that plaintiff could have accom-plished his task using the ladder in an appropriate manner. At issue was whether Paschen violated the Act by allowing plaintiff to use a dangerously defective ladder, or whether plaintiff's own conduct in straddling and rocking the ladder was the sole proximate cause of plaintiff's injuries. Therefore, any evidence tending to establish one of these facts as ...


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