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Preze v. Borden Chemicals

November 26, 2002


Appeal from the Circuit Court of Cook County No. 99 L 4854 Honorable Diane J. Larsen, Judge Presiding.

The opinion of the court was delivered by: Justice Cahill


Plaintiffs Raymond and Terri Preze appeal a summary judgment for defendants Borden Chemical, Inc., Pinner Electric, Inc., and Lyons Electric Company, Inc., on claims arising out of Raymond's injuries sustained in a construction accident. Plaintiffs also appeal the trial court's order striking their safety expert's affidavit under Supreme Court Rule 191 (145 Ill. 2d R. 191). We reverse the summary judgment for defendant Borden, affirm summary judgments for defendants Pinner and Lyons, and affirm the trial court's ruling on the affidavit.

Borden hired Scheck Mechanical Corporation to perform routine general maintenance in its resin manufacturing plant. Borden also hired Pinner and Lyons to perform electrical work.

Plaintiff Raymond Preze was employed by Scheck as a pipe fitter. On May 5, 1997, Raymond was repairing a roof in a pump room when he slipped and fell off a ladder coated with resin, sustaining injuries.

Plaintiffs filed an eight-count complaint against Borden, Pinner and Lyons, alleging defendants were negligent in failing to protect Raymond from the dangerous ladder. Plaintiffs alleged that the ladder Raymond used on May 5 belonged to either Pinner or Lyons. Plaintiffs alleged that Pinner and Lyons knew that Scheck employees routinely used Pinner or Lyons ladders and other tools to complete Scheck jobs. Plaintiffs alleged that this knowledge imposed a duty on Pinner and Lyons to maintain safe equipment. Plaintiffs alleged that Borden was negligent in failing to protect Raymond from a dangerous condition on its property: resin.

Raymond testified in his deposition that he had over 25 years' experience as a pipe fitter and that he had worked at the Borden plant for 5 years. Raymond testified that, on May 5, 1997, he was repairing a weakened roof in a pump room. He climbed a 20-foot extension ladder to check work he had just completed when he slipped. Raymond said that the ladder rungs were slippery and coated with resin. He said this was to be expected because "if it was in the building, it had resin on it." Raymond testified that the ladder belonged to either Pinner or Lyons. Scheck, Raymond's employer, only had 40-foot ladders, which would not fit in the pump room. Pinner and Lyons both used 20-foot extension ladders. Borden owned no ladders.

Raymond admitted that he did not complain about the resin-coated ladder on the day he fell. But Raymond said he had complained two days earlier. Raymond asked Ken Biske, a Lyons employee, to clean the ladders. Biske told Raymond to clean the ladders himself. Raymond knocked off the bigger pieces of resin but did not clean the ladder completely because he believed the task was not his responsibility. Raymond said that he complained to Scheck about unsafe working conditions at Borden 25 to 50 times. Raymond said he complained about fumes, resin and acid leaks.

Raymond testified that he took directions only from Scheck. Borden exercised no control over Raymond's work. Raymond's equipment was furnished by Scheck, except for the 20-foot ladders. Raymond did not have to ask Pinner or Lyons to use the ladders. Pinner and Lyons did not exercise control over Raymond's work or tell him how to use their ladders. Raymond testified that it was Scheck's policy to tag and remove unsafe equipment from use.

Ken Biske, a Lyons employee, testified in a deposition that he believed that the ladder plaintiff was using on May 5, 1997, belonged to Lyons. Biske admitted that his belief was based on a conversation he had with Raymond five months after the accident. Biske testified that Raymond told him that he slipped off a 20-foot extension ladder while working in the pump room. Borden filed a motion for summary judgment. Borden argued that it had no duty to warn Raymond of danger of resin in the plant. Pinner and Lyons filed a joint motion for summary judgment. Pinner and Lyons admitted that ownership of the ladder used by Raymond was disputed. But Pinner and Lyons went on to say that, "assuming[,] arguendo," the ladder belonged to Pinner or Lyons, neither owed a duty to Raymond as a matter of law.

Plaintiffs submitted an affidavit of a safety expert, Dennis Puchalski, opposing the summary judgment motions. Puchalski testified that he was experienced in construction management, worksite safety and investigating worksite accidents. Puchalski said the presence of resin, inadequate lighting and loud noise in the pump room in Borden's plant were hazardous and dangerous. Puchalski also averred that Borden was responsible for project supervision and should have cleaned up the resin but failed to do so. Puchalski concluded that Borden knew or should have known that the dangerous conditions in the pump room could cause an accident. Puchalski also testified that the ladder belonged to Pinner and that Pinner had a duty to maintain the ladder in a safe condition. Puchalski's affidavit was based on a review of Borden's, Pinner's and Scheck's company policies and rules relating to employee safety, photographs of the pump room, and Occupational Safety and Health Administration standards. The documents referenced by Puchalski were not attached to the affidavit.

Pinner and Lyons filed a motion to strike the Puchalski affidavit under Rule 191 (145 Ill. 2d R. 191). Borden joined the motion. Defendants argued that the affidavit offered opinion, not facts, and failed to include documents as required by Rule 191 (145 Ill. 2d R. 191). The motion also alleged Puchalski's statement that Pinner owned the ladder was not based in fact.

The trial court granted the motion to strike. The trial court then granted the motions for ...

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