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Brenda Mockbee and Michael Merle Mockbee v. Humphrey Manlift Company

May 18, 2012

BRENDA MOCKBEE AND MICHAEL MERLE MOCKBEE,
PLAINTIFFS-APPELLANTS AND CROSS-APPELLEES,
v.
HUMPHREY MANLIFT COMPANY, INC., DEFENDANT-APPELLEE (HARRIS INDUSTRIES, INC., AND R. HARRIS ELECTRIC, INC., )
DEFENDANTS-APPELLEES AND CROSS-APPELLANTS.



Appeal from the Circuit Court of Cook County. No. 03 L 9450 The Honorable Mary Mulhern, Judge Presiding.

The opinion of the court was delivered by: Justice Garcia

JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justices McBride and Palmer concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiffs Brenda Mockbee and Michael Merle Mockbee brought a negligence action against defendants Harris Industries and R. Harris Electric (collectively Harris) and Humphrey Manlift Company after Ms. Mockbee was severely injured in 2002 when she fell into a floor opening that was part of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked. The plaintiffs ask this court to reverse the circuit court's grant of summary judgment to Harris and Humphrey. The plaintiffs contend that contrary to the circuit court's ruling, Harris and Humphrey, as safety inspectors of the manlift platform system, each owed Ms. Mockbee a duty of care and breached that duty when their respective inspections failed to note the need for a safety guardrail required by the Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 (2006)), which issued a violation to Quaker Oats based on the guardrail's absence. We affirm the circuit court's grant of summary judgment to Harris and Humphrey, but on the ground that both are immune from liability for injuries sustained by Quaker Oats employee Mockbee under section 5(a) of the Workers' Compensation Act (Compensation Act) (820 ILCS 305/5(a) (West 2010)), as providers of safety services to the employer as raised in Harris's cross-appeal.

¶ 2 BACKGROUND

¶ 3 On June 6, 2002, Brenda Mockbee suffered severe injuries when she fell into the first floor opening of a manlift platform system at the Quaker Oats Company plant in Danville, Illinois, where she worked as an ingredient handler. The severe injuries rendered Ms. Mockbee a paraplegic. There was no guardrail at this floor opening of the manlift. At the time of Ms. Mockbee's accident, the Danville plant had three manlifts. The manlift in question was manufactured by Viola Elevator Company and installed at the Danville plant in the late 1960s or early 1970s, which the plaintiffs have designated as the "southwest" manlift, a designation we follow.

¶ 4 A manlift is a vertical conveyor belt used to move personnel from floor to floor. A motor drives a continuous belt with step platforms and loop handholds between the floors. The manlift system transports personnel in either direction, to higher or lower floors. At the originating base of the manlift is an elevated platform from which an individual can either mount the manlift to be transported to a higher floor (the upside) or dismount the manlift from a higher floor (the downside). Use of the manlift was optional for all Quaker Oats employees; stairs between the floors of the plant were nearby. Manlifts in Illinois are regulated by OSHA (29 U.S.C. § 651 (2006)).

¶ 5 Since its installation, Quaker Oats changed the configuration of the southwest manlift at least twice. When first installed, the southwest manlift ran from the first to the sixth floor. Sometime before 1977, Quaker Oats shortened the manlift to run only between the third and sixth floors of the plant. At the beginning of 1991, Quaker Oats took steps to return the southwest manlift to its original run length, beginning on the first floor. Quaker Oats requested a quote from Humphrey for the parts and materials necessary to accomplish this reconfiguration. Quaker Oats also requested that Humphrey determine whether the southwest manlift system required any repairs or maintenance.

¶ 6 On February 14, 1991, Humphrey employee John Favro conducted a visual inspection of the southwest manlift as it operated at the time between the third and sixth floors. Favro documented on a data sheet his measurements and observations of the manlift. He noted that the mounting platform on the third floor had a height of 36 inches. He observed the presence of guardrails on the upside of the southwest manlift at the bottom area; he also noted that the "bottom area guarded" was "o.k."

¶ 7 On February 26, 1991, Favro sent Quaker Oats a report listing the results of his inspection.

"This report will be furnished in two (2) parts. The first part will point out what is required for your manlifts to comply with the current ANSI/ASME A 90.1--1985 Safety Standard for Belt Manlifts. The second part will cover repairs, adjustments, etc., we recommend."

At the close of his report, Favro listed the parts and material, with corresponding prices, Quaker Oats would need to extend the southwest manlift to the first floor of the plant. In his deposition, Favro testified that Quaker Oats never responded to his report of February 26, 1991, because Quaker Oats was aware that Humphrey did not perform maintenance or repair work on manlifts. Favro could not say whether any of the guardrails he identified in his report as present at the time of his inspection were located where the plaintiffs claimed the OSHA-required guardrail should have been placed. According to Favro, his inspection of the southwest manlift on February 14, 1991, was Humphrey's last contact with Quaker Oats regarding the southwest manlift before Ms. Mockbee's accident.

¶ 8 In late 1991 or early 1992, Quaker Oats used its own employees to extend the southwest manlift to the first floor from the third floor. The modification included moving the mounting platform to the first floor. According to Quaker Oats employee Keith Schwartzkopf, the upside guardrail was not present when he moved the mounting platform to the first floor at the end of 1991. According to Schwartzkopf, the guardrails depicted in the photographs taken shortly after Ms. Mockbee's accident were not the same as those he moved from the third floor. According to the record evidence, the legs on the platform were changed from round pipe to square tubing after the extension of the southwest manlift to the first floor. Through 2002, Quaker Oats employees performed weekly and monthly inspections of the southwest manlift after it was extended to the first floor.

¶ 9 At the time of Ms. Mockbee's accident in 2002, the southwest manlift provided access to six floors of the plant, with the platform system located only on the first floor. The manlift system necessarily involved two floor openings, one for the upside, the other for the downside. The layout of the manlift platform system on the first floor required an individual that dismounted the manlift to walk past the upside floor opening to reach the descending stairs, which led to the door to exit the manlift system room. The elevated platform walkway to the descending stairs was 36 inches wide.

¶ 10 The first-floor platform of the southwest manlift had three of its four sides of the downside opening blocked. The descending manlift belt blocked one side, a wall blocked another, and a guardrail blocked the third side. The remaining side was where personnel dismounted the manlift. By contrast, the floor opening for the upside of the southwest manlift had only two of its sides blocked. The ascending manlift belt blocked one side and a wall blocked the other. One open side permitted personnel to mount the manlift; the other open side abutted the platform walkway, which led to the descending stairs. Ms. Mockbee fell into this unguarded opening of the upside of the southwest manlift.

¶ 11 The plaintiffs assert no purpose was served by leaving this side opening unguarded. In fact, the policy at Quaker Oats directed personnel to mount the ascending manlifts only from a position facing the belt; it did not allow side mounts. OSHA regulations also required this side opening to have a guardrail. The platform system of the southwest manlift on the first floor is the only upside opening without a guardrail adjacent to where the manlift is mounted. The plaintiffs contend the unguarded opening exposed those dismounting to the risk of falling into the upside floor opening, a risk that OSHA required be addressed by a guardrail.

¶ 12 Beginning in 1998 through May 2002, Quaker Oats hired Harris to inspect, maintain, and repair the manlift platform systems at the Danville plant. Harris was paid approximately $40,000 for its services under an oral agreement. Harris performed no less than an annual inspection on the manlifts. In the six months before the accident, Harris, through its employees, inspected the southwest manlift, or performed work on it, on at least two occasions.

¶ 13 In his deposition, Scott Harris, the owner and manager of Harris Industries, stated Quaker Oats requested that Harris perform an annual inspection and a weight test of the manlifts at the Danville plant. In addition to periodic inspections, Harris also performed service calls. Harris acknowledged that the services it provided included safety advice and recommendations to Quaker Oats regarding the manlift. Harris had no authority to perform safety work, unless expressly directed to do so by Quaker Oats. All of the inspection reports Harris generated referenced American Society of Mechanical Engineers (ASME) standards, specifically ASME A 90.1-1985. Harris claims it never made any representations that it would inspect the manlifts for OSHA compliance.

ΒΆ 14 The five inspection reports Harris issued from March 23, 1998, to April 18, 2002, noted two deficiencies: "(1) the platform could be guarded to prevent entry to pit; and, (2) there is no reset at the bottom landing." Harris claims Quaker Oats did not address these deficiencies nor did it ever direct Harris to correct them. Harris acknowledged it never recommended a guardrail be installed on the side opening of the first-floor platform of the southwest manlift involved in Ms. ...


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