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Dunning v. Dynegy Midwest Generation, Inc.

Court of Appeals of Illinois, Fifth District

April 28, 2015

GERALD DUNNING, Plaintiff-Appellee,
v.
DYNEGY MIDWEST GENERATION, INC., a Corporation, and AVI INTERNATIONAL, INC., Defendants and Third-Party Plaintiffs-Appellants (Power Maintenance Constructors, Inc., Third-Party Defendant-Appellee)

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Appeal from the Circuit Court of St. Clair County. No. 08-L-2. Honorable Andrew J. Gleeson, Judge, presiding.

For Appellants: James L. Hodges, Hennessy & Roach, P.C., St. Louis, MO (attorney for Dynegy Midwest Generation, Inc.); Loretta M. Griffin, Ana Maria L. Downs, Law Offices of Loretta M. Griffin, Chicago, IL (attorneys for AVI International, Inc.).

For Appellee: Thomas Q. Keefe, Jr., Thomas Q. Keefe, III, Keefe & Keefe, P.C., Belleville, Illinois (attorneys for Gerald Dunning).

JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Stewart and Schwarm concurred in the judgment and opinion.

OPINION

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GOLDENHERSH, JUSTICE.

[¶1] Plaintiff, Gerald Dunning, was crushed between a steel I-beam support

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and a portion of a 28,500-pound water pump being transported on a cart pushed by a forklift. Defendant Dynegy Midwest Generation, Inc. (DMG), owned the water pump, and the cart transporting the pump was pushed by a forklift owned and operated by DMG. The cart was designed and maintained by defendant AVI International, Inc. (AVI). Plaintiff was employed as a pipefitter by third-party defendant Power Maintenance Constructors, Inc. (PMC), which was contracted to provide the labor services for the project. Plaintiff brought separate claims against defendants DMG and AVI for injuries sustained in the incident, and the trial court found in favor of plaintiff. Defendants timely appealed. We affirm.

[¶2] BACKGROUND

[¶3] Prior to October 8, 2007, DMG contracted with fellow defendant, AVI, and third-party defendant, PMC, to perform tasks at its Baldwin Power Plant. One of the assigned tasks involved removing a circulating water pump from its casing and out of the power plant.

[¶4] DMG was in charge of the power plant at the time in question. AVI was contracted to supervise the removal, transfer, loading, and transportation of circulating water pumps from DMG's power plant to AVI's facility in Connecticut for repair and maintenance. AVI also provided a cart that was designed for the purpose of transporting the water pumps. AVI's cart was designed and manufactured by AVI's president, Clifford Burrell, and was designed so that one person could push the cart across a flat concrete floor with a load of up to 40,000 pounds. PMC was contracted to provide the labor for the project, which was performed by plumbers and pipefitters. Plaintiff was employed by PMC as a union pipefitter for the project.

[¶5] The events surrounding plaintiff's accident are as follows. On October 8, 2007, plaintiff was assisting in the removal of a 28,500-pound water pump at DMG's Baldwin Power Plant. DMG's water pump was lowered from its position and placed onto AVI's cart by PMC employees. Scott Docimo, AVI's only employee on-site at the time of the incident, watched as PMC employees rigged the pump to AVI's cart and a forklift owned and operated by DMG. Docimo recognized that the PMC employees had improperly rigged the pump and cart to DMG's forklift, but did not say anything.

[¶6] As the forklift began to slowly push the cart forward across a flat concrete floor, it began to veer off its intended path. The wheels on AVI's cart were going in different directions, and the cart was veering from side to side. In an attempt to keep the cart moving straight, PMC employees used their hands to guide the cart. As the PMC employees were pushing on the sides of the cart and pump to keep it moving straight, plaintiff was crushed between a portion of the pump and a steel I-beam support, sustaining serious injuries.

[¶7] On January 4, 2008, plaintiff brought suit against DMG alleging negligence pursuant to section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)). Plaintiff alleged that while he was in the course of his employment as a pipefitter for PMC at DMG's power plant, he was crushed into a steel post by a forklift owned and operated by DMG.

[¶8] On October 1, 2008, plaintiff filed a first amended complaint adding AVI as a defendant, asserting a single count of negligence against AVI. Plaintiff alleged AVI negligently instructed rigging of the pump, failed to provide training and instruction in the safe operation of forklifts, and failed to inspect the area to ensure safe forklift

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operation. AVI filed an answer denying all material allegations of negligence and filed a third-party complaint against PMC alleging PMC negligently failed to maintain a lookout for dangers posed to plaintiff in the area it instructed plaintiff to work, failed to inspect plaintiff's surroundings, failed to notify or warn plaintiff of potential dangers, failed to instruct and train plaintiff in his work, and failed to coordinate plaintiff's work with other trades and entities present.

[¶9] Plaintiff filed a second amended complaint on November 4, 2013, adding a strict product liability count against AVI alleging AVI's cart was defective at the time of the accident. On November 13, 2013, AVI filed a motion to dismiss under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)) contesting the legal and factual sufficiency of plaintiff's complaint, a motion to dismiss under section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2012)) asserting statute of limitation and repose defenses, and a motion to continue trial. The trial court denied all three motions, and the matter proceeded to trial on November 18, 2013.

[¶10] Several witnesses testified for plaintiff and defendants at trial. At the close of plaintiff's evidence, DMG moved for a directed verdict asserting plaintiff failed to show DMG owed a duty of care to plaintiff or that it was negligent. The trial court denied DMG's motion. Also at the close of plaintiff's evidence, the trial court directed a verdict against AVI on the counts of negligence and strict product liability. The trial court established that as a matter of law, AVI's cart was defective and a proximate cause of plaintiff's injuries.

[¶11] On November 22, 2013, the jury returned a verdict finding plaintiff comparatively negligent, finding against DMG and AVI, and finding against PMC on the third-party claims. The following percentages of fault were assessed: plaintiff 6%, AVI 37%, DMG 47%, and PMC 10%. On December 18, 2013, the trial court entered judgment on the verdict rendered against DMG, AVI, and PMC. DMG and AVI timely filed posttrial motions, each moving for a judgment notwithstanding the verdict or in the alternative for a new trial, and AVI also moving to vacate the order of judgment and set aside the directed verdict entered in favor of plaintiff and against AVI. These posttrial motions were denied. Defendants DMG and AVI timely filed notices of appeal.

[¶12] ANALYSIS

[¶13] There are numerous issues raised by defendants on appeal. We first address the issues raised by DMG and then address the issues raised by AVI.

[¶14] I. DMG

[¶15] DMG alleges the trial court erred in denying its motion for a directed verdict, judgment notwithstanding the verdict, and motion for a new trial on the grounds that plaintiff failed to show DMG owed plaintiff a duty of care and failed to prove DMG's alleged negligence proximately caused plaintiff's injuries. DMG contends the evidence at the close of plaintiff's case overwhelmingly favored DMG.

[¶16] A trial court's denial of a motion for a directed verdict or a judgment notwithstanding the verdict is reviewed de novo. Ford v. Grizzle, 398 Ill.App.3d 639, 650, 924 N.E.2d 531, 542, 338 Ill.Dec. 325 (2010). A directed verdict or judgment notwithstanding the verdict is proper where all the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand. Ford, 398 Ill.App.3d at 650,

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924 N.E.2d at 542. In ruling for a directed verdict or judgment notwithstanding the verdict, the court does not weigh the evidence and is not concerned with the credibility of the witnesses. Ford, 398 Ill.App.3d at 650, 924 N.E.2d at 542. The " court may only consider the evidence, and any rational inferences therefrom, in the light most favorable to the nonmoving party." Ford, 398 Ill.App.3d at 650, 924 N.E.2d at 542.

[¶17] Further, a judgment notwithstanding the verdict may not be granted merely because the court determines a verdict is against the manifest weight of the evidence. Ford, 398 Ill.App.3d at 650, 924 N.E.2d at 542. A trial court has no right to enter a judgment notwithstanding the verdict if there is any evidence showing a substantial factual dispute or where the assessment of the witnesses' credibility or the determination regarding conflicting evidence is decisive to the outcome of the trial. Ford, 398 Ill.App.3d at 650, 924 N.E.2d at 542-43.

[¶18] Alternatively, on a motion for a new trial, the court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Ford, 398 Ill.App.3d at 651, 924 N.E.2d at 543. Hence, the standard to be used in determining whether to grant a new trial is whether the jury's verdict was against the manifest weight of the evidence. Kindernay v. Hillsboro Area Hospital, 366 Ill.App.3d 559, 569, 851 N.E.2d 866, 875, 303 Ill.Dec. 679 (2006).

[¶19] A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the jury's findings are unreasonable, arbitrary, and not based upon any of the evidence. Kindernay, 366 Ill.App.3d at 569, 851 N.E.2d at 875. A trial court's ruling on a motion for a new trial will not be reversed except in instances where it is affirmatively shown that the trial court clearly abused its discretion, as the trial judge had the benefit of observing the witnesses firsthand at trial. Maple v. Gustafson, 151 Ill.2d 445, 455-56, 603 N.E.2d 508, 513, 177 Ill.Dec. 438 (1992). In determining whether the trial court abused its discretion, we must consider whether the verdict was supported by the evidence and whether the losing party was denied a fair trial. Ford, 398 Ill.App.3d at 651, 924 N.E.2d at 543.

[¶20] At the close of plaintiff's case, DMG moved for a directed verdict asserting it was not negligent because (1) plaintiff failed to show defendant owed plaintiff a duty and (2) plaintiff failed to establish DMG was a proximate cause of plaintiff's injuries. After the trial court denied DMG's motion for a directed verdict, DMG filed a posttrial motion for a judgment notwithstanding the verdict or in the alternative for a new trial, which the trial court denied. For the following reasons, we find the trial court did not err in denying DMG's motion for a directed verdict and judgment notwithstanding the verdict or DMG's motion for a new trial.

[¶21] Before we begin our analysis, it should be noted that the existence of a duty is a question of law to be determined by the court, and questions concerning a breach of that duty and proximate cause of the injury are questions reserved for the trier of fact. Jones v. Chicago & Northwestern Transportation Co., 206 Ill.App.3d 136, 139, 563 N.E.2d 1120, 1122, 151 Ill.Dec. 14 (1990).

[¶22] A. Duty of Care

[¶23] Whether a duty exists is a question of law for the court to decide.

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Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 227, 665 N.E.2d 1260, 1267, 216 Ill.Dec. 703 (1996). In resolving whether a duty exists, a court must determine whether there is a relationship between the parties requiring that a legal obligation be imposed upon one party for the benefit of the other. Rhodes, 172 Ill.2d at 227, 665 N.E.2d at 1267.

[¶24] The duty inquiry involves four factors: (1) the reasonable foreseeability of the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing the burden on the defendant. Krywin v. Chicago Transit Authority, 238 Ill.2d 215, 226, 938 N.E.2d 440, 447, 345 Ill.Dec. 1 (2010).

[¶25] As a general rule, one who employs an independent contractor is not liable for the acts or omissions of the latter. Rangel v. Brookhaven Constructors, Inc., 307 Ill.App.3d 835, 838, 719 N.E.2d 174, 176, 241 Ill.Dec. 313 (1999). However, section 414 of the Restatement (Second) of Torts provides an exception to the general rule:

" One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care." Restatement (Second) of Torts § 414 (1965).

Gregory v. Beazer East, 384 Ill.App.3d 178, 186, 892 N.E.2d 563, 572-73, 322 Ill.Dec. 926 (2008).

[¶26] Thus, whether a duty exists under section 414 turns on whether the defendant controls the work in such a manner that he should be held liable. Martens v. MCL Construction Corp., 347 Ill.App.3d 303, 315, 807 N.E.2d 480, 489, 282 Ill.Dec. 856 (2004). The comments accompanying section 414 discuss a continuum of control which our courts have used to determine the necessary degree of control a defendant must exercise to be subject to liability under this section. Comment c provides:

" In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." Restatement (Second) of Torts § 414 cmt. c (1965).

Gregory, 384 Ill.App.3d at 187, 892 N.E.2d at 573.

[¶27] Moreover, a possessor of land owes its invitees a common law duty of reasonable care in maintaining its premises in a reasonably safe condition. Gregory, 384 Ill.App.3d at 191, 892 N.E.2d at 576. No legal duty arises unless the harm is reasonably foreseeable. Gregory, 384 Ill.App.3d at 191, 892 N.E.2d at 576.

[¶28] Section 343 of the Restatement (Second) of Torts provides:

" A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the ...

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