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Atchley v. University of Chicago Medical Center

Court of Appeals of Illinois, First District, Third Division

September 28, 2016

STEVEN R. ATCHLEY, Individually and as Special Administrator of the Estate of LINDA ATCHLEY, Deceased, Plaintiffs-Appellants,
UNIVERSITY OF CHICAGO MEDICAL CENTER, Defendant and Third-Party Plaintiff-Appellee,
HOME JUICE CORP., Third-Party Defendant.

         Appeal from the Circuit Court of Cook County, No. 10 L 10545, Honorable Lynn M. Egan Judge Presiding.

          Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and opinion.


          LAVIN, JUSTICE

         ¶1 Steven Atchley, a delivery employee of Home Juice Corp. (HJC), went to the University of Chicago Medic0al Center (UCMC) to deliver two pallets of beverages. After backing his delivery truck into a dock space, he discovered that the dock leveler, which would raise the dock to the height of the truck bed and create a ramp, was inoperable. Unbeknownst to Steven, the leveler had been broken and inoperable for over six months. Because no other docks with levelers were then available, Steven used his truck's air suspension system to lower the truck bed as much as possible but a small gap remained. He proceeded to use a motorized pallet jack to unload his truck but the jack became stuck in the gap. While using a steel dolly in an attempt to free the jack, Steven fell and fractured his ankle.

         ¶2 Steven and his wife Linda Atchley then filed this ordinary negligence and premises liability action against UCMC, which in turn raised contributory negligence as an affirmative defense.[1] The circuit court granted summary judgment in favor of UCMC, finding that the danger was open and obvious, that UCMC had no duty as a result and that the inoperable leveler was not a proximate cause of Steven's injuries. Steven now appeals. We reverse and remand for further proceedings.

         ¶3 As a threshold matter, we observe that Steven's fact section fails to support facts with citations to the record, provides incorrect citations to the record, provides incorrect facts and omits certain pertinent facts. See Ill. S.Ct. R. 341(h) (6) (eff. Jan. 1, 2016). His argument section repeats those defects but additionally presents inaccurate citations to case law. See Ill. S.Ct. R. 341(h) (7) (eff. Jan. 1, 2016). This court is not a depository into which appellants may dump the burden of research. Hall v. Naper Gold Hospitality, LLC, 2012 IL App (2d) 111151, ¶13. We strongly encourage counsel to exercise greater diligence with respect to any future briefs filed in this court.

         ¶4 I. BACKGROUND

         ¶5 On August 11, 2010, Steven was assigned to deliver beverages to UCMC. Although Steven had made at least 25 deliveries there over two or three years, he did not routinely go there; rather, he was filling in for fellow HJC driver Ronald Rosario. Steven had also made that delivery for Rosario two days before this incident.

         ¶6 UCMC's docks opened for deliveries at 5 a.m. Steven testified in his deposition that while HJC did not require him to make the delivery by a specific time, the hospital was accustomed to early delivery and he tried to do what Rosario did. Rosario testified that hospitals preferred early morning deliveries. Similarly, James Cahill, HJC's former supervisor, testified that hospital deliveries were generally made early in the morning. Steven further testified that HJC's motto was, "take care of the customer, " which he understood to mean that he should make deliveries in a timely manner.

         ¶7 According to an affidavit submitted by Steven, when he arrived at UCMC at about 5 a.m., a security guard let him in the gate but did not assign him to a particular dock or ask if he needed a leveler. Steven also testified that he had never been aware that dock 5's leveler was broken. While certain deposition testimony from UCMC employees suggested that drivers would be assigned to a particular dock, Sheila Stevens, the security guard monitoring the gate at the time in question, ultimately indicated that she only told drivers which dock to use if they asked. Sheila further testified that she had been unaware of any problem with dock 5. Moreover, Sheila and Rosario testified that no one from UCMC supervised the loading and unloading of trucks, corroborating Steven's testimony that he saw no security guards in the loading area.

         ¶8 Steven, who had never made a delivery without a leveler, parked his truck in a dock that had one but then moved his truck to dock 5 in order to accommodate another driver. No signs indicated that dock 5 was out of service but when he pulled the chain to operate the leveler, nothing happened. Consequently, his truck bed was higher than the dock. Steven stated that he did not report this malfunction to any UCMC employee, however, because none were around. Similarly, no drivers were around. Steven further testified that no other docks with levelers were available and he could not wait for one because UCMC was used to early deliveries. Steven's affidavit added that it was common for drivers to do what was necessary to make a timely delivery, that there was no place for his truck to wait for another dock and that if another dock became available, an incoming driver would take it. Moreover, Steven had never been instructed to wait for another dock if experiencing difficulty.

         ¶9 Steven used his truck's air suspension system to lower the truck bed. After doing so, the bed of the truck was about two or three inches higher than the dock. Steven stated in his affidavit that he had received no training regarding what height differential would be significant to safety. Additionally, Steven testified both that no lateral distance existed between the truck and the dock, and that a distance of less than a foot existed. He also noticed that two wooden wedges had been positioned on the sides of the dock.

         ¶10 Having lowered the truck, Steven used a motorized pallet jack, which has forks that lift pallets, to successfully remove the first pallet from the truck. Steven's affidavit stated, "I believe it was a reasonable and safe method based on my experience; especially since pallet #1 came off the truck safely." After leaving that 1, 500-pound pallet by the elevator, he went to retrieve the second pallet. He was trying to make the delivery as quickly as possible, as he did not want to take the elevator down to the delivery tunnels twice.[2]

         ¶11 After removing the first pallet, the truck bed rose to three or four inches above the dock. As he attempted to return the pallet jack to the truck to retrieve the second pallet, the jack became stuck in the gap, a problem he had never encountered before. Specifically, the pallet jack's forks were already in the truck when the jack "flipped, " leaving two feet of the jack hanging off the truck. The jack's wheels were not touching the dock floor.

         ¶12 Steven testified that he did not seek assistance because no one was around. He did not go look for anyone either. According to Sheila, drivers never brought problems to her attention. Steven added in his affidavit that calling HJC would not have helped because it was 25 miles away. Additionally, Steven testified that he discovered a steel dolly on the dock, which he assumed belonged to UCMC. He positioned the dolly under the pallet jack and attempted to pry it loose. As he was doing so, the dolly slipped and he fell backward, breaking his ankle. Eventually, someone emptying the trash found Steven and got help. Meanwhile, Steven used his cell phone to call Cahill and 911. Steven ultimately underwent surgery and returned to light duty.

         ¶13 Ramon Mariscal, a UCMC security guard, initially testified that he only learned of a problem with dock 5 a day or two before this incident. At a later deposition, however, Mariscal acknowledged that he first observed the leveler was broken on January 25, 2010. The record shows that between that date and this occurrence, Mariscal stated in 95 daily condition reports that dock 5 was broken. Mariscal testified that at some point, without telling anyone, he put wooden shims in the leveler to keep the inoperable plate down. Although the dock could not be used with a pallet jack, it could still be used by handing out boxes or using carts. Moreover, Mariscal was not at work when the incident occurred. Dock 5 remained in use until it was repaired two days after the incident, in less than two hours, for $1, 022.90.

         ¶14 Anthony Harvard, UCMC's dock supervisor, testified that he was responsible for only the inside of the dock area. Security guards occasionally reported problems to him, which he would relay to the proper department, but he was not responsible for taking care of broken levelers and was not always informed of problems. In addition, Harvard first learned there was a problem with dock 5 after this incident. When he reported this incident to his supervisor, he became responsible for investigating it. Mariscal told Harvard that drivers were not being permitted to park at dock 5 and that wooden wedges were placed in the dock to prevent the leveler from moving. Furthermore, the plant department directed Harvard to a vendor who fixed levelers and he subsequently authorized the repairs.

         ¶15 Rosario testified that UCMC's docks were often broken and he had previously complained to a dock facility manager named Al. In addition, UCMC no longer provided a portable dock and it was not always possible to switch docks if the others were occupied. With that said, he would wait for another dock to become available. Furthermore, drivers sometimes used a board to hold up a defective leveler when encountering a different type of malfunction. Rosario would not have known what to do, however, if a pallet jack became stuck.

         ¶16 Mark Okoniewski, a fellow HJC driver, testified that he sometimes had difficulty with UCMC's dock levelers: if the leveler did not work, a driver would use "whatever else is available - - you know, there's tools ...

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