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Neuhengen v. Global Experience Specialists, Inc.

Court of Appeals of Illinois, First District, Fourth Division

June 28, 2018

THOMAS NEUHENGEN, Plaintiff-Appellee and Cross-Appellant,
v.
GLOBAL EXPERIENCE SPECIALISTS, INC., a Nevada Corporation, and FREDERICK NEIRINCKX, Defendants-Appellants, Global Experience Specialists, Inc., a Nevada Corporation, Cross-Appellee.

          Appeal from the Circuit Court of Cook County. No. 12 L 11854 Honorable Lorna E. Propes, Judge Presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Gordon and Ellis concurred in the judgment and opinion.

          OPINION

          McBRIDE JUSTICE

         ¶ 1 Plaintiff Thomas Neuhengen was working at a trade show at McCormick Place in Chicago when he was injured by a forklift driven by defendant Frederick Neirinckx, an employee of defendant Global Experience Specialists, Inc. (GES). Plaintiff filed a complaint alleging negligence and willful and wanton conduct against GES and Neirinckx. Prior to the jury trial, Neirinckx admitted his negligence, and GES admitted negligence under the respondeat superior doctrine. GES further admitted that if Neirinckx's conduct was found to be willful and wanton, then it admitted its respondeat superior liability for Neirinckx's conduct. Following the trial, the jury awarded plaintiff $12, 228, 068 in compensatory damages on the negligence claims and $3, 000, 000 in punitive damages after finding GES's conduct to be willful and wanton in a special interrogatory. The jury found that Neirinckx's conduct was not willful and wanton in a special interrogatory.

         ¶ 2 Defendants filed a posttrial motion raising multiple claims, including a motion for a new trial and a request for judgment notwithstanding the verdict (JNOV) on the $3, 000, 000 punitive damages award against GES. The trial court granted defendants' motion for a JNOV on the punitive damages award, finding that plaintiff failed to prove GES's willful and wanton conduct proximately caused plaintiff's injury. Plaintiff filed a motion to reconsider the trial court's grant of JNOV, which was denied.

         ¶ 3 Defendants appealed and plaintiff filed a cross-appeal. In their appeal, defendants argue that the trial court abused its discretion in denying their motion for a new trial because they were deprived of a fair trial when the trial court failed to dismiss the count against GES alleging willful and wanton conduct after GES admitted its respondeat superior liability for Neirinckx's conduct. In his cross-appeal, plaintiff contends that the trial court erred in granting defendants' motion for a JNOV on the jury's verdict that GES's conduct was willful and wanton and striking the punitive damages award.

         ¶ 4 In September 2012, GES served as an official services contractor for the 2012 International Manufacturing Technology Show (IMTS) at McCormick Place. IMTS involved three phases: the "move-in" phase, when all large equipment for exhibition was brought in; the show itself for exhibitors and guests; and the "move-out" phase, when workers removed the heavy equipment exhibited at the show. GES hired Neirinckx as one of its forklift operators for IMTS.

         ¶ 5 On September 18, 2012, plaintiff was at IMTS during the move-out phase for his employer, the Hermle Corporation (Hermle), an exhibitor at the show. Plaintiff was in the Hermle exhibitor booth when Neirinckx was operating a 58, 000-pound Versa Lift 40/60 forklift (Versa Lift) to remove equipment. Neirinckx was working with Christopher Nash, another GES employee, as his spotter. While attempting to pick up a piece of Hermle's equipment, Neirinckx operated the Versa Lift and came into contact with plaintiff's left foot and ankle causing severe injuries. Nash was removing debris from the floor and was not acting as Neirinckx's spotter at the time of the accident.

         ¶ 6 In January 2015, plaintiff filed a motion to amend his complaint to add separate punitive damages claims against Neirinckx and GES which was granted in April 2015. The operative complaint when the parties were proceeding to trial was plaintiff's fourth amended complaint. Count I alleged negligence against GES under the doctrine of respondeat superior for Neirinckx's actions. Count II alleged direct negligence against GES based on negligent hiring and training of Neirinckx. Count III alleged willful and wanton conduct by GES based on Neirinckx's conduct as well as GES's conduct in hiring and training. Count IV alleged negligence against Neirinckx in the operation of the Versa Lift, while count V alleged willful and wanton conduct against Neirinckx in the operation of the Versa Lift.

         ¶ 7 In August 2015, prior to jury selection, defendants admitted Neirinckx's negligence and that GES was liable under the doctrine of respondeat superior. GES also admitted respondeat superior for any willful and wanton conduct by Neirinckx if the jury should find against him. GES then moved to dismiss counts II and III from the fourth amended complaint, arguing that the claim of negligent hiring and reckless hiring based on willful and wanton conduct were "duplicative" in light of its admission of respondeat superior liability which eliminated "all corporate misconduct claims in this case." After arguments, the trial court granted GES's motion to dismiss count II, the claim of negligent hiring directed against GES, but denied the motion as to count III, the claim of willful and wanton conduct based on GES's reckless hiring.

         ¶ 8 During the trial, the circuit judge instructed plaintiff to file a new complaint to correspond with the claims being presented to the jury. Plaintiff's fifth amended complaint alleged negligence against both Neirinckx and GES based on Neirinckx's actions in count I, alleged willful and wanton conduct against Neirinckx in count II, and alleged willful and wanton conduct against GES in count III. The willful and wanton allegations in count III were against GES based upon Neirinckx's conduct as well as GES's own conduct for failing to have a three person crew, failing to implement a procedure to check certifications of forklift operators, and failing to ensure that Neirinckx was trained in the operation of the Versa Lift.

         ¶ 9 The following evidence was presented at trial.

         ¶ 10 Plaintiff was 35 years old at the time of the trial, served in the Wisconsin Army National Guard, and had served two deployments to Iraq. He was employed by Hermle at the time of the accident and was present during the move-out phase of IMTS.

         ¶ 11 On September 18, 2012, he arrived at McCormick Place between 7 and 7:30 a.m. He was working with Richard Saegert. Plaintiff observed that some of Hermle's machines had already been loaded onto a truck when he arrived. He noticed Neirinckx moving one of Hermle's "C22 machines," and "he was backing up with it over a bunch of crates." Plaintiff went over to Neirinckx and confirmed that the machine was being taken to the correct truck to move Hermle's equipment back to Wisconsin. He also asked Neirinckx to next move the "C22 accessory skid," which is where all the components for that machine were placed, to keep the items together.

         ¶ 12 Plaintiff and Saegert moved closer to the accessory skid. Plaintiff noticed Neirinckx "was pushing" one of Hermle's coolant pans with the forks of his forklift. Plaintiff asked Neirinckx to stop while he got another "fork truck" to move the coolant pan out of Neirinckx's way. Neirinckx backed up and stopped. Plaintiff asked another person, John Lopez, to come over to move the coolant pan. While plaintiff stepped away to get Lopez to assist, he heard Saegert say, "Stop." Plaintiff turned around and saw Neirinckx moving the forklift. He heard Saegert tell Neirinckx to wait until the debris was moved out of the way. Neirinckx then stopped.

         ¶ 13 While in the process of moving the coolant pan with the smaller forklift, the coolant pan snagged on an extension cord and slipped slightly off the forks, "teetering" approximately a foot off the ground. Plaintiff and Saegert bent down to pick up the pan and slipped it back onto the forks. Plaintiff believed he was in a crouch position for a couple of seconds, then stepped away so Lopez could back up with the pan.

         ¶ 14 As Lopez was backing up with the coolant pan, plaintiff felt something bump him from behind and he fell to the ground. At that point, the rear wheel of the forklift operated by Neirinckx "caught" his left heel and "then pulled off on [his] foot." Plaintiff testified that the forks of the forklift were ten feet behind him. Plaintiff was in front and a little to the right of Neirinckx's forklift.

         ¶ 15 Plaintiff testified that the cab to the Versa Lift forklift is to the left as one is seated in it, which left a blind spot to the right. Plaintiff did not receive any warning that he would be struck. He was unable to hear the forklift because there were a number of vehicles moving around the space. He did not hear a horn nor did anyone communicate with him that the Versa Lift was going to move. Plaintiff's safety training had taught him that you should not turn your back to a moving fork lift. If he had turned to face Neirinckx's forklift, then plaintiff's back would have been to Lopez who was operating the smaller forklift.

         ¶ 16 At that point, plaintiff could not feel anything in his foot, but then the "sudden waves of pain" started. He described the pain as "like someone just took a sledgehammer and started pounding on [his] foot." Evidence regarding the extent of plaintiff's injuries is discussed later in this opinion.

         ¶ 17 Richard Saegert was employed by Hermle and he was working with plaintiff during the move-out phase of IMTS when plaintiff was injured. He first observed Neirinckx operating the forklift when he was moving the coolant pan. He heard plaintiff tell Neirinckx to stop, and Neirinckx moved backwards approximately one foot and stopped. Saegert then tried to move the coolant pan with plaintiff, but they were unsuccessful. Plaintiff went to get a smaller forklift. Another employee, John Lopez, was attempting to lift the coolant pan with the smaller forklift when it got "snagged" on an extension cord. Plaintiff and Saegert "used [their feet] to lift it back on the forklift to relocate it."

         ¶ 18 Next, Neirinckx started to move approximately a foot closer and Saegert told him to stop, which he did. The accident happened shortly thereafter. Saegert did not receive any warning from Neirinckx that he was going to move and did not hear a horn. Saegert did not see a spotter with Neirinckx. Saegert denied that he or plaintiff bent over or got down on a knee. He testified that neither he nor plaintiff left the area of the coolant pan.

         ¶ 19 When plaintiff was struck, he started to fall and Saegert caught him and heard an "awful scream." Saegert told Neirinckx to get off the forklift, which he did. Neirinckx turned off the forklift, got off, did not say anything, and walked away.

         ¶ 20 Frederick Neirinckx testified that he began operating forklifts in the 1960s. In 2012, he had been "semiretired' for about 8 to 10 years. He worked every other year at a couple shows. The Versa Lift had been around about 10 years prior to the accident. The Versa Lift weighed about 58, 000 pounds. When sitting in the cab of the forklift, there is a blind spot. He estimated that to the right, the operator cannot see the floor until 10 to 12 feet away from the forklift. Neirinckx had operated them "ever since they came out," but he did not receive any specific training for that forklift, nor had he received any training since some time in the 1990s.

         ¶ 21 He was hired by Larry Gibas from GES for the IMTS convention in 2012. Gibas had previously hired him in 2010 and 2008. Gibas never asked for certification from Neirinckx. No one informed him that the Occupational Safety and Health Administration (OSHA) had a certification requirement. He was never taught not to move the Versa Lift without a spotter. He was not taught to communicate with people around the area before moving the forklift.

         ¶ 22 On September 18, 2012, Neirinckx arrived at McCormick Place between 6:30 a.m. and 6:45 a.m. He moved a machine to a truck before the accident. He returned to the Hermle booth and plaintiff told him to take the accessory skid and to place it in the truck next to the previously loaded machine. To get to the accessory skid, he had to go around a machine, but there was a coolant pan on the floor. He pushed the coolant pan with the forks of the Versa Lift. Plaintiff asked him to stop pushing the pan. Neirinckx backed up to a neutral position to get around the machine and then he stopped. He observed debris in front of the accessory skid and asked his spotter, Christopher Nash, to move it, which Nash did. Neirinckx testified that plaintiff was off to the right of the forklift.

         ¶ 23 Neirinckx looked to see if Nash had finished clearing debris, but Nash was still clearing items and his back was to the forklift. Neirinckx was going to line up with the accessory skid. He testified that he looked to his right and no longer saw plaintiff in the spot where he had seen him. He did not see Saegert either. He did not wait for his spotter before moving the forklift. He did not sound the horn or tell anyone that he was going to move the forklift.

         ¶ 24 Neirinckx moved the forklift to his left to point toward the accessory skid. He then heard someone yelling for him to stop, but he did not know who it was. He had completed approximately 90% of the turn. He did not hear plaintiff scream. He put on the brake and got out of the forklift. He saw plaintiff on the floor and realized he hit plaintiff with the right tire. He testified that he had assumed plaintiff had moved, but he never saw him leave.

         ¶ 25 Neirinckx took a drug test after the accident, which he passed. He continued to operate the forklift that day and the following day. He testified that after the accident, someone from GES asked to see his certification and he told them he did not have one. He was not told that he needed to be retrained under OSHA regulations. After the show, he received a certified letter stating that GES had suspended him.

         ¶ 26 Christopher Nash testified that he was hired as part of a two-man crew at IMTS 2012. He worked as a forklift operator. His other crew member was Neirinckx. Neirinckx was the foreman of their crew and Nash was the journeyman. The journeyman takes direction from the foreman. Nash was a member of the Local 136 union and was trained in the operation of forklifts, including the Versa Lift. He was assigned to IMTS through the union. When he checked in on the site, no one from GES asked to see his certification card.

         ¶ 27 On September 18, 2012, Nash arrived between 6:30 and 7 a.m., but his start time was 8 a.m. He observed Neirinckx working before 8 a.m. without a spotter. Nash described the spotter's role as looking out for hazards, clearing the right of way, and making sure everyone is out of the direction of travel. He and Neirinckx were assigned to plaintiff's booth. They were to "pick a skid" and clear debris. He was moving "stuff" out of the way before the forklift could turn to reach the accessory skid. His back was to the area where the coolant pan was located.

         ¶ 28 As he was clearing debris, he heard the engine of the forklift turn on. He testified that he tried to hurry and finish getting the "stuff" out of the way. His back was to the Versa Lift. The next thing he heard were screams. He turned and saw Neirinckx driving toward him. Nash estimated that 30 to 60 seconds passed from when he heard the forklift turn on until he heard the scream. Neirinckx did not notify him or sound the horn indicating he was going to move the forklift. Nash expected that Neirinckx was going to wait for Nash to spot for him. When Neirinckx moved the forklift, the accessory skid was not accessible because Nash had not finished clearing debris. Nash was able to get Neirinckx's attention to stop the forklift only after Nash heard the scream. Nash then walked to the back of the machine to see who was screaming and observed plaintiff "laying on the floor in pure agony yelling and screaming."

         ¶ 29 From what Nash could tell, the back right tire drove over plaintiff's foot. He described the Versa Lift as "rear heavy." Nash also took a drug test after the accident, which he passed. He then returned to work. He testified that OSHA required people to be retrained after an incident. They resumed use of the same forklift, but Nash operated it. Neirinckx operated the Versa Lift over the next few days. At the time of the accident, Neirinckx did not have a spotter. Nash testified that Neirinckx had operated before without a spotter. Nash told Mike Burns, the GES general foreman at IMTS in 2012, that Neirinckx "was a little bit unsafe, that [Nash] was a little weary [sic] of working with him."

         ¶ 30 Nash believed that the Versa Lift needed a three person crew, one spotter for either side, because "the mass is so big you can barely see what's in front of you so you have to have someone in front of you, telling you what to do and most likely you would want the guy on the right-hand side because that's the side you can't see." Nash testified that if Neirinckx had waited until he was acting as the spotter, Nash would have cleared Neirinckx's travel, told people to get out of the way, made sure Neirinckx was going in the right direction, and made sure everything was out of the way.

         ¶ 31 John Lopez testified that he was employed as a rigger, a member of Local 136, and was working IMTS in 2012. He was hired by Larry Gibas from GES. On September 18, 2012, Lopez was operating a small forklift and was asked to move a coolant pan by plaintiff at the Hermle booth. He slid his forks under the pan, but the pan slid off the forklift because of an extension cord. He was not paying attention to Neirinckx; he was paying attention to his "pick." When the pan slid off the forklift, plaintiff and his coworker helped to slide it back onto the forks. Lopez testified that plaintiff "crouched down" to push the pan. Lopez was "pretty sure" but "not 100 percent sure" that plaintiff got on one knee with one foot stretched behind him. Lopez believed that plaintiff was in that position when he was struck by the Versa Lift. He testified that the Versa Lift would not have hit plaintiff "if he hadn't had his leg out."

         ¶ 32 Lopez was trained and certified to operate the Versa Lift. He had also worked as a spotter. He did not have a spotter for his forklift because it was small and he could see all around the machine. Lopez was preparing to back up with the pan on his forklift when the accident occurred. Lopez testified that he had turned around "real fast" to check if he could back up when the accident happened. He agreed that he might not have seen plaintiff stand up. Lopez agreed "100 percent" that plaintiff did not do anything unsafe.

         ¶ 33 Dan O'Donnell was employed as the apprentice coordinator for Local 136, the only rigging union in the country. A "rigger" is a person with a specialty in moving large items, including machinery. The union did not have a forklift certification until the mid 1990s. He trains forklift operators to be OSHA certified. OSHA requires certification every three years. Local 136 "will not dispatch anybody unless they are certified on that machine."

         ¶ 34 O'Donnell testified that he knows Neirinckx, who is a member of Local 136. He thought Neirinckx had retired. He has not observed Neirinckx at any of the safety classes, nor has he ever evaluated Neirinckx. According to O'Donnell, no one can be "grandfathered" into training because the person has been operating a machine for a long time. He noted that the Versa Lift is "notorious for certain blind spots, dead behind it, to the right if it's just forks. The actual whole front end has a boom on it. You cannot see anything."

         ¶ 35 Training sessions were offered prior to IMTS in 2012. Under the collective bargaining agreement, GES had the right to pick up to 50% of the riggers, while Local 136 would dispatch the rest. Neirinckx was a member of Local 136 at the time of IMTS but was not dispatched by it; he was hired by GES. He was aware of the OSHA rule requiring people in an accident to be retrained. He was not present at IMTS in 2012 when the accident occurred.

         ¶ 36 Cedric Johnson testified that during IMTS in 2012, he was the senior safety manager of the East for GES and he was at IMTS during the show. He was aware that OSHA regulations required forklift operators to be certified, which included training and an evaluation for competency. An individual has to be recertified every three years.

         ¶ 37 He testified that at IMTS in 2012, operations should have been checking for certification cards. He does not know if operations fulfilled that obligation. If no one checked certification, then it was a violation of safety rules and policies. Johnson was at McCormick Place at the time of the accident but did not witness it. He went to the scene shortly thereafter. He was aware of the OSHA regulation that Neirinckx needed to be retrained following the accident. He took Neirinckx for the drug test after the accident. During that time, Johnson did not ask to see Neirinckx's certification nor did he discuss retraining with him. He agreed that Neirinckx should not have returned to work. Johnson also agreed that Neirinckx should have been certified.

         ¶ 38 Pete Carroll testified that he was the general manager of the central division for GES. Carroll had himself taken a performance test, received training on operating a forklift, and maintained his certification. He agreed GES had responsibility for ensuring all on-site employees, including Neirinckx, were trained to operate forklifts. He was also aware that employees had to be retrained after an incident and that employees have to be recertified every three years, regardless of the employee's experience. He agreed that, when there is pedestrian traffic nearby, the operator of a Versa Lift should not move the forklift unless he had a spotter on the ground to assist and to guide and the operator must receive direction from his spotter before moving.

         ¶ 39 Carroll admitted that Neirinckx was not certified when operating a forklift at IMTS in 2012. He agreed that GES violated that safety rule and Neirinckx should not have been hired based on his lack of certification. Carroll further admitted that GES did not have a process in place to check certification at IMTS in 2012. He testified that they "relied on Local 136 to provide certified forklift operators per [their] collective bargaining agreement." He admitted that he had no way of knowing if the GES direct hires were certified, but Local 136 notified him that the operators dispatched from the union were certified. He agreed that Neirinckx was a direct hire. He also agreed that it was the employer's responsibility to maintain certification under OSHA regulations. Carroll testified that the operations manager in the hall where Neirinckx was assigned should have had a process in place to check certification.

         ¶ 40 Carroll was present at IMTS but did not witness the accident. He arrived at the scene soon afterward. He did not ask Neirinckx if he had a certification card and did not know if anyone else asked. Carroll did not tell Neirinckx that he needed to be retrained, nor did he direct Johnson to tell Neirinckx. He testified that he left a voicemail for Anthony Madrigal to send Neirinckx and Nash home, but he later learned that was not done. Carroll could have told Neirinckx that he could not operate a forklift again until he was retrained. Carroll testified that the allowed crew size for a forklift operation was for a crew of two individuals but more could be assigned if warranted.

         ¶ 41 Anthony Madrigal testified that at IMTS in 2012, he oversaw part of the operations. At that time, he was vice president of national operations for GES. On September 18, 2012, he was present at IMTS but did not witness the accident and did not go to the scene. He admitted that he could have instructed Johnson to take Neirinckx off the floor and retrain him, but he did not do so. He further admitted that several other GES employees had the authority to remove Neirinckx from the floor and send him to be retrained. He also admitted to receiving a voicemail from Carroll telling him to send Neirinckx and Nash home, but he did not send them home. He contacted Larry Gibas, the superintendent in charge. He did not receive confirmation that Gibas sent them home, but he assumed they had been sent home.

         ¶ 42 GES had the rule, in compliance with OSHA, that any forklift driver involved in an injury-producing incident needed to be retrained and recertified. GES did not enforce that rule on September 18, 2102, or for the two days thereafter. Madrigal did not know if he was the person to ask on behalf of GES if there was a process in place to check certification. Madrigal testified that he was "high level" and he was "more overseeing the service of the show and the movement of the traffic." Madrigal believed there was a process in place to check certification, but that it was not followed. Madrigal had "very little" interaction with the riggers and did not know who Neirinckx was prior to the accident.

         ¶ 43 Madrigal testified that "drayage" is "the charging of moving the freight off the vehicle to the exhibit spot and then back to the truck after the show." Drayage is what the forklift operators do.

         ¶ 44 Larry Gibas was a superintendent at IMTS in 2012; he received "all the rigging, rigging labor for all the buildings," which included forklift operators. He was certified by Local 136 and reported to Madrigal. Mike Burns was his foreman in the south hall of McCormick Place, where the accident occurred. He was aware that all the forklift operators needed to be trained and certified. Gibas was not informed to check that forklift operators were trained and certified. He never checked for certification, nor did he instruct any GES management or personnel to check forklift certification.

         ¶ 45 Gibas knew Neirinckx for a long period of time. If Neirinckx called him to work at the IMTS, Gibas would not have asked Neirinckx if he was certified or trained recently. He understood that Neirinckx was not working regularly, but Neirinckx had worked the IMTS every year Gibas was the superintendent, which took place in the even years back to at least 2004. Gibas was not aware of anyone from GES being charged with the responsibility of ensuring OSHA compliance. He agreed that Neirinckx was not dispatched by Local 136. Prior to the accident, he was not aware of anyone ensuring that Neirinckx was trained and certified. Gibas had observed Neirinckx at IMTS in 2012, but he did not evaluate him.

         ¶ 46 In 2012, the protocol for a forklift operator involved in an accident was for that operator to advise the safety people, including Madrigal, Carroll, and Dave Mata, about the occurrence. Then they would "come over with their safety people and they kind of take the course from there." He testified that the involved crew automatically went for a drug test and, if they were cleared, "then we put them back to work." Gibas was unaware that an OSHA regulation required a forklift operator to be retrained after an accident. Gibas testified that on the day of the accident, no one told him that Neirinckx needed to be sent home and get retrained.

         ¶ 47 Gibas testified that since he was a superintendent for GES, Neirinckx had unloaded the heaviest pieces in the show and he considered Neirinckx one of the most important forklift operators. Neirinckx was "a great help" for GES. Neirinckx was fast at "making picks" and was more productive. Gibas testified that the "past practice" of GES was to return employees to work after an incident if the drug test was negative. Gibas admitted that a forklift operator making a pick with the Versa Lift should have a spotter and it is reckless to operate it without one. It was a safety rule not to move the Versa Lift in the presence of pedestrians without a spotter.

         ¶ 48 Mike Burns was employed as a rigger, a member of Local 136, and was a certified forklift operator. He was the rigging general foreman for the south building at the 2012 IMTS. His responsibilities included staffing the job and overseeing the rigging work on the floor. The actual riggers would report to him, and he reported to Gibas. He knew Neirinckx, who worked under Burns. Burns described Neirinckx as an "experienced operator," and he handled "a lot of the very difficult moves that we have."

         ¶ 49 Burns was aware of the accident on September 18, 2012, but did not see it happen. Prior to that date, Burns had not seen Neirinckx operate the Versa Lift in an unsafe manner. Nash never reported to him that Neirinckx was operating unsafely or without a spotter. Burns admitted that he did not check certification, nor was he told by GES employees to check for certification. He agreed that Neirinckx was fast at making "picks," but fast did not necessarily mean unsafe.

         ¶ 50 David Mata was employed by GES; in 2012, his title was national operations manager, which required him "to travel to different cities and implement new processes and redefine the old process." His role involved the planning of freight movement and logistics. His supervisor was Madrigal. Mata agreed that a forklift operator must be trained and certified every three years regardless of experience and that experience does not trump training and certification. OSHA regulations required this safety rule. Mata was a certified forklift operator.

         ¶ 51 Mata agreed that the Illinois legislature formerly required a three-person crew for every forklift, but the law changed in 2010 to require only a minimum two-person crew. He also agreed that GES still had the discretion to assign an extra crew member as safety required. He recognized this would be more expensive for GES. Mata acknowledged that the GES operations team decided before IMTS in 2012 that it was not going to utilize a three-person crew with the Versa Lifts.

         ¶ 52 Mata did not know at the time of the accident that an operator needed to be retrained, but he knew that requirement at trial. He did not have a procedure in place at IMTS in 2012 to check certifications. He admitted that no procedure existed for GES to check certifications at prior IMTS shows. He assumed that all the riggers, either dispatched by Local 136 or directly hired by GES, would be certified. If he had known prior to the accident that a forklift operator was not certified, Mata would have had the operator get "certified or sent home." Mata was on the floor of the hall, and if he saw anyone operating a machine unsafely, he would stop them. He did not recall seeing Neirinckx operate unsafely. If a crew requested a third crew member, then GES employees would check to see if one was needed. If additional crew members were needed, then they would be assigned.

         ¶ 53 Derek Pinnock testified that in 2012 he was employed by GES as the chief of security and safety. At the time of trial, he no longer worked for GES. According to Pinnock, beginning in 2009, GES implemented, as part of its business plan, the Lean Six Sigma plan, which eliminated safety managers. GES went from having about 7 to 10 safety managers in place throughout the country to only two safety managers at the time of IMTS 2012. Prior to Lean Six Sigma's implementation, there was a safety manager devoted to Chicago, but there was no safety manager after its implementation. When Pinnock became chief of security and safety in 2012, he "had a vision to kind of build the safety program with additional managers."

         ¶ 54 Pinnock testified that OSHA regulations constituted minimum safety standards. He knew OSHA required employers to certify forklift operators and believed it was "absolutely" within GES policy to ensure that forklift operators were all certified, for the protection of human safety. Pinnock stated that when a company is cited for an OSHA violation, it has the option to contest the investigation or enter into an abatement process to show corrective measures the company wants to take. It was Pinnock's understanding that the corrective measures were to be "forever" once put in place. Pinnock was ...


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