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Gillespie v. Edmier

Court of Appeals of Illinois, First District, Third Division

August 7, 2019

DALE GILLESPIE and CHRISTINE GILLESPIE, Plaintiff-Appellants,
v.
ROBERT EDMIER, THOMAS EDMIER, TRAIL QUEST, INC., and EAST MANUFACTURING CORPORATION, Defendants East Manufacturing Corporation, Defendant-Appellee.

          Appeal from the Circuit Court of Cook County No. 13 L 8261 Honorable John H. Ehrlich, Judge, presiding.

          Attorneys for Appellant: Michael W. Rathsack, Nicholas J. Faklis, and Michael C. Mead, of Chicago, for appellants.

          Attorneys for Appellee: Thomas E. Sarikas, of Bryce Downey & Lenkov LLC, of Chicago, for appellee.

          JUSTICE COBBS delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.

          OPINION

          COBBS, JUSTICE

         ¶ 1 Dale and Christine Gillespie appeal the trial court's grant of summary judgment in favor of defendant East Manufacturing Corporation (East Manufacturing). The Gillespies' action against Robert Edmier, Thomas Edmier, Trail Quest, Inc. (Trail Quest), and East Manufacturing alleged that they were strictly liable for Dale Gillespie's injury and that East Manufacturing's negligence caused Dale Gillespie's injury. East Manufacturing sought and was granted summary judgment. For the following reasons, we reverse and remand.

         ¶ 2 I. BACKGROUND

         ¶ 3 The Gillespies' third amended complaint contains four counts against the Edmiers and Trail Quest and another four counts against East Manufacturing. The Gillespies alleged that the Edmiers and Trail Quest are strictly liable for, and acted negligently in, failing to provide safe access, in the form of additional safety measures, to and from the dump trailer on which he was injured. The Gillespies further alleged that East Manufacturing is strictly liable for, and acted negligently in, designing, manufacturing, and selling a defective and unreasonably dangerous product that lacked adequate safety features, failed to warn or instruct consumers about foreseeable dangers from unsafe modifications, and did not undergo product testing for safety. The remaining counts include claims for loss of consortium in relation to the previous counts. The relevant facts from the pleadings and depositions are as follows.

         ¶ 4 A. The Dump Trailer Contract

         ¶ 5 East Manufacturing has been in the business of selling dump trailers for over 40 years averaging sales of 1200 dump trailers each year. The trailer industry is composed of approximately 50 competing companies. The dump trailer at issue is the Genesis II frameless model, [1] which features four cast iron steps on the trailer's front side leading to the top of the trailer in line with the industry standard. The dump trailer also has back side steps. Purchasers have the option of equipping the trailer with a ladder instead of the cast iron steps or a grab handle that would be placed at the top of the trailer. The aluminum rung style ladder would be welded on to the front of the trailer.

         ¶ 6 Trail Quest is a leasing company dealing in tractors and trailers that has contracts with Barge Terminal Trucking (Barge Terminal). Barge Terminal is a company that transports landscaping materials and other products in bulk. Both companies are family-owned and operated by Robert, Thomas, and John Edmier.

         ¶ 7 Robert, acting as the president of Trail Quest, negotiated an order for a dump trailer from Jim Rohr of Ken's Truck Repair. Robert and Rohr discussed the desired features for the trailer, including installation of a tarp that would cover the top of the trailer. Ken's Truck Repair prepared and sent a "specification sheet" to Robert reflecting the agreed upon features of the trailer. Ken's Truck Repair ordered the dump trailer from East Manufacturing and a tarp cover featuring an aluminum cap from another vendor. Ken's Truck Repair installed the tarp cover and the aluminum tarp cap on the dump trailer and delivered it to Trail Quest, which in turn leased the dump trailer to Barge Terminal.

         ¶ 8 B. The Accident

         ¶ 9 Gillespie had worked for Barge Terminal since 1998 as a truck driver. On February 14, 2012, he was working on the dump trailer leased from Trail Quest. He recalled that the weather was unseasonably warm. The dump trailer had been loaded with mulch for a delivery. Using the front side steps, Gillespie climbed on top of the dump trailer and lowered himself into the trailer in order to rake and level the mulch. On his way up, he noticed that the steps were not dry and that the top surface of the trailer was wet.

         ¶ 10 After leveling the mulch, he turned to climb down the trailer using the steps. Gillespie crawled to the front of the trailer, positioned his right knee on the aluminum cap, placed his left foot down on the first cast iron step, and attempted to place his right foot on the second step. At this point, his hands slipped off the top of the trailer, and his left foot slipped, causing him to fall off the cast iron stairs. He landed on his feet and felt a sharp pain in his back. He immediately reported his injury to his supervisor, Thomas Edmier, before returning to work. With the assistance of a coworker, Gillespie placed a tarp over the trailer and drove to Plainfield, Illinois. After they completed unloading the mulch, they returned the trailer to Barge Terminal's office in Ottawa, Illinois. Gillespie preloaded the mulch for the next morning's delivery. He testified that he used the dump trailer's stairs once more with no issues before placing a tarp on the trailer and leaving for the day. However, he did not return to work the next day or any day thereafter and instead initiated the present lawsuit.

         ¶ 11 Robert Edmier testified that Barge Terminal teaches its truck drivers to maintain three-point contact when climbing in and out of trailers as a safety rule. However, he acknowledged that a truck driver has nothing to hold on to when climbing down the steps besides the tarp or the corner of the dump trailer. He further admitted that if a driver holds on to the tarp while climbing down the steps, that driver would not be compliant with the three-point contact safety rule. Robert believed that installing a grab handle at the top of the dump trailer to offer another point of contact when climbing the steps would cost around $100.

         ¶ 12 C. Plaintiffs Expert Deposition Testimony

         ¶ 13 Gary Hutter, the Gillespies' expert witness, opined that the steps on the dump trailer did not comply with the recommended practices of the Occupational Safety and Health Administration (OSHA), the American National Standards Institute (ANSI), the Federal Motor Carrier Safety Regulations (FMCSR), and the Truck Trailer Manufacturers Association (TTMA). Although Hutter acknowledged that OSHA had not issued a final rule regarding ladders on motor vehicles such as dump trailers, Hutter believed that OSHA standards were applicable to East Manufacturing's duty of providing a safe access way to the dump trailer. He also believed that it was foreseeable that workers would have to climb on top of the dump trailer. Hutter opined that the cast iron steps on the trailer had no platform and were not the proper width. He further opined that the steps did not have the proper distance, did not have side rails, and the spacing between the steps was too large. Additionally, he noted that a truck driver had no convenient place to hold when climbing up and down the steps. Hutter testified that he was aware of East Manufacturing installing full ladders on their waste trailers, and that a full ladder could be installed on the front of their dump trailers.

         ¶ 14 D. East Manufacturing Deposition Testimony

         ¶ 15 Ed Coffman, the principal design engineer for East Manufacturing, testified that the purpose of the steps on the dump trailer was for drivers to climb up and down the trailer "to inspect the load." He believed it was foreseeable that a driver might use the steps to climb into the dump trailer. He further testified that he was aware that the dump trailers are built to Federal Motor Vehicle Safety Standards, which applies to brakes and lights but he was not aware of any safety standards for ladders. He noted that East Manufacturing was a member of the TTMA. He was not aware of ANSI or OSHA applying to steps or ladders of dump trailers. He did not believe there were any manuals that involved the Genesis II dump trailer. He further testified that he had never seen any of East Manufacturing's dump trailers with a grab handle. He described that East Manufacturing refers to the "bulkhead ladder" as steps and stated that Trail Quest requested a "bulkhead ladder" and did not request a rung style ladder. He stated he did not know how much the rung style ladders cost.

         ¶ 16 He further testified that East Manufacturing did not have a testing department for the quality of the trailers. He acknowledged that prior to the manufacturing of the trailer at issue that there was an engineering change. The change no longer allowed for a final step any closer than 19 inches to the top of the trailer. He noted that the change was made because "[t]he tarp mechanisms that [East Manufacturing] used, sometimes the tarp overlaps 18 inches down the side, so if [East Manufacturing puts] a step, obviously it's up under the tarp, and then this was to keep it down out of the way. Specifically, on the front, a fabric nose of cap on a tarp comes down over the front of the trailer approximately 18 inches. So if you have a step there, you can't fasten the tarp."

         ¶ 17 He testified that the tarp installed on the dump trailer at issue modified the design of the frameless trailer. Because of the location of the tarp the dump trailer lost its three points of contact. Ultimately, the aluminum cap that is placed on the front of the trailer to help seal the tarp removes any means of being able to grab the top edge of the bulkhead. He testified that he had seen that style of aluminum cap installed on East Manufacturing's other trailers prior to the installation of the cap on the subject trailer. East Manufacturing did not provide any information in terms of representations or other documentation to the customer or dealer identifying that if such a tarp were installed, that there would be a change to the body of the trailer.

         ¶ 18 Charlie Wells, East Manufacturing's vice president of sales and marketing, testified that it is foreseeable that customers may place tarps on a dump trailer after East Manufacturing sells it. Wells further testified that there are different manufacturers of tarps with different configurations so that some tarps have no end caps on the front of the trailer and some end caps vary in shape and form. He was aware of six different manufacturers of tarps.

         ¶ 19 Andy Grow, one of East Manufacturing's engineers, testified that cast iron steps placed on Genesis II dump trailers had a standard design. He stated that there is no regulation for cast iron steps on dump trailers. He further testified that he has never reviewed the design of the steps or tested the design of the steps to make sure the steps were safe for use. He testified that East Manufacturing has no formal accident review procedure or an investigation procedure, and he was not aware of anyone that has fallen off the steps of East ...


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