Bofman v. Material Service Corp.

• Citation: 466 N.E.2d 1064,125 Ill.App.3d 1053,81 Ill.Dec. 262
• Decision Date: 26 June 1984
• Docket Number: No. 83-209,83-209
• Parties: , 81 Ill.Dec. 262 David BOFMAN, as Administrator of the Estate of Mark Bofman, Deceased, Edwin Talbot, and John Diacou, Plaintiffs-Appellants, and Cross-Appellees, v. MATERIAL SERVICE CORPORATION, Defendant-Appellee, and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 1064

466 N.E.2d 1064

125 Ill.App.3d 1053, 81 Ill.Dec. 262

David BOFMAN, as Administrator of the Estate of Mark Bofman Deceased, Edwin Talbot, and John Diacou Plaintiffs-Appellants, and Cross-Appellees, v. MATERIAL SERVICE CORPORATION, Defendant-Appellee, and Cross-Appellant.

No. 83-209.

Appellate Court of Illinois First District, Second Division.

June 26, 1984.

Rehearing Denied July 24, 1984.

William D. Maddux & Associates, and Peter Fitzpatrick & Associates, Chicago (William D. Maddux, Bruce M. Lane, Richard F. Lee and Brendan J. Keleher, Chicago, of counsel), for plaintiffs-appellants/cross-appellees.

Lord, Bissell & Brook, Chicago (Stephen A. Milwid, Daniel I. Schlessinger and Hugh C. Griffin, Chicago, of counsel), for defendant-appellee/cross-appellant.

HARTMAN, Presiding Justice:

An action against defendant Material Service Corp. ("MSC"), for injuries sustained by plaintiffs Edwin Talbot and John Diacou and for the death of plaintiff's decedent Mark Bofman in a boating accident on MSC's property, resulted in the jury's verdict for plaintiffs and its assignment of 82% comparative negligence to each of them. MSC cross-appeals from the denial of its motion for a directed verdict and for judgment notwithstanding the verdict.

The issues raised on appeal include whether: (1) plaintiffs were comparatively negligent as a matter of law; (2) the jury's finding of comparative fault assigned to each plaintiff was against the manifest weight of the evidence; (3) the testimony of a witness regarding his alleged conversation with the boat's occupants was erroneously admitted; (4) a certain jury instruction was erroneously given; and, (5) MSC's motions for a directed verdict and for judgment notwithstanding the verdict should have been sustained, the last issue being raised on cross-appeal.

The record reveals the following evidence. The boating accident occurred within a sand and gravel "wet pit" operated by MSC near Morris, Illinois. Originally a dry gravel quarry, MSC created the wet pit in the mid-1950s by dredging a channel, one-quarter mile long, between 300 and 400 feet wide and 11-12 feet deep, connecting the pit to the Illinois River, which ultimately flows into the Mississippi River. The wet pit at the time of the accident was about two miles long, one-quarter to one-half mile wide, and varied between 10 and 20 feet in depth. The pit and channel contained 196,416,000 cubic feet, or 1,469,293,000 gallons, of water. Besides its sand and gravel business, MSC used the pit for a "fleeting operation," allowing barge operators using the Illinois River to dock their barges for a daily fee.

Sometime before 1957, MSC partially submerged a 50 X 50 foot barge in the pit and affixed it to the bottom with pilings for use in its fleeting operation. After subsequent dredging around it, the barge was 200-300 feet from land. One corner of the barge jutted out of the water at an angle. At normal water levels it was 2-3 feet above the water; at other times it was completely submerged. Until 2 or 3 years before July 1974, the barge had been lighted. Neither the barge nor a buoy attached to it were illuminated nor treated with reflective paint thereafter.

MSC employees, Harry Petersen, operating engineer, and Richard Stephens, site superintendent, testified that MSC's policy was to keep private boaters out of the pit. Toward this end, two 7 X 14 foot signs were posted on land on either side of the channel at its junction with the Illinois River, which read: "NO TRESPASSING/PRIVATE WATER AND LAND/VIOLATORS WILL BE PROSECUTED/MATERIAL SERVICE CORP." Two similar signs were posted on land midway into the channel. No sign warned of the sunken barge or of any danger. There were no signs in the pit area. A small "no trespassing" sign was affixed to a movable pontoon gate, located 1/2 to 2/3ds of the way into the channel, which blocked passage to the pit and was designed to keep out private boaters. Although kept closed during daytime weekends, the gate was left open at night to accommodate the MSC fleeting operation. Boaters and picknickers were customarily chased from the pit. Trespassers were never prosecuted, however. On Sundays, MSC generally had two men on duty patrolling the area in a tugboat, opening and closing the gate for commercial traffic, and keeping boaters out of the pit, but not the channel.

Stephens lived near the pit and heard motorboats operating there after dark. Kenneth Yard, who lived immediately adjacent to the pit, frequently saw private boats and water-skiers in the pit and heard such boats operating in the pit after dark. He regularly boated in the pit himself, but was never asked by MSC's employees to leave. He sometimes saw boaters being "shagged out," but only during working hours. Charles Swanson testified that he and others in his waterski club often used the pit on weekends for boating, skiing and camping. He was never chased from the property.

At about noon on Sunday, July 14, 1974, Diacou, Bofman and Richard Votava met and launched Votava's 17-foot fiberglass boat, equipped with a 150-horsepower engine, into the Illinois River at Morris. Talbot joined the group later in the afternoon. Votava had boated in the channel and pit area many times before; the others had never been there previously. The group spent the day boating, water-skiing, swimming and picknicking, primarily in the channel, along with numerous other boaters. The pontoon gate blocked the channel and MSC's tugboat was observed on the other side of the gate. Diacou walked across the gate and noticed the men in the tug laughing at him. Votava made "small talk" with them, but denied being warned to stay out of the pit. At about 7:30 p.m., the gate was opened. Votava piloted the boat into the pit at about 8 p.m. Darkness began to fall. The boat circled the pit but soon ran out of gas and stopped. The gas remaining in two gas tanks was combined and the engine was restarted about 20 minutes to one-half hour later.

The sky was still light in the west, but the water was quite dark. Running lights on the boat permitted it to be seen by others, but did not illuminate the water ahead. Votava sat in front and piloted the boat at speeds of 25-30 m.p.h. Bofman sat beside Votava. Diacou and Talbot were in the back. Talbot, sitting on the gunwale, tried to maintain a lookout and discerned a "dark object," like a log, in the water ahead. Before he could say anything, the boat struck something and "stopped dead," throwing its occupants forward. Diacou only remembered waking up on the barge and seeing the boat on the barge. Votava saw the barge when he first entered the pit, but not just before the impact, when he lost consciousness. All the occupants suffered physical injury; Bofman died by reason of his injuries three weeks later.

Van Petersen, MSC's foreman, worked on MSC's tugboat in the pit on the day of the accident. The vessel's pilot was Frank Graves, who died prior to trial. They closed the gate in the morning and patrolled the area during the day, turning away private boats at the gate. He saw plaintiffs' boat in front of the gate, recognizing it from having seen it lodged on the barge the following day. He conversed with two or three of the boat's occupants, young men in swimming trunks, and told them he had orders to keep them "out of the dangers in the pit." He could not recall the hour of the conversation, the color of the boat, or any physical characteristics of its occupants.

Plaintiffs filed a complaint on March 2, 1976, which contained counts in admiralty and premises negligence and in wilful and wanton misconduct, naming as defendants MSC and Votava. In 1977, Votava paid consideration to each of the plaintiffs in exchange for covenants not to sue. Consequently, plaintiffs' first amended complaint filed on October 12, 1982 only named MSC as defendant. MSC's answer placed the allegations at issue.

Prior to trial, which began on October 14, 1982, the circuit court allowed plaintiffs' motions in limine for protective orders to exclude evidence relating to: the boating party's ingestion of intoxicants; the use of excess speed in the operation of the boat prior to the occurrence; and Votava's separate action against MSC. The court denied plaintiffs' motion to exclude Van Petersen's testimony relating to his alleged conversation with the boaters.

On October 28, 1982, the jury returned a general verdict in favor of plaintiffs, but reduced each of plaintiffs' total damages by 82%, the degree of comparative negligence found attributable to plaintiffs and plaintiff's decedent. A separate verdict awarded damages to Bofman's Estate to compensate it for funeral and burial expenses. The circuit court on December 28, 1982 allowed MSC's post-trial motion and ordered setoffs of the jury's award of damages by the amounts which Votava paid to plaintiffs in settlement of their claims against him.

I.

Plaintiffs contend that they were not comparatively negligent as a matter of law because, first, their trespassing on defendant's property was not, by itself, negligence. That issue is rendered moot because of the presence of other evidence arguably demonstrating some degree of negligence. Under the issues drawn by the pleadings and the issues instruction given this could have included: plaintiffs' failure to heed posted warning signs and to maintain a proper lookout.

Plaintiffs insist that the foregoing facts show only the pilot's negligence, not that of the passengers. Plaintiffs' argument that no trespassing signs bear little relationship to signs warning of existing danger finds support in Davis v. United States (7th Cir.1983), 716 F.2d 418, 423, in which a no swimming sign was held to be ineffective as a warning of submerged rocks to a diving swimmer. As to questions of lookout, however, whether plaintiffs should have insisted upon Votava's operation of the boat in a manner which would have afforded a proper lookout (e.g.,...