Blue v. Environmental Engineering, Inc.

• Decision Date: 31 December 2003
• Docket Number: No. 1-02-1647.,1-02-1647.
• Citation: 280 Ill.Dec. 957,803 N.E.2d 187,345 Ill. App.3d 455
• Parties: Glen BLUE, Plaintiff-Appellant, v. ENVIRONMENTAL ENGINEERING, INC., a wholly owned subsidiary of Browning-Ferris Industries, Inc., a Delaware corporation, Defendant-Appellee and Third-Party Plaintiff-Appellant, (John M. Smyth Company, Third-Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

803 N.E.2d 187

345 Ill. App.3d 455

280 Ill.Dec. 957

Glen BLUE, Plaintiff-Appellant, v. ENVIRONMENTAL ENGINEERING, INC., a wholly owned subsidiary of Browning-Ferris Industries, Inc., a Delaware corporation, Defendant-Appellee and Third-Party Plaintiff-Appellant,¹ (John M. Smyth Company, Third-Party Defendant-Appellee).

No. 1-02-1647.

Appellate Court of Illinois, First District, First Division.

December 31, 2003.

Rehearing Denied January 30, 2004.

Robert F. Lisko and James A. Karamanis, Robert F. Lisco and Associates, P.C., Chicago, for Appellant.

John M. Coleman, Coleman, O'Halloran & Wynn, LLC, Chicago, for Appellee, Third-Party Plaintiff-Appellant.

Gary T. Jansen and Kelly M. Sullivan, Cremer, Kopon, Shaughnessy & Spona, LLC, Chicago, for Third-Party Defendant-Appellee.

Justice GORDON delivered the opinion of the court:

On February 11, 2002, a jury returned a general verdict for plaintiff Glen Blue and against defendant Browning-Ferris Industries, Inc., and third-party defendant John M. Smyth Co., finding defendants guilty of negligence. At the close of the evidence, the jury also answered a special interrogatory submitted by defendant Browning in the affirmative. Finding that there was a fatal inconsistency between the general verdict and the response to the special interrogatory, the trial court granted Browning's motion for a judgment on the special interrogatory. Judgment was thereafter entered for defendants. Plaintiff now appeals the trial court's judgment on the special interrogatory and we reverse and remand for the following reasons.

BACKGROUND

The evidence presented at trial established that in 1975, defendant Browning-Ferris Industries, Inc. (Browning), sold to and installed a heavy duty trash compactor in the Downers Grove, Illinois, warehouse of third-party defendant John M. Smyth Co. (Smyth). The compactor was generally used by Smyth employees to compact cardboard boxes, furniture and wooden skids, and was emptied by Browning upon request. The compactor consisted of a ram which slid back and forth to compact the refuse put into the chamber. It could be turned on and off after each compaction or could run in a continuous mode. The control panel of the compactor contained a power switch and there was a pull cord hanging over the mouth of the compactor which would stop the machine.

In 1991, as the result of a safety audit conducted by the State of Illinois, Smyth installed a gate at the mouth of the compactor, which was designed to turn off the compactor when opened. The bars of the gate were covered by wire mesh, which was subsequently removed by Smyth employees because it was regularly knocked off by boxes as they were pushed back by the ram.

In 1988, plaintiff began working part-time in Smyth's Northbrook, Illinois, warehouse, taking customer orders, retrieving furniture, accepting deliveries and operating the trash compactor at that facility. In 1990, he was transferred to the Downers Grove warehouse where, he stated, his duties were similar to those he performed in Northbrook. Plaintiff testified that he never received training on the Downers Grove trash compactor, but had operated it a number of times and watched other employees use the compactor. Plaintiff stated at trial that the compactor often jammed and it was the usual practice of the employees, including the warehouse supervisor, Philip Polizzi, to push refuse down into the compactor with one's foot while it was moving. He did state, however, that he had been told not put his arms or legs into the moving compactor. Polizzi and assistant warehouse supervisor Andrew Banda denied that they ever put their arms or legs into the moving compactor. They stated that if they had ever observed an employee doing so, he would have received a written citation.

On November 5, 1992, plaintiff was assigned to operate the trash compactor. He testified that he informed Banda a number of times that the compactor was full and would not operate properly. He stated Banda told him to continue operating the compactor as the loading dock needed to be cleared of refuse. At trial, Banda denied that plaintiff reported the compactor was full. Plaintiff stated that after he placed a large sofa box into the compactor, the compactor stopped and would not crush the box. While the compactor was running in a continuous mode, plaintiff placed his leg through the bars of the closed gate and pushed the box down with his foot so that it would be grabbed by the ram. However, plaintiff's foot became caught in the box and plaintiff was pulled into the compactor as the ram took hold of the box. Plaintiff stated he could not reach the pull cord to stop the compactor as it was several feet above his head when he was in the compactor. He was thereafter hit by the ram approximately three times, resulting in a broken pelvis, leg and foot.

On May 5, 1994, plaintiff filed a complaint against a number of defendants including Browning. Count I of the complaint was based in strict liability and alleged that at the time the trash compactor left Browning's control it was unreasonably dangerous for one or more of four listed reasons. Count I was subsequently dismissed for being filed after the applicable statute of repose had expired. Count IV of the complaint, based in negligence, alleged that it was defendant's duty to distribute a machine that was reasonably safe for its intended purpose and that one or more of the following acts or omissions by Browning proximately caused plaintiffs injuries:

"(a) Carelessly and negligently distributed a compactor machine with inadequate safety guards and devices to protect the operator.

(b) Carelessly and negligently failed to provide a gate with a latch and safety switch; thereby creating an extra hazardous condition for operators using the same.

(c) Carelessly and negligently failed to provide a Dead Man's switch near or at the site of the compactor's ram so that an operator could immediately stop the machine if his body was sucked into the same.

(d) Carelessly and negligently failed to give employee adequate instruction and training in the use of an exceptionally and reasonably [sic] dangerous compacting device.

(e) Carelessly and negligently failed to post adequate signs and failed to warn the operator that his body could be sucked into the machine because there were no safety devices located at or near the machine.

In response to plaintiff's complaint, defendant asserted various affirmative defenses, including that plaintiff assumed the risk of his injury by sticking his foot into the compactor, that plaintiff misused the compactor thereby proximately causing his own injury, and that plaintiff was contributorily negligent.

Following the presentation of the evidence summarized above, the jury was instructed that it could find defendant guilty of negligence if it found that plaintiff was injured and that the injury was proximately caused by the acts or omissions of defendant. The jury was further instructed that if plaintiffs own negligence contributed to his injury, then it must find plaintiff was contributorily negligent and reduce any recovery accordingly; however, if it found plaintiff's contributory negligence to be more than 50% of the total proximate cause of his injury, plaintiff would be barred from any recovery. The jury was also provided with a special interrogatory, over plaintiff's objection, which asked, "Was the risk of injury by sticking a foot over or through a gate into a moving compactor open and obvious?" During the course of deliberations, the jury sent a question to the trial judge asking, "On the special interrogatory question, by answering yes, does it mean that the plaintiff was more than 50 percent negligent?" The court responded," Jurors, please answer the special interrogatory based on the evidence presented to you by all parties. Also please review all of the instructions on the law that were given to you."

The jury then returned a general verdict for plaintiff and against defendant Browning and third-party defendant Smyth. It awarded plaintiff $1,120,588, attributing 33% of the negligence to Browning, 35% to Smyth and 32% to plaintiff, thereby reducing plaintiffs recovery to $762,000. However, the jury also answered Browning's special interrogatory in the affirmative. Thereafter, Browning filed a motion for a judgment on the special interrogatory, arguing that the jury's response to the special interrogatory controlled over the general verdict and judgment should be entered in favor of defendants. In granting the motion, the court stated:

"I do find that the special interrogatory did relate to an ultimate issue of fact, and that it was inconsistent with the jury's finding for the plaintiff in assessing him only 32 percent contributorily negligent.

I appreciate the plaintiff's argument that the special interrogatory was not inconsistent with the jury's finding; but in reviewing his cases, they all made reference to the plaintiff being distracted or the defendant anticipating harm despite the obvious danger. And I'm not convinced from his argument that it's consistent.

There is a finding that the jury's answer of yes to the special interrogatory is inconsistent; therefore, I am going to vacate the judgment of the jury and enter a judgment on the special interrogatory for the defense.

In its written order, the trial court further indicated that Browning's motion for judgment notwithstanding the verdict and for a new trial were "conditionally" denied, and Smyth's motion for reduction of verdict was "conditionally" granted. According to the record, the motions were not considered on their merits and the trial judge entered the "conditional" decisions based solely on her entry of the judgment on the special interrogatory. Plaintiff now appeals the trial court's judgment on the special interrogatory, contending that the special interrogatory should never have been submitted to the jury, as it was...