Burns v. West Chemical Products, Inc.

• Decision Date: 14 June 1973
• Docket Number: No. 55681,55681
• Citation: 299 N.E.2d 455,12 Ill.App.3d 947
• Parties: Martin J. BURNS, Plaintiff-Appellee, v. WEST CHEMICAL PRODUCTS, INC., Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 455

299 N.E.2d 455

12 Ill.App.3d 947

Martin J. BURNS, Plaintiff-Appellee, v. WEST CHEMICAL PRODUCTS, INC., Defendant-Appellant.

No. 55681.

Appellate Court of Illinois, First District, Third Division.

June 14, 1973.

John C. Doyle, Jr., Chicago, for defendant-appellant.

William J. Harte and Philip E. Howard, Chicago, for plaintiff-appellee.

McGLOON, Justice:

This is an appeal from a jury verdict awarding the plaintiff $30,000 for an injury he sustained when, as a business invitee on the defendant's premises, he slipped and fell, allegedly due to the defendant's negligence in maintaining the property. In this appeal the defendant sets forth several reasons why the judgment should be reversed, among which are: (1) that the plaintiff was contributorily negligent as a matter of law, (2) that there was no evidence that the defendant failed to exercise due care for the plaintiff's safety, and (3) that there was no competent evidence that the defendant's negligence was the proximate cause of the plaintiff's injury. The defendant argues further that there were certain incorrect evidentiary rulings by the trial court: the admission into evidence of the shoe worn by the plaintiff on the day of the accident, the denial of defendant's motion to take a deposition of an expert witness called by the plaintiff, the trial court's restriction of defendant's cross-examination of the plaintiff, and the exclusion of evidence offered by the defendant as to its compliance with certain ordinances of the City of Chicago. Finally, defendant argues that the verdict was excessive. The plaintiff, in response, argues that the evidence clearly supports the judgment and that there was no prejudicial error in the conduct of the trial.

We affirm.

The relevant facts adduced at trial are as follows: At the time of the accident the plaintiff was employed as a driver by the United Parcel Service and was in the process of making a pickup at the loading dock of the defendant's plant. The plaintiff had been making similar stops at the defendant's plant for four or five months prior to the day of the accident. In making these pickups the plaintiff would back his truck up to the loading dock, go into the building, load the packages into his truck and depart. He testified that when he first began to make regular stops at the defendant's plant he attempted, on five or six occasions, to use the stairway that rose from the ground level 3 or 4 feet, to the level of the loading dock, but each time it was impossible because the door from the stairway was blocked by 55 gallon drums stacked on the dock at the top of the stairs. On these occasions he would step up onto the bumper of his truck, which was 1 1/2 or 2 feet high, and then onto the loading dock. After awhile this became his regular way of getting onto the dock.

On the date of the accident, November 2, 1964, the plaintiff had made his pickup and was descending from the loading dock. He testified that in descending he placed his right foot on the bumper of his truck and then his left foot down to the ground. As he brought his right foot down and placed it on some 'white mud' that covered the surface of the driveway, it slipped and slid out from under him. He fell to the ground and sustained a fracture of the right ankle.

The plaintiff further testified that on the day of the accident there had been light rain falling for most of the day. He noticed that the driveway was covered by an area, about 8 feet in diameter, of white, concrete powder-like material. The material was in the shape of a half-moon coming out from the wall of the plant near a drain spout. This substance combined with other material on the driveway to form what he characterized as 'white mud.' It was very slippery. During previous stops at the defendant's plant he had noticed the white substance on the wall of the building. He had also noticed liquid coming from the drain spout on the wall of the plant even on days when it was not raining. However, he did not see any emissions coming from the drain spout on the day of the accident.

The plaintiff also identified plaintiff's exhibit 5 as the shoe he wore the day of the accident. When he left home on that day the shoe was clean, and prior to arriving at defendant's plant the shoe had no material on it. The material on the shoe was, he testified, generally the material that was on the ground at defendant's plant.

Dr. William Colburn, called as an expert witness, testified that he was a chemist and a licensed professional engineer. He tested the material found on the plaintiff's shoe and found traces of sodium phosphate, a common constituent of cleaning compounds, fatty material, vegetable oil and alkanolamide, another common ingredient used in cleaning compounds. There was no testimony elicited from Dr. Colburn regarding the properties of these various substances (i.e. whether they were slippery when wet). He testified nly to what he found on the plaintiff's shoe.

William Wallace testified that he was the plant manager for the defendant. He explained that the defendant manufactured chemicals which included insecticides, deodorants, deodorant fluids, powdered soap and cleaning compounds. He described in detail some of the manufacturing processes of the defendant and in particular a dust collection system in the south end of the building. This apparatus consisted of large fans which collected dust particles left as a result of the crushing of certain cleaning compounds and an exhaust duct that ascended the exterior of the south wall of the plant to the roof. A weather hood covered the exhaust duct, and a drain pipe ran down the south wall from the base of the duct. The drain pipe emptied onto the driveway of the loading dock area where the plaintiff slipped. Wallace further testified that he had never seen white material on the south wall of the plant, and he had never seen an accumulation of white mud on the driveway of the south loading dock.

Clifford Lytle testified that he was the traffic manager for the defendant. He testified that on the day the plaintiff was injured there was nothing blocking the stairway adjoining the dock, nor had there been anything blocking the stairway from June to November, 1964. On cross-examination he testified that there was no mud on the driveway of the loading dock on the day of the accident. When shown a photo of the loading dock area he could not identify the white substance on the south wall of the plant.

William Washington testified that he was an employee of the defendant, and on the day of the accident he helped the plaintiff load his truck. He further testified that when they were done loading the truck, the plaintiff jumped off the loading dock and did not step down to the bumper of his truck as he had testified. On cross-examination Washington stated that the driveway on that day was covered with what looked like mud with a little white mixed in it. He also agreed that occasionally the white material could come down the drain pipe and accumulate on the ground.

Daniel Green testified that he also was employed by the defendant on the day of the accident. He was walking by the loading dock and saw the plaintiff jump off the dock. He remembered there was mud on the driveway when he went to help the plaintiff, but couldn't remember whether it was white. It was slippery.

Dr. Melvin Post testified that he was the doctor that treated the plaintiff. As a result of the fall, the plaintiff suffered a trimalleolar fracture of the right ankle. After a closed reduction of the fracture was unsuccessful, he performed an open reduction. He removed some loose pieces of cartilage and positioned the bones with a steel screw. He stated that although there was a good result from this treatment, the ankle would not get better with advancing age, only worse. The plaintiff will always have some difficulty due to the injury.

After the foregoing evidence was adduced during the trial, the jury returned a verdict for the plaintiff in the amount of $30,000, and judgment was entered on the verdict. Subsequently, the defendant filed a post-trial motion, and the trial judge ordered a remittitur of $5000 conditioned upon defendant tendering $25,000 to the plaintiff in satisfaction of the judgment. The defendant refused such tender and now asks for a reversal of the judgment.

The standard to be applied in a judicial review where one party seeks judgment as a matter of law notwithstanding an adverse jury verdict is stated in Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

In our judgment verdicts ought to be directed and judgments N.o.v. entered only in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand. (37 Ill.2d at 510, 513.)

Defendant first contends that the plaintiff was contributorily negligent as a matter of law and that therefore the judgment must be reversed. The defendant argues that the plaintiff did not exercise ordinary care for his own safety when he chose to descend from the loading dock in the way he did and that the plaintiff did not use the stairs provided by the defendant for that purpose. Defendant contends that when a plaintiff has available to him two different ways of proceeding, one known to be safe, and one known to involve certain possible hazards, if he chooses to follow the hazardous route, and is injured in the process, he is contributorily negligent as a matter of law. He cites the following cases in support of this position: Geraghty v. Burr Oak Lanes, Inc., 2 Ill.App.2d 48, 118 N.E.2d 63; Day v. Barber-Colman Co. (1956), 10 Ill.App.2d 494, 135 N.E.2d 231; Tompkins v. Twin Oaks Dairy, Inc. (1968), 91 Ill.App.2d 88, 234 N.E.2d 403. This proposition, although appearing in these cases, has been specifically refuted our Supreme Court.

Both the Day case a...