Carlson v. City Const. Co.

• Decision Date: 13 November 1992
• Docket Number: Nos. 1-90-0511,1-90-1078,s. 1-90-0511
• Citation: 239 Ill.App.3d 211,606 N.E.2d 400
• Court: United States Appellate Court of Illinois
• Parties: , 179 Ill.Dec. 568 Randee A. CARLSON, individually and as Administrator of the Estate of Alan R. Carlson, deceased, Plaintiff-Appellee, Cross-Appellant, v. CITY CONSTRUCTION COMPANY, a corporation, Defendant-Appellant, Cross-Appellee (Harry Blizzard & Associates, a corporation, Third-party Defendant-Appellee).

Page 400

606 N.E.2d 400

239 Ill.App.3d 211, 179 Ill.Dec. 568

Randee A. CARLSON, individually and as Administrator of the Estate of Alan R. Carlson, deceased Plaintiff-Appellee, Cross-Appellant, v. CITY CONSTRUCTION COMPANY, a corporation Defendant-Appellant, Cross-Appellee (Harry Blizzard & Associates, a corporation Third-party Defendant-Appellee).

Nos. 1-90-0511, 1-90-1078.

Appellate Court of Illinois First District, Fifth Division.

Nov. 13, 1992.

Haskell & Perrin, Chicago (Kevin W. Doherty, Cynthia A. Brady, of counsel), for defendant-appellant.

Hayes & Power, Chicago (Joseph A. Power, Jr., David A. Novoselsky, of counsel), for plaintiff-appellee.

Williams and Montgomery, Ltd., Chicago (Barry Kroll, James K. Horstman, Anthony J. Kiselis, Lloyd E. Williams, Jr., of counsel), for third party defendant-appellee.

Justice GORDON delivered the opinion of the court. ^*

Plaintiff, Randee A. Carlson on her own behalf, and that of her husband's estate, and their three children, brought suit for damages resulting from the death of her husband Alan R. Carlson. Alan Carlson was killed on April 14, 1982, while working on a surveying crew on a road construction project on East River Road in Chicago when he was struck by an automobile driven by Richard Hample. Although Hample was originally named as a defendant in this action, he was dismissed upon plaintiff's motion prior to trial.

The primary contract for the construction project was between defendants City Construction Company and the County of Cook. At the time of his death, Carlson was employed by third-party defendant Harry Blizzard & Associates, which was a subcontractor on the project.

Plaintiff's complaint was in 11 counts. Count I was a survival action which alleged that City Construction had violated certain sections of the Injuries and Death During Construction Act (Ill.Rev.Stat.1981, ch. 121, par. 314.1 et seq.), part of the Roads and Bridges Act (Ill.Rev.Stat.1981, ch. 121, par. 1-101 et seq.), by failing to provide reasonably safe signs, signals, barricades or flagmen at the scene of the accident. Count II, a wrongful death action, alleged that City Construction was required by its contract with Cook County to provide traffic control devices for the project and that it failed to do so, in violation of the Injuries and Death During Construction Act. In count III, plaintiff sought recovery for expenses incurred as a result of the deceased's death, and was based upon alleged violations of the Injuries and Death During Construction Act. Count IV was a survival action, alleging negligence by City Construction in failing to provide adequate warnings at the construction site, while count V was a wrongful death action based upon the same allegedly negligent acts. Count VI was similar to count III in that it sought recovery for expenses, but was brought under a negligence theory rather than one of statutory violations.

In counts VII, VIII, and IX, Cook County was named as the defendant. Count VII was a survival action, count VIII a wrongful death action, and count IX an action for City Construction and Cook County filed counterclaims against each other for contribution, and both filed third-party claims against Harry Blizzard.

[179 Ill.Dec. 571] expenses, all based upon the alleged negligence by the county in failing to require City Construction to provide traffic control devices in the construction area. Counts X and XI were directed against Hample, who, as noted above, was dismissed as a defendant prior to trial.

Prior to trial, numerous motions in limine were presented by all parties. These motions will be discussed where relevant in the body of this opinion.

Following a nine-day trial, the jury returned an itemized verdict in favor of the plaintiff and against City Construction, Cook County and Harry Blizzard & Associates, in the aggregate amount of $5,000,000. The jury apportioned damages as follows: City Construction, 74.9999998 percent; Cook County, 25.0000000 percent; and Harry Blizzard & Associates, .0000002 percent.

The jury also returned a verdict in favor of Cook County on its counterclaim against City Construction, and a verdict in favor of Cook County and against Blizzard on the county's third-party claim. The court entered judgment on the verdicts. No verdict was returned on City Construction's claim against Cook County or on City Construction's third-party claim against Blizzard.

The following evidence was presented at trial.

Ronald Bosco testified that he was familiar with the stretch of East River Road between Lawrence and Higgins Road, since he worked in the area and travelled that way twice a day. There was construction activity in the area. At the time of the incident he was travelling north on East River Road from Lawrence Avenue. Approximately one and a half or two blocks north of Lawrence, he was stopped by a flagman while some heavy equipment was being moved. The flagman carried a sign which said "slow" on one side and "stop" on the other. A small compact car was in front of Bosco's vehicle, and was also stopped by the flagman.

When the flagman turned the sign to "slow", Bosco and the compact car both moved to the southbound lane to go around the equipment in the road, and then moved back into the northbound lane. Bosco testified that their speed was 30 to 35 miles per hour.

Continuing his testimony, Bosco stated that as both cars proceeded north, the compact car swerved off to the right-hand shoulder of the road, started to "fishtail", and then struck the decedent in the road. The impact occurred in the southbound lane, close to the center line. At the scene of the accident, the road was open to both north and southbound traffic. Ten to fifteen seconds passed from the time the car first went off the right-hand shoulder until it struck the decedent. From the point where they were first stopped by the flagman until the decedent was hit was a distance of approximately three quarters of a mile. Along that distance, Bosco saw no warning signs indicating construction ahead, survey crew or flagman ahead, nor were there any other flagmen present.

Bosco pulled off the road, and went to see if he could assist. The decedent was still alive and had a faint but weak pulse.

Bosco further testified that the driver staggered when he exited his car, and his speech was slow and deliberate. Bosco testified that his first impression was that the driver was intoxicated, but conceded that his actions could have been due to shock.

Plaintiff called Peggy Podboy as the next witness. She testified that at approximately 1 p.m. on April 14, 1982, she was travelling southbound on East River Road south of Higgins Road and the Kennedy Expressway. She noticed two men in the middle of the road. She was surprised to see them there, since they were not wearing reflective gear, nor were there any warning signs or flagman in the area. She also noticed a third man sitting in the roadway a short distance beyond the two men she had initially seen. In her estimation, he was 90% in the southbound lane.

Ms. Podboy testified that she slowed down to five miles per hour or less as she passed the man sitting in the road. Once past, she noticed a car coming towards her that was swerving and seemed to be out of control. She took her foot off the accelerator so as to avoid the car, and after it had passed she heard "a loud thump" looked in her rear view mirror and saw the car strike the man sitting in the road. After hearing this noise, she pulled over to the side of the road and stopped, and went over to where the man was lying in the roadway. She testified that she talked with the driver. His breath smelled of alcohol, and although his speech was clear, in her opinion, he was intoxicated.

Ms. Podboy further testified that, although there were construction signs and flagmen south of the accident scene closer to Lawrence Avenue, there were none in the immediate vicinity of the accident. There were also signs to the north, between Devon and Higgins.

Plaintiff's next witness was Dr. John Edward Baerwald, a consulting traffic engineer. He testified about several manuals and publications in the field of traffic engineering. The Uniform Manual on Traffic Control Devices (hereinafter the Uniform Manual) is an official publication of the Federal Highway Administration of the United States Department of Transportation. This manual contains criteria regarding the use of traffic control devices, and also purports to represent a national standard to be followed by any governmental unit on roadways open to the public. It has been adopted by the Illinois Department of Transportation (hereinafter IDOT) pursuant to the mandate of the Illinois Motor Vehicle Code that the department "shall adopt a State manual and specifications for a uniform system of traffic-control devices consistent with this Chapter for use upon highways within this State." Ill.Rev.Stat.1985, ch. 95 1/2, par. 11-301.

Another publication of IDOT is the Standard Specifications for Road and Bridge Construction (hereinafter the Standard Specifications). This manual outlines the general requirements applicable to all highway improvements as well as provisions relating to methods, equipment and material for road and bridge construction projects.

Dr. Baerwald testified that pertinent to this particular case was Section 107.14 of the Standard Specifications, which provides, in part:

"Wherever construction or maintenance work is done, the contractor shall protect the workmen and provide for safe and convenient public travel by providing, directing and maintaining to the satisfaction of the engineer and in accordance with the traffic control standards or designs included in the plans, all signs, signals, markings, traffic cones, barricades, warning lights, flagmen, and other traffic control devices required for the type of operation being performed.

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Barricades and/or cones used for...