Courtney v. Allied Filter Engineering, Inc.

• Decision Date: 27 March 1989
• Docket Number: No. 87-3622,87-3622
• Citation: 181 Ill.App.3d 222,536 N.E.2d 952,129 Ill.Dec. 902
• Parties: , 129 Ill.Dec. 902 -Appellant, v. ALLIED FILTER ENGINEERING, INC., Defendant-Appellee. Appellate Court of Illinois, First District, First Division
• Court: United States Appellate Court of Illinois

Page 952

536 N.E.2d 952

181 Ill.App.3d 222, 129 Ill.Dec. 902

Ronald COURTNEY, Plaintiff-Appellant, v. ALLIED FILTER ENGINEERING, INC., Defendant-Appellee.

No. 87-3622.

Appellate Court of Illinois First District, First Division.

March 27, 1989.

Katz, Friedman, Schur & Eagle, Chicago, for plaintiff-appellant (David E. Rapoport, of counsel).

Law Offices of James J. Desveaux, Chicago, for defendant-appellee (James J. Desveaux and Angela M. Kalamaras, of counsel).

Justice BUCKLEY delivered the opinion of the court:

This negligence action is before this court on Ronald Courtney's (plaintiff) petition for leave to appeal the trial court's order granting a new trial following the judgment it entered for plaintiff from a jury's $277,000 damage award, reduced to $199,040 to correspond to the jury's 28% comparative negligence finding. Allied Filter Engineering, Inc. (defendant), pursuant to Supreme Court Rule 306(a)(2) (Ill.Rev.Stat.1987, ch. 110A, par. 306(a)(2)), requests that this court reverse the trial court's order denying its motions for directed verdict and for judgment notwithstanding the verdict. For the reasons set forth below, we reverse the trial court's order granting a new trial and remand this case with directions to the trial court to reinstate the judgment in favor of plaintiff.

The record reveals that defendant, a manufacturer of diesel engine filters, has a shipping and receiving area on its premises at 811 Golf Lane in Bensenville, Illinois, for truck deliveries. This area includes two indoor truck bays, each of which is equipped with a dockplate that forms a bridge between the dock and rear of the trailer when it is placed into an up position and, when down, forms a 90 degree angle with a sharp edge. Defendant followed the standardized procedure in the industry for unloading palletized freight, namely, the company receiving the material unloads the material. Defendant had full-time employees who operate forklift trucks to unload trailers, and it forbad outside drivers from operating its equipment.

Plaintiff, a truck driver for Motor Freight Express, testified to the following. On July 23, 1981, at approximately 10:40 a.m., he arrived at defendant's shipping and receiving area to deliver palletized freight. At the direction of Jimmy Heath, defendant's supervisor in the receiving area, plaintiff pulled into the west truck bay. His trailer was positioned against the bumpers on the dock, leaving a gap of approximately five inches between the trailer's rear and the sharp, exposed edge of the lowered dockplate.

Heath then refused to unload the truck. He placed an empty skid near the edge of the dock and told plaintiff to stack the boxes on it. Heath did not raise the mechanical dockplate or make the forklift available to plaintiff. Plaintiff also did not have a "hand jack" or a "portable dockplate," which Motor Freight truck drivers carried in their trailers when they knew in advance that a customer would not unload.

Upon Heath's refusal, plaintiff telephoned Gerard Anastasia, his supervisor at Motor Freight Express, who told him to solicit defendant's employees to unload the truck or, if unsuccessful, deliver the freight in some other way. Following Heath's second refusal to unload and to raise the dockplate, plaintiff loosened the vertical and horizontal bands which stabilized the 27 cartons that stood six feet high and weighed approximately 40 pounds each.

As plaintiff carried one of the boxes toward the dock and the skid, some of the boxes fell and struck him in the mid-back. The boxes knocked him over, and his right knee landed in the space between the back of the truck and the dockplate. The front of plaintiff's knee forcefully struck the sharp edge of the dockplate, causing him immediate pain and swelling.

Dr. Robert Kaminsky, a board certified orthopedic surgeon, testified on plaintiff's behalf as his primary treating physician. Kaminsky first examined plaintiff on July 27, 1981, upon a referral from plaintiff's family physician. At that time, plaintiff related his accident at work and complained of pain in his knee. Plaintiff again complained of pain in his knee on a September 10 return visit. Unable to diagnose plaintiff's condition from these examinations, Kaminsky recommended plaintiff undergo an arthroscopic procedure. From this procedure performed on September 24, 1981, Kaminsky diagnosed plaintiff's condition as chondromalacia of the patella, a softening of the cartilage caused by a sudden increase in pressure between the back of the kneecap and the femur. The arthroscopic procedure, however, proved unsuccessful, and plaintiff's kneecap was removed on April 20, 1982.

Kaminsky testified that in his expert opinion the trauma of July 23, 1981, either caused the damage to plaintiff's knee or aggravated a preexisting condition. On cross-examination, Kaminsky admitted that it is possible that chondromalacia could develop from mere wear and tear or a twisting of the knee and also stated that he could not determine from mere observation when or how the condition developed. He further testified that plaintiff suffers permanent disability which prevents him from returning to work as a truck driver.

At the time of the accident, plaintiff was 33 years of age and had been a truck driver for 13 years, earning approximately $33,000 in the preceding year. Plaintiff has a two-year high school education and has no other special skills, training or work experience. Plaintiff was unable to work from the date of the accident until February 1, 1983. Since then, he has set up his own limousine business, which has been unsuccessful to date. Plaintiff now drives a school bus at a salary $17,000 less than he made as a truck driver.

Before this case was submitted to the jury, the trial court entered a partial directed verdict against plaintiff on all of the allegations in his complaint ^* except the claim that defendant was negligent in exposing the plaintiff to an unreasonably dangerous condition by failing to raise the dockplate. The court submitted to the jury this single theory of negligence, along with defendant's affirmative defense that plaintiff was contributorily negligent in removing a band from a pallet of items which were not properly stacked, in failing to use a dockplate that was available, in unloading the load from his truck, and in failing to keep a proper lookout for his own safety.

In ruling on defendant's post-trial motions following the jury's award to plaintiff, the trial court stated that it believed that the verdict was against the manifest weight of the evidence, commenting that there was no breach of any duty owed to plaintiff, and that plaintiff assumed any risk. The court also voiced concern over its failure to instruct the jury with regard to the directed verdict on the other negligence theories.

On appeal, we will first determine whether the jury's finding was contrary to the manifest weight of the evidence so as to justify a new trial (Doubet v. Morgan (1984), 122 Ill.App.3d 431, 77 Ill.Dec. 675, 461 N.E.2d 62), or, as defendant urges, whether the evidence viewed in a light most favorable to plaintiff so overwhelmingly favors defendant that a contrary verdict could never stand (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504). We will then address whether the trial court's failure to specially instruct the jury as to the special directed verdict, or whether other errors raised by defendant justify granting a new trial.

In reviewing whether the plaintiff sufficiently established the elements necessary to sustain his negligence claim, we begin with defendant's contention that it did not breach any duty owed to plaintiff. It is clear that defendant owed plaintiff, a business invitee on his premises, a general duty to use reasonable and ordinary care in keeping the property reasonably safe. (Olinger v. Great Atlantic & Pacific Tea Co. (1961), 21 Ill.2d 469, 473, 173 N.E.2d 443, 445.) The Restatement (Second) of Torts, which has been incorporated into the common law of Illinois (Genaust v. Illinois Power Co. (1976), 62 Ill.2d 456, 343 N.E.2d 465; Fancil v. Q.S.E. Foods, Inc., (1975), 60 Ill.2d 552, 328 N.E.2d 538), more specifically defines the duty owed by possessors of land as to conditions on their land:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on land if, but only if, he * * * (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts § 343 (1965).

Defendant initially urges that the lowered dockplate was not an unreasonably dangerous condition, and, as such, it could not have breached any duty by failing to protect plaintiff from the condition. Photographs introduced at trial, however, depict the sharp edge on the plate that extended out at a 90 degree angle when in a lowered position. The evidence also indicated that the dockplate was located in an area where defendant positions trucks for unloading. We find that this evidence sufficiently established an unreasonable risk of harm.

Defendant next argues that even assuming the lowered dockplate was an unreasonably dangerous condition, it did not breach any duty owed to plaintiff because the lowered dockplate was an open and obvious condition. It asserts that the instant case is analogous to Sepesy v. Archer Daniels Midland Co. (1981), 97 Ill.App.3d 868, 53 Ill.Dec. 273, 423 N.E.2d 942, wherein the appellate court held that the defendant did not owe a duty to warn or protect the plaintiff from the condition because any risk confronted by the truck driver who was injured standing on a "ramp" with an...