Culhane v. Ludford

• Decision Date: 20 October 1986
• Docket Number: No. 2-85-0574,2-85-0574
• Citation: 148 Ill.App.3d 763,499 N.E.2d 686
• Parties: , 102 Ill.Dec. 129 Paul J. CULHANE, Special Administrator for the Estate of Virginia K. Lally, f/k/a Virginia K. Sparks, deceased, Plaintiff, v. Timothy M. LUDFORD and Interstate United Corporation, Defendants and Third-Party Plaintiff-Appellees Marriott Corporation, Third-Party Defendant-Appellant).
• Court: United States Appellate Court of Illinois

Page 686

499 N.E.2d 686

148 Ill.App.3d 763, 102 Ill.Dec. 129

Paul J. CULHANE, Special Administrator for the Estate of Virginia K. Lally, f/k/a Virginia K. Sparks deceased, Plaintiff, v. Timothy M. LUDFORD and Interstate United Corporation Defendants and Third-Party Plaintiff-Appellees Marriott Corporation, Third-Party Defendant-Appellant).

No. 2-85-0574.

Appellate Court of Illinois,

Second District.

Oct. 20, 1986.

French Rogers Kezelis & Kominiared, Russell P. Veldenz, C. Thomas Hendrix, Richard G. French, Dorothy F. French, Chicago, for third-party defendant-appellant.

Brydges Riseborough Morris Franke & Miller, Peter M. Trobe, Waukegan, for third-party plaintiffs-appellees.

Presiding Justice NASH delivered the opinion of the court:

The estate of Virginia K. Lally filed a wrongful death action against defendants and third-party plaintiffs, Timothy Ludford and Interstate United Corporation ("Interstate"), based upon Ludford's alleged negligent operation of an Interstate van. These parties subsequently settled that action for $550,000 and defendants brought this action for contribution against third-party defendant, Marriott Corporation, the owner and operator of the site of the accident. After trial, a jury determined Marriott was liable to the extent of 8% of the settlement amount and the trial court awarded third-party plaintiffs $43,348.96. Marriott appeals, contending its conduct did not proximately cause the injury because Ludford's actions constituted an unforeseeable intervening cause.

Marriott's Great America, a theme amusement park located in Gurnee, Illinois, employs approximately 4,000 individuals during the summer months. Service corridors, or nonpublic roadways, run throughout the park and are used by Marriott employees and private vendors to make deliveries, haul trash and perform work-related functions. A service corridor running in a westerly direction is located on the park's east end and is 69 feet, 10 inches wide. Both sides are graded slightly downward toward the center to facilitate water drainage. A yellow traffic line, which is located eight inches north of the center, runs the length of the corridor.

An administration building located on the north side of this corridor stands opposite a maintenance building and two warehouses. The west end of the administration building houses the Employee Relations Service Center and the departmental offices of the corporation are in a separate division in the east end of the building. There is no means of access between the two divisions within the building itself. A management parking lot is situated north of the administration building and an employee parking lot lies immediately north of it. Between the administration building and the management parking lot is a sidewalk running the length of the building and continuing around its east end. Near the west end of the administration building, there is a fence across the sidewalk which is customarily locked during business hours. Prior to its relocation in July 1983, for security reasons, a security booth had been located adjacent to the fence and the gate had been open during business hours. The booth is presently located on the west end of the building and therefore, travelers from the east end of the building to the west end must use the service corridor.

In the service corridor itself, electric golf carts used by Marriott employees are charged by outlets in the south wall of the administration building. Nearby, two sets of air conditioning equipment enclosed by cyclone fences are located against the center of the south wall. The fence surrounding the larger set of equipment extends 19 feet, 4 inches from the building and is approximately 14 feet, 2 inches from the center line of the service corridor. In addition, pick-up trucks used to deliver food and merchandise throughout the park are customarily parked on both the north and south sides of the service corridor at 90-degree angles in parking slots maintained for such purposes. Bulk deliveries are made to the east end of the warehouses and do not use the service corridor.

On July 7, 1983, third-party plaintiff, Timothy Ludford, had been operating for several weeks a step-van owned and maintained by third-party plaintiff, Interstate United Corporation, which stocked and serviced various vending machines in the park. The step-van, which was 19 feet, 9 inches long and 6 feet, 8 inches wide, had no audible back-up warning devices. Tests revealed the "blind spot" behind the van to be a triangular-shaped area extending 73 feet behind the vehicle; the distance from the ground to the outside rearview mirror was 80 inches.

At about 3 p.m. on July 7, 1983, Ludford drove into the service corridor and had traveled west approximately 225 feet when he noticed in his mirror that a case of soda had fallen out of the step-van. He stopped, walked to the rear of the van and shut the overhead door. He did not notice any pedestrians at that time. He returned to the van, looked in both the right-hand and left-hand mirrors, and again did not see any pedestrians. He then stuck his head out of the open door on the driver's side and began to back up the van in an eastbound direction at five or six miles per hour.

At the same time, plaintiff's decedent, Virginia Lally, and Beverly Ann Skelley, both of whom were Marriott employees, were walking from the Employee Relations Service Center in the west end of the administration building to the offices located in the east end of the building. The two women were walking side by side facing traffic, with Skelly closest to the building, and therefore had their backs to the Interstate van. The van hit Lally, dragging her backwards a short distance, killing her.

On July 29, 1983, Lally's estate filed suit against Ludford and Interstate for wrongful death based on Ludford's negligent operation of the van and Interstate's negligent training of Ludford. On September 2, 1983, Ludford and Interstate filed a third-party claim for contribution against Marriott, alleging that Marriott was negligent in failing to provide safe pedestrian walkways or to warn employees of the dangerously congested condition of the service corridor. On October 23, 1984, Ludford and Interstate settled the underlying wrongful death claim with Lally's estate for $550,000.

At trial on the third-party claim for contribution, Ludford testified that prior to his employment by Interstate, he had never driven a van or truck prior to working for Interstate and his training consisted solely of being shown the routes through the park and the machines to be serviced. He was not tested on his driving ability or given driving instructions. He stated he backed up 10 or 15 feet before striking Lally. On cross-examination, he testified he knew the service corridor was used by pedestrians, but did not see anyone in the corridor immediately prior to the accident. He also stated he was aware of the blind spot to the rear of the van and believed it was at least five feet in length. The noise level in the corridor was not loud at the time of the accident. Ludford was aware of alternatives to driving his van in reverse, such as making a 180 degree turn at the west end of the corridor.

Beverly Ann Skully testified Lally and she walked as close as possible to the administration building, but the air conditioning equipment and parked vehicles prevented them from walking directly alongside the building. She stated the truck backed up approximately 100 feet and struck Lally from behind them as they were about to walk around the fenced-in air conditioning equipment. She did not hear any sound from the van prior to the accident.

James Kearney, safety administrator for Marriott, testified that Marriott's pick-up trucks and vehicles used by private vendors in the service corridors were not required to have backup warning signals, although such devices could have been required by Marriott. He stated that park personnel attempted to limit the amount of vehicular traffic traveling throughout the corridor, which he described as moderate to light in the administration area, but not the pedestrian traffic. There had been no accidents in the corridor prior to Lally's death and Kearney believed the design for the service corridor was a safe design.

A July 26, 1979 employee newsletter distributed by Marriott was admitted into evidence, which stated,

"HELP MAKE THE SERVICE CORRIDOR A SAFE AND UNCONGESTED AREA

The traffic in the Service Corridor continually reflects the busy pace of the park. The number of people and amount of material that pass up and down the corridor each day is staggering. With as great a volume of man and machine confined to such a narrow space, we can't afford to have less than an orderly flow of both pedestrian and vehicular traffic."

Kearney testified the newsletter referred only to the central service corridor of the park, which was approximately 22 feet wide and was not used for parking. He described the amount of traffic in that corridor as moderate to heavy.

Hubert Thomiszer, a consulting mechanical engineer, testified that the denial of pedestrian access to the sidewalk north of the administration building forced employees to use the service corridor for pedestrian traffic and constituted a foreseeable unreasonable hazard because the obstructions in the corridor required pedestrians to walk in the roadway. He stated the design and use of the corridor contributed to the accident because the air conditioning equipment and the electrical connections from the building outlets to the golf carts prevented employees from walking along the south side of the building, and the pitch of the roadway would tend to cause pedestrians to gravitate toward the center of the corridor. Thomiszer suggested that alternative designs of the corridor, such as mounting the air conditioner equipment on the roof or erecting a sidewalk six inches high over the...