Halek v. U.S.

• Decision Date: 19 May 1999
• Docket Number: 98-3560,Nos. 98-3432,s. 98-3432
• Citation: 178 F.3d 481
• Parties: Joseph HALEK, Plaintiff-Appellee, Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

178 F.3d 481

Joseph HALEK, Plaintiff-Appellee, Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant, Cross-Appellee.

Nos. 98-3432, 98-3560.

United States Court of Appeals Seventh Circuit.

Argued April 16, 1999.

Decided May 19, 1999.

Charles E. Webster, Chicago, IL, for Plaintiff-Appellee in No. 98-3432.

Matthew D. Tanner (argued), Office of the United States Attorney, Civil Division, Chicago, IL, for Defendant-Appellant in No. 98-3432.

Marvin A. Brustin (argued), Chicago, IL, for Plaintiff-Appellant in No. 98-3560.

Thomas P. Walsh, Office of the United States Attorney, Civil Division, Chicago, IL, for Defendant-Appellee in No. 98-3560.

Before POSNER, Chief Judge, and BAUER and ROVNER, Circuit Judges.

POSNER, Chief Judge.

Joseph Halek sued the United States under the Federal Tort Claims Act for injuries that he sustained while servicing an elevator at the Great Lakes Naval Training Center. After a bench trial, the district judge, applying the tort law of Illinois (made applicable to this case by the Tort Claims Act, 28 U.S.C. §§ 1346(b), 2674; Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992)), found that the Navy had been negligent, but reduced Halek's damages by 20 percent to reflect Halek's own negligence, yielding a $1.4 million judgment. Both parties have appealed, but Halek's appeal requires only the briefest of mentions; he complains not about the 20 percent reduction in his damages because of his contributory fault but about the district judge's deducting pension and fringe benefits that Halek obtained from his employer as a consequence of the accident. In particular, the accident forced him to retire, thus accelerating the receipt of his pension. The government argues that since he could have retired then even if he hadn't been disabled from working by the accident, he didn't lose any wages as a result of the accident. But the evidence was that he wouldn't have retired then, and so he did lose those wages, along with the more generous pension benefits that he would have received had he deferred his retirement to the normal retirement age. As he points out, a tortfeasor is not permitted to credit compensation that his victim receives from another ("collateral") source as a consequence of the tort. Wilson v. Hoffman Group, Inc., 131 Ill.2d 308, 137 Ill.Dec. 579, 546 N.E.2d 524, 530 (1989). Halek paid, directly or indirectly, for the employee benefits that were triggered by the accident; the tortfeasor should not be permitted to appropriate those benefits by being allowed to offset them against what he owes his victim. That would both unjustly enrich the tortfeasor and reduce the deterrent effect of tort liability. But Halek failed to argue the point in the district court, and so it is not available to him on appeal.

The government's appeal, while conceding as it must that a landowner or land occupier has a duty of care to a business invitee, such as an elevator serviceman, argues that the duty is not violated by a hazard that is obvious to the invitee. Some hazards are so perspicuous that their mere existence is an adequate warning and thus discharges the landowner's duty of care. E.g., Bucheleres v. Chicago Park District, 171 Ill.2d 435, 216 Ill.Dec. 568, 665 N.E.2d 826, 836 (1996); Genaust v. Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d 465, 472 (1976); Hoesly v. Chicago Central & Pacific R.R., 153 F.3d 478, 481 (7th Cir.1998) (applying Illinois law); Restatement (Second) of Torts § 343A(1) and comment e (1965). Was this such a case? The facts are not in dispute. Halek, an experienced elevator mechanic, performed routine maintenance once or twice a week on the elevators of one of the buildings in the naval base. The machinery for the elevators is housed in a small room at the top of the building. Cables connected to the roof of each elevator are looped over a large pulley which is turned by a motor, causing the elevator to rise or fall. Anyone who caught his hand between the pulley and the cables while the pulley was rotating away from the hand and thus pulling it into the "nip point" where the cables meet the pulley could suffer a grievous injury. The Navy had decided therefore to install an aluminum mesh cage around each pulley. But the cage did not surround the pulley completely. It enclosed it on three sides but left the space directly in front of the pulley unguarded. The reason, presumably, was that because the cage was bolted to the floor and therefore difficult to remove to get at the pulley, the mechanics would have had difficulty working on the pulley assembly had the cage gone all around it.

Halek had shut off the power to do some work on the elevator machinery and in the course of this work he mislaid a bolt. After he finished the work and turned the power back on he noticed the bolt lying in the narrow space between the pulley and the aluminum mesh cage. Had the cage not been there, Halek could easily have retrieved the bolt from the side; the bolt would have been between the pulley and him. But with that access blocked by the cage, Halek had to reach around the cage, to the open space in front of the pulley, and when he tried to do this his glasses caught in the mesh and when he tried to adjust them he tripped and his hand caught in the pulley--which was now moving, because someone had summoned the elevator just as Halek was reaching for the bolt.

The cage was dangerous, primarily because it was bolted to the floor. Had it been easily removable, Halek could have removed it and then retrieved the bolt from the side, with complete safety. Because the cage was not easily removable, he could retrieve the bolt only by reaching around the cage and in dangerous proximity to the pulley and cables, which might start to move at any time if someone summoned the elevator. Given the gravity of the injury that was likely to occur to anyone who fell into the machinery, the nontrivial probability of getting caught in unshielded machinery if one is working in close proximity to it, and the trivial expense of making the cage easily removable and therefore safe, the district judge was justified in finding that the Navy had been negligent. See, e.g., Deibert v. Bauer Bros. Construction Co., 141 Ill.2d 430, 152 Ill.Dec. 552, 566 N.E.2d 239, 244 (1990); American National Bank & Trust Co. v. National Advertising Co., 149 Ill.2d 14, 171 Ill.Dec. 461, 594 N.E.2d 313, 320 (1992).

Unless the danger was so obvious to the people working on the elevator machinery, or so easily avoidable by them (Halek had only to turn off the power to be entirely safe in reaching for the bolt), that the probability of an accident was really quite negligible. For in that event the failure to take precautions against such an accident might not have been negligent, cheap as those precautions would have been. Negligence is a function of the likelihood of an accident as well as of its gravity if it occurs and of the ease of preventing it, e.g., Jackson v. TLC Associates, Inc., 185 Ill.2d 418, 235 Ill.Dec. 905, 706 N.E.2d 460, 463 (1998); Bucheleres v. Chicago Park District, supra, 216 Ill.Dec. 568, 665 N.E.2d at 836-37; ...