Martin v. Keeley & Sons, Inc.

• Decision Date: 30 September 2011
• Docket Number: No. 5–10–0117.,5–10–0117.
• Citation: 958 N.E.2d 739,2011 IL App (5th) 100117,354 Ill.Dec. 807
• Parties: Terry MARTIN, Ardith Wynn, and Rickey Vanover, Plaintiffs–Appellants, v. KEELEY & SONS, INC., Defendant–Appellee,andEgyptian Concrete Company and Allen Henderson & Associates, Inc., Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2011 IL App (5th) 100117

354 Ill.Dec. 807

958 N.E.2d 739

Terry MARTIN, Ardith Wynn, and Rickey Vanover, Plaintiffs–Appellants,

v.KEELEY & SONS, INC., Defendant–Appellee,andEgyptian Concrete Company and Allen Henderson & Associates, Inc., Defendants–Appellants.

No. 5–10–0117.

Appellate Court of Illinois, Fifth District.

Sept. 30, 2011.

Mark C. Scoggins/Anthony P. Gilbreth, Crowder & Scoggins, Ltd., Columbia, IL, for Terry Martin, Rickey Vanover & Ardith Wynn.

Charles L. Joley/Kenneth M. Nussbaumer, Donovan, Rose, Nester & Joley, P.C., Belleville, IL, for Egyptian Concrete Company.

John L. McMullin/T. Michael Ward, Brown & James, P.C., St. Louis, MO, for Allen Henderson & Associates, Inc.Dayna L. Johnson/Russell K. Scott, Greensfelder, Hemker & Gale, P.C., Swansea, IL, Thomas Q. Keefe, Jr., Thomas Q. Keefe, Jr., P.C., Belleville, IL, Victor H. Essen II/Debbie S. Champion, Rynearson, Suess, Schnurbusch & Champion, L.L.C., St. Louis, MO, for Keeley & Sons, Inc.Devon C. Bruce, Power Rogers & Smith, P.C., Matthew S. Sims, Steven J. Morton & Associates, Chicago, IL, for Illinois Trial Lawyers Association.

OPINION

Justice WEXSTTEN delivered the judgment of the court, with opinion.

[354 Ill.Dec. 808] ¶ 1 The circuit court of St. Clair County entered summary judgment in favor of the appellee on the appellants' spoliation-of-evidence claims. For the reasons that follow, we reverse and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 On May 29, 2001, while installing a handrail on a bridge that defendant Keeley & Sons, Inc. (Keeley), was reconstructing pursuant to a contract with the Illinois Department of Transportation (IDOT), the plaintiffs, Terry Martin, Ardith Wynn, and Rickey Vanover, were injured when they fell from scaffolding supported by an I-beam that collapsed and fell into Maxwell Creek near Sparta. The I-beam was manufactured by defendant Egyptian Concrete Company (Egyptian) and was supported by a bearing assembly designed by defendant Allen Henderson & Associates, Inc. (Henderson). On May 30, 2001, after the accident was investigated by both IDOT and the Occupational Safety and Health Administration (OSHA), Keeley broke the concrete portion of the I-beam into riprap and retrieved the steel plates from the beam so that Egyptian could manufacture a replacement.

¶ 4 The plaintiffs subsequently filed a multicount complaint against the defendants alleging, inter alia, that Egyptian had negligently manufactured the I-beam, that Henderson had negligently designed the bearing assembly that had supported the beam, and that Keeley had breached its duty to preserve the beam by destroying it. Egyptian and Henderson later filed counterclaims against Keeley also alleging that it had breached its duty to preserve the I-beam. Motions and cross-motions for summary judgment on the appellants' spoliation-of-evidence claims followed. The following evidence was adduced via discovery depositions.

¶ 5 Wynn testified that when he fell from the Maxwell Creek bridge, he was installing a safety handrail on a decked part of the bridge that was supported by three precast beams. The decking and handrail were made of wood and the beam that collapsed was “on the north side of the highway.” Wynn testified that before falling from the bridge, he heard a “crack or a pop sound.” Lying injured near the creek with pieces of lumber around him, Wynn observed the beam “lying on its side” and “broken in the center.” Wynn testified that he had no idea what caused the beam “to break or to roll,” and he did not know “which happened first.” Wynn acknowledged that he had not “heard of any criticisms of the beam.”

¶ 6 Vanover, also a carpenter by trade, testified that he was standing on the decked overhang of the Maxwell Creek bridge helping install the handrail when he “heard something pop.” He then stood up and felt himself falling. Vanover had “no idea what happened,” but he “landed in the creek in the riprap.”

¶ 7 Martin testified that as a general laborer, he was helping install the handrail on the decked portion of the bridge when “[a]ll of a sudden[,] there was a loud pop[,] and the bridge just collapsed.” Martin indicated that he had to be dug out from underneath a pile of broken decking before he was transported to the hospital. Martin assumed that the I-beam in question had broken, because when he woke up in the creek, the beam was “raised” and “busted right dead in the middle.” He acknowledged, however, that no one had ever told him that there might have been “problems with the actual beam.”

¶ 8 Keeley's president, Eugene Keeley, testified that he had been with the company for 24 years, and Keeley was the general contractor at the Maxwell Creek bridge site. Eugene testified that Shawn Neuf was the construction superintendent at the site, and Rich Lehmann was the engineer. Eugene testified that after the I-beam's collapse, Neuf had called him and told him that the beam had “failed.” When he and Lehmann inspected the I-beam approximately an hour later, however, they concluded that the collapse was “clearly a roll-over situation,” as evidenced by the way the beam was lying in the creek and by “the way the form fell off.” Eugene stated that the I-beam was on its side in the creek and had “failed right in the middle,” probably when “it got parallel.” He indicated that if the beam had actually broken, it would have fallen “straight down in a ‘V’ formation.” He further indicated that any defects in the I-beam itself would have been noted and “pursued.” Eugene testified that after inspecting the I-beam and the work site, he and Lehmann had concluded that the beam had rolled under undue stress resulting from the use of an elastomeric bearing assembly on the east abutment of the bridge. Eugene indicated that the elastomeric bearing assembly had “diminished the capacity of the overhang and was the cause of the beam rotating off the abutment under what was a normal forming procedure for this type of structure.” Eugene testified that elastomeric bearing assemblies are “typically used with steel girders,” and he “had not seen them used with concrete prestressed I-beams” before. Eugene indicated that the I-beam would not have rolled had it been supported with “a tie-back system” or weighted down with “dead load.” While he and Lehmann were conducting the work-site inspection, Eugene “took a bunch of pictures.” Neuf and “the resident engineer for IDOT on the project” were also present during the inspection. Eugene testified that the replacement beam that Keeley later obtained from Egyptian was properly tied back and “went up just fine.”

¶ 9 On May 30, 2001, after meeting an OSHA official, who also inspected the beam, Keeley broke the beam up with a jackhammer, removed the beam's steel ends, and left the remaining pieces as riprap in the creek. Eugene testified that three factors influenced the decision to destroy the beam rather than preserve it. First of all, when Eugene spoke with Mike Hammond at Egyptian about manufacturing a replacement beam, Hammond had advised him that by reusing the steel ends, a new beam would be available sooner. Secondly, Jerry Wibbenmeyer at IDOT had expressed concerns that if left in the creek, the beam might cause bridge scouring. Lastly, since neither IDOT nor OSHA had expressed “any criticisms of the beam,” and because the cause of the accident had been identified, disposing of the beam was just “a matter of cleaning up the mess.” Eugene stated that he believed that Keeley had “satisfied all of [its] obligations to [IDOT] and to OSHA,” and “it was just kind of a move-on-from-there situation.” Eugene testified that after inspecting the work site, he had not thought about potential lawsuits stemming from the accident, although Keeley had been sued before. He assumed that his injured workers would receive workers' compensation benefits, however, regardless of the accident's cause. Eugene indicated that no one who had investigated the accident had a “different theory” as to its cause. Eugene acknowledged that Keeley could have brought in equipment to move the I-beam “to the side” and that Keeley could have removed the beam's steel ends with a concrete saw.

¶ 10 Lehmann testified that he was a licensed engineer and had worked as a civil engineer for over 25 years. Stating that there “was no question” regarding the “integrity” of the collapsed I-beam, Lehmann testified that he had not carefully inspected the beam before its destruction because he did not suspect that it had caused the accident. Lehmann indicated that based on his calculations, the beam had simply rolled over when too many workers were standing on it. He further stated that the collapse could have been avoided if the beam had been tied down. Stating that an elastomeric bearing pad used to support one of the beam's ends had “reduced the area of bearing” on that end, Lehmann suggested that the bearing pad had caused a loss of stability that had resulted in the beam's “tipping.” Lehmann indicated that the beam was approximately 50 feet long and 3 feet “deep.” Lehmann testified that Keeley had never had “any stability problems in the past,” and no one had ever suggested that the I-beam had broken. Lehmann acknowledged, however, that improper handling of a concrete beam can significantly weaken the beam and even cause it to “explode” under stress. Lehmann acknowledged that the I-beam could have been removed from the creek and preserved.

¶ 11 Neuf testified that Steve Gard, the carpenter foreman at the Maxwell Creek bridge site, told him of the accident immediately after it had happened. When Neuf subsequently saw the I-beam lying in the creek, the beam was broken, but there was nothing else “unusual” about it. When Neuf surveyed what had happened, he concluded that the I-beam had “rolled over” because there was “[t]oo much weight on the edge” of the overhang on top of it. Neuf indicated that the cause of the accident was “kind of obvious.” Neuf...