McKanna v. Duo-Fast Corp.

• Decision Date: 15 September 1987
• Docket Number: No. 86-2248,DUO-FAST,86-2248
• Citation: 161 Ill.App.3d 518,113 Ill.Dec. 348,515 N.E.2d 157
• Parties: , 113 Ill.Dec. 348 LaVerne C. McKANNA, Individually and as Special Administrator of the Estate of John W. McKanna, Deceased, Robert W. McKanna, Linda R. Honigmann, Kevin B. McKanna and Mark S. McKanna, Plaintiffs-Appellees, v.CORPORATION, Defendant, Counterplaintiff and Third-Party Plaintiff- Appellant (Carp Construction Company and North Shore Steel Erectors Company, Defendants-Counterdefendants-Appellees; McDonough Plumbing & Heating, Inc., d/b/a McDonough Mechanical Service Company, Third-Party Defendant-Appellant).
• Court: United States Appellate Court of Illinois

Page 157

515 N.E.2d 157

161 Ill.App.3d 518, 113 Ill.Dec. 348

LaVerne C. McKANNA, Individually and as Special Administrator of the Estate of John W. McKanna, Deceased Robert W. McKanna, Linda R. Honigmann, Kevin B. McKanna and Mark S. McKanna, Plaintiffs-Appellees, v. DUO-FAST CORPORATION, Defendant, Counterplaintiff and Third-Party Plaintiff- Appellant (Carp Construction Company and North Shore Steel Erectors Company Defendants-Counterdefendants-Appellees; McDonough Plumbing & Heating, Inc., d/b/a McDonough Mechanical Service Company Third-Party Defendant-Appellant).

No. 86-2248.

Appellate Court of Illinois First District, Second Division.

Sept. 15, 1987.

Rehearing Denied Oct. 27, 1987.

Aries, Hoyt & Taden, Chicago (Harvey J. Cohen and Merrill C. Hoyt, of counsel), for defendant-counterplaintiff and third-party plaintiff-appellant Duo-Fast Corp.

William J. Burke, Linda A. Leonetti, James Thomas Demos & Associates, Ltd., Chicago, for plaintiffs-appellees.

Frederick J. Fraterrigo, Scott D. Hammer, Fraterrigo, Best & Beranek, Chicago, for defendant-counterdefendant-appellee North Shore Steel Co.

Francis P. Cuisinier, Matthew J. Egan, Law Offices of Roderick J. Bergin, Chicago, for defendant-counterdefendant-appellee Carp Const. Co.

Justice HARTMAN delivered the opinion of the court:

A jury found defendant, Duo-Fast Corporation ("Duo-Fast"), guilty of having violated the Illinois Structural Work Act (Ill.Rev.Stat.1979, ch. 48, par. 60 et seq.), and of common law negligence, which allegedly caused injuries resulting in the death of plaintiffs' decedent, John W. McKanna ("McKanna"). Duo-Fast appeals from the pretrial dismissal of its codefendants and counter-defendants, Carp Construction Company ("Carp") and North Shore Steel Erectors Company ("North Shore"), and from the denial of its post-trial motion for judgment n.o.v. or for a new trial.

The issues presented on appeal include whether: (1) the circuit court erred in dismissing defendants and counter-defendants Carp and North Shore after finding that they had entered into a good faith settlement with plaintiffs; (2) the circuit court erred in admitting evidence of the size of Duo-Fast's plant; (3) Duo-Fast was entitled to a directed verdict or judgment n.o.v. on plaintiffs' asserted failure to prove Duo-Fast's negligence or violation of the structural work act as the proximate cause of McKanna's death; (4) McKanna's accident was covered by the Structural Work Act; and (5) the circuit court erred in allowing plaintiffs' expert to testify.

On October 17, 1980 McKanna, a pipefitter for 38 years then employed by third-party defendant McDonough Plumbing and Heating, Inc. ("McDonough"), and his partner, Robert Wollard, Jr., went to the Duo-Fast plant to perform warranty repair work on the air-conditioning system. The system upon which the men worked was installed partly within the building and partly upon its roof. The condensing units located on the roof were accessible via two routes: by a permanently affixed wall ladder which ran 17 feet from the floor of the boiler room to a ceiling hatch giving access to the roof; or by a combination stairway and ladder from the compressor room. The boiler room ladder, consisting of 17 steel rungs, mounted 12 inches apart, and 5 inches from the wall, possessed several alleged defects: (1) the rungs were set too close to the wall (5"'' rather than 7"") according to American National Safety Institute ("ANSI") standards adopted by OSHA; (2) an I-beam near the top of the ladder violated ANSI/OSHA standards and interfered with placement of a user's foot on the second and fourth rungs from the top of the ladder; (3) the steel rungs of the ladder did not have a non-skid surface but were merely covered with worn paint; and (4) the ladder ended 15 or 16 inches below the roof hatch, violating ANSI/OSHA standards which required that the ladder extend to the roof line. The other means of roof access was by way of a stairway which led to an 8 foot high wall ladder to the roof over the compressor room.

The door leading to the boiler room and the boiler room roof hatch were to have been locked at all times, according to the evidence. Duo-Fast had a rule that anyone going to the roof was to use the compressor room stairway and ladder and no one was to use the boiler room ladder; however, there was no sign to this effect on the boiler room ladder and there were no written instructions given to outside contractors or personnel. Duo-Fast's maintenance foreman was given the responsibility to inform such outsiders of the rule.

Wollard asked a Duo-Fast guard to unlock the boiler room and the boiler room roof-hatch shortly after he and McKanna arrived at Duo-Fast at 8 a.m. on October 17, 1980. Wollard had used the boiler room hatch on previous visits to Duo-Fast and, although aware of the compressor room access route, he had never been instructed to use it; nor had he been directed not to use the boiler room ladder. Heavy rains that morning had left standing water near the boiler room hatch and Wollard testified at trial that his shoes had been wet.

Shortly before quitting time, at 4 p.m., Wollard and McKanna began finishing up their work. Wollard carried some of his tools down the ladder to the boiler room. When he returned to the roof, he saw McKanna carrying a piece of air-conditioning equipment back towards the boiler room hatch. McKanna told him that he was going to see if the compressor room hatch was open; Wollard told McKanna that he did not think it was. Wollard then descended to the boiler room with the remainder of the tools and waited for McKanna for 5 to 10 minutes. Wollard saw McKanna on the roof through the boiler room hatch; saw him place his left hand on the hatch; and saw him turn around in preparation of descending the ladder. Wollard then bent over to move his tools away from the base of the ladder. While bent over, Wollard, through peripheral vision, saw McKanna fall to the boiler room floor. McKanna died 21 hours later.

The medical examiner's autopsy disclosed that McKanna had died from multiple injuries to the skull and brain caused by a fall from a height. The autopsy further revealed no evidence of alcohol or drugs in McKanna's system and no evidence of any abnormality of the heart.

On March 13, 1981, McKanna's widow, individually and as special administrator of the estate, filed a three count complaint against Duo-Fast: count I was for wrongful death; count II was a survival action; and count III was for violation of the Structural Work Act. Following Duo-Fast's motion to strike, plaintiff, joined by other survivors of decedent, filed a first amended complaint on September 28, 1981. Subsequently, on July 30, 1982, plaintiffs filed a second amended complaint against Duo-Fast and added as defendants Carp Construction Company, which in 1966 built the area of the plant were McKanna was killed, and North Shore Steel Erectors Company, the manufacturer of the prefabricated boiler room ladder. This complaint reasserted the three counts against Duo-Fast and articulated a survival action and a wrongful death action against Carp and North Shore, alleging that they designed and manufactured or ordered, purchased and installed the dangerous and defective boiler room ladder.

On January 4, 1985, Carp filed a counterclaim for contribution against North Shore and Duo-Fast. Duo-Fast thereafter filed a counterclaim for contribution and indemnity against Carp and North Shore on February 6, 1985. On February 11, 1985, North Shore filed a motion for summary judgment contending that plaintiff's cause against it was time barred by the applicable statute of repose. (Ill.Rev.Stat.1981, ch. 110, par. 13-214.) Carp subsequently moved to dismiss, based upon the same statute of repose argument. On April 23, 1985, the circuit court denied Carp's motion to dismiss and denied North Shore's motion for summary judgment on July 1, 1985.

North Shore filed a third party action against McKanna's employer, McDonough, on September 24, 1985. This action was severed from the others on October 21, 1985, due to the proximity of trial. Thereafter, Carp, on February 18, 1986, and Duo-Fast, on March 6, 1986, also filed third party complaints against McDonough.

Following an attempt to settle the case in open court on April 11, 1986, which apparently was to have been the first day of trial, plaintiffs settled with Carp for $15,000 and North Shore for $10,000. All parties were then present or represented by counsel. An oral motion to dismiss Carp and North Shore was then granted, after extensive argument by all counsel. Before the settlement conference in court that day, no prior notice of the settlement or motion to dismiss was given to Duo-Fast, which contended that the settlements were not made in good faith.

The action proceeded only against Duo-Fast in a jury trial the next day, during which plaintiffs filed a third amended complaint against Duo-Fast, which asserted wilful and negligent violations of the Structural Work Act (counts I & II) and common law negligence (counts III & IV). The jury returned a verdict in favor of plaintiffs on both negligence and under the Structural Work Act and assessed damages of $550,000 under both, thereafter reduced by the $25,000 settlement amount. The jury also answered "yes" to a special interrogatory: "Was the defendant, Duo-Fast Corporation, a party having charge of the work being done on the building on October 17, 1980?" Duo-Fast moved for a new trial and for judgment notwithstanding the verdict, both of which motions were denied. Duo-Fast appeals.

I.

Preliminarily, we note that appellant, Duo-Fast, in contravention of Supreme Court Rule 342(a) (107 Ill.2d R. 342(a)), has failed to attach an appendix to its appellate brief including required copies of its notice of appeal, the orders appealed from, and an index to the appellate record. Supreme Court Rules require the filing of briefs in...