McMahon v. Richard Gorazd, Inc.

• Decision Date: 27 June 1985
• Docket Number: No. 5-83-0402,5-83-0402
• Citation: 135 Ill.App.3d 211,481 N.E.2d 787
• Parties: , 89 Ill.Dec. 944 Edwin McMAHON, Plaintiff-Appellee, Cross-Appellant, Separate Appellant, v. RICHARD GORAZD, INC., a corporation, Richard Gorazd, d/b/a State Construction Company, and Richard Gorazd, Individually, Defendants-Separate Appellees, and ILLINOIS POWER COMPANY, Defendant-Appellant, Cross-Appellee, v. RICHARD GORAZD, INC., a corporation, Richard Gorazd, d/b/a State Construction Company, and Richard Gorazd, Individually, Third Party Plaintiffs, v. Vallie L. SCHNEIDER, d/b/a Whiteway Painting & Decorating Company, Third Party Defendant.
• Court: United States Appellate Court of Illinois

Page 787

481 N.E.2d 787

135 Ill.App.3d 211, 89 Ill.Dec. 944

Edwin McMAHON, Plaintiff-Appellee, Cross-Appellant, Separate Appellant, v. RICHARD GORAZD, INC., a corporation, Richard Gorazd, d/b/a

State Construction Company, and Richard Gorazd, Individually, Defendants-Separate Appellees, and ILLINOIS POWER COMPANY, Defendant-Appellant, Cross-Appellee, v. RICHARD GORAZD, INC., a corporation, Richard Gorazd, d/b/a

State Construction Company, and Richard Gorazd, Individually, Third Party Plaintiffs, v. Vallie L. SCHNEIDER, d/b/a Whiteway Painting & Decorating

Company, Third Party Defendant.

No. 5-83-0402.

Appellate Court of Illinois,

Fifth District.

June 27, 1985.

Cornelius Thomas Ducey, Jr., Ducey, Feder & Ducey, Ltd., Belleville, for defendant-appellant, cross-appellee Illinois Power Co.

Stephen M. Tillery, Kassly, Bone, Becker, Dix & Tillery, P.C., Belleville, for plaintiff-appellee, cross-appellant, separate appellant, Edwin McMahon.

Michael B. Constance, Edward J. Szewczyk, Donovan, Hatch & Constance, P.C., Belleville, for defendants-separate appellees, third party plaintiffs Richard Gorazd, Inc., et al.

KASSERMAN, Justice:

This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff, Edwin McMahon, in an incident which occurred April 9, 1975, while he was in the employ of Vallie L. Schneider. Plaintiff alleged that his injuries resulted from the negligence of defendant Richard Gorazd and from Gorazd's wilful violation of the Structural Work Act (Ill.Rev.Stat.1983, ch. 48, par. 60 et seq.). Plaintiff also joined Illinois Power Company (Illinois Power) as defendant, alleging that his injuries resulted from the negligence of Illinois Power. Subsequently, Gorazd filed a counterclaim against Illinois Power and a third party complaint against third party defendant Vallie L. Schneider, in which he sought indemnity from both Illinois Power and Schneider.

Following a jury trial in the circuit court of St. Clair County, the jury returned verdicts in favor of defendant Gorazd against plaintiff and in favor of plaintiff against defendant Illinois Power in the amount of $739,000. The jury found plaintiff's own negligence contributed to his injuries and reduced the award to him by 50 percent. Judgment was entered on the verdicts. This matter is presented to this court on the appeal of defendant Illinois Power from the judgment in favor of plaintiff, and plaintiff has perfected a cross-appeal from the jury's finding of contributory negligence. Plaintiff separately appeals the judgment in favor of defendant Gorazd.

Plaintiff alleged that he suffered injuries as a result of an incident which occurred April 9, 1975. At the time of his injury, plaintiff was employed as a painter by third party defendant Schneider. Plaintiff was painting a two-story dwelling which was being constructed by defendant Gorazd in O'Fallon, Illinois. Gorazd was the general contractor and Schneider was the painting subcontractor. In order to paint the upper story of the house, plaintiff had erected a scaffold by placing two ladders against the house with a 20-foot aluminum pick board as a cross member between the ladders. One of the ladders was placed against that portion of the chimney of the house that extended at right angles from the side of the house. The pick board was approximately 12 feet off the ground. In the process of painting, plaintiff noticed a spot that he had missed. In order to reach that spot, plaintiff stepped off the pick board and onto the ladder resting against the chimney; then, when he reached for the spot, the ladder on which he had stepped fell. It is alleged that after plaintiff's fall, it was discovered that one of the rails of the ladder had caused the ground to cave in and had fallen into a void under the surfact of the ground near where defendant Illinois Power previously, on February 14, 1975, had installed the underground gas line.

On appeal plaintiff first contends that the circuit court improperly denied his motion for judgment notwithstanding the verdict against defendant Gorazd on plaintiff's claim under the Structural Work Act. In this regard, motions for a directed verdict and judgment notwithstanding the verdict are properly granted "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14.) As stated by the court in Kochan v. Commonwealth Edison Co. (1st Dist.1984), 123 Ill.App.3d 844, 79 Ill.Dec. 367, 463 N.E.2d 921, in order for a plaintiff to recover in an action brought under the Structural Work Act, a plaintiff must establish that: "(1) he was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused his injuries; (6) the defendant had charge of the work; and (7) the defendant wilfully violated the Act's safety standard. [Citation.]" (Kochan v. Commonwealth Edison Co. (1st Dist.1984), 123 Ill.App.3d 844, 848, 79 Ill.Dec. 367, 370, 463 N.E.2d 921, 924.) Where several such issues are submitted to a jury, the return of a general verdict, as in the case now before us, creates a presumption that all material issues of fact upon which proof was offered were found in favor of the prevailing party. (Perry v. Saleda (3d Dist.1975), 34 Ill.App.3d 729, 735, 340 N.E.2d 314, 319; see Peoples v. Granite City Steel Co. (5th Dist.1982), 109 Ill.App.3d 265, 270, 64 Ill.Dec. 811, 816, 440 N.E.2d 363, 368; Moulton v. Shell Oil Co. (5th Dist.1976), 38 Ill.App.3d 524, 526, 347 N.E.2d 825, 827.) Accordingly, in order for plaintiff to prevail on the instant appeal, this court must find that the evidence of defendant Gorazd's liability was so clear that under the rule in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the contrary verdict in favor of Gorazd cannot stand. Thus, if this court determines that plaintiff has failed to meet the Pedrick standard for any one of the above-enumerated elements of proof, we are required to uphold the circuit court's denial of plaintiff's motion for judgment notwithstanding the verdict. An examination of the record in the case at bar leads us to conclude that the evidence introduced at trial presented a disputed question of fact as to the existence of a wilful violation of the Structural Work Act, a question which must therefore be left to the jury for resolution. (Peoples v. Granite City Steel Co. (5th Dist.1982), 109 Ill.App.3d 265, 64 Ill.Dec. 811, 440 N.E.2d 363.) The grant of judgment notwithstanding the verdict under such circumstances would have been improper and the circuit court's refusal to do so was thus not error.

A wilful violation of the Structural Work Act occurs when one having charge of the work knows that a dangerous condition exists or by the exercise of reasonable care could have discovered the existence of the dangerous condition. (Lyle v. Sester (2d Dist.1981), 103 Ill.App.3d 208, 214, 58 Ill.Dec. 667, 672, 430 N.E.2d 699, 704.) We are unable to say that the evidence overwhelmingly supports the conclusion that the unstable condition of the ground upon which plaintiff erected his scaffold was known to or, by the exercise of reasonable care, should have been known to defendant Gorazd. Indeed, the fact that the plaintiff, who himself erected his scaffold upon that ground, was unable to detect its unstable condition is evidence that the condition was not readily discernible. Plaintiff relies on the case of McInerney v. Hasbrook Construction Co. (1975), 62 Ill.2d 93, 338 N.E.2d 868, a case in which a jury returned a verdict holding the contractor liable for a wilful violation of the Structural Work Act. In McInerney, the plaintiff had sustained injuries as a result of a fall from a ladder which had been placed on a back-sloping driveway which was covered with construction debris. However, the fact that the unstable placement of the ladder was plainly visible to the contractor in McInerney distinguishes it from the case at bar.

Furthermore, in McInerney the circuit court's granting of a motion for judgment notwithstanding the verdict was reversed on appeal to the appellate court, and the supreme court affirmed the appellate court. The supreme court determined that because the evidence presented was sufficient to raise a question of fact and the determination of that question was for the jury, the grant of judgment notwithstanding the verdict was improper. (62 Ill.2d 93, 103, 338 N.E.2d 868, 874.) As we have indicated, the evidence concerning whether defendant Gorazd knew or should have known of the unstable condition of the ground on which plaintiff erected his scaffold presents a disputed question of fact. We are not free to reweigh the evidence or assess the credibility of the testimony and set aside a jury's verdict merely because a different conclusion could have been drawn from the evidence. (Katz v. Shaf Home Builders, Inc. (1st Dist.1981), 94 Ill.App.3d 526, 528, 49 Ill.Dec. 802, 804, 418 N.E.2d 822, 824.) This question was properly left for the jury's determination and the circuit court correctly denied plaintiff's motion for judgment notwithstanding the verdict.

Plaintiff next urges that the jury's finding of non-liability under the Structural Work Act is inconsistent with the jury's finding that plaintiff's own negligence contributed to his injuries. Plaintiff contends that the alleged inconsistency exists due to the fact that any conduct for which plaintiff could be found negligent necessarily implies negligence on the part of defendant Gorazd, which in turn would constitute a wilful violation of the...