Nika v. Danz

• Decision Date: 28 June 1990
• Docket Number: No. 4-89-0547,4-89-0547
• Citation: Nika v. Danz, 556 N.E.2d 873, 199 Ill.App.3d 296, 145 Ill. Dec. 255 (Ill. App. 1990)
• Parties: , 145 Ill.Dec. 255 Paul R. NIKA, Plaintiff-Appellant, v. Warren E. DANZ, Defendant-Appellee.
• Court: Appellate Court of Illinois

Page 873

556 N.E.2d 873

199 Ill.App.3d 296, 145 Ill.Dec. 255

Paul R. NIKA, Plaintiff-Appellant, v. Warren E. DANZ, Defendant-Appellee.

No. 4-89-0547.

Appellate Court of Illinois Fourth District.

June 28, 1990.

Wayne R. Golomb, Springfield, for plaintiff-appellant.

Robert E. Gillespie, Deborah L. Rose, William P. Hardy, Matthew J. Maddox, Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Springfield, for defendant-appellee.

Justice McCULLOUGH delivered the opinion of the court:

Plaintiff, Paul Nika, filed a legal malpractice action against defendant, attorney Warren Danz, alleging Danz was negligent when he failed to file a personal injury action against U.S. Printing Ink (U.S. Ink), the party allegedly responsible for plaintiff's back injuries. Plaintiff appeals from the jury verdict for Danz and raises the following issues for our consideration: (1) whether the trial court violated Supreme Court Rule 239 by giving non-Illinois Pattern Jury Instructions (IPI) instructions where IPI instructions were tendered and applied to the case (107 Ill.2d R. 239); (2) whether the trial court erred in allowing evidence of a fee dispute between plaintiff and Danz and evidence of plaintiff's receipt of a workers' compensation award to be presented to the jury; (3) whether the trial court erred in allowing defendant to cross-examine the plaintiff on the issue of the solvency of U.S. Ink; and (4) whether the trial court erred in allowing defendant's experts to testify regarding plaintiff's contributory negligence in the underlying action involving U.S. Ink and regarding the duty of plaintiff's employer to provide a safe workplace. We affirm.

Plaintiff testified that in 1979 he was employed as a truck driver for the State Journal Register (Register) in Springfield. His duties as a truck driver involved delivering newspapers out of town and, at the time of the accident, performing odd jobs. Plaintiff stated that on November 1, 1979, he went to the Register's Ninth Street facility in Springfield to pick up a barrel of ink. Plaintiff testified U.S. Ink was delivering ink at the Ninth Street facility on that day, and he saw the ink truck when he arrived at the loading dock to pick up the barrel. Plaintiff testified the black ink used in printing newspapers is delivered by hose from a tanker truck to an ink spout inside the Register building near the loading dock. Plaintiff testified that prior to the day of his accident, if the ink company spilled any ink, the ink company would clean it up with rubber gloves and rags. Plaintiff stated he was on the other side of the loading dock picking up some bundles of newspapers while the ink truck was delivering ink.

After the ink truck left, plaintiff stated he moved his panel truck over to the area where the ink truck was parked. Plaintiff backed his truck up to within 20 inches of the edge of the loading dock, and stepped out of the truck onto the loading dock. The barrel was located in the center of a floating dock which was 5 to 6 feet above the surface of the loading dock. Plaintiff stated that because the bed of the truck was six inches below the surface of the floating dock, when moved, the barrel would drop into the truck as it came off the floating dock.

Plaintiff described the barrel as a 55-gallon drum that was bolted closed. Plaintiff stated he grasped the top of the barrel with one hand and began sliding the barrel toward the truck with the other hand whenhis feet slipped out from under him and he fell backward on the loading dock, with the barrel falling on top of him. Plaintiff stated he slipped on a piece of cardboard which had been put down on the loading dock to cover an ink spill. Plaintiff stated he did not look down at the loading dock as he stepped off his truck and, therefore, did not notice the cardboard. Plaintiff stated he reported the accident to his supervisor, Tony Denk. The rim of the barrel landed on plaintiff's groin. Plaintiff stated he had loaded ink barrels in the same manner before November 1, 1979. Plaintiff stated he finished his job on November 1, but experienced headaches, backaches, a stiff neck, and urinary problems. Plaintiff testified he continued to have urinary problems after seeing several doctors, had trouble concentrating and suffered from bad headaches.

On cross-examination, plaintiff was impeached with his prior testimony given in two depositions taken in 1985 for this case. In the depositions, plaintiff stated the loading dock was 5 1/2 feet off the ground; the barrel was sitting in the middle of the floating dock, protruding one-half inch over the north edge; the top of the barrel was higher than the top of the truck; and the weight of the barrel was about 300 pounds. Plaintiff admitted that if he looked down, he would have seen the cardboard on the loading dock. Plaintiff also stated that he was aware of prior spills of ink. Plaintiff stated he did not see anyone near the ink truck on November 1, 1979, including janitorial staff for the Register.

Anton Denk was plaintiff's supervisor at the Register. Denk testified that after plaintiff told him about the accident on November 1, he observed two pieces of cardboard over an ink spill on the loading dock. Denk also testified that ink spills often occur after an ink delivery and the ink company is responsible for cleaning up the spill or for getting someone else to clean it up. Denk recalled a previous ink spill where U.S. Ink paid the Register's janitors to clean up the spill. Denk stated that since the accident, plaintiff had become forgetful on the job, wore a back brace, began turning down overtime, and suffered from urinary problems. Denk stated printing ink is as thick as molasses and oily.

On cross-examination, Denk admitted he had not observed very many deliveries of ink. Denk also stated that ink trucks do not have the equipment to clean up an ink spill. Denk stated that it is Register policy that employees get help when loading heavy objects. He also stated that the lighting on the loading dock allowed drivers to see any ink spills on the dock. Denk stated he did not know who put the cardboard on the ink spill on November 1, 1979, and he did not know anything about a contract between the Register and U.S. Ink for cleaning up ink spills. On redirect, Denk stated he had seen U.S. Ink drivers clean up spills in the past.

Norman Antonacci, a janitor for the Register, testified for plaintiff that there are frequent spills of ink and he recalled a spill in the past when U.S. Ink paid Register employees directly to clean up a spill. Antonacci stated that if a truck driver did not clean up the ink, it was his responsibility to clean it up.

Dr. Clem Gotway, an internist and plaintiff's family physician since 1962, testified he treated plaintiff for his November 1979 injury. Gotway testified he referred plaintiff to Dr. Schroeder for physical therapy and to Dr. Trautmann for the urinary problems. Trautmann diagnosed plaintiff's urinary problem as prostatic urethritis. Gotway testified plaintiff was hospitalized in 1980 under the care of Dr. McVary, who was unable to give a firm diagnosis for plaintiff's urinary problem. Gotway testified plaintiff saw Drs. Good and Couch, both neurologists, for the headaches and seizures plaintiff was experiencing. Dr. Couch could not determine the cause of plaintiff's seizures and prescribed Dilantin. Gotway further testified plaintiff saw Dr. Taylor for chest pain and Drs. Madison, Rozhart and Texter for the urinary problems. When asked whether the November 1979 accident could have caused plaintiff's physical problems, Gotway stated he could only say that plaintiff did not have any of the physical problems before the accident in November 1979.

On cross-examination, Gotway was impeached with his own medical records for plaintiff, which indicated that in 1978, plaintiff complained of dizziness and urinary problems, in 1977 of back pain, and in October 1979 of chest pain. Gotway admitted there was no medical evidence linking any of plaintiff's physical problems with the November 1979 accident. Gotway testified that a diagnosis of plaintiff's problems was complicated by the nature of the problems and the number of work-related accidents plaintiff had between 1979 and 1985. Gotway stated that since the source of the problem could not be found and the date of the onset of the symptoms was November 1979, he concluded the November 1979 accident caused plaintiff's physical problems.

Dr. Victor Trautmann testified he examined the plaintiff on January 13, 1980. At that time, Trautmann determined plaintiff's incontinent problems were caused by nervousness. Trautmann testified after plaintiff was treated with Valium, his condition improved. Trautmann testified he saw plaintiff every three months until August 1980, when plaintiff reported he was much improved. Trautmann expressed no opinion as to whether plaintiff's accident in November 1979 caused the urinary problems and stated his opinion was consistent with that given by Dr. McVary.

Plaintiff testified he contacted Danz in August 1980 after he saw Danz's name posted in the union hall. Plaintiff testified he told Danz at their first meeting about the ink spill and that he wanted Danz to represent him and file an action against U.S. Ink. Plaintiff testified that U.S. Ink was a "big money maker" company because it had been hauling ink for as long as plaintiff had worked for the Register. Plaintiff stated he was not concerned about workers' compensation because the Register was not responsible for the spill. Plaintiff stated Danz told him he would "handle it." Plaintiff admitted he received letters from Danz which referred to the Industrial Commission. Plaintiff testified he told Danz more than once his main concern was U.S. Ink and not the workers' compensation case. Plaintiff stated that after he had some discussions with friends who suggested that the statute of limitations on an action...