Pozzi v. McGee Associates, Inc.

• Decision Date: 02 October 1992
• Docket Number: No. 1-91-0522,1-91-0522
• Citation: 177 Ill.Dec. 130,236 Ill.App.3d 390,602 N.E.2d 1302
• Parties: , 177 Ill.Dec. 130 Stephan POZZI, Plaintiff-Appellee, v. McGEE ASSOCIATES, INC., Defendant, McDonald's Corporation, et al., Defendants-Appellants; Knorr & Myers Roofing Company, Third-Party Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1302

602 N.E.2d 1302

236 Ill.App.3d 390, 177 Ill.Dec. 130

Stephan POZZI, Plaintiff-Appellee, v. McGEE ASSOCIATES, INC., Defendant, McDonald's Corporation et al., Defendants-Appellants; Knorr & Myers Roofing Company, Third-Party Defendant-Appellee.

No. 1-91-0522.

Appellate Court of Illinois First District, Sixth Division.

Oct. 2, 1992.

Hinshaw & Culbertson, Chicago (Jos. J. O'Connell, Stephen R. Swofford and Gary J. Bazydlo, of counsel), for defendants-appellants.

Anesi, Ozmon & Rodin, Ltd., Chicago (Curt N. Rodin, Richard A. Kimnach, Martin J. Lucas, of counsel), for plaintiff-appellee.

Justice RAKOWSKI delivered the opinion of the court:

The subject of this appeal is a cause of action filed under the Illinois Structural Work Act (Act) (Ill.Rev.Stat.1983, ch. 48, par. 60 et seq.) by the plaintiff, Stephan Pozzi, against the defendants, McDonald's Corporation, McDonald's Restaurants of Illinois (McDonald's) and Peter Schwabe, Inc. (Schwabe) after plaintiff was injured falling from a roof. Defendants filed a third-party action against the plaintiff's employer, Knorr & Meyers Roofing Co. (Knorr & Meyers). Following a jury trial, a verdict was returned in favor of the plaintiff in the amount of $700,804.33 and in favor of the third-party plaintiffs, apportioning fault as 35% for McDonald's, 37.7% for Schwabe, and 27.3% for Knorr & Myers. Defendants filed a post-trial motion seeking a judgment notwithstanding the verdict or, in the alternative, a new trial. The trial court denied defendants' motion, and defendants filed this appeal. The issues on appeal are: (1) whether the Structural Work Act was applicable to plaintiff's injury; (2) whether it was error for the trial court to exclude evidence that plaintiff had received a warning regarding the slippery condition of the metal flashing; (3) whether the trial court erred in allowing plaintiff's expert to offer an opinion not provided during discovery; and (4) whether the trial court improperly denied defendants the opportunity to cross-examine plaintiff's expert concerning OSHA regulations.

In 1983, McDonald's decided to build a new restaurant in Rockford, Illinois. The successful bidder for the construction contract was Schwabe, a general contractor who had built several other McDonald's restaurants. Schwabe was responsible for hiring the subcontractors one of which was Knorr & Meyers. According to the testimony of McDonald's construction project manager, Mark Goetzinger, specifications on general safety conditions were included in the contract as was a provision that Schwabe insure that all work conform to OSHA standards. Goetzinger also stated that Schwabe was required to follow McDonald's plans and specifications. Earl Barrette, Schwabe's chairman of the Board, and Goetzinger testified that one of these specifications was that the roofers were to be careful not to drip tar on the finished section of the roof. Raymond Riska, the construction engineer for McDonald's, confirmed the concern for the finished roof.

The restaurant was designed to have a "double mansard" roof which was described as a shingled roof which had a lower 30 degree slope and an upper 60 degree slope. The upper portion of the mansard, while resembling a roof, was actually a mansard wall with a flat inside vertical surface. It surrounded a flat surface roof which held heating ventilation and air conditioning equipment. The flat vertical surface extended about three and one half feet above the flat surface roof and surrounded it on the North, West, and East side of the building, leaving the south side open for access to the flat surface roof. After the wooden framework of the mansard roof was constructed a 36 inch wide metal valley or flashing was installed in order to provide a waterproof membrane at the mansard junctures. However, because the surface was flat sheet metal it was slippery.

Knorr & Myers was responsible for applying hot tar on the flat surface roof, and a separate contractor was hired to shingle the mansard roof. The first two days that Knorr & Meyers worked on the project the roofers accessed the flat roof from the south side of the building which had no upper mansard. The plaintiff was one of its roofers. On July 8, 1983, plaintiff and his immediate supervisor Louis Redler, who was the superintendent and owner of the company, sought access to the flat surface roof from the east side of the building. Redler had positioned the tar kettle and ladder on the east side. The tar kettle contained 500 gallons of tar which had been heated to a temperature of 600 degrees. Redler and Harold West, Schwabe's superintendent had previously discussed McDonald's concern about spilled tar on the finished roof. Redler had moved the tar kettle and ladder to the east side of the building in order to avoid this problem. The plaintiff testified that he remembered Redler informing him that he could not use the south end of the building to get to the flat roof because the general contractor did not want tar tracked on the finished roof.

Plaintiff made his first trip up the ladder with some tools which he carried in a five gallon bucket. When he reached the lower mansard he got off the ladder on the right side and angled his way up and to the left to get to the upper mansard because the lower mansard was too steep to climb straight up. When the plaintiff reached the point where the two mansards met, the top of the upper mansard was level with the plaintiff's chest. To climb over the upper portion, he mounted it by swinging his left foot over the crest, straddling the mansard and then descending to the flat roof 3 1/2 feet below. He then dropped off the tools and climbed down in the same manner that he had gone up. On the second trip up plaintiff carried a mop with a six foot handle which was covered with tar. In order to keep the tar from dripping, plaintiff carried the mop in a five gallon bucket. The plaintiff proceeded up the wooden ladder, but when he reached the upper mansard he was unable to lower the mop and pail because the mansard was too high. He placed the mop and bucket on top of the upper mansard and positioned himself to hold it. He then placed his left hand on top of the mansard wall and began to swing his left side over the wall. However, at that point his left heel caught the corner edge of the metal valley, and he slipped and lost his balance. In order to avoid the hot tar from the mop the plaintiff pushed the mop over the edge and slid down the plywood mansard. He fell into the ladder which served as a buffer between himself and the hot tar kettle as he fell to the ground below.

Goetzinger testified that there was no reason why the metal flashing which caused plaintiff to lose his balance had to be installed before the hot roof was put on. Riska stated that McDonald's could have required that the flat roof be completed before the metal flashing was installed on the mansard roof and also could have had the flashing covered. Goetzinger further testified that he believed it to be hazardous for a construction worker to gain access to the flat roof by climbing over the mansard roof, particularly if he was trying to balance a bucket with a six foot mop handle on the six inch ledge of the upper mansard. Riska, who replaced Goetzinger as project manager, gave a similar opinion. Barrette and West stated that the means of access would be safe if there was someone on the roof to accept the equipment.

The witnesses questioned regarding the OSHA standards acknowledged that the provision regarding ladders and scaffolds required an additional ladder for safe access to the upper mansard. West conceded that he could have ordered the carpenters on the project to make a ladder. However, Goetzinger testified that he had never seen the type of ladder required by OSHA on this job site and that, even though McDonald's insisted that its contractors adhere to the safety codes and regulations, Schwabe was never required to supply such a ladder.

Goetzinger described a ladder which was part of McDonald's specifications and design . It consisted of a "catwalk" and ladder which was to be attached to the rear of the building and went from the ground level up parallel to the restaurant. It then sloped from the south end with the catwalk running from the ladder to the flat roof. The catwalk also had handrails for support. This structure would provide access to the flat roof other than via the sloped roof. However, the witnesses testified that the catwalk structure was usually set up close to or at the end of the project after the tarring of the flat roof had been completed. There was conflicting testimony as to whether the structure could be set up earlier in the project and before the flat roof was tarred.

Dennis Pulchalski, an expert in construction safety, testified on behalf of plaintiff that the mansard roof was not a safe means of access to the flat roof, that a second ladder or the McDonald's designed ladder should have been provided, and that it was unsafe to require plaintiff to carry equipment up the ladder.

After the accident plaintiff filed a complaint against McDonald's and Schwabe which in its final form alleged the following violations of the Structural Work Act: (1) that defendants allowed plaintiff to use the mansard roof as a support to gain access to the flat roof when defendants knew or could have discovered that such access was unsafe; (2) that defendants failed to provide a ladder to gain safe access to the flat roof from the mansard roof; (3) that defendants failed to provide cleats or see that 2x4 cleats were provided for safe access to the flat roof from the mansard roof; (4) that defendants allowed plaintiff to carry a mop and bucket up a ladder and over the mansard when defendants knew or could have discovered that this was an unsafe use of the ladder or mansard support; and (5) that defendants failed to permit plaintiff or other workmen to use the...