Tenenbaum v. City of Chicago

• Decision Date: 09 May 1973
• Docket Number: No. 55216,55216
• Parties: Julius TENENBAUM, Plaintiff-Appellee, v. CITY OF CHICAGO, a Municipal corporation, Defendant-Appellant and Counterplaintiff-Appellee, and O'Neil Construction Company, a corporation, Defendant-Appellant and Counterdefendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 716

297 N.E.2d 716

11 Ill.App.3d 987

Julius TENENBAUM, Plaintiff-Appellee, v. CITY OF CHICAGO, a Municipal corporation Defendant-Appellant and Counterplaintiff-Appellee and O'Neil Construction Company, a corporation Defendant-Appellant and Counterdefendant-Appellant.

No. 55216.

Appellate Court of Illinois, First District, First Division.

May 9, 1973.

Addenda May 15, 16, 1973.

Richard C. Valentine, Thomas W. Dempsey, Lord, Bissell & Brook, Chicago, for O'Neil Construction Co., defendant-appellant and counterdefendant-appellant.

John G. Phillips, Chicago (Dom J. Rizzi, Chicago, of counsel), for plaintiff-appellee.

Richard G. French, Howard & French, Chicago, for City of Chicago, defendant-appellant and counterplaintiff-appellee.

GOLDBERG, Justice.

Julius Tenenbaum (plaintiff) brought action for personal injuries against the City of Chicago (City) and O'Neil Construction Company (O'Neil). At the time of the occurrence, plaintiff had been employed by Link Belt Company (Link Belt). The City filed a third-party action against Link Belt and also a counterclaim against O'Neil seeking indemnity from both. Link Belt assumed defense of the City and the third-party action against it was dismissed.

After a jury trial, a verdict was returned against the City and O'Neil in the amount of $150,000. The court directed a verdict in favor of the City on its counterclaim against O'Neil and entered judgment against O'Neil for the full amount of the recovery. The City and O'Neil both appeal.

Plaintiff's original complaint against the City and O'Neil, filed August 5, 1964, contained one count and sought recovery on the theory of negligence. On January 15, 1970, with leave of court, plaintiff filed an amended complaint of two counts against both defendants. One count alleged violations of the Structural Work Act of Illinois (Ill.Rev.Stat.1971, ch. 48, pars. 60--69). The other alleged violations of a City ordinance which incorporated the terms of the statute. City Code of Chicago, ch. 75, sec. 1, etc.

The points raised here by O'Neil fall into two categories. O'Neil urges that the judgment be reversed because the Structural Work Act does not apply as a matter of law; there was no proof that O'Neil violated this Act and there was no evidence that O'Neil had charge of the work as required by the statute. The second category of contentions urges reversal of the judgment and remandment of the cause for a new trial because of trial errors: in the instructions to the jury combined with permitting plaintiff's counsel to read a City ordinance to the jury; refusal of the trial court to permit proper attempt at impeachment of plaintiff by O'Neil and prejudicial final argument by plaintiff's counsel. O'Neil also urges that the judgment in favor of the City on its counterclaim for indemnity should be reversed as a matter of law.

In its separate brief, counsel for the City urge reversal of the judgment as a matter of law because the Structural Work Act does not apply. The City also joins O'Neil in urging that the trial court erred in permitting commingling of the Structural Work Act of Illinois with ordinances of the City and provisions of the contract between the parties and in permitting plaintiff's counsel to read ordinances to the jury. The City also urges, contrary to the position taken by O'Neil, that the court properly entered judgment in favor of the City and against O'Neil for indemnity based upon the contract between them.

Plaintiff maintains that the Structural Work Act is applicable here; the defense of contributory negligence is not applicable to alleged violations of the City ordinance by O'Neil; the jury properly found that O'Neil was in charge of the work and that O'Neil wilfully violated the Structural Work Act. As regards trial errors, plaintiff responds that the court did not err in permitting cross-examination of a witness for O'Neil concerning health and safety rules of the State of Illinois; if such error did exist, it was waived by failure of O'Neil to object; it was not error to permit plaintiff's counsel to read provisions of the City ordinance and also of a manual of Accident Prevention which were incorporated in the construction contract; there was no error with respect to attempted impeachment; no error in the instructions or closing argument; and, finally, no error which in any way affected the outcome of the trial.

The evidence here shows the following material facts. The City contracted with O'Neil to erect an underground water treatment plant as an addition to existing facilities. The work consisted primarily of a concrete structure. O'Neil was one of several general contractors which entered into written agreements with the City. O'Neil also engaged a number of subcontractors. Plaintiff was employed as a labor foreman by Link Belt which was also a general contractor. O'Neil was the first contractor to commence work on the concrete structure. Link Belt was to install certain chemical mixing and scraping equipment which required performance of some concrete work in crecting bases for this purpose.

Plaintiff was injured at a portion of the work referred to as Basin No. 4. This basin consisted of three levels. The roof was at ground level and contained a penthouse resting thereon. Seventeen feet below the ground level was an intermediate floor. Seventeen to 18 feet below this intermediate level was the concrete floor of the basement. Included in the structure was a so-called baffle area designed to check or regulate the flow of water. Above this area there were openings in the concrete floors at each of the levels. On the intermediate level, there was an opening slightly more than nine feet in width. This opening extended through all floors and had been used for hoisting equipment and materials between the lower and upper levels.

On June 8, 1964, plaintiff sent two of his men, also employed by Link Belt, into the area to remove debris and wood which may have been left on the intermediate floor. This area was then checked by the City and plaintiff was told that further work was necessary there. Plaintiff entered the area himself to determine if his personnel had properly performed the work. Part of the area to the west consisted of so-called maze through which the water would flow when the finished work was in operation. Plaintiff walked on the intermediate floor in an easterly direction through a portion of this maze. As he progressed and went around one wall, he found that there was no light. He testified that he tried to turn on temporary light bulbs which did not operate. He thereupon continued, with the use of a flashlight.

As he came toward the baffle chamber on the intermediate level, something hit his arm. As he had progressed toward this point, there had been various types of wood and other material against the wall. He dropped his flashlight and it went out. He started searching on the floor feeling with his hands for the light. As plaintiff searched in the dark, he tripped. As he stumbled, he felt the edge of a ladder with rungs. He testified that in trying to regain his balance, the ladder shifted with him and he could feel the rungs as it slid along a little bit with him. He then fell into space. Plaintiff had fallen through the aperture and to the concrete floor of the basement some 17 or 18 feet below. The nature and severity of plaintiff's injuries are not disputed.

There are various conflicts in the evidence. There is evidence that the hole through which plaintiff fell had been used for hoisting of materials and equipment in connection with the work. There is evidence that, at the time of the occurrence, this hole had been closed at the ground level, which constituted the roof of the project. Also, it appears that this portion of the hole had remained open during the preceding week and was closed shortly before the mishap occurred. There was no barricade in front of the hole at the time of the occurrence. There is also testimony that O'Neil had completed its work in this area prior to this occurrence; although there is evidence that O'Neil had been working on the top level of the structure at the east end, above where the accident occurred, and also at the west end. The evidence shows that O'Neil, as well as Link Belt, had used the hole in question for hoisting purposes. O'Neil produced evidence that it had removed its equipment from the intermediate area and had poured a concreate roof at grade level (the roof) over the entire baffle area some three months before the occurrence.

As regards the lighting on the day in question, the area contained no provision for permanent lighting as it was designed to be under water when the facility was completed. O'Neil had established temporary lighting in the area but there is evidence that it had removed this equipment prior to the occurrence. Link Belt had, however, provided temporary lighting by means of an electric cord and bulbs. Plaintiff testified that the area was dark and that these electric bulbs did not operate.

As regards the ladder, there is evidence that a stepladder had been used at the job to permit access between the intermediate floor and the basement level. Link Belt personnel, as well as O'Neil employees, had used the ladder at the time of the accident and prior thereto. O'Neil offered proof that it had no ladders in the area at the time and that none of its personnel were actually using the area when the mishap occurred. However, there is testimony that the ladder used for access between the basement level and the intermediate area above was some 17 or 18 or even 20 feet long. There is also evidence that Link Belt used only shorter ladders about six to eight feet in length in its work in the area and there is conflicting evidence that there had been a ladder belonging to Link Belt between the levels.

The first issue, raised by O'Neil and the City, is applicability of the Structural Work Act. This revolves...