Urman v. Walter

• Court: Appellate Court of Illinois
• Writing for the Court: WILSON; SULLIVAN, P. J., and MEJDA
• Citation: Urman v. Walter, 428 N.E.2d 1051, 101 Ill.App.3d 1085, 57 Ill.Dec. 371 (Ill. App. 1981)
• Decision Date: 13 November 1981
• Docket Number: No. 79-2471,79-2471
• Parties: , 57 Ill.Dec. 371 Frank URMAN, Plaintiff-Appellee, v. Fred WALTER, Abe Baroud, Gerald Salemi, d/b/a Vermont Street Investments, Defendants-Appellants.

Page 1051

428 N.E.2d 1051

101 Ill.App.3d 1085, 57 Ill.Dec. 371

Frank URMAN, Plaintiff-Appellee, v. Fred WALTER, Abe Baroud, Gerald Salemi, d/b/a Vermont Street Investments, Defendants-Appellants.

No. 79-2471.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 13, 1981.

[57 Ill.Dec. 373] Schaffenegger, Watson & Peterson, Ltd., Chicago (Donald G. Peterson, Chicago, of counsel), for defendants-appellants.

Anesi, Ozmon, Lewin & Associates, Ltd., Chicago (Maureen A. Mitchel, Curt N. Rodin, Chicago, of counsel), for plaintiff-appellee.

WILSON, Justice:

Following a jury trial, defendants were found liable to plaintiff under the Structural Work Act. (Ill.Rev.Stat.1979, ch. 48, par. 60 et seq.) The trial court entered judgment against defendants in the amount of $83,232.50 for injuries plaintiff suffered when a 600 pound steel truss fell on his leg. Defendants appeal, contending that (1) the Structural Work Act is inapplicable to the circumstances of this case; (2) the trial court erred in preventing defendants from amending their answer to plead that plaintiff was their employee, which may have constituted a defense under the Workmen's Compensation Act (Ill.Rev.Stat.1979, ch. 48, par. 138.5); (3) the judgment should be reversed because of plaintiff's counsel's prejudicial closing argument; and (4) the trial court abused its discretion in allowing plaintiff's expert witness to testify after he had failed to give defendants his deposition. We affirm the trial court.

Plaintiff, a structural ironworker, was injured on September 21, 1974 while he was working at a construction site in Palatine, Illinois. The individual defendants owned Vermont Street Investments, which was the general contractor for the construction project. Defendant Walter took the most active role as general contractor for the erection of the structural steel, scheduling and coordinating the steel erection. As general contractor in charge, he was also responsible for safety on the job site.

Walter had originally hired Jim's Welding Service to erect the steel columns, beams, and trusses into a grid so that the roof decking could be laid. By the day of the occurrence, however, Jim's Welding had only partly completed the work and could not continue. Walter therefore contacted another ironworker, Lenny Arfstein, who worked for Corbetta Steel Company, and arranged for him and his co-workers, including plaintiff, to finish the job on a weekend.

When plaintiff and the other ironworkers arrived at the site, the perimeter and partition brick walls of the building were completed. The interior ground had been filled with gravel, clay, and unrefined sand, which had been graded once before the masonry work was begun. The roof trusses, which were to be placed on top of the beams, were outside the building when the ironworkers arrived. They moved them inside with a crane and placed them directly on the ground. At that time, the ground was bumpy and full of ruts because it had been used by forklifts, trucks, and cranes after being graded once.

In the early afternoon of the day of plaintiff's injury, a heavy rain fell and stopped the ironworkers for approximately 30 minutes. Shortly after the rain ceased, the men returned to work. Plaintiff and Herman Johnson, the ironworker's foreman, began the necessary procedures to lift the trusses in place on the roof beams. Just before the accident, Johnson and plaintiff were preparing to attach a choker or sling around one of the trusses so that they could hook the other end onto the crane that would lift it into place. Suddenly, several trusses fell over and pinned plaintiff to the ground, breaking his ankle. He was taken to a hospital for treatment.

Plaintiff filed suit against defendants on October 17, 1975, seeking $200,000 in damages for his injuries.

In October of 1979, the trial began. Plaintiff first called defendant as a witness under section 60 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 60.) Walter admitted that he was the general contractor in charge of safety on the job site. He testified that he was familiar with the practice of using cribbing or wood supports to stabilize trusses. He also testified that plaintiff was not his employee.

Plaintiff then presented three witnesses who testified as to the customs and practice of the ironworking industry with respect to the support of trusses on job sites. Herman Johnson, the foreman, was an ironworker with 24 years of experience. He stated that the "normal procedure" was to put the trusses on four-by-four planks of lumber to make them level and prevent them from rolling. Johnson further testified that when he asked defendant Walter for lumber to be used for such support, he was told that there was none available.

James Finney, an ironworker with 12 years experience, also testified from his personal knowledge that the custom and practice in the ironworking industry was to support trusses with heavy lumber to support and stabilize them. He further testified that the general contractor is the party responsible for providing such cribbing.

In addition to the other two witnesses, Charles Schultz testified for plaintiff, over defense objections, as an expert on industry practices. His experience included a total of 101/2 years as a safety inspector for state and federal government agencies. At the time of trial, Schultz worked as a construction safety consultant for general contractors. In his opinion, based on plaintiff's counsel's hypothetical, the trusses had been placed on unstable ground without sufficient support and created a dangerous situation that violated the rules and general practices of the construction industry. He further testified that four-by-fours, four-by-sixes, or railroad ties should have been used as cribbing for the trusses, to protect the workers.

Dr. Robert W. Alfini, plaintiff's treating physician, described the injury and the surgical procedures used to repair plaintiff's broken ankle. He also testified that plaintiff wore a leg cast for approximately 12 weeks. Subsequently, he underwent physical therapy. By the time of trial, although the break had healed, plaintiff still suffered from some permanent damage to the soft tissue surrounding the fracture. He continued to suffer pain upon prolonged activity and changes in the weather.

After plaintiff rested, defendants moved for leave to amend their answer to plead the affirmative defense that plaintiff was defendants' employee. They proposed to show that since plaintiff collected unemployment compensation from defendants, he was barred from suing them under the Structural Work Act. Plaintiff objected on the grounds that such an amendment was untimely. Further, he argued that defendant Walter's admission that plaintiff was not his employee was a binding admission on that issue. The court allowed defendants to file the motion for the record but denied leave to amend the pleadings to add the affirmative defense.

Defendants then called the court reporter who had been present during plaintiff's deposition on July 21, 1977. She read portions of the deposition into the record. ¹

At the close of their case, defendants moved for a directed verdict, which was denied. The jury was instructed, following counsels' closing arguments, and they returned a verdict in favor of plaintiff.

OPINION

I.

The principal issue of this appeal involves the scope of section one of the Structural Work Act, which provides:

"(A)ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing alteration, removal, or painting of any house, building, bridge, viaduct or other structure, shall be erected and constructed in a safe, suitable, and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon."

Ill.Rev.Stat.1979, ch. 48, par. 60.

The Structural Work Act is designed to protect workers engaged in extra-hazardous activities from certain risks inherent in the nature of their jobs. (E.g., Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill.2d 121, 302 N.E.2d 64; Crist v. Debron Corp. (1981), 96 Ill.App.3d 668, 52 Ill.Dec. 134, 421 N.E.2d 997.) Although the Act should be liberally construed (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 317 N.E.2d 573), it is not intended to cover all injuries that may occur on or near a construction site. Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill.2d 533, 263 N.E.2d 817.

The elements of a cause of action under section one include the following: (1) the device involved must be one listed in the Act; (2) the device involved must be used in the construction of a building or "other structure" within the Act; (3) the device must be unsafe, or not safely placed or operated (or there must be the failure to provide such a device); (4) defendants (those who are "in charge of" the work) must have "wilfully" violated the Act; and (5) plaintiff's injury must be proximately caused by defendants' violation. (Ring, The Scaffold Act: Its Past, Present and Future, 64 Ill.B.J. 666, 670 (1976).) The pending appeal involves only the first element, whether the cribbing that should have been placed under the trusses is a device that is covered by the Act.

Defendants argue that there is no "scaffold" in this case and no duty to provide one. In essence, they equate the words "hoists, cranes, stays, ladders, supports, or other mechanical contrivances" with the word "scaffold," which they contend is a term of art with a restricted meaning. Defendants strongly urge us to hold that, for purposes of Structural Work Act...