Varilek v. Mitchell Engineering Co.

• Decision Date: 27 June 1990
• Docket Number: No. 1-88-2475,1-88-2475
• Citation: 558 N.E.2d 365,146 Ill.Dec. 402,200 Ill.App.3d 649
• Court: United States Appellate Court of Illinois
• Parties: , 146 Ill.Dec. 402 James L. VARILEK, Plaintiff-Appellant/Cross-Appellee, v. MITCHELL ENGINEERING COMPANY, et al., Defendants-Appellees/Cross-Appellants.

Page 365

558 N.E.2d 365

200 Ill.App.3d 649, 146 Ill.Dec. 402

James L. VARILEK, Plaintiff-Appellant/Cross-Appellee, v. MITCHELL ENGINEERING COMPANY, et al Defendants-Appellees/Cross-Appellants.

No. 1-88-2475.

Appellate Court of Illinois First District, Third Division.

June 27, 1990.

Philip J. Nathanson, Larry E. Weisman and Robin R. LaFollette, Chicago, for plaintiff-appellant/cross-appellee.

James Kirk Perrin, Mary Beth Denefe, Robert J. Feldt, Chicago, for defendants-appellees/cross-appellants.

Justice RIZZI delivered the opinion of the court:

Plaintiff brought a personal injury action against defendant Mitchell Engineering Company (Mitchell), a division of Ceco Corporation, and former defendants not involved in this appeal. Mitchell filed a third-party action against the plaintiff's employer, Phalen Steel Erectors (Phalen). The former defendants were dismissed as a result of settlement agreements that they entered into with the plaintiff. The third-party action was dismissed as a result of a settlement agreement that was entered into between Phalen and the plaintiff. In Phalen's settlement agreement with the plaintiff, Phalen agreed to waive its workmen's compensation lien.

At the close of plaintiff's case-in-chief, the trial court granted Mitchell's motion for a directed verdict as to a willful and wanton count. The case went to the jury on plaintiff's product liability count and Mitchell's affirmative defenses of assumption of risk "and/or" misuse. The jury found in favor of plaintiff on liability and assessed his damages in the amount of $3,943,750.00. However, the jury also found that 63% of the plaintiff's damages was due to assumption of risk and/or misuse. Thus, the amount of plaintiff's damages to be recovered was reduced to $1,459,187.00.

Plaintiff filed a post-trial motion seeking a judgment notwithstanding the verdict for the full $3,943,750.00 in damages found by the jury or a new trial on damages only, or a new trial on liability and damages, and costs. Mitchell filed a post-trial motion seeking a set-off for the amount of settlements reached between plaintiff and former defendants, and seeking a set-off for the amount of the workmen's compensation lien that was waived by Phelan in its settlement agreement with the plaintiff.

The trial court ruled that plaintiff was entitled to costs as the prevailing party. However, the trial court entered judgment in favor of plaintiff for zero damages on the basis that plaintiff's settlement amounts with former defendants and costs exceeded the $1,459,187.00 that plaintiff was to recover as a result of the reduced verdict. The trial court also ruled that the waiver amount of the workmen's compensation lien by Phalen is not to be included as part of the set-off.

Plaintiff has appealed. Plaintiff's relevant contentions are that (1) there was no evidence of assumption of risk or misuse; (2) the trial court erred in granting Mitchell's motion in limine barring plaintiff's expert from testifying as to inflation and real wage growth and from using actual rather than neutral numbers in computing present cash value; (3) the trial court erred in granting Mitchell's motion for a directed verdict as to the willful and wanton count; and (4) the trial court erred in applying plaintiff's award of costs as part of the set-off. Plaintiff therefore concludes that he is entitled to a judgment notwithstanding the verdict by reinstating the totality of the damages assessed by the jury, or alternatively, to a new trial on damages only, or to a new trial on liability and damages.

Mitchell has cross-appealed as to the trial court's ruling regarding the exclusion of the waiver amount of Phalen's worker's compensation lien as a set-off, and as to the trial court's ruling regarding the propriety of awarding certain items as costs. Mitchell has not appealed the jury's verdict as to liability on the product liability count.

We vacate the judgment entered in the trial court; enter judgment on the verdict in favor of the plaintiff and against Mitchell as to liability; enter a judgment notwithstanding the verdict in favor of plaintiff on Mitchell's affirmative defenses of assumption of risk and misuse; vacate all set-offs and costs; grant plaintiff a new trial on damages only; and remand for a new trial on damages only.

Plaintiff, age 32, was injured on June 5, 1979. He was employed by Phalen as a journeyman ironworker, and was working on the erection of a one-story, 16 to 20 feet high, prefabricated steel building, known as the Sinnissippi Saw Mill Building, located in Oregon, Illinois. The building was about 60 feet wide and 100 feet long, with a lean-to or shed that juts out as an extension of the building.

The prefabricated parts and material for the building were manufactured and sold by Mitchell as a building kit. Plaintiff had been working on the erection of the building four or five days before the accident occurred. On the day of the occurrence, the concrete floor and the metal framework for the building had already been erected. The metal roof framework consisted of beams, truses, rafters, eave struts, purlins and wind brace rods.

The rafters are beams that are used to support the roof. They form columns which are 20 feet apart. The 20-foot space between each column is called a bay. On one side of the building, the rafters run from west to east and are pitched, rising one inch for every 12 inches, to the center line of the roof. On the other side of the building, the rafters have the same pitch but run from east to west to the center line of the roof. A shallow peak is formed where the rafters meet at the center of the building. The pitch for the roof is slight, just enough to allow rain water to run off the roof.

The eave struts are horizontal members which make up the perimeter braces for the length of the roof, and they run from north to south. An eave strut is straight iron about 20 feet long and eight inches high. Its ends are C shaped. The top of the eave strut is a ridge about four inches wide, and the bottom is a ridge about five inches wide with an upward lip at the end.

The purlins are horizontal members that are secured to the top of the rafters, and run parallel with the eave struts for the entire length of the building from north to south, and are set four feet apart. A purlin is straight iron about 20 feet long and about eight inches high. It is shaped with an outward projecting flange at the top, and an inward projecting flange at the bottom. The top and bottom flanges are each three inches wide.

The wind brace rods are three-eighth inch steel rods that are about 21 feet long. There are two rods for each bay. The two rods are bolted into the rafters and run diagonally criss-crossing underneath the purlins from one rafter column to the next rafter column in each bay. The two criss-crossing rods make an X configuration underneath the purlins for each bay. The rods are "used to plum up the iron before you put up the walls and the roof." Also, "in a nutshell, it is an attempt to make a four-cornered structure into two, three-cornered structures that are much more rigid."

The roof for the building was in the process of being installed at the time of the occurrence. The roof consists of panels that are about three feet wide and 20 feet long. The panels are made of Galvalume, which is galvanized sheet steel, and they have vertical parallel ridges that are uniformly spaced about every 12 inches. When the panels were supplied by Mitchell, they were covered with a heavy and excessive film of oil which, according to the jury's verdict, made the panels unreasonably dangerous for their intended use, including their installation. No appeal has been taken from this aspect of the jury's verdict, and Mitchell does not argue that the unreasonably dangerous condition of the panels was not a proximate cause of plaintiff's injury.

The panels became coated with the heavy excessive oil during the manufacturing process. The oil was used to prevent damage to the coating of the material that was used to make the panels. The oil prevented scratches and rusting during the packaging, shipping and erection of the panels. Prior to the occurrence in this case, Mitchell had received complaints from other jobs about excessive oil on the panels and that the excessive oil caused the panels to be slippery. In an effort to reduce the thickness of the oil coating on the Galvalume sheet steel, Mitchell and the manufacturer of the sheet steel conducted experiments with different types of oils. There is documentary evidence that Mitchell requested the manufacturer of the sheet steel to reduce the oil surface in order to thereby reduce the "slippery condition for roofing crews." Also, Mitchell took other steps attempting to solve the problem, such as installing a squeegee bar on the roll forming line for the sheet steel at one of its plants, and wiping excessive oil off with rags at another plant. In addition, Mitchell placed a warning label upon each bundle of panels when the panels were delivered. However, the warning label merely stated that the panels had been "lightly oiled" to protect against weather damage. The warning label also provided that "when installing panels on buildings, chicken boards or other equipment may be required for safety." In 1981, subsequent to the occurrence in this case, the problem of the heavy excessive oil on the panels was corrected by substituting the use of a vanishing oil, which dissipates when exposed to the atmosphere.

In the present case, the panels were delivered to the job site by Mitchell in bundles as part of the kit for the prefabricated building. A crane was used to set the bundles at various locations on the rafters and purlins. The ironworkers would then take the panels from the bundles and install them. Prior to the time that a panel was installed, fiberglass insulation, which was supplied in rolls approximately three...