Wilfong v. L.J. Dodd Constr.

• Decision Date: 27 May 2010
• Docket Number: No. 2-09-0347.,2-09-0347.
• Citation: 930 N.E.2d 511,401 Ill.App.3d 1044,341 Ill.Dec. 301
• Parties: David W. WILFONG, Plaintiff-Appellant,v.L.J. DODD CONSTRUCTION and G. Porter and Company, Defendants-Appellees (Kluber, Skahan and Associates, Inc., and Kocurek Concrete Contractors, Inc., Defendants).
• Court: United States Appellate Court of Illinois

401 Ill.App.3d 1044
930 N.E.2d 511
341 Ill.Dec. 301

David W. WILFONG, Plaintiff-Appellant,
v.
L.J. DODD CONSTRUCTION and G. Porter and Company, Defendants-Appellees (Kluber, Skahan and Associates, Inc., and Kocurek Concrete Contractors, Inc., Defendants).

No. 2-09-0347.

Appellate Court of Illinois,
Second District.

May 27, 2010.

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Stephen P. Carponelli, Raymond M. Rudnick, Carponelli & Krug, Chicago, for David W. Wilfong.

Curt J. Schlom, Melissa A. Murphy-Petros, Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Chicago, for L.J. Dodd Construction.

Elizabeth A. Knight, Jeanne M. Anderson, Knight, Hoppe, Kurnik & Knight, Ltd., Rosemont, for G. Porter & Company.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, David W. Wilfong, was injured when he fell while walking across ruts at a construction site. He appeals from the trial court's grant of summary judgment in favor of defendants, L.J. Dodd Construction (Dodd) and G. Porter & Company (Porter). Plaintiff argues that: (1) the trial court erred in ruling that the ruts were open and obvious; (2) the trial court erred in determining that the “distraction exception” did not apply; (3) the trial court erred in ruling that the distraction was not reasonably foreseeable by defendants; (4) even if the ruts were open and obvious, defendants owed him a duty to maintain a safe jobsite pursuant to their contracts with the landowner; and (5) the trial court did not give proper weight to an expert's statement attached to plaintiff's motion to reconsider. We affirm.

I. BACKGROUND

In November 2004, plaintiff was a project manager for Jones & Brown Company and was assigned to the Churchill Elementary School project in Oswego. Jones & Brown was a steel fabricator hired by the project owner, Oswego Unit School District 308 (OSD 308). OSD 308 hired defendant Dodd as the general contractor and defendant Porter as a masonry subcontractor. Kluber, Skahan & Associates, Inc. (Kluber, Skahan), was the architectural firm for the project, and Kocurek Concrete Contractors, Inc. (Kocurek Concrete), was hired by OSD 308 to pour concrete.

The following facts come from excerpts of depositions contained in the record. At the time in question, the construction site consisted primarily of the school building under construction and Dodd's job trailer, which was in a paved parking lot about 75 yards west of the school. Much of the site was very muddy and filled with ruts. About 20 to 30 feet or 60 to 70 feet from the job trailer was a gravel path that led from the parking lot to the east entrance of the school. Michael Barr, OSD 308's construction supervisor, testified that Dodd had the path installed after he requested a “smooth walking path” to provide “clear access to the building.” The path satisfied his concerns regarding ground conditions, and he did not think that anything else needed to be done to address the ground conditions. When asked if there was a designated walkway,

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Barr replied in the negative and said that there were “several points of access to the building.” On several occasions he had chosen to walk across the ruts rather than take the gravel path. The number and size of ruts shown in plaintiff's photographs did not look different from other construction sites at that time of year. Barr further testified that Jones & Brown and Porter were hired directly by OSD 308.

Plaintiff testified in his deposition as follows. On November 18, 2004, he was participating in a progress meeting in the job trailer. Plaintiff had been to the jobsite about two to three times a week for the previous two months to inspect progress. About 20 minutes into the meeting, Neal Dodd (Neal) was concerned whether Jones & Brown had enough “sure connectors” delivered to the site. Sure connectors are welded through decking to allow poured concrete to maintain its structural integrity. Plaintiff called his office, and the person in charge of shipping, Mike Milligan, told plaintiff that they had been delivered and told him the quantity. Neal said that the quantity was insufficient. Plaintiff asked Milligan to check again, and Milligan said that he would. Plaintiff decided to leave the trailer to do a physical count. The discussion in the trailer had been heated, and plaintiff was upset with Milligan for not verifying the number of connectors before plaintiff left the trailer. Plaintiff did not know where the connectors were but “[c]ommon sense * * * told [him] that the sure connecters [ sic ] were inside the building and were protected” from the elements because they came in cardboard boxes. “That's the first thing [he] thought about.”

Plaintiff left the trailer at about 9:30 or 10 a.m., and walked over the parking lot, down a grassy area, and down a “drive” that was bare ground with rough terrain but was an access way for vehicles to get to the building. Plaintiff testified that he had to walk in a rut that a truck had made in the drive and that “[f]rom that point on it was at your discretion which way you went. There was no designated path to the job.” Plaintiff explained that the rut in which he was walking in the drive did not lead to the building, so he had to keep stepping in and out of different ruts to make his way to the building. He was walking in a normal manner and was not in a hurry.

The ruts plaintiff was walking in were consistent with the tires of the lulls that bricklayers use to carry bricks. The width and shape of the tire tracks, along with plaintiff's experience, allowed him to identify the source of the tracks as a lull. Porter used lulls on this site. The ruts were generally about 8 to 10 inches deep. He could not walk on the “tops” of the ruts, meaning ground level, because they were unstable; it was like walking on a peak. The ruts themselves went down from ground level. The ruts were a “little hard” because the sun had not come out yet to “soften stuff up.” Low areas of the site were damp and muddy, but the inside of the ruts was “firm.” He believed that he must have been sidestepping from one rut to the next, because he could not cross over and put two feet in the same rut. When plaintiff was stepping from one rut into the bottom of another rut, the “side of the rut * * * gave way” and he lost his balance and turned his right ankle. Just before he fell, he was looking at the ruts and trying to determine his next step.

A few seconds before he fell, Milligan called plaintiff on his cell phone and told him that the quantity of connectors Neal had claimed should be on the site was correct. Plaintiff was on the phone when he fell. Plaintiff was about 25 to 30 yards away from the building and 35 to 40 yards

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away from the trailer. He was wearing high-top boots with steel toes.

For two or three weeks before the accident, plaintiff had complained about the site's condition because trucks could not get close enough to the building to make proper deliveries. Plaintiff said that the site needed to be scraped because the trucks “needed a level laid out surface to bring our material onto the worksite.” Deliveries had to be made about 100 or 150 yards from the building, which was not the usual case for construction sites. Plaintiff believed that leveling ruts was the responsibility of the general contractor, construction manager, or whoever was in charge of safety.

Plaintiff had worked in construction for over 20 years and had 40 hours of a safety training course. The instruction included keeping an eye on the site's ground to watch where you are walking. Plaintiff was familiar with ruts on jobsites and with muddy and rainy conditions, and he was familiar with how to avoid ruts while walking on jobsites. However, this jobsite was substandard regarding the number, length, and depth of the ruts. As a result of his fall, plaintiff fractured his ankle.

Melvin Greathouse testified that he was the general foreman for DTI, which Jones & Brown had hired as a steel erector. At one of the first progress meetings he was involved in, he told Neal that as the general contractor, Dodd was obligated to provide access with a good road and a level dry area to put the steel down. Greathouse believed that the site's condition was even worse than depicted in plaintiff's photos, and he repeatedly complained about conditions. His workers also complained about the muddy conditions when walking to the building site, because “[b]y the time you would get there * * * you would have mud * * * halfway up your thighs.” In his 40 years as an ironworker, Greathouse had been to about 4,500 jobsites. He had been to a few sites with ruts similar to the Churchill School project, but those had been shut down to fix the ruts, whereas Dodd made little to no attempt to fix these ruts. There was one day Greathouse called off his workers due to site conditions.

Ronald Tucek ran Kocurek Concrete. He testified that they were scheduled to pour concrete on November 17 but had to postpone until the 22nd due to rain. Tucek described the conditions as those of a “normal jobsite,” though he also said that it was “pretty muddy” and he was “surprised that they were working in this kind of mud and that the lulls made it through.” Ruts such as those depicted in plaintiff's photos were common on construction sites. The only way to avoid ruts was to put down stone, but it was highly doubtful that any construction contractor would do that because of the expense and the impracticality. Tucek explained that the contractor would then have to remove all of the stone to plant grass. On some projects, his company had been hired to grade out ruts similar to the ruts on this site. However, he had never seen grading done on a daily or weekly basis. Usually, it would be done before a freeze, again in spring after the freeze/thaw cycles, and toward the end of the job. It was a...