*1 Rather, answer and ex- may simply questions case law. counsel are surrounding the facts and circumstances matters which plain alleged adequately his client to demonstrate that he was at trial.” represented Krankel, if,
As the court out in after the supreme pointed hearing, not, fact, as- trial court finds that defendant did receive effective If, counsel, however, trial. sistance of court shall order new trial court determines that the defendant the effective assist- received motion, denies the the court post-trial ance counsel and otherwise and sen- standing shall a new trial and leave defendant’s conviction deny tence for theft from the If the trial court denies the defendant person. trial, he can still on the of his assertion of the ineffec- appeal new basis pro post-trial assistance of counsel or his other claims made in the se tive motion. in part.
Affirmed in reversed and remanded part; JJ., HARRISON, concur. WELCH and BROTHERS, INC., Defendant- DALE, Plaintiff-Appellee, JAMES v. LUHR Appellant.
Fifth District No. 5 — 86—0583 Rehearing August 1987. July denied Opinion filed 1987.— *2 Daryl Price, F. Sohn Halpern, and John R. of Goldstein both & St. Louis, Missouri,for appellant.
Cook, Eeefe, Ltd., (Bruce Cook, counsel), Shevlin & of Belleville N. appellee. JUSTICE WELCH delivered the court: Plaintiff James Dale commenced this Jones Act sec. (46 U.S.C. (1983)) case in County. trial, judge St. Clair After a bench Brothers, Inc., found Luhr to plaintiff defendant liable in the amount $1,654,704. appeals. Defendant There is no cross-appeal. as a employed plaintiff heavy machinery operator. spent Plaintiff about half his for defendant employment on land *3 the other half on the water. At the time his was in injury of plaintiff L1000, his second week as the dragline operator second-shift on the a 175-foot-long 150- to in revetment at spud engaged a construc- on tion site the Illinois of the River. beginning bank Since Mississippi this period plaintiff two-week had no other duties. His work week of dragline operator days According consisted six 10-hour a week. to record, dragline the the chief difference a and a is that between crane dragline’s by a bucket is affixed to the cables rather aby boom than Revetment, control, or rigid connection. erosion in this case consisted or the riprapping paving riverbank with rock. The L1000 was which spud barge called a because the held the spuds the place on river bottom. The L1000 with a winch equipped was house a The of the L1000 portable and toilet. remainder crew of the of an oiler for dragline, plus consisted maintenance the responsible kept who controlled the a the spuds winchman laborer who clean, barges tugboat L1000 tied off brought by rock and “switched lines, out the handled no did not clean or maintain empties.” Plaintiff leaks did not barge, perform any pumping, the did not or repair lower the the spuds raise or when L1000 was moved. When plaintiff home, on the worked L1000 he ate and at for the mid- slept except was dragline the L1000. ate on meal, generally he shift which on the about moved It could be of the L1000. to the deck affixed plaintiff When on the shore. and used off the L1000 or driven L1000 tug- on the to the L1000 rode usually L1000 he shift on the began a a radio Plaintiff wore its crew. Bob, had own boat, the MV A1 which There A1 Bob. the MV with in constant contact he kept with which during work the L1000 locomotion of means of common were two as- no physical the L1000 -with A1 the MV Bob moved Usually shift. plain- the when tug signalled although plaintiff plaintiff, sistance from A1 Bob of the MV pilot told the moved and tiff needed the L1000 method of this witnesses to defendant’s According to move it. where occasions, time. the other to of the On used 90% 95% locomotion was the move available, controlled the A1 Bob was not when MV deter- in a direction to the riverbed dragline the bucket by dropping was desired. movement or downstream by upstream mined whether this method was superintendents to one of defendant’s According Regardless 150 feet. of no more than used for movements generally the used, spuds the raised travel winchman of which method of was blasts, numbered horn consisting of according signals, to plaintiff’s signalled position plaintiff the reached the desired and when L1000 According necessary spuds. horn blasts to the by drop the winchman bank, the (cleaning) if dragline dragging to plaintiff, all of the move- L1000 as often as 15 minutes and every was moved shift, ment, accomplished feet up couple per “a thousand” that on occasion testimony There was also tug. without aid of dragline barges using rock dragline operators empty moved bucket. climbing to he was July
Plaintiff testified at trial that on the slipped his left foot dragline’s begin cab to his shift when deck, handhold, fell to the track; he on a dragline grip rope lost his drag- tied of the cab injured. Apparently rope and was equipped The manufacturer agents line or servants of defendants. 88B, handrail with a dragline, a Bucyrus-Erie cab tes- witness, Creighton, Donald Plaintiff’s Professor mounting. expert dangerous because tified that in his handhold rope a mechani- Creighton, Professor rigid. and was not rope made of this never type, he seen a crane engineer, cal testified had never *4 handhold, not talk did using particular tried the crane this mounting safe, and had thought it to out if was they to who used find anyone to subject on the of safe access expert testified as an never before dragline the mounting handle made rope cranes. Plaintiff testified the times in dragline many to mount the and he used this method easier the past without mishap. supervisory Three of defendant’s personnel and seven union-member at trial employees testified on defendant’s behalf, witness, expert as did one a marine surveyor engineer. and One testified the supervisor handhold in the rope was installed late use, 1970s and was still in and no had accidents been attributed to it. The other two supervisors testified the handhold was in use 10 years without of problem. Each employees union-member testified he used the handhold many times and felt it safe. was Defendant’s ex- his pert testified that in trial opinion testimony based and his observations made up while and from the cab of the climbing down dragline the was handhold safe and OSHA complied (the Occupa- with tional Safety and Health Act U.S.C (29 seq. of sec. et (1983)))regulations. Many the witnesses described or demonstrated process using cab, handle to access rope gain to the photographs setting handle and its were in evidence at trial. Evidence at trial plaintiff aggravated indicated a prior injury his back in the fall. After the he fall underwent to fuse surgery two in vertebrae his lower back. The surgery successful. partly An orthopedic surgeon defendant’s behalf that in testifying stated his second surgery had about an chance of success. An- 80% other expert medical witness that in his chance deposed opinion the success was as much of recently as 95% light developed techniques. This was the same expert surgeon original who performed sur- A gery. treating physician deposed sure would be plaintiff “per- status cane manently quo, pain, and unable to work.” Plaintiff testi- fied at Vilray Dr. Blair Barnes him Hospital prognosis told for a good second surgery where first unsuccessful and that plaintiff might come out than in. worse he went Plaintiff testified he understood there he guarantees were no did not to un- want dergo a second under these circumstances. surgery
Defendant argues concluding plaintiff trial court erred in (46 his 688(a) (1983)) employer “seaman” U.S.C. sec. entitled sue under the Jones negligence. Act concedes move the L1000 his helped help but characterizes occasional and plaintiff’s comprising portion responsibilities. Dungey minuscule United States Steel Corp. status, the last word this court on the seaman demon issue of problems strates the two central with Act to the applying Jones facts of case. any particular stating
The first is a test of seaman’s in the problem status absence of from Jones Act from the any guidance substantial or Corp. United States Court. In States Supreme United
407 of the the Seventh Circuit test set forth by followed the this court result to do would that otherwise reasoning Court of Appeals, Federal which Illinois court to a case filed in an circuit being test applied in a in an Illinois if the case were filed from the test applied different was the case at test, adhere to in That we district court. which Federal submitting the for evidentiary is an basis bar, is as follows: There if: seaman status as a injured party’s the question trier of fact connec or less permanent the had a more “(1) person injured (2) injured and person in the navigation, tion with a vessel maintenance, operation, the significant contribution to made function of the vessel.” John transportation or welfare of the Co. Beasley v. F. Construction 1984), 742 son John (7th Cir. 1211, cert. 1054, 1062-63, 84 L. denied (1985), 469 U.S. F.2d v. 1180; Dungey United States 328, 2d S. Ct. Ed. 105 545, 499 484, 493, N.E.2d 552-53. Corp. App. 3d status, of in seaman that determining ap problem second two, test, more the as demonstrated vexing by the is the of plying v. United court unani Dungey Corp., States Steel in which this was as to the as to its A applied disagreed application. mous test to be but of this not as a majority Dungey court concluded was a seaman mat the ter of law because were of a crane sit Dungey’s oiling duties crane; of the barge uated on a of repair “per boom no of transportation formed work in connection with the function contrast, Ill. In barge.” (148 553.) physical here assisted numerous plaintiff physically with albeit brief directing of the L1000 and was crew responsible movements of the L1000 and the when L1000 was moved pilot tug accomplished plaintiff’s physi even when movement was without cal assistance. Co., Beasley F. Johnson John Construction
In the Seventh Cir- Johnson, ironworker, cuit concluded an a seaman. Johnson in the removal employed by a structural steel contractor work Illinois bridge of a over the replacement span of a railroad River. work, Plaintiff, charge performing a foreman in the crew in to a used as a work transported daily by tug barge platform crane in the barge supported large river channel. The used removal steel. The had motive power, and erection structural no but downstream, tug it navigation; was nonetheless a vessel moved on construction material was loaded onto from trucks shore where in the On such occasions Johnson assisted with the use a crane. F. Beasley and handled lines. Johnson v. John Construction loading case, as- Co. is distinguishable plaintiff physically from our which 408
sisted in moving the L1000 on a regular basis and supervised the
on
moving
a continual basis. Other distinguishable
urged
cases
defendant for factual
include
comparison
McSweeney v. M. Rudolph
J.
(E.D.N.Y.
Corp.
1983), 575
Supp.
(the
F.
746
plaintiff’s deceased was
never on the barge when it
moving);
Patterson,
Lynn Heyl
&
Inc. (W.T). Pa. 1980), 483 F.
1247
Supp.
(the plaintiff,
ironworker,
an
was aboard the
on
various occasions but did not
operate
crane and had no fixed or usual duties with respect to the
Bel
barge);
lomy v. Union Concrete Pipe
(S.D.
Co.
W. Va.
1969),
F.
Supp.
crane
(the
the plaintiff
operated
dock);
Buna v. Pacific
Line,
Far East
(N.D.
Inc.
1977),
Cal.
441 F. Supp.
(held,
not a
Jones Act “vessel”); McNeill v. J. E. Brenneman
(E.D.
1983),
Co.
Pa.
In light of the discussion, above cannot we conclude plaintiff’s du- ties were not those of a Jones Act “seaman” as a matter of law. In our opinion the issue was at most a of fact question judge for the to determine as the finder of fact.
Defendant argues the L1000 was not a “vessel
in naviga
tion,” citing cases in which a
used
as a construction
primarily
platform was held not to be such a
The
vessel.
issue was one of fact
for the trial
judge
determine unless it could be decided as a matter
(See
of law.
Dungey v. United
Corp. (1986),
States Steel
148 Ill. App.
484, 489,
545,
3d
499 N.E.2d
549.)
cases defendant cites concern
“platforms” unlike the L1000 in configuration or use:
v.
Bernard
Binnings
(5th
Construction Co.
1984),
Cir.
409
River.
Mississippi
upon
and downstream
water but upstream
still
the L1000
that
not
said as a matter
law
In our
it could
be
one of
resolved as
correctly
mere
the issue was
platform;
was a
work
Co.
1952),
v. Massman Construction
(4th
Cir.
fact. See Summerlin
fireman on a
holding
trial court’s
that a
(reversing
week the L1000 and thus as a aboard (Johnson “more or less connection” with the L1000. permanent 1063, 1054, Beasley John F. Construction Co. 1984), Cir. 742 F.2d (7th 1180; cert. denied 328, S. Ct. 1211, 469 U.S. 84 L. Ed. 2d (1985), 484, Dungey Corp. (1986), v. United States Steel 148 Ill. 3d 493- App. 545, the trial 552-53.) The issue was one of fact for (See to determine unless it could decided as a matter of law. judge be 484, 489, Corp. United States this the trial court was entitled to 549.) N.E.2d On evidence of a more or during conclude the second week injured L1000, there no affirm permanent assignment less aboard the duration. plaintiff’s assignment ative evidence that was of a lesser (See Longmire Drilling Corp. (5th v. Sea 610 F.2d 1980), Cir. to mean (“Our holding n.6 on this issue should not taken be platform worker, worker,’ ‘once a nor that one always platform who platform has been a worker cannot become a seaman until he has *** as a seaman for time. is to working been some What be avoided is engrafting upon judicial classification of a ‘seaman’ a statutory gloss elusive, so or as to protean, arbitrary permit a worker walk duties”).) into and out of in the course of his We coverage regular conclude the as one of issue was resolved fact. properly *7 defendant argues finding
Defendant the trial court erred trial negligent. finding This court will not disturb a court’s and substi tute the manifest finding against weight its own unless is contradictory, of the evidence. where the evidence is Especially weigh trial court is in a the evidence and deter superior position Inc. (Schulenburg Signatrol, mine the preponderance thereof. 352, 356, (1967), 626.) finding negli 37 Ill. 2d N.E.2d scene, gence was of the accident supported by photographic exhibits handhold, and demon including rope by descriptions numerous strations of the process entering dragline by expert cab and contention, that Plaintiff’s ac testimony handhold was unsafe. court, the trial was that use of the handhold exerted cepted by rope re- horizontal force on the user’s so that a loss of body grip naturally suited in the user landing feet, on his back instead of his and that this was what happened to plaintiff. expert There was and lay testimony safe, that the handhold was the credibility but of the witnesses the weight of the are for the trier of fact testimony to determine.
Defendant argues the award of damages was excessive. The trial court found the 38-year-old plaintiff permanently unemployable as an operating engineer, that plaintiff’s refusal to additional have surgery was not light unreasonable in poor prognosis, its and that plaintiff’s condition was extremely painful and seriously inhibited his recreational, social and family activities. The parties stipulated plain tiff’s medical expenses $24,593.91. as of trial were An economist tes tified plaintiff past $78,424 lost wages and would lose future wages with a present $684,936 value of as much as based on certain stated assumptions. The court accepted these wage figures, loss assessed plaintiff’s $2,363,862 damages (i.e., be three times the sum of med ical expenses past lost and future wages) and reduced that amount 30% to reflect plaintiff’s negligence to that contributory extent.
A reviewing court will not findings disturb a trial court’s to damages against unless weight manifest of the evidence. (Pathman Construction Co. v. Hi-Way Electric Co. 65 Ill. App. 480, 490, 461.) N.E.2d the trial argues court should have plaintiff’s reduced damages light of evidence that plaintiff might be again able to work as a heavy equipment operator after In surgery. light of the evidence that another surgery might worsen plaintiff’s condition, we do not believe the trial court was obli gated to defendant’s accept contention that was in effect obli gated to for the opt second We are mindful as surgery. trial court of defense thorough counsel’s cross-examination of ex plaintiff’s pert However, witness of future lost subject wages. weight of that and the testimony credibility of that witness were for the trier 294, 302, of fact to determine. See People Bilyew (1978), 73 Ill. 2d 215. reasons, For the foregoing judgment of the circuit court of St. Clair is affirmed. County
Affirmed.
HARRISON, J., concurs. EARNS,
PRESIDING JUSTICE dissenting: I find difficult to the duties of equate plaintiff, member *8 Union, ship’s with those of a The work Operating Engineers captain. barge had no motive could be moved down- power obviously mooring spuds stream flotation when the were removed. m not free
Assuming
barge
navigation,
to be a vessel
a matter
doubt,
from
I do not consider
recently
be
seaman. We
re
viewed the
dealing
cases
with seaman status in
States
United
Corp. (1986),
There,
I would conclude that our disposition Dungey would dispose plaintiff’s status in the instant case. LEWIS,
GERALD Plaintiff-Appellee, J. THE COLLINSVILLE COMMU- (Service NITY UNIT Defendant-Appellant SCHOOL DISTRICT NO. Employees Defendant). International Union Local No. Fifth District No. 5 — 86—0308 28, 1987.
Opinion July filed