*1 (No. 60092 . R. CON- HOLLIS, v. LATORIA Appellee,
RICHARD STRUCTION, INC., Appellant. 18, 1985.
Opinion October filed *2 RYAN, J., dissenting. Ltd.,
Crooks & Gilligan, Chicago (John Gilligan, W. of counsel), for appellant. Associates,
Brian J. Mc Manus Ltd., & of Chicago (Brian Manus, J. Mc of counsel), for appellee.
JUSTICE WARD delivered the of the court: opinion Hollis filed an Richard action the circuit court of Cook under the Structural County (the Act) Work (Ill. Rev. Stat. pars. through 69) against Inc., R. Latoria Construction for injuries sustained while as a roofer. A working jury returned verdict of $30,000. The circuit court denied the plaintiff’s post-trial motion for a new trial on the question damages only or, for a new trial on all issues. The alternatively, appel- *3 late court reversed the order the plaintiff’s mo- denying tion and remanded to the circuit court for a new trial on the issue of damages (122 Ill. only. 290.) We al- lowed the defendant’s for petition leave to under appeal Rule Ill. (87 315). 315 2d R.
The evidence was that the plaintiff was as employed a a defendant, roofer subcontractor of the by at a con- struction site Franklin Park. The defendant was the contractor for the general and job acknowledges here that it was in charge the construction. supervising The testified that he plaintiff was on a roof of working sheet metal on corrugated which there were seven open 4-foot 4-foot was skylights. plaintiff a operating machine which spread adhesive on the of the ridges sheet metal. An the machine him operator pulled behind to avoid walking the through adhesive. freshly applied had to operator watch the closely alignment was that the adhesive insure of the machine to
wheels other was applied, the adhesive When spread. properly the metal against board roofing would press workers them join together. accident, the testified plaintiff morning On hand with one the adhesive spreader he was pulling to insure and back sideways looking walking while the machine. While spreading alignment wheel proper about 20 which were the skylights, adhesive between one of through fell backwards feet apart, plaintiff and was dirt floor feet to a hard-packed skylights injured. Jacobs, an archi- roofer, Louis and
Daryl Torgerson, the plain- for were witnesses engineer, tect and safety custom that, according was tiff. Their testimony trade, the roofing work and in construction and practice safety is responsible contractor general con- if dangerous to halt work right site and has job codes require testified that industry exist. Jacobs ditions and that his skylights, or covers over open guardrails without any open having skylights opinion and rules industry all code devices violated protective regulations. under called Latoria was Rocco Rev. (Ill. Practice Act the Civil section 60 of former Proce- the Code of Civil now Stat. ch. par. He tes- 1102). par. dure, Ill. Rev. Stat. 2— as business contracting in the general tified that he was Construction, Inc. R. Latoria of the defendant president he visited the contractor, he testified that As general of the open sky- site and was aware construction daily devices to pro- He said that guardrails safety lights. and specifi- part plans tect the would be openings *4 the architect that he had hired cations. Latoria admitted had not required and that he who drew the plans, for the coverings skylight plans provide plywood Nor openings. did Latoria instruct on anyone working site to job place boards over the openings. X revealed that rays plaintiff’s injuries included of elbow, fractures the left right wrist and left knee. corrective Following had surgery, plaintiff casts arms placed both and the left After leg. the casts were removed the underwent plaintiff physical therapy for four months because of in his pain elbow, wrist and to bend his left inability arm. A surgical second pro- cedure on the left performed arm enabled the plaintiff arm, bend the but full of motion range was not restored. testified that he was still experiencing pain arms, in both that if he stood for a considerable time his left knee could him, not support and that he is unable to manual perform labor for than longer half an hour.
The plaintiff further testified that as a journeyman roofer he was an earning hour when he was in- $11.50 jured and that the union scale hourly wage increased to at the time of his $15.80 trial. He was entitled to addi- tional benefits, union including pension provisions. The plaintiff’s former testified employer for the two years his preceding accident the plaintiff worked 40 hours a week as a journeyman roofer on an average 38 weeks per year. plaintiff now drives a delivery truck and earns an hour. $5
Dr. Kanter, Alvin an orthopedic surgeon, testified that he examined the plaintiff several times at beginning the time the plaintiff’s casts were first removed. Dr. Kanter testified detail that the plaintiff had substan- tial limitations motion of the left elbow and right wrist. He stated that the plaintiff had suffered a frac- ture dislocation of the elbow, left which caused pieces bone to in the lodge joint. Following second surgery, Dr. Kanter examined the plaintiff numerous times. The doctor stated that there although had been an improve- ment in the range arm, motion of the left there was *5 due to at blockage joint irregularities
still a elbow The site, on the humerus. including right the a spur of to a fracture still had limited motion due range wrist of the distal radius. The condition both deformity arthri- would cause a joints progressive degenerative be the source of constant and dis- aching tis and would comfort.
Dr. Kanter testified that the left knee had a limited motion inside the and there was knee range grating joint, reflecting a tear of the medial meniscus cartilage. the to treat arthroscopic He recommended con- surgery in Dr. dition and seek avoid arthritis the knee. Kanter that, in his the injuries concluded by testifying opinion, wrist, to the left elbow and even with further sur- right In his would result in a permanent disability. opin- gery, his ion, the be unable to return to work plaintiff would in roofer, nor he able to work con- any as a would be struction trade. the under former called defense sec- plaintiff, by Act (Ill.
tion 60 of the Civil Practice Rev. Stat. ch. 2— now Ill. Rev. Stat. par. par. testified he had the 1102), open skylight backed into the adhesive The defense operating spreader. pre- while At no expert sented medical or other witnesses. evidence, the trial struck an “affirma- close of court filed, had alleged defense” defendant which tive the plaintiff’s injuries the sole cause of proximate did, however, permit misconduct. The trial court his own go this special interrogatory jury: Hollis, plaintiff, the conduct of the Richard immedi- “Was complained the time of the ately before and at occurrence of, proximate the sole cause of the injuries damages complained plaintiff?” and returned verdict jury When deliberated $30,000, it answered inter- favor stated, in the As post- rogatory negative. of damages only trial motion for a new trial on the issue the trial court. or a trial on all issues was denied new that in reversed, light holding court appellate the damages the plaintiff’s injuries, evidence of The court ordered awarded were manifestly inadequate. 122 Ill. only. trial the issue of damages new 290, 297. court that the appellate
The defendant first contends for that of jury, its substituting judgment erred in inadequate. awarded were damages when it held that *6 of a verdict is generally It is true that the amount v. Board Ed- (Lynch the discretion of the jury. within of 423; v. City ucation 82 Ill. 2d Guerrero (1980), of It is 348, 352.) equally 117 Ill. 3d (1983), App. Chicago a new clear, however, that a court order reviewing may if it is or inadequate trial if the are damages manifestly of have been damages ig- clear that elements proved if no reasonable re- nored or the amount awarded bears v. to suffered the Gall lationship plaintiff. the loss by Ill. 3d District Metropolitan Sanitary (1982), App. International Li- 502, 510-11; Eckdahl v. Lease-A-Plane 69 Ill. 3d v. Ken- (1979), Rapp censing App. 101 Ill. 2d 86. nedy (1968), court that the uncontroverted observed appellate for 18 evidence was that the plaintiff unemployed that, his accident and based on the av- following months had worked the two number of weeks the erage plaintiff he was wage earning and the preceding years hourly $24,000. loss of wage when he incurred a total injured, lost in the earnings per- This does not include the figure the force and worked at iod when he reentered work $6,000 reduced the wages. remaining sharply Only $30,000 award was compensate available as disabil- for these lost and well the wages, permanent and caused ity disfigurement injuries, pain earn- and and the loss of future suffering experienced, of the injuries. ings permanency attributable that, in light concluded court appellate correctly evidence, inadequate. awarded were damages awarded were inade- that the damages
Having judged a new trial whether it is to determine necessary quate, Bales- In is warranted. issues, or on damages only, on all Association Freight Cooperative tri v. Terminal (1979), v. Robbins court, 451, this citing 76 Ill. 2d Professional 215, 224, Co. (1978), 72 Ill. 2d stated: Construction is damages only ap- question “A new trial on the on the (1) jury’s verdict granted ‘where propriately evidence; is question liability amply supported so damages separate are (2) the questions of dam- question that a trial limited to and distinct defendant; (3) the record ages is not unfair ver- compromise reached a suggests jury neither that manner, er- that, dict, in some other identifiable nor awarding inadequate jury’s in the ror which resulted of liabil- question its on the also affected verdict damages ” Ill. 456. ity.’ 76 Act estab- Work The strict terms of Structural The Act liability. provides: lished the defendant’s *** scaffolds, or other mechanical supports, “That all firm contrivances, by any person, erected or constructed *** *** erection, any use in the or for the corporation *** *7 structure, shall be erected house, or other building, manner, constructed, safe, and proper in a suitable and constructed, oper- and placed and and shall be so erected to the life protection proper adequate as to and give ated engaged or or person persons employed and of any limb 60. thereon, par. ***.” Stat. ch. Ill. Rev. *** having owner, person other contractor or “Any *** construction, building, erection, any of charge of *** act, this of provisions within the or other structure ***. terms thereof with all the comply shall * * [*] or occasioned any injury person property, For to com- Act, wilful failure to of this or any wilful violations of action shall ac- right of its a any provisions, with ply damages direct sus- injured, any for party crue to 69. par. thereby; ***.” Ill. Rev. Stat. tained allega- not contest plaintiffs The defendant does in- in of” the construction “charge tions that it was (1) a wilful violation and that it was (2) guilty volved does con- The defendant evidence showed. the Act as the of a compromise that was the result tend verdict responds liability. on the issue of jury the issue that there no compromise was the amount reduced argues jury improperly improper prejudi- because of defendant’s of damages al- in to closing argument cial references leged negligence. attorney defendant’s
During closing argument, was a con- conduct argued plaintiff’s negligent of his own Counsel said injuries. cause tributing jury: there would doing job properly,
“If he his [Hollis] I that Mr. Hollis you have been no accident. submit this and I’ll proximate himself was the cause of accident occurred, accident he way submit further that the this building just as eas- could have walked off the roof Everyone into that hole. of us has to con- ily as backed way.” duct ourselves in a certain careful that these com- objected, arguing plaintiff’s attorney of the Structural ments to the terms contrary were Act, allowed defendant’s attorney Work but court The defendant’s counsel continued: proceed. do, must do it in a reasonable everything
“In we we go across just willy-nilly method or manner. We cannot traffic and close our heavy the middle the street instance. the Structural eyes, The law of Work who fall into people was not intended to careless protect It sets out good holes. The Structural Work Act is law. It in- things just certain that are common sense. is not behav- protect tended—No law is intended to foolish *8 410 conduct.”
ior and reckless wanton side but after a attorney objected, Again plaintiff’s conference, overruled the objection. bar court on tell the that defendant’s went to attorney jury foolish or wilful Act not “intended to protect people was These made one wanton acts.” were arguments though was: jury the instructions all has you proved “If decide that Act, it of his then is not propositions cause under that some conduct on the plaintiff’s defense to claim may injury.” have cause plaintiff's part contributed here, 1981, in is the time of trial It clear at Act, a con- plaintiff’s actions under the Structural Work not assumption or risk would bar tributory negligence R.R. Co. Barthel v. Illinois Central recovery. Gulf v. Milwau- Gannon Chicago, 213, 222; 74 (1978), Ill. 2d kee, 305, 22 Ill. Ry. St. Paul & Co. (1961), 2d Pacific Georgia Corp. (1980), Smith v. 86 Ill. Pacific 570, 3d 573. this court of doctrine adoption by compar- Alvis v. Ribar in 85 Ill. did (1981), 2d negligence
ative This under the Act. not affect a defendant’s v. Union Electric Co. held in Simmons court recently will negligence 104 (1984), comparative Ill. the Structural in under applied brought not be actions Simmons, that the ap- determined, Act. It was Work be inconsis- “would plication comparative negligence intent, which was provide the legislature’s tent with covered injuries for their workmen full compensation It said that un- 460.) Ill. 2d (104 the Act.” an “is assessment inquiry der the Act the only conduct.” not the culpability defendant’s Caterpillar also Prewein v. Ill. 2d 459. See 104 Co. Ill. 2d Tractor 141. (1985), of the con- had charge It is that the defendant clear failing to cover wilfully struction and violated It is also clear the roof of the building. skylights *9 the was a of the Act defendant that the violation This is all the injuries plaintiff. cause of proximate the to establish that is needed to be proved by plaintiff the con- plaintiff’s the liability, regardless defendant’s duct. was, consider, the
The award we jury’s inadequate at- of the defendant’s result of the improper argument to his own that the conduct contributed plaintiff’s torney a factor in an The conduct is not injuries. plaintiff’s Act, as the consideration brought only action under conduct has been culpable. is whether defendant’s are damages separate Since the issues of be on the is- distinct, the retrial of the cause should sue of damages only. judgment appellate
For the reasons given, court is affirmed.
Judgment affirmed. RYAN dissenting: JUSTICE for a new
This case should be reversed and remanded issues, damages trial on all not on the just question I therefore dissent. only. the inadequate
The states majority opinion ar- the result of defense counsel’s improper award was to his own conduct contributed gument that plaintiff’s however, not Defense counsel’s argument, injury. to his own injury. that the conduct contributed plaintiff’s Hollis “I that Mr. you Defense counsel stated: submit (Em- cause of this accident.” himself was the proximate The therefore was that added.) argument plain- phasis tiff’s was the cause not a proximate proximate conduct contributory cause of the accident or that it constituted for de- argument This was an negligence. appropriate fense counsel to make. I that at out analysis, point
Also related to the above “The majority plain- the end of the states: opinion under brought tiff’s is not a in an action conduct factor Act, is whether the defend- as the consideration only 411.) Ill. 2d at I (108 ant’s conduct has been culpable.” this of the law. It is far too do not with statement agree defendant, is the wilful broad. culpability Act, (not must cause nec- proximate violation of be before li- cause) injury the sole essarily proximate contribu- plaintiff’s attaches. ability under defense, nor is not a is the tory negligence conduct, if his with the along barred from recovery Act, brought violation of the about in- defendant’s sole However, proxi- if conduct is the jury. cause), mate cause of the injury (the proximate liable have been though may defendant is not even there *10 some violation of Structural Work Act which would instance, a For if a per- not constitute cause. proximate not to have jumped happened son off a scaffold which device, the of which some absence required protective in no the defendant way injury, contributed would As not be liable under Act. previously suggested, statement of the is opinion just above-quoted majority too broad. injury compensa be provides it “occasioned a wilful violation by”
ble must be Although, as (Ill. par 69.) Act. Rev. Stat. above, assumption negligence noted contributory risk to a violation under Struc are not defenses a causal con Act, the must establish tural Work of the Act and his own in nection between violation any 21 Ill. Co. 2d (1961), Gundich v. Emerson-Comstock jury. 264 Ill. 117, 130; (1914), v. Ericsson Co. Schultz 86 Ill. Georgia Corp. (1980), App. Smith v. Pacific v. 570, 573; (1977), 3d Beebe Commonwealth Edison Co. 43, 48. 45 Ill. criti-
In of defense counsel my opinion argument cized in the opinion proper. inadequacy verdict referred to in the reflects a majority opinion between those who compromise thought conduct was the sole cause of proximate his injury those who felt that the defendant’s conduct was culpable cause of proximate There was evidence in injury. the record from which inferences of both support posi- Therefore, tions could be drawn. the matter should not be remanded for a trial on the question of damages only, issues, but should be retried on all as well as I damages. therefore dissent.
(No. 60687 . DAVID E. WAGNER, JR., v. GEORGE Appellee, al., et
KRAMER, Sheriff, Appellants. Opinion October 1985. filed