Nowicki v. Union Starch and Refining Co.

State, Bar conclusion that organized of this lead us to the above is expressed quoted expand- philosophy fully applicable rather ing today. than a basis contracting

It the de- becomes that we consider the contention of unnecessary fendant the sentence revocation imposed probation excessive, in this it is to note the ab- although connection appropriate sence substantial between the minimum the maximum spread Scott, See 253 N.E.2d 553. People Ill.App.2d sentence. For the reason stated the of the circuit court of judgment Vermilion No. County cause 11434 is affirmed.

cause No. reversed and cause is remanded for further proceedings.

No. Judgment affirmed. 11434.—

No. 11396.—Reversed and remanded.

SMITH, TRAPP, P. J., concur. J. Henry Refining Nowicki, v. Union S. Starch Plaintiff-Appellee,

Company, Defendant-Appellant. 68-111;

(No.

Fifth 1971. July District 21, 1971. Rehearing September denied J., MORAN, dissenting. Bernard, Davidson, and of coun-

Bernard C. City, (Burton Granite for sel,) appellant. Strawn, Talbert, B. City, Kinder & of Granite

Chapman, (Morris Chap- man, of for counsel,) appellee.

Mr. court: VERTICCHIO delivered the of the opinion JUSTICE defendant, The Union Starch from a Refining Company, and appeals $65,000.00 in the sum in favor S. plaintiff, Henry Nowicki, entered a verdict in the of Madison circuit court County in plaintiffs suit for personal injuries.

Plaintiff, Nowicki, Henry S. in- sued recover damages personal juries suffered on 1965, while work on the doing construction June the defendant in Granite City, Illinois.

The defendant complains during numerous errors committed trial. alleged The and errors the evidence will be parties adduced reviewed and discussed the extent to this necessary opinion. contractor,

The for a Minnette and Boiler Sheet Works, Iron defendant, engaged to perform work Union Starch and Refining Company, City, Illinois, Granite under a order purchase dated 1964. The April agreed plaintiff’s employer to fabricate and 3,500 erect new tanks, ten, two bushel stainless steel numbers seven and in defendant’s steep house.

The evidence showed that the defendant was engaged processing corn into products starches, caramel, consisting of dried syrup, glucose, textile, and The paper. part of defendant’s operation involved this case concerns work performed house.” The evidence “steep discloses house were steep water twenty pumps, water was used to wash down floors and overflow; tanks would a result the floor and bottom the tanks were wet. the old of replacing 1960 the defendant commenced program were replaced

wooden with new steel The tanks tanks stainless tanks. re- two a time the usual work was not discontinued placements agreement plain- were made. The being provided tanks, being tiffs numbers seven was to erect new stainless two were made to rings tanks were of five six which ten. These made consisted of plac- and each had three sheets. erection ring radius below the tank on bases which were the level ing legs of concrete had cone-shaped top floor. The bottom of the tank was overflow, putting the contractor steel roof. Because of the water and dry. had area to it The new tanks the foundations sandbag keep 3,500 were and were about fifteen feet in to have a bushels capacity six to eight feet in circumference and were forty-seven diameter feet than the old tanks. higher further showed that a hailstorm April, evidence due rained, damaged house was that when steep roof on area where tanks many places

roof leaked over the particularly the tanks steel seven and ten were erected. between being from wall in the house which ran the east wall west steep I-beams inches seven and one-half wide and which were about over I-beams did extend the wall of the build- completely was a catwalk ing. twenty-two a boilermaker for commenced years,

The plaintiff, 1965, and about the middle of had been plant May, in the defendant’s 22, 1965, of the five weeks before the date incident working about June 22, 1965, the In the afternoon of instructed question. plaintiff June tank The of fit a on to number seven. roof consisted two pieces to roof for weighed of steel about one thousand The the roof pounds. pieces and were a chain fall from the of tank number picked by top eight up tank use necessary moved over to number seven. It to the I-beam on tank to walked from both sides on roof. The out put plaintiff of using the I-beam and was a sleever to pry up the catwalk onto roof to fit so it could welded. His foot out from under lugs slipped on the to a him fell on chute which was the old wooden tank top and he knee. his left injuring leaking

It is controverted that the saw the roof saw plaintiff not water he went out on it and that his shoes were on the I-beam before dry as he walked out on the I-beam. of the

The error ruling defendant’s first arises out complaint to duty court the defendant imposing upon employees furnish the work, safe contractor place is that the trial in this of the defendant theory basic owed the defendant contention accepting erred plaintiffs risk of injury that the openness work and place a safe plaintiff determining were irrelevant danger and the obviousness of the and instructions. motions care, on various rulings duty by defendant’s principle adopt which generally cases The defendant cites Illinois Co., 231 Power Light v. Electric Springfield announced in Calvert occupant an owner 293. settled that is well page Ill. leads invitation, induces or others land by express implied, occasioned injuries lawful liable go upon premises any purpose such condition the unsafe of the land or its if by approaches, condition them, to exist him and not and was suffered negligently known to without or to those who are to act timely public likely upon notice to the invitation, premises such there hidden dangers are if warn- rightfully upon premises must use care give persons thereof, duty and that the owner owes such con- ing independent (Italics tractor his servants while his working upon premises.” ours) inasmuch as the principle contrary

This theory plaintiff him was as well known to complains the water which he presence as to the all. defendant. was not a hidden was obvious to It trial involving court found that the the area around the conditions level, roof, tanks and at the the conditions of the including floor and, known to further, knew his also shoes were and that the National Builders Bank Chicago wet I-beam was wet. In Schuham, the court held that the Ill.App. owner property owes to independent contractor and his servants who work thereon care to in a safe exercising reasonable have con work, dition for the unless defects for the are responsible known to contractor and servants. his Mathieson, U.S.C.C.A., v. Olin Fed. 962 (1970, 2d 7th Craig the law

Cir.), the court concluded under announced the Illinois ob injuries resulting courts the owner not Hable for from conditions and known their contractor or viously dangerous employee. cited Calvert v. Electric Springfield the said court Light opinion Schuham, Bank supra; Chicago Power National Builders supra; Bounceland, v. Lincoln-Devon Inc. Ragni 172. (1968), Ill.App.2d The court in the Deaton v. Board Trustees Craig opinion also cited Elon 226 N.C. 433. “In that the an College, college employed electrical The de- independent system. contractor to make of its repairs as fendant a matter of death one of the was held Hable the wet and employees standing ground who on touched Hve wire was electrocuted. The at the of mak- contractor knew time independent the ing contract The high some the wires were tension. concluded owner was not from con- injuries resulting liable for Further, and obviously dangerous ditions known the contractor. by court reasoned that the contractor was an his exercising spe- expert, cialized to knowledge according his own and with his own de- vices, and condition, that he was aware as inherent well as the peril incident to handling standing live wires while wet ground.” urges

The defendant issue of of the plaintiff’s conditions is not relevant an and cites enunciated exception rule Servant, the headnote of 57 and Sec. C.J.S., Master 603 at page wherein text reads as follows: “An reserves the right to direct the manner of performing the details of the work or interferes and assumes control may become liable for to the servant of the contractor.”

There is on the record that the retained some testimony defendant instructions, supervision work, however, in view of the court’s particularly plaintiff’s Instruction “The owed property owner to plaintiff keep property exercise care reasonably safe for use Plaintiff” plaintiff’s and Instruction # injured claims he and plaintiff damage was sustained while exer- care, and cising ordinary negligent that the defendant was in one or more of the following respects: In

a) negligently failing to furnish a safe carelessly plaintiff place work;

in which to failing In b) negligently carelessly provide place appropriate work; stand do upon which could his plaintiff c) carelessly the roof of the negligently permitting leak,

wherein was plaintiff consequently allowing rain fall onto the I-beam was standing, hazardous; causing to be slick and carelessly causing in the course of d) negligently plaintiff, work, dangerous his to stand above an area without open from the guards faffing him from proper protection prevent on which he place standing. foregoing further claims that one more proximate injuries. cause of claimed any things defendant denies that he did denies he was denies claimed act

plaintiff, negligent, any or omission on the part proximate cause of in the exercise that plaintiff the claimed and denies injuries, care. or sustained injured The defendant further denies that plaintiff claimed," extent damages

thus, into has no rule referred contention merit. The employer nor the C.J.S., judge jury is not since neither the trial supra, applicable made amounted any supervision to the effect that the defendant’s finding to control.

Because we the cause reversing remanding are the judgment trial, a new the court will comment on other errors cited.

As doctrine, to the issue directed to the of risk view assumption out, the court’s it that rulings finding hereinabove set is the court’s the issue is moot.

As to the error alleged defendant’s excluding impeachment plaintiff concerning length of time be was on wet I-beam plaintiff fell, fore he it is the opinion of this court that this was within the discre tion of the trial and the judge judge ruled. properly

The trial court’s rulings were: “a. That there was no inconsistency between the and the testimony

prior statement. b. The impeachment was not relevant to the issues. An examination

of the record reveals that on cross-examination the testified that he had worked on the wet I-beam “half a seconds” minute-thirty before he fell. The proposed impeachment was prior that a incon- sistent was, statement on deposition “How on this long you beam before fell?” you to which the “A very responded, few minutes.”

It is this court’s opinion trial court’s no finding that there was between inconsistency and, further, and the testimony statement prior that the impeachment was not relevant the issues was correct.

As to alleged error in curtailing the defendant’s cross-examination of plaintiff and excluding medical testimony concerning prior injury knee, plaintiff’s left the court finds that the said exclusion of testi- mony error. When a plaintiff attempts to produce expert evidence to establish a causal connection between condition, and a injury sufficient that the expert state that there might could be such a con- nection. When the evidence of the cause of a condition or contested, a witness may not testify as to directly what caused the con- dition or injury, because to do so would invade the province of the jury, but the witness may testify to what could or might have caused the injury. Callaghan’s Evidence, Illinois 7.49 and cases cited therein. The § Thus, the an expert. rule should when a offers

same defendant apply struck plaintiff bullet which does not have to prove condition, but did or contribute to cause childhood accident cause or could might it is testify sufficient witness there expert abe connection. trial, an counsel alleged throughout

As to the errors of plaintiff’s was of of both counsel examination of the record indicates that conduct remand, at- On a nature to a trial. conduct not conducive fair that result. produce should be restricted torneys forth, circuit herein set For reasons and cause remanded for new Madison reversed trial. County and remanded. Reversed

EBERSPACHER, concurs. P.J., MORAN, dissenting:

Mr. JUSTICE Craig The relies the rationale majority opinion principally upon Mathieson, U.S.C.C.A., 2d 962 7th (1970, Cir.), Olin 427 Fed. contractor, out that was pointed plaintiff’s employer independent involved, Qlin, the area owned was turned over stating, summary, “In by the terms of contract had ‘absolute and by the contractor who the full and direction in all matters such management relating power work.’” This was not the between Nowicki’s relationship Starch of the premises, Union Starch because Union retained control from his working removed control of Nowicki’s conditions employer, causing in plaintiff’s injuries. active The distinction not the the recognized by majority opinion between where the legal truly case owner is con- problems independent tractor and the one illustrated Reboni Case present aptly by Brothers, 78 A.2d where court said at 889-90: pages the defendant relies on a dictum Peck Douglass v. & Lines 622, 629, 22, 25, 95 A. as reading Conn. follows: ‘The owner of

premises not to an responsible independent contractor injury of, from defects or dangers which the contractor knows or ought if know of. But the defect or hidden and known to the owner, contractor, and neither known to the nor ought such he know, duty contractor, it is the of the owner to warn the and if he does this, do not is liable for resultant injury. same rule to the applies servants

‘The contractor and the sub- contractor and his servants.’ This statement was not applicable facts of case cited because the injury there complained not where to a situation It applies property. due to the condition acci- where premises of that portion contractor has control as- has retained the owner not where dent occurs. does It apply on based defendant of the The complaint sumed control thereof. one limit the refusal of trial court to bar, pos- owner was at danger. the case warning a hidden does Douglass control, in the session and and the statement apply. direct statement on the further The to rely entitled plaintiffs Conn, con- also A. at Douglass page

in the case 89 page use of partial tained in the owner remain charge: “Whether his not, the contractor he is caused to liable claims and the charged own by negligence.’ complaint servants to the defendant’s were due plaintiffs’ were that proof injuries act of omission.” negHgent wet undisputed evidence discloses Nowicki slipped Starch premises;

I-beam while a tank on Union working erecting roof through the wetness was caused rain hole coming Union the hole Starch water had come Company through rained; continuously other areas were past every time wet because The contract contained defendant’s operation plant. our foUowing this work provision: performed “That must is in be taken the contractor plant operation. must Special precautions to insure the work or are in no plant operations interrupted by way material.”

From I but that that there is no foregoing, conclude (1) the defendant on the negligent drip the water to permitting work, I-beam surface had to re- where that Union Starch (2) tained control the where worked while contract premises the was the the being performed, contract (3) provision requiring work be performed to plant operating, effectively the removed control of the working conditions from Nowicki’s and in a employer large increased dangers the that Nowicki was to part compelled work under. 445, Louis v. Barenfanger,

In at Ill.2d the Court stated Supreme 448: the furnish a scaffold page “Certainly, failure to could be actionable Thus, at common in many negligence situations. it is well-established that a contractor general in control must em premises furnish the a ployees sub-contractors safe to See: 20 place ALR 2d work. 873.” There is no owner who retains control of the premises or interferes with the manner in which the work is performed owes the same duty. to exercise the duty

The owner or owes an invitee occupant property the invitee. care to safe for use keep reasonably property contractor I.P.I. 120.06. or hires a duty owner who occupant to do work on or premises, premises retains control same, is performed, usually expressed the work to is although be situation, following but the different terms. I.P.I. not cover does this California instruction standard does: 2, Vol. No. 213-G:

B.A.J.I., or im- “When (owner) (or) premises expressly (occupant) invites a workman to enter for pliedly premises purpose to thereon from performing parties expect some service which both benefit, the protecting to end (owner) (or) (occupant), workman, is to use reasonable him with required care to provide reasonably safe in which to work and in that such place seeing equip- ment facilities as are under the (or) (occupant’s) (owner’s) control, use, which the workman to are safe likely reasonably for such use in out the of his carrying purpose employment.” Cudahy Packing In at the court Company Luyvers, F.2d said: “It on the clearly negligent part anyone, stranger, whether invitor or of what is done maintain a employer, to be safe, which is not view of the activities and place reasonably opera- therein mutually contemplated.” tions mutually it was present contemplated case the employees would

of the contractor control Union Therefore, same, is the duty although Starch. it is stated differently. is to duty keep premises reasonably In one case and in safe other, furnish safe duty place work. Able defense counsel this at the recognized similarity instruction conference when objected he instructions, of the safe giving work place ground on the Nowicki, that no was owed to duty but rather on the ground that they redundant. We are here with dealing where the of the contractor asserted an unusual amount control over the manner which the work unusually performed, negligent and furnished the working areas where his own and the employees contractor’s worked. Douglass v. Peck & Lines 95 A. the court said: the owner not,

“Whether remain partial use of premises liable caused contractor his servants his own So, too, negligence. he is liable failure perform any positive imposed by law. If the failure to give or to warning, refrain from conduct, negligent law, to obey the makes the where place the con- bemay in this sense not a safe worldng place, tractor or servant contractor where the the place said owner owes the duty keeping the or his are at work safe.” servants a hole in there was but that question case is no present the there caused that and hole through

the that water came roof the premises; and and slippery the become wet place where working that had condition existed before. knowledge- a

I must case have also we emphasize present familiar landowner, able experienced safety engineering, and skilled who, prudence exercise of hazards of construction and care, have He should question. due could the accident in prevented be measured a landlord’s governing same standards invitee, in a a small the landowner a householder or where businessman, unaware of safety engineering. In Storment v. & trial entered Ill.App.2d Swift

a judgment notwithstanding against verdict ground “that law is a has no know- person right well-settled that ingly expose himself and then danger damages recover which might been have averted the use of precaution reasonable his own safety.”

Storment was a federal de- meat inspector contended fendant failed to maintain safe company premises reasonably its condition, and failed to safe methods and instrumentalities so provide that plaintiff had a safe his in- place work reasonably perform spection duties.

The contention was made in trial court Storment was of contributory negligence because he knew the condition as well as Swift himself; did should have that he protected continued work in the face of a known and observable and assumed the risk and was guilty of a contributory as matter of law. negligence The Appellate Court stated on 422 and 423: pages * ** It is apparent a company had duty to

maintain its condition, a reasonably safe conduct its operations a safe manner for reasonably performance of plaintiff, work since his presence require duties him to be on the premises (Cudahy 32, 34; Co. Packing Luyben, 9 F.2d v. Cudahy Packing McBride, Co. 737, 739; F.2d Schuster, Swift & Co. v. 192 F.2d 615).

Under the facts before question us the defendant’s question jury contributory if negligence, any, matter being with respect differ, to which reasonable might facts, minds under Knowledge for the clearly jury. was also law, not, as a matter risk did some might conditions involve & Co. facts, contributory negligence (Swift under constitute Schuster, supra, 616).” aof con-

In is: Does the case the real question the present is in plant be while work done tractor who insists that the contract being performed is who furnishes where the work operation, the premises condi- creates who negligently is in control those premises, who more danger- tions the contractors employees which make work of dangerous ous, when a to an of the contractor employee owe he to work on the to continues conditions are known that employee dangerous under the conditions? not does con- conditions Knowledge potentially dangerous is Knowledge as a matter of law. injured person negligence vict the never con- his conduct and evidentiary bearing factor merely of Frost is in the case A statement of this found good principle clusive. 445, 448, the terms “Although 200 Mass. 86 N.E. 918: McCarthy, danger of risk’ are used ‘knowledge frequently and ‘appreciation care, do still elements themselves not discussion of due these and of as a are valuable matter of law. These negligence, expressions constitute what be matter of fact to may aids in found as constitute describing define what is evidence of They aptly negligence, do not negligence. always state that which such conclusive and indubitable want care a matter of negligence Supreme constitute as law.” The Court of stated it Hampshire way: only logical New conclusion which reached, all can when cases which have right be considered injured those a voluntarily known encountering danger read together, recover are is that knew of the they facts they which danger incident to condition of complain voluntarily not, themselves, encountered it are of their right conclusive recover, danger unless the is so man great would not they have what did. In all cases done other these facts are merely evi- considered relevant dence to be with other facts on the issue of their Boston, etc., Co., care.” RR. 33, Kambour 77 624, N.H. 49 86 A. L.R.A.N.S. 1188. true when the foregoing especially injured is where is he party right

as a matter of and in the performance 65A duty. C.J.S., Par. 126, 87, to be: “If a principle person stated p. doing it is of his right discharge his do exercises duty, ordinary care is not he chargeable prudence, contributory negligence aas although matter result showed that his imperiled life or in doing as he did. personal safety one is Notwithstanding acting incurs risk if he he is duty, discharge of man under ordinarily prudent incurred by not be which would similar circumstances. the same or Court Supreme its through California State of my opinion, De v. Groom Florez rule in and humane

adopted sensible, up-to-date language foUowing Co., when it used 348 P.2d velopment 206-07: “* ** the premises invitee, using portion An while properly held to be, is he nor extends, is not required

to which invitation not ‘an invitee is of, Certainly (Cases cited.) the duties an inspector. traps.’ (Cases cited.) to look hidden required he was doing job a workman on job, It is also the law that of care that do, quantum same hired to exercise the required v. Riverside said in Austin invitees. As was be of other may required 69, 77: P.2d at page Portland Cement Cal.2d *** possible position where a must work person safety for his to exercise own the amount of which he is bound care attention to of his necessity giving well less reason of the may case. [Citing his work than would otherwise be the cases.] case, any, that their if negligence, In the instant assume appellants short, and contend was in a that was too narrow or too using plank obvious, have been seen that defects were clear and and should these re- It is that facts relied by respondent. urged very that also demonstrate negligence the inference of spondent support This negligent. argument respondent contributively proceeds that care the invitor and invitee theory quantum required of of are identical. That is not if involved only negligence law. Even both, narrow, was in a furnishing that was too short or too plank whether acted question as to as a workman-invitee respondent in The cases reasonably using it was a of fact for the question jury. re- already cited this must not that support forgotten It be principle. him, duties as an of his spondent’s the course employee required water, knew, employment, to use and so far he the faucet in ques- as tion was the where only place dangerous water was available. was the plank only means furnished to reach that faucet. The jury entitled to balance even respondent’s necessity against danger, if it be assumed that it was an a issue. one. This was factual apparent [Cases cited.]

Thus, involved, even if it be assumed that the only negligence involved, that could have been was in a that too furnishing plank narrow, both, short or too such readily condition was apparent, jury properly found for respondent.” 104 Mathieson, factually is

However, Craig supra, v. Olin assuming case, be- with its rationale with the I still do not point present agree it contrary assumption cause to Illinois law the outmoded applies risk doctrine under another name. 369, N.E. F. Devine v. National 240 Ill. Deposit John Safe a elevator (1909), employee unguarded tenant knew of the

shaft fell was not holding in and was killed. In decedent opening said, cannot law, as a 374: “It negligence matter the court l.c. said, a law, of due care matter of was not in the exercise Daly he personal when received the because safety injuries, merely use made platform complete full cited; Chrisman, City of Streator v. 182 Ill. and cases there danger. 7; 169; Palmer v. Dearing, N.Y. 131 Mass. Bailey, Hopkin Dewire 328; son v. 92 Iowa Am. Law 332. Knapp, Eng. Appellant & Ency. here, concedes that the doctrine assumed risk can have no application but insists that the fact that the deceased “knew appreciated danger and continued a voluntarily his work without bars objections’ recovery under the rule ‘that he who consents cannot afterward com Appellant’s is, in plain.’ argument regard, merely attempt the doctrine apply assumed risk and to it another name.” give Emphasis added. Mueller v. Phelps, 252 Ill. a cook employed N.E. tenant of a thrust his building head into an elevator shaft and was in jured by a elevator. In descending holding to be contributory negligence said, jury question, however, I.c. 633: “The argument, urged is, support contributory negligence substantially, that defendant in error knew and appreciated the This using elevator. practically seeking to the doctrine apply assumed risk under another name. here, The doctrine of assumed risk cannot as there apply was no contractual relation between defendant error and error [Citing contributory negligence cases.] usually ques tion It jury. only becomes one of law for this court when the un evidence so conclusive disputed seen that the accident clearly resulted from the injured could have party been avoided use of reasonable precaution. Where [Citing reason case.] able men within the limits acting prescribed reach differ might conclusions, ent or different inferences could reasonably be drawn from facts, admitted or established the question of contributory negligence jury. [Citing authority.] On the record in this we think it fact to be submitted to the whether jury was exercising error ordinary care at the time of the accident. [Citing Emphasis added. cases.]” court Co., & Starrett 204 Ill.App.

In Riordon Thompson subcontractor, of a permitted recovery by employee plaintiff, handrailing of a of the absence against general contractor because on before. stairway, stairway even had used the though plaintiff gone court hundred men had on the fact that several placed emphasis and down to the contention up In answer daily. stairway could not recover because he had it, himself said that the doctrine voluntarily exposed assumed risk cases and that only to the master servant applicable this was risk and of assumed merely doctrine attempt apply it give another name. Mathieson,

The rationale of v. Olin taken Craig supra, erroneously from Calvert v. & Electric Power Ill. Springfield Light Schuham, National Builders Bank Calvert de 546. The Ill.App. cision did not turn on whether or not the condition was known invitee; landlord rather, not to was based the fact that upon the condition which caused was not visible to plaintiff’s injury plainly plaintiff. The court did on go that if the say hole roof visible plaintiff, it would hesitate to hold that there could be no re covery on account of the of the risk intestate. assumption by appellee’s

However, Calvert, even if would we follow the dictum of I would say it would be more reasonable to that Calvert say holds that this situa tion of the risk is a assumption defense and then we should use the guidelines set out cases, in our master and servant the last of which Main, Clubb v. Goldenhersh, written by 461, 213 65 Ill.App.2d Justice N.E.2d and under that case the standard would be a one subjective and dependent sees, knows, what the understands and appreciates.

In National Schuham, Builders Bank v. supra, the deceased was re pairing a window frame and window sash and met his death when he fell out of the window The court there did not opening. hold the de fendant not liable because the defects for the responsible known to the contractor or his employees, although said view the facts and conduct, circumstances as to decedent’s it might well be held as a matter of law that he was contributory negligence he assumed the risk being injured the manner in which he was in jured, Instead, etc. this decision turned upon the fact that there was no proof defendant’s negligence because defendant neither knew could have known of the defective condition which caused decedent’s death. Again assuming that this case is a proper citation one cannot re cover for an open and of, obvious condition that he knows stiff this is not authority saying this was lack of defendant, but rather assumption anwas this is under these conditions authority saying that negligence. If. contributory of the risk or failure to freedom from prove in Clubb down true, rules as laid have the same then we would defense Main, with the affirmative also be faced Defendant would supra. arose out injuries that caused Nowicki’s condition showing from the not arise also did doing the character he was work be an impos defendant, would my opinion, case. facts in this sible burden under the undisputed Restatement, the American 1963, by 343 of Prior to Rule published Institute, Law provided: harm caused subject liability physical

“A of land possessor if, if, he only land to his a condition on the by invitees discover care would the exercise of reasonable knows (a) risk of condition, an unreasonable it involves and should realize that invitees, harm to such danger, realize will not discover or expect they should

(b) it, and against will fail to themselves protect against them protect fails to exercise reasonable care (c) danger.” work, Torts, 217.13 Law in their Vol. Harper § James rule, there enunciated that “the saying principle criticized this

(1956) at out authority.” They pointed both one on principle doubtful always did not that the fact that a condition obvious 1493-1495 pages danger. remove all unreasonable Institute revised Rule American Law

In 1963 and provides: 343A which adding Rule dangers. or Obvious

“343A. Known harm for physical of land is not liable to his invitees A(1) possessor land whose or condition on the to them by any activity caused them, should anticipate obvious to unless possessor is known such or obviousness.” harm despite published Harper James, Volume supplement In their 193: page out point the authors the sec matter of significant development subject most American Law a new adoption has been the Institute’s

tion (27.13) towards goes long way meeting objections which at least section to the. Restatement towards original position, in the text taken here Restatement of Torts Second reasoning expressed. adopting # * *.” as follows: reads 343A(1) § the trial court. affirm the would I

Case Details

Case Name: Nowicki v. Union Starch and Refining Co.

Court Name: Appellate Court of Illinois

Date Published: Jul 30, 1971

Citation: 272 N.E.2d 674

Docket Number: 68-111

Court Abbreviation: Ill. App. Ct.