*1 might It be contended that the circuit court’s order a fi constituted nal judgment as to plaintiff’s claim for declaratory But, relief. reviewing the complaint whole, as a that claim appears linked to inextricably claim for order itself indicates that damages. the declara tory judgment merely preliminary step to determination of the damages to which might be entitled. Thus this order constitutes a judgment only as to liability with the question damages undeter yet mined. As such it is not final order and could be made appealable aby even finding under Supreme Court 304(a) (87 304(a)) Rule Ill. 2d R. that there was no just reason for delaying enforcement or Mar appeal. tino v. Barra (1967), 2d Ill. 229 N.E.2d 549.
Even we final assuming that were to determine that this was a judgment as to one court claims, of a number of plaintiff’s the circuit failed make the reason necessary finding just that there was no enforcement delaying appeal possible. appeal therefore no Ill. R. 304(a); Sadler 108 Ill. 3d County App. Cook 178, 438 See v. Board Governors Salyers 1352. 69 Ill. 1130. set this we Accordingly, opinion for the reasons forth in must dismiss this appeal. dismissed.
Appeal SULLIVAN, J.,
MEJDA, P.J., concur. RUFFINER, Plaintiff-Appellee, WILLIAM C. v. MATERIAL SERVICE
CORPORATION, Defendant-Appellant. (5th Division) First District No. 83 — 1859 Opinion 7, 1985. Rehearing July filed June denied 1985. — *2 SULLIVAN, J., dissenting.
Lord, Brook, Chicago (Richard Mueller, Bissell & of E. Stephen A. Milwid, Griffin, Hugh C. Engelman, counsel), and Joan M. appellant. of for Janewicz, Chicago,
John M. appellee. of for JUSTICE LORENZ delivered the opinion court: Defendant, Material Service Corporation, from a appeals judg- ment for plaintiff William Ruffiner in th is action under the Jones Act (see (1976)) 688 U.S.C. sec. and maritime law. The jury $1,250,000 awarded as plaintiff compensation injuries sustained when he vessel, fell from a ladder aboard defendant’s the Irving Crown. Defendant contends that the verdict was based on incompe- evidence, excessive, tent the jury’s award was and that the trial court submitted erroneous verdict forms to the Facts jury. relevant our disposition follow.
On March Irving motor vessel Crown towed a group barges northward on the Illinois near River Joliet. The Crown Irving was built by Sturgeon Bay Shipbuilding in 1952 and is Company owned defendant by Material Service The vessel Corporation. lowered, which, allows when house pilot with a retractable equipped when bridges, such pass the vessel under obstructions The pilot of the river. a better view raised, captain pilot affords the one ladder is perma- side ladders: port accessed dual house is often the left other, adjacent and the affixed to a lower bulkhead nently house. The ladders ladder, attached to the pilot of the bulkhead the movement in order to accommodate one another alongside slide house. pilot engineer chief morning, plaintiff, 9:15 that At approximately house, to the which Crown, go pilot room to engine left Irving ladder, of the bulkhead top climbed to at full Plaintiff height. the pilot the bottom of moving over to in the process and was well, some floor of the ladder ladder, he fell to the steel when house left his left foot and placed that he had He testified seven feet below. foot right removed his just house ladder and had on the pilot hand he “slipped.” ladder when from the bulkhead at the time. in the house pilot and first mate were
The captain window, heard the house through pilot The saw captain mate to see He sent the first on the deck. fall, lying then saw plaintiff he climbed down first mate testified that The happened. what and had no seconds; clean the ladders were in about five dual ladders as the and “groggy,” Plaintiff was “dizzy” them. or oil on grease he could rested until where quarters, him to his helped mate first mate stated that captain taken to an ambulance. signs never shown worker, and had good always had been the fall. neck, before hip injury back or McLean, regis- that he was testified Edward expert, Plaintiff’s Academy from the Naval graduated that he engineer, tered as an institutions, postgraduate at several 1935, that he had studied stated societies. McLean professional variety to a belonged that he work, including design development, research that he had done company contracting naval large that he ran He said for the Navy. since II, he a consultant had War been through World from of some and construction design in the participated He had war. lad- fixed incorporated all of which industrial plants, utility used on of ladders types that he knew about He also said ders. vessels. seagoing *4 Standards American National testified expert
Plaintiff’s and that the stand fixed ladders standards prescribed Institute He stated seagoing mounted on vessels. to ladders apply ards would inches, and a width of at least 16 rung a require those standards the surface to inches the ladder and than 7 between not less space it Irving which is affixed. McLean had examined the Crown and testi that the The bulkhead lad fied dual ladders varied from standard. rungs wide, der’s were and the ladder was inches inches 6xx/i6 9xx/i6 bulkhead; from the ladder’s were pilot rungs only house 5xl/i6 inches wide the ladder 53k inches from the house. pilot and was only that, render the lad opined He “the factors that I have recited would der as constructed unsafe for McLean that because explained use.” into rungs narrow, were too it difficult to slide a shoe would be rails, without because the lad place interference from the vertical surface, der was too difficult close to would be mounting the ball of foot place rung. squarely cross-examination,
On that he plaintiff’s expert admitted had designed constructed ladders for Asked when any seagoing vessels. promulgated, standards were McLean stated earliest by standards were issued the National in Safety Council later, the American Standards Association standards adopted in which were accepted newly formed American National Standards Institute. He did not what changes know were made in the standards over time. remainder of case went to and damages. causation fall,
After the plaintiff stayed for at in days Joseph’s two St. Hospital Joliet, where X rays initial were taken. He at his rested home week, Arkansas for a then Irving returned to work aboard the He Crown. said that he could not do his he was in job because severe and after pain, days, a few he asked defendant to refer him to a doc- him Greenwall, tor. Defendant sent to Dr. who a prescribed cervical later, collar and pain killers. Several plaintiff placed weeks himself un- der the care of Dr. Lester. Plaintiff was admitted to the North Little Rock Memorial and was The X Hospital X-rayed again. rays revealed vertebra; a fracture of the fifth cervical plaintiff placed in trac- tion and treated with physical therapy.
During summer of plaintiff increasingly complained in his neck arm. pain Dr. Lester rehospitalized for a bone scan and Dr. electromyographs; concurrently, Lester referred plaintiff Fletcher, to Dr. a specialist in Fletcher neurosurgery. Dr. examined and found diminished in the right reflex side weak- biceps, biceps ness the right weakness triceps, atrophy the del- muscle, toid and restricted neck movement. Dr. Fletcher a ordered myelogram tomograms, which revealed that had sus- tained fracture compression deformity with flexion and facet dislo- cation, in turn causing nerve root at the fifth compression cervical vertebra. After Fletcher Drs. and Lester performed spinal fusion
November of to wear a brace for about plaintiff required six months. of first to Dr. Lester complained
On February plaintiff later, in the a months he of again complained left and few pain hip, the prob- Dr. Lester testified that he believed that hip pain. initially serious, allevi- hoped physical therapy lem was not and he would but early ate it. returned to work 19 days Plaintiff in the and again, of lower back stopped complaining pronounced pain of Dr. stated that a series hip, left and stiffness the neck. Lester suffered from condition plaintiff degenerative hip tests indicated necrosis,” replace- would ultimately require called “avuscular which prob- plaintiffs hip hip ment of left Dr. Lester joint. opined lem fall on March plaintiff’s could have been caused trauma from timing 1977. of the explained symptoms, asymme- He that the of problem of the seriousness progressive condition try all with origin. were consistent traumatic motion his left and his of favoring hip, range
Plaintiff a limp has neck, for his has in his and neck. As severely hip limited extension, range, of normal lateral one-quarter almost no or one-third he tilt, pain suffers when lateral and limited flexion. Plaintiff 15% motion, and he suffers chronic range tries to his limited exceed neck, Lester shoulder, pain. back Dr. testified arm lower worsen. condition would plaintiff’s only suffered Stevens,
Dr. clinical testified that psychologist, frustration, anxiety pain from as a result chronic depression series work toler- Dr. administered a inability to work. Stevens He vocationally tests disabled. ance and concluded that would increase. expected disability that plaintiff’s only economist, Dobbelaere, an testified Professor Arthur benefits, if he worked until wages cash present plaintiff’s value $481,283, if worked age he until age amounted $664,025. cross-examination, asked defense counsel a number On in the concerning general transporta- economic conditions questions tion This ensued: colloquy and construction businesses. Professor, what you
“DEFENSE do know ATTORNEY: industry presently? trends are in the marine A. No.
Q. op- that are laid in full any up, there vessels Whether are study of that nature? eration or did you make A. No.
Q. That would— to. going objected This is
PLAINTIFF’S ATTORNEY: in the assuming This is that Material Service is involved only It’s a multi-corporation towboat business. involved— THE Please make speeches. Objection COURT: don’t overruled.” redirect,
On counsel whether took into ac- asked Dobbelaere count that “Material Service at one time had with Gen- merged been overruled, eral Dynamics.” Defendant’s to this objection question was but to a objection sustained. subsequent question was
Plaintiff’s counsel corpo- made one other reference to defendant’s rate Crown, status. While questioning Irving coun- captain sel asked whether the captain was a stockholder who received “the annual from report General of which Material is a Dynamics Service *6 subsidiary.” The trial court sustained to this and objection question, admonished the to jury disregard it.
Defendant called two witnesses. Dr. Marshall Matz examined in at defendant’s after He request, plaintiff’s surgery. stated that plaintiff displayed strength flexion, normal and except the neck and left and hip, revealed no neurological In Dr. Matz’ symptoms. opinion, the history plaintiff’s hip problem trauma, was inconsistent with plaintiff’s and in the as pain, hip well neck, as the was caused solely cross-examination, arthritis. On by Dr. Matz admitted that person go through could life arthritis with but without a medical complaint; that trauma aggravate could a pre-exist- ing arthritis; condition such as and that an to work-trauma- “ability to inability work” would be an symptomology important consideration in determining cause.
George that, Leithner testified as a marine he surveyor, investi- gated accidents nature, to determine the extent and cause of dam- ages, and he surveyed for condition and ships value. Plaintiff chal- lenged Leithner’s expert and in qualifications, voir dire examination counsel, by plaintiff’s Leithner admitted that he special had no knowl- edge concerning ladders and no special experience in designing ships or ladders. The trial court overruled plaintiff’s objection permit- ted Leithner to testify an Leithner expert. inspected stated that he Crown, the Irving his the dual opinion, port side ladder ar- rangement was “a safe installation.” He based his on two opinion first, facts: secure, second, ladder was well fixed and the lad- der was fit reasonably cross-examination, for its intended purpose. On Leithner admitted that he took no standards (marine otherwise) or into account forming opinion of and that he safety, did not mea- sure the distance from the pilot house to the ladder. He concluded the ladder was safe because it was attached and firmly because he was able down incident. up to climb it without jury, the trial court inter closing arguments,
After instructed alia, concerning parties’ respective theories and burdens proof, case, the issues in the and the verdict forms. with Specifically respect forms, if plaintiff’s verdict stated that found in- judge defendant’s proximately by negligence was caused vessel’s negligence and there was no on contributory plain- unseaworthiness (Illinois tiff’s then use A” Pattern they should “Verdict Form part, (2d if no (IPI), Civil, 1971)); they Instruction No. 45.01 ed. found Jury nor unseaworthiness of defendant’s part defendant’s they then should proximately plaintiff’s injury, vessel which caused (IPI 45.01); B” if they use Form Civil 2d found that “Verdict plaintiff’s caused a combination defend- injury proximately ant’s negligence plaintiff’s negligence, they then contributory (IPI (Supp. 1981)). should Form Civil 2d A45.05 Ver- use “Verdict C” dict reduction of damages proportion Form C provides fault. plaintiff’s its in favor of deliberations, returned verdict plain-
After the jury $1,250,000. in the amount of Defendant tiff and defendant against filed a notice of appeal. timely
Opinion first n.o.v. was warranted be- judgment
Defendant contends that hence expert incompetent, cause testimony no or the vessel’s un- evidence of defendant’s fault plaintiff presented impose Defendant the law does not abso- argues seaworthiness. owners; rather it that seamen must ship recognizes lute liability upon which with the hazardous conditions exist agility use care and cope *7 the evidence estab- even vessels. Defendant concludes seaworthy on ladder, fell and so defendant ship’s lished from a normal that plaintiff is reversal in this entitled to judgment was entitled to below court. of one liability: statutory, advances two theories
Plaintiff a The Act cause provides law. Jones other on maritime based a injured for a who to trial seaman right by jury action and of the owner or owner’s ship result (1936), v. Anelich (1976); Arizona agents. (See 46 U.S.C. sec. 688 118-19, 1075, 1078, 709.) S. Ct. Ed. 56 298 U.S. 80 L. “ whether the jury simply of a case ‘Under this statute test employer negligence reason the conclusion with proofs justify or death producing injury slightest, even the played any part, ” v. Moore-McCormack (Ferguson are damages sought.’ for which
755 Lines, 521, 523, 511, 514, Inc. 352 U.S. 1 L. Ed. 2d 77 S. Ct. 457, 458, quoting Rogers Missouri R.R. Co. Pacific 500, 506, 493, 499, U.S. 448.) L. Ed. 2d 77 S. Ct. Independent of the ship duty owner’s under the Jones Act to exercise reasonable care, the maritime doctrine imposes seaworthiness owner upon an absolute to furnish a fit duty vessel and appurtenances reasonably Racer, for their (Mitchell intended use. v. Trawler Inc. 539, 549-50, 941, 948,
U.S. 4 L. Ed. If 932-33.) 80 S. Ct. plaintiff has made out a case on either or unsea theory, negligence worthiness, he must prevail appeal. See Ill. Rev. Stat. ch. 110, par. 1201(d). 2— The thrust of defendant’s argument is that expert unqualified and his testimony concerning standards for fixed ladders was irrelevant. Defendant reasons that we must reverse because the jury’s verdict could only have been based upon this evi- incompetent dence. We reject the premises and conclusion of argu- defendant’s ment.
In order to be evidence, admitted into must expert testimony assist the trier of fact in understanding the deciding evidence or issue, fact in and the witness must qualified by reason knowl edge, skill, experience, training education to give such testimony. (See & Cleary Graham’s Handbook of Illinois 702.1, Evidence secs. 702.2 ed. (4th 1984), and cases cited therein.) It is settled that the suf of a ficiency witness’ qualifications to as an testify expert is commit ted to the sound discretion of the trial court. (Hardware State Bank v. Cotner (1973), 55 Ill. 2d 257.) We hold that the trial court did not abuse its discretion in McLean to permitting as an testify expert in the case. present McLean, an engineer, has de signed hundreds of installations, all which ladders; included fixed he designed and manufactured equipment and he Navy, knowledge claimed of ladders commonly found seagoing aboard ves sels. training, McLean’s experience and knowledge indicated that his would testimony be useful to the understanding the physical relationships involved in the incident.
We are unpersuaded by defendant’s argument that McLean was unqualified because he had not designed ladders for vessels. seagoing We note that defendant’s expert Leithner had no design experience whatever, nor had he any training the mechanical sciences. The parties cross-examined one another’s and the had experts, ample basis for assessing the credibility note, too, of the witnesses. We defendant did not challenge McLean’s trial as qualifications plain- at tiff challenged Leithner; instead, those of defendant objected to Me- *8 756 “foundation,” to grounds
Lean’s on chose opinion its until the had rendered its delay specifying challenge jury verdict. standards, find respect to evidence of we defendant’s With meritless, to hold that was prop contentions we such evidence in this Our held erly admitted case. court that standards supreme Elgin, were relevant and admissible in Merchants National Bank v. & 809, Ry. Joliet Eastern Co. Ill. 2d 273 N.E.2d The the same negligence case. court that standards served stated custom, evidence to indicate what feasible helpful function as was known, help or what the defendant knew or should have and in turn in of care. Ill. 2d setting applicable (49 ful to the standard jury v. & in Rucker held 125.) Similarly, supreme our court Norfolk Western Ry. Co. 77 Ill. 2d that standards an un determining were relevant in whether a condition constituted Here, (77 was dangerous 438.) jury defect. Ill. 2d reasonably upon negligent furnishing called to decide whether defendant the ladder in or whether the ladder itself was defective. question, to whether or de upon was further called decide such proximately plaintiff’s injuries. pos fective caused McLean condition promulgated that National Standards Institute ited the American ladders, applied for fixed to fixed safety standards standards vessel, and that the ladder from which ladders aboard defendant’s how explained not conform to the standards. McLean plaintiff fell did how the lad safety, subject standards balance and promoted those purposes. Manifestly, testimony der defeated assisted condition the dual determining the standard of care ladder arrangement. seago to do not apply
Defendant asserts that
ANSI standards
Mer
argument
supreme
vessels. Our
court
similar
ing
rejected
Co.
Elgin,
Ry.
Eastern
chants National Bank
Joliet &
There,
that certain
argued
Ill. 2d
the defendant
N.E.2d 809.
not been
they
adopted
were not
because
had
standards
admissible
remarked that a
The court
governing agency.
merely
the appropriate
standards,
safety
“whole
calling” may lag
adopting
In this
(49
125.)
law
decides what
Ill. 2d
ultimately
required.
case,
stated that he was not aware
ANSI
expert
defendant’s
this statement
having
applied
ships. Clearly,
other standards
been
care or the condi
not
defendant’s
standard of
conclusive
either
no
reason
suggests
principled
tion of the ladder. Defendant
land,
to fixed
but
apply
should
ladders
safety standards
the ANSI stand
testified that
expert
fixed
at sea. Plaintiff’s
ladders
gen-
are
they
themselves
indicate
applied,
ards
standards
fact,
erally applicable. In
provide
exceptions
standards
under
“special
conditions,”
service
long
so
“equivalent safety”
assured.
Defendant
attempted
show at trial that
limitations
space
aboard
*9
the Irving Crown prevented
ladder,
the installation of a conforming
but the jury apparently rejected
argument.
this
The
heard con
jury
flicting evidence
standards,
concerning safety
and we will not disturb
the jury’s verdict.
Pell v.
High
Victor J. Andrew
School
Cf.
423, 433,
123 Ill. App.
858;
462
Bishop
N.E.2d
v. Crowther
92
1, 13,
Ill.
The record indicates 1970, that when ANSI in was formed adopted pre-existing standards for fixed ladders. Defendant deduces that there is no evidence of the applicable standard when the ship was built in 1952. In v. Murphy Messerschmidt (1977), 68 Ill. 2d N.E.2d defendant, relied upon by the court found error in the introduction of a 1963 building code to show custom and practice the construction industry 1952. The Murphy court distinguished Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 356 N.E.2d ground Davis, that in the regulation was intended to eliminate ex isting hazards, whereas in Murphy, no such inference could be drawn from the (68 79, 84, record. Ill. 2d In 1299.) the instant case, the ANSI standards placed evidence, were and the standards address existing hazards:
“The requirements of this standard shall not apply existing installations, provided meet they one of the following condi- tions:
1) The installation was made in compliance state, with a fed- eral or consensus standard which was in existence and applica- ble at the time of installation, and documentation is availa- ble to substantiate this.
2) The installation differs from the design measurements of this standard aby degree, determined aby competent struc- engineer, tural which will not substantially change the perform- ance requirements of this standard.”
We conclude that this case is governed Davis by rather than Murphy, and hold that the ANSI standards were properly by considered jury.
Defendant maintains that “normal,” the ladder in question was and relies Lines, on Cumberland v. Isthmian (E.D. 1967), Inc. La. 282 E Supp. v. Bilger Maritime Corp. (N.D. Overseas Cal. 1969), 304 F. Supp. (9th 1971), Cir. 439 F.2d for the aff’d proposition that a seaman may not recover for a fall from “normal” equipment. Cumberland and Bilger are inapposite: both cases were bench, each, tried and in the district court found as factual to the negligent the defendant and the was en- matter Here, for tirely pre- and defendant responsible injury. to a the facts jury against sented their cases resolved jury, defendant. case, with to the this defendant ar
Finally respect proofs of nonconforming there is no ladder gues proxi evidence A “cause” its nature is not ob plaintiff’s injury. caused mately fact question served but inferred. Proximate cause ordinarily v. (Ney Yellow Cab Co. Ill. 2d 74), is well the role of the jury signifi established “[i]t *** than law negligence Jones Act cases in common cantly greater fault and right pass upon question actions. (Johannessen Trad most liberally causation must be viewed.” Gulf ing Co. 1980), 653, 656.) Transportation & (2d Cir. 633 F.2d Plain too tiff’s testified that the ladder was too narrow and shallow expert balance; he fell when re testified that he provide proper wider, the ladder. deeper foot from the From right part moved *10 this, could, did, infer that fell be apparently the jury foot, weight onto an and that improperly cause he shifted balanced not furnished plaintiff’s foot was balanced because defendant properly narrow, ladder. These inferences evidence supported by shallow are sense, permit nullify and the law does not us to the ju and common ry’s decision. that jury’s
Defendant next contends the verdict excessive, that verdict was $1,250,000 argues was the based status, corporate in repeatedly consideration of defendant's improper the rejoins the trial counsel. Plaintiff that jected by plaintiff’s into lost verdict, light earnings, high, plaintiff’s while reasonable suffering. Plaintiff notes pain and chronic permanent disability one to defendant’s corpo that trial court reference permitted only the status, response reference an invited to argues rate the would cause plaintiff that economic conditions suggestion defendant’s to be laid off. on a nature is because corporate improper defendant’s
Emphasis real case to distract the from the issues the and tends jury tends might against corporations to the any prejudice jury evoke harbor (Babcock Ry. v. & Ohio Co. 83 Ill. Chesapeake (1979), App. generally. However, to reference 265.) corporate 404 N.E.2d if it appears verdict be not the set aside require wealth does York Central (See Dupay v. New R.R. resulted. no actual prejudice 146, 154-55, 179.) On appeal, Co. Ill. 249 N.E.2d 110 (1969), free, er whether the trial was but whether question not error prejudiced ror occurred or affected appellant unduly which outcome. 254 N.E.2d (Bruske Arnold Ill. 2d Ct. cert. 26 L. Ed. 2d 90 S. denied U.S. 1697.) do believe level We that the references at issue rose to the of reversible error. express we our use
Initially, gave of the tactic which disapproval to this at “issue.” Defendant cross-examined economist plaintiff’s length trends in indus- concerning transportation and construction tries, reading and our clear implication record reveals the future earnings would be affected adversely by depressed economic conditions. Arguably, thereby placed defendant issue effects of on Material depressed Corporation. conditions Service Plaintiff’s reference to parent defendant’s was therefore corporation arguably relevant defendant’s to withstand condi- ability depressed However, tions in the wit- transportation economy. sector no this; ness ever testified plaintiff’s economist had no knowl- edge of sector, economic conditions in the alone transportation let particular their effects upon vessels and seamen. The at- companies, torneys for both sides this “issue” by “testifying” through fabricated their questions. The trial court only instructed the to consider jury the testimony witnesses, we disre- assume that the jurors garded attorneys’ rhetoric. reasons,
For several additional we believe that the at references issue did not unduly prejudice defendant. were sustained Objections toas three out of four of the references. Plaintiff’s counsel made no attempt at inflammatory argument based on either status corporate wealth. Indeed, last oc reference which defendant complains curred five went days before case to the The trial court in jury. structed the that a corporation deserved the same fair treatment an individual, again, we assume that the followed instruc trial Finally, judge tions. a better position preju assess dicial impact upon jury (see Authority Panelle v. Transit Chicago Ill. 2d denied 484), and he defendant’s *11 references, post-trial stating motion based on these that he doubted the a difference jury perceived great Material Service and between General and he Dynamics, impact. felt the issue had negligible verdict,
As to the excessive. The test say we cannot that it is an is it the flexi for excessive verdict whether falls within necessarily and ble limits of fair or is so as to compensation large reasonable (LeMaster shock the conscience. v. Pa judicial ChicagoRock Island & 1001, 1030, 65.) R.R. 35 Ill. 3d The Co. N.E.2d cific not subject damages personal injuries of an award of for propriety by comparison to nor measured computation, may mathematical in “Each must personal injury with verdicts other cases. verdict involved, in with humble light particular injury be examined the the its making deference to the discretion of the in determination jury Lau v. to the of the trial the motions.” ruling judge post-trial and on Bus 63. WestTowns Co. 442, 453, 158 16 Ill. 2d N.E.2d case, infer that plaintiff From the evidence in this could jury $481,000 $664,000. The suffer lost and earnings would total between dis- progressively evidence indicates that permanently of lost abled, compensation independent for which he is entitled to that suffers chronic earnings. testimony Medical indicated undergo further until he dies. Plaintiff must pain which will increase will never range full of motion surgery periodic therapy, yet his work, to inability be restored. As a result of chronic pain fam- of interference with his depressed point is frustrated and $1,250,000 would compensate felt that ily relationships. jury loss, court’s con- the sum does not shock this plaintiff for science. erred in sub contends that the trial court
Finally, defendant that only three to the Defendant maintains mitting jury. verdict forms tendering form was comparative negligence appropriate, not plaintiff encouraged jury verdict form in favor of general re fault We do believe apportion parties. between versible error occurred. 1, 421 our su Alvis Ribar
In 85 Ill. 2d N.E.2d law of Illi comparative negligence preme adopted pure court nois, special spe “that the use of verdicts and its belief expressed in its guide will as a to assist interrogatories jury cial serve 886.) Supreme Ill. The Illinois (85 deliberations.” the “A” Instructions Civil Cases drafted Jury Court Committee the need for a useable set common series of instructions to meet supreme Recognizing instructions. comparative law fault, the Committee apportioning guide court’s desire to is still use commented general presently “the form of verdict Introduction, (Supp. at 5 (A45.09) (IPI ***.” Civil 2d appropriate form endorsed verdict 1981).) It is significant form tendered the same as the substantially Committee is and IPI Civil 1981) IPI 2d A45.09 (Supp. this case. Civil (Compare combinations A of cases have considered 45.01.) varying number forms, to a conclusion con these cases point verdict and we believe suggested by to the one defendant. trary
761 169, 774, In Hunter v. 3d (1982), Sukkar 111 Ill. App. the trial court the form and only submitted comparative ver plaintiff argued that the court should submitted the general have necessary. form as not dict well. This court held forms were that additional (111 169, l. which App. 178.) nothing 3d There is in Hunter Il forms, prohibits general even criticizes and so the reliance verdict present of the upon misplaced. Stromquist defendant Hunter is Northern, Burlington N.E.2d (1983), App. Inc. 112 Ill. 3d 444 There, addressed the tendered problem. converse the defendant forms, verdict special general but trial court submitted forms in stead. Noting language forms concerning Alvis verdict Stromquist advisory, court In Illinois affirmed. Hazelwood v. Central R.R. 114 Ill. 3d 450 App. N.E.2d Gulf trial court comparative submitted a form form verdict and a plaintiff (IPI A45.05, for 2d A45.09), resulting Civil in a combination of forms similar to the combination challenged the instant case. The Hazelwood no (114 703, 709.) court found error. Ill. 3d See App. 454-56, also Coleman v. Hermann 116 Ill. 3d 452 App. 620; Day N.E.2d Harris v. (1983), 115 Ill. App. 262;
N.E.2d Seward v. Ill. Griffin 558. view, our In these decisions are fundamentally harmonious. jury instructions in each case properly guided jury’s deliberations concerning fault, apportionment verdict covered forms the possible findings. jurisdictions require Other in- computational (see, struction forms e.g., Ry. Lawrence v. Florida East Coast Co. (Fla. 1977), 1012), 346 So. 2d but recognized this court has that sub- stance should prevail form. We that this approach over believe flexible was foreseen our court in supreme Alvis. case,
In this the trial court gave pattern concerning instructions case, theories of the of proof, burdens and issues. The court submitted defendant, a verdict form one plaintiff, for and a form for compar- negligence. ative The instructions the conflicts in evi- recognized dence and the verdict forms resolution of fairly any possible covered the issues. We hold no sugges- error occurred. Defendant’s only prejudice tion of “encour- that submission of the form for plaintiff aged” fault, not to we how. The apportion but fail to see most that can argued is that the forms duplicative, verdict were were, we assuming, arguendo, duplica- would hold the they tion to be harmless to defendant. reasons,
For we circuit foregoing judgment affirm court.
Affirmed.
MEJDA, P.J., concurs. SULLIVAN,
JUSTICE dissenting: I majority For several with the con- disagreement reasons am cerning opinion. certain its aspects
First, it that the appears to me that has been established *13 were (ANSI) appli- American Standards Institute standards National (a towboat). The only involved here river seagoing cable to vessel expert from wit- regard plaintiff’s evidence in this came McLean— to applied that the standards objections gave opinions ness—who over in here unsafe be- question that the ladders were seagoing vessels and of ANSI for fixed lad- cause to meet three standards they failed industrial en- However, record that McLean was an ders. discloses in who, design having experience while considerable gineer and some fixed lad- experience construction of industrial with plants or experience training design had no in the plants, ders in such any seagoing on river towboats or other construction fixed ladders fact, concerning his only knowledge In McLean admitted that vessels. Moreover, from visual observation them. such fixed ladders was that ANSI testimony, appears from it standards McLean’s that usage. fixed industrial He testified only ladders to apply who collected various stand- ANSI “a have these group people was *** group have one simply ards from codified under industry. They all Group that is known the American National Standards as been today, they very that used in have industry standards are occasion, he testified that ANSI active 1970.” another since about On have “to all of the several standards that been was formed coordinate Mc- although that plaintiff argues adopted industry generally,” on the basis give opinions question Lean to qualified was it that he engineering, in marine is noted he had extensive experience seagoing any in the or construction of design had never been involved fixed lad- above, concerning and, knowledge as his only vessel noted It of them. thus his ders on vessels was visual observation seagoing lacking and that was opinions belief that for McLean’s my foundation objections have been sustained. thereto should to sea- applicable if the were Secondly, even American standards effective until vessels, it not become going they is clear that did in the or elsewhere and there is in the of McLean nothing testimony vessel constructed seagoing to a indicating they applied record when testify was the case here. McLean did created, it adopted ANSI was the American Standards Association ladders, recommendations for he did not state those recom- but what were, mendations when were or whether to they adopted they applied vessels, and he did not state that were in seagoing particularly they effect in 1952.
Thus, there no for McLean’s testimony since foundation and, further, seagoing ANSI standards were to vessels applicable because there is in the their nothing support applicability record to a vessel constructed them prior testimony concerning should have been admitted.
Thirdly, McLean’s testimony as to the ANSI variances should not have been admitted for the further reason that there no testi- from it or mony any relating other witness fall to variances; narrow, these that the was too namely, ladder that was bulkhead, too close to the and that the ladder centerline was not in the middle of its The only testimony by plaintiff width. as to his fall examination, was as follows: On direct he said that while transferring ladder, over to the “my right other foot was on there and as I coming remember, examination, I then.” slipped on his direct Subsequently, after plaintiff testified that in transferring the other ladder he put his left foot down first and then put right foot his up, attorney asked, then “When you put your right foot I take it it on up, you put one of the rungs?” answered, he “Yes.” The next asked question was, his counsel answered, “How did that I *14 feel?” and he “Well guess cross-examination, I slippery. slipped.” Thereafter, when asked what when he happened swing right was over with his trying foot, answered, he foot, “My right apparently slipped my hand too, whatever. I Thus, don’t it clear that appears know the exactly.” only reason plaintiff gave falling was that foot because slipped rung the slippery, nothing and there thus is his or other any of the testified to testimony any ANSI variances McLean was by a proximate cause of his fall.
While, as the by majority, citing Ney stated v. Yellow Cab Co. 2 Ill. 2d proximate cause is ordinar aily of fact for the the court in question jury, Ney, which involved a violation, also out that statutory pointed must have a di injury “[t]he rect proximate connection with the violation of the statute before rule, course, will held to exist.” The same liability of would apply variances, to ANSI and because there testimony connecting was no variances, plaintiff’s of the the admission of McLean’s injury them was concerning erroneous. opinion
Because counsel at plaintiff’s argued length, closing arguments, unseaworthy in question and the vessel negligent that defendant a proxi- one of them was and that at least of the variances because preju- was so belief that defendant my of his injuries, mate cause concerning testimony McLean’s admission of diced the by improper a trial is required. the new variances the the of concerning propriety the majority
I also with disagree majority, by to the As stated jury. forms submitted verdict A” Form should use “Verdict they trial court informed but, negligence; no contributory if found 45.01) they 2d No. (IPI Civil contributory negligence of a combination if found there was they No. (IPI Civil 2d Form C”1 should use “Verdict they negligence, “We, for the Jury, find “A” is as follows: 1981).) (Supp. A45.06 in the sum damages We assess the the defendant. against plaintiff as follows: $__” of “C” read The first three paragraphs of of the against find all “We, for the jury, following: further find the defendant(s) and of re- the question into consideration taking First: Without *** of the negligence plaintiff, to the damages of due duction $__ in the sum damages plaintiff’s assess of] [we the total combined Assuming represents that 100% Second: defendant(s) the unsea- and of the negligence [or percentage we find that the vessel,] of defendant’s worthiness *** plaintiff is_per- to the solely attributable negligence (%). cent total sustained reducing damages After
Third: to the attributable percentage plaintiff by in the sum damages assess recoverable we plaintiff, of$__” N.E.2d v.
In Hunter Sukkar App. 111 Ill. IPI Civil 2d error because asserted given, plaintiff where “C” was The court “A”) given. was not is the (which equivalent No. A45.09 the negli whenever of “C” was appropriate the giving found there issue, under such circumstances was an gence “A”. give was no need to majority, upon by and relied by plaintiff
In the cases cited nor at issue forms was neither two verdict giving those propriety Northern, 112 Ill. Inc. Burlington Stromquist In discussed. verdict special trial court refused identi- Neither was jury. form to the verdict gave form but *15 providing for a 2d No. 45.01 half of IPI Civil Form B” was the second 1“Verdict against plaintiff. finding for defendant that the ver special This court found opinion. content in the fied as to defective, and held that it was form refused because properly dict it adequately where proper of a verdict form was general the use v. Illinois Central R.R. In Hazelwood charges jury. Gulf 1199, in the 703, alleged defendant error 114 Ill. 3d 450 N.E.2d App. verdict negligence computational comparative refusal of a non-IPI how (1981 (outlining Supp.) form. were IPI Civil 2d No. A45.05 Given and a modified contributory negligence) if there is damages reduce 1981)) (not 2d No. A45.09 (IPI (Supp. IPI verdict form Civil general court, noting that defendant did set forth in the This opinions). the non-IPI them, compu either of found that the refusal of object IPI A45.05 and tational form was not error since combination for the to reach a verdict. adequate the modified IPI A45.09 was Ill. App. In Coleman v. Hermann (IPI form Civil 2d general the trial court refused verdict plaintiffs non-IPI ver special defendant’s (Supp. 1981)), gave No. A45.09 form, issues, each for a calling yes dict which set forth five separate defendant’s instruc or no answer At issue was whether by jury. (Ill. of Civil Procedure Rev. tion violated section 2—1108 Code This court that under the cir par. 1108). Stat. ch. found 2— error, case, cumstances of the the verdict form as submitted was but held it to harmless because there was no since prejudice there, was, form, under the circumstances “the submission what but, substance, the re special general verdict verdict” satisfied general of section “shall render a quirement 2— verdict.” I is that “A” and “C” are problem
The see the instant case for a in favor general finding both verdict forms in that each provides A and the assessment of defendant. find damages against in “C” use of jury’s would be ing accomplished plaintiff. as the attributable to percentage “zero” forms, allowing each the as submission of two such verdict defendant, and, of full adher damages against improper sessment to the in Hunter v. Sukkar 111 Ill. ing reasoning I plaintiff’s negligence believe where—as here — issue, No. (IPI A45.06), “C” Civil 2d should have been only “A”, given; but not which was IPI Civil 2d No. stated in A45.01. As A45.06, (1981 the “Notes on IPI Civil 2d No. Use” under at 37 negli there is no issue of Supp.), “[wjhere plaintiff’s contributory gence, IPI 45.01 or 45.03 should be used.” stated,
For the reasons I would reverse of the cir- judgment and remand for a new trial. cuit court