Pestka v. Town of Fort Sheridan Company

SUPREME COURT CASES

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State: Illinois

Court: 1st District Appellate

Docket No: 1-04-2674 Rel

Case Date: 01/22/2007

Preview:First Division January 22, 2007 No. 1-04-2674 EDWARD PESTKA and BETTY L. PESTKA, Plaintiffs-Appellants, v. TOWN OF FORT SHERIDAN COMPANY, L.L.C., an Illinois Corporation, TOWN OF FORT SHERIDAN OPERATING COMPANY, L.L.C., WOLF MANAGEMENT SERVICES, INC., ENVIRONMENTAL QUALITY MANAGEMENT, INC., and PEARSON, BROWN AND ASSOCIATES, INC., Defendants-Appellees (Midwest Rail and Dismantling, Inc., a Foreign Corporation Doing Business in Illinois, Defendant). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

02 L 11906

Honorable William Maddux, Judge Presiding.

PRESIDING JUSTICE McBRIDE delivered the opinion of the court: Appellants Edward and Betty Pestka (the Pestkas) brought a construction negligence action against Town of Fort Sheridan Company, L.L.C. (TFSC), and Midwest Rail and Dismantling, Inc. (Midwest), seeking damages for injuries sustained on the job by Edward, a truck driver, and for Betty's loss of consortium. The Pestkas later filed an amended complaint in which they added Town of Fort Sheridan Operating Company, L.L.C. (TFSOC), Wolf Management Services, Inc. (Wolf), Environmental Quality Management, Inc. (Environmental), and Pearson, Brown & Associates, Inc. (Pearson), as additional defendants. The trial court dismissed the additional defendants with prejudice because the Pestkas failed to seek leave of court before filing

1-04-2674 their amended complaint. The trial court further granted TFSC's motion for summary judgment. The Pestkas later settled with Midwest. The Pestkas appeal the trial court's dismissal of TFSOC and the granting of TFSC's motion for summary judgment. For the reasons that follow, we affirm. The Pestkas contend that (1) the trial court erred when it dismissed their first amended complaint against TFSOC, and (2) that the trial court erred when it granted TFSC's motion for summary judgment. TFSOC was formed as a limited liability company on July 24, 1996, and was managed by TFSC. TFSOC owned a property known as Fort Sheridan. On March 24, 1998, TFSOC, by TFSC as the duly authorized manager of TFSOC, entered into a demolition service agreement with Midwest that was to be performed at Fort Sheridan. Midwest then subcontracted with Miller Compressing Company, which in turn subcontracted with Recycler's Transport, Inc. (Transport), to perform haulage during the demolition phase of the project. On May 22, 1998, Edward Pestka was employed by Transport as a truck driver and was working at Fort Sheridan. Edward had worked part time for Transport since 1995 and was at Fort Sheridan to haul away debris from the demolition. He had been trained to stay 100 feet away from the truck when it was being loaded in case the crane operator dropped a load. The jobsite supervisor on May 22 was Mark Augustine, who had 25 years of experience operating construction cranes. On May 22, 1998, Augustine was operating the crane at Fort Sheridan, because the normal crane operator did not show up for work. Although Augustine had not operated this particular model of crane before, he had experience operating cranes with

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1-04-2674 controls similar to those on the crane at Fort Sheridan. On May 22, Augustine began loading Edward's truck. At one point, a steel I-beam Augustine attempted to load fell over the edge of the trailer. The beam struck Edward in the back. As a result of the accident, Edward was severely injured and had his right leg amputated below the knee. On May 4, 1999, the Pestkas filed a complaint against TFSC and Midwest, alleging construction negligence and loss of consortium. The Pestkas alleged that TFSC owned and/or was in charge of erecting, construction, altering, removing, and/or painting a certain building at Fort Sheridan. Further, the Pestkas alleged that TFSC failed to properly inspect and manage the premises, provide Edward with a safe place to work or adequate safeguards, supervise the work, operate the crane, or provide equipment or personnel. As a result, Edward was seriously injured, and Mrs. Pestka lost his society, companionship and consortium. The Pestkas made similar allegations against Midwest. On March 29, 2002, without leave of court, the Pestkas filed a first amended complaint and added TFSOC, Wolf, Environmental, and Pearson as defendants, and alleged similar construction negligence and loss of consortium claims as were alleged against TFSC and Midwest. On May 6, 2002, a summons was issued for TFSOC, and TFSOC filed an appearance on May 22, 2002. Also, on May 22, 2002, the trial court entered an order on TFSOC's motion vacating any and all defaults entered against TFSOC. TFSOC never filed an answer in this lawsuit. The newly added defendants (including TFSOC) moved to dismiss the first amended

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1-04-2674 complaint on the grounds that the Pestkas had not obtained leave of court to file it. In July 2002, the Pestkas sought leave to file the first amended complaint nunc pro tunc March 29, 2002. TFSOC and the other newly added defendants filed briefs opposing the Pestkas' motion. On August 28, 2000, the trial court dismissed the first amended complaint as to the new defendants and denied the Pestkas' motion for leave to file the first amended complaint nunc pro tunc. On September 24, 2002, the Pestkas obtained leave to file its first amended complaint, and on October 10, 2002, the Pestkas obtained leave to amend the September 24, 2002, order and add and identify additional defendants. Again, Wolf, Environmental, Pearson and TFSOC moved to dismiss the first amended complaint and asserted that it was barred by the construction statute of limitations. On January 3, 2003, the trial court entered an order granting the motions to dismiss and included a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was "no just reason to delay enforcement or appeal of this order." Although TFSOC had moved for dismissal, the January 3, 2003, order listed TFSC, and not TFSOC, as one of the moving parties. In that order, the trial court dismissed Wolf, Pearson, Environmental and TFSC. The claims against those defendants were dismissed with prejudice, and the trial court included Rule 304(a) language in the January 3, 2003, order. On January 15, 2003, TFSOC filed a motion to correct the record nunc pro tunc to reflect that TFSOC should have been the dismissed defendant in the January 3, 2003, order. On January 24, 2003, the trial court granted TFSOC's motion and entered an order that read in its entirety: "This cause coming to be heard on the motion of defendant TFS Operating Co., LLC to correct the record to reflect a

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1-04-2674 dismissal, with prejudice, as to TFS Operating Co. LLC, nunc pro tunc, due notice having been given and the court being fully advised in the premises, it is hereby ordered: Defendant TFS Operating Co., LLC's motion to correct the record to reflect a dismissal, with prejudice, as to TFS Operating Co. LLC, nunc pro tunc, is hereby granted, nunc pro tunc to 1-303." The record does not contain a transcript of the proceedings from January 3, 2003, or January 24, 2003. In his deposition, Edward said that on the day of the accident, Mark Augustine, Midwest's project superintendent, was operating the crane because the normal crane operator failed to show up. Augustine, the only person Edward received instructions from while he was working on the job, told Edward where to park his truck to get loaded. Before Edward had a chance to exit the cab of his truck, Augustine had begun dropping beams in Edward's trailer. Edward quickly exited his cab and began walking away from his truck. Edward testified that as he was walking away from his truck, he was hit in the back by an I-beam. He estimated that the entire incident lasted only a few minutes. Mark Augustine testified in his deposition that he had scheduling authority for the subcontractors. It was his understanding that the general contractor for the Fort Sheridan job was a company called Red Seal, and Joe Vassau was Red Seal's project manager. Augustine received instructions from Vassau regarding what building needed to be demolished and by when, but

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1-04-2674 Vassau never told Augustine how to work. Augustine further believed Mike Tracy to be a "big shot" with Town of Fort Sheridan. On one occasion, Tracy advised him that Midwest had not removed enough dirt from some concrete it had been crushing for a recycling project. On the date of the accident, the normal crane operator did not show up for work. As a result, Augustine operated the crane and loaded Edward's truck. Augustine stated that when he started loading the beams into Edward's trailer, Edward had already exited and walked away from the cab but he was not sure how far away from the truck Edward had gotten. Augustine then proceeded to load five beams into the trailer. The sixth beam that Augustine attempted to load was bent in the middle, taking the shape similar to that of a boomerang. As a result of the bent shape of the beam, it was not going into the trailer very easily. Each end of the beam ended up sitting kitty corner from the other on opposite side walls of the trailer. When this happened, Augustine attempted to tap one end of the beam off the side of the trailer, which he said is common practice, so that the beam would pivot and fall into the trailer. Unfortunately, when he tapped the beam it did not go into the trailer. Instead, the beam rolled over the outside edge of the trailer, on the opposite side from where Augustine was loading. When that happened, Augustine went and got another beam, thinking he would get the fallen beam when he was done loading the trailer. A few minutes later, some of the laborers on the job told him that "somebody got hurt." Augustine and another crane operator got to Edward at about the same time. The beam was still lying on Edward, and Augustine and the other crane operator got it off of Edward. Augustine estimated that from the time Edward exited his truck until the time of the accident, no more than five minutes had elapsed. Augustine further testified that due to the high-walled construction of the trailers,

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1-04-2674 spotters are not typically used. The only place for a spotter to be located would be on top of the cab of the truck, and when working with steel beams, that would be too dangerous. J. Michael Tracy, TFSC's chief corporate officer, testified in his deposition that TFSC managed and provided oversight for the redevelopment project at Fort Sheridan. Mr. Vassau and Mr. Larsen, both employees of Red Seal (a member of TFSOC) and construction supervisors on the project, had authority to observe the Fort Sheridan work site and stop the work of the contractors. He further testified that the responsibility of safety belonged to the contractors, but if he, Larsen, or Vassau knew of a situation that was life-threatening, he would intervene. Larsen and Vassau were responsible for inspecting Midwest's work and the work of others to make sure it was done pursuant to the terms of the contract. TFSC conducted weekly meetings with its subcontractors during which the subcontractors could bring up issues that were of concern to them, safety or otherwise. Tracy occasionally observed Augustine operating machinery at the jobsite. Tracy did not have any complaints regarding Augustine's work. Tracy was not on the jobsite when the accident occurred. He first learned of the accident from either Larsen or Vassau after he returned to the jobsite around lunchtime that day. Tracy had no knowledge regarding whether it is considered an unsafe work practice for someone to load beams into a truck with the driver in the proximity of the truck. On February 27, 2003, TFSC filed its answer to the Pestkas' first amended complaint in which it denied all material allegations and raised the affirmative defense of comparative negligence. On March 24, 2003, TFSC filed a motion for summary judgment alleging that it did not own the premises, that it was not in charge of the construction project, and that it had no

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1-04-2674 authority to stop work. On October 15, 2003, TFSC filed an alternative motion for summary judgment in which it argued that it could not be held liable because it did not retain control over the operative details of Edward's work. Specifically, TSFC asserted that it did not contractually owe a duty to Edward, nor did it owe a duty by virtue of its (TFSC's) conduct. In opposing TFSC's first motion for summary judgment, the Pestkas argued that TFSC was not at the jobsite simply as a manager of TFSOC. Rather, they asserted, in part, that TFSC conducted weekly safety meetings, managed and provided oversight for the redevelopment of Fort Sheridan, was an equity participant in the project, and that TFSC and TFSOC were essentially the same company. In opposing TFSC's alternative motion for summary judgment, the Pestkas argued that Larsen and Vassau were present at the project site on a daily basis and had authority to observe the work site and make sure the work was performed in accordance with the project plans and specifications. The Pestkas further alleged that these men had the authority to stop work and could remove any worker they deemed unqualified. Further, Tracy had day-to-day on-site responsibilities regarding the demolition, including the ability to personally stop work for safety violations. On December 17, 2003, the trial court heard argument on TFSC's first motion for summary judgment and took it under advisement. On January 23, 2004, the trial court heard argument on TFSC's alternative motion for summary judgment and granted it, finding that there was no genuine issue of fact regarding whether TFSC retained sufficient control to impose liability under section 414 of the Restatement of Torts (Second). Restatement (Second) of Torts

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