Wilfong v. L.J. Dodd Construction

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-09-0347 Rel

Case Date: 05/27/2010

Preview:No. 2-09-0347 Filed: 5-27-10 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ DAVID W. WILFONG, ) Appeal from the Circuit Court ) of Kendall County. Plaintiff-Appellant, ) ) v. ) No. 06--L--15 ) L.J. DODD CONSTRUCTION and ) G. PORTER AND COMPANY, ) ) Defendants-Appellees ) ) (Kluber, Skahan and Associates, Inc., and ) Honorable Kocurek Concrete Contractors, Inc., ) Thomas E. Mueller, Defendants). ) Judge, Presiding. _____________________________________________________________________________ JUSTICE BOWMAN delivered the opinion of the court: Plaintiff, David W. Wilfong, was injured when he fell while walking across ruts at a construction site. He appeals from the trial court's grant of summary judgment in favor of defendants, L.J. Dodd Construction (Dodd) and G. Porter & Company (Porter). Plaintiff argues that: (1) the trial court erred in ruling that the ruts were open and obvious; (2) the trial court erred in determining that the "distraction exception" did not apply; (3) the trial court erred in ruling that the distraction was not reasonably foreseeable by defendants; (4) even if the ruts were open and obvious, defendants owed him a duty to maintain a safe jobsite pursuant to their contracts with the landowner; and (5) the trial court did not give proper weight to an expert's statement attached to plaintiff's motion to reconsider. We affirm.

No. 2--09--0347 I. BACKGROUND In November 2004, plaintiff was a project manager for Jones & Brown Company and was assigned to the Churchill Elementary School project in Oswego. Jones & Brown was a steel fabricator hired by the project owner, Oswego Unit School District 308 (OSD 308). OSD 308 hired defendant Dodd as the general contractor and defendant Porter as a masonry subcontractor. Kluber, Skahan & Associates, Inc. (Kluber, Skahan), was the architectural firm for the project, and Kocurek Concrete Contractors, Inc. (Kocurek Concrete), was hired by OSD 308 to pour concrete. The following facts come from excerpts of depositions contained in the record. At the time in question, the construction site consisted primarily of the school building under construction and Dodd's job trailer, which was in a paved parking lot about 75 yards west of the school. Much of the site was very muddy and filled with ruts. About 20 to 30 feet or 60 to 70 feet from the job trailer was a gravel path that led from the parking lot to the east entrance of the school. Michael Barr, OSD 308's construction supervisor, testified that Dodd had the path installed after he requested a "smooth walking path" to provide "clear access to the building." The path satisfied his concerns regarding ground conditions, and he did not think that anything else needed to be done to address the ground conditions. When asked if there was a designated walkway, Barr replied in the negative and said that there were "several points of access to the building." On several occasions he had chosen to walk across the ruts rather than take the gravel path. The number and size of ruts shown in plaintiff's photographs did not look different from other construction sites at that time of year. Barr further testified that Jones & Brown and Porter were hired directly by OSD 308. Plaintiff testified in his deposition as follows. On November 18, 2004, he was participating in a progress meeting in the job trailer. Plaintiff had been to the jobsite about two to three times a

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No. 2--09--0347 week for the previous two months to inspect progress. About 20 minutes into the meeting, Neal Dodd (Neal) was concerned whether Jones & Brown had enough "sure connectors" delivered to the site. Sure connectors are welded through decking to allow poured concrete to maintain its structural integrity. Plaintiff called his office, and the person in charge of shipping, Mike Milligan, told plaintiff that they had been delivered and told him the quantity. Neal said that the quantity was insufficient. Plaintiff asked Milligan to check again, and Milligan said that he would. Plaintiff decided to leave the trailer to do a physical count. The discussion in the trailer had been heated, and plaintiff was upset with Milligan for not verifying the number of connectors before plaintiff left the trailer. Plaintiff did not know where the connectors were but "[c]ommon sense *** told [him] that the sure connecters [sic] were inside the building and were protected" from the elements because they came in cardboard boxes. "That's the first thing [he] thought about." Plaintiff left the trailer at about 9:30 or 10 a.m., and walked over the parking lot, down a grassy area, and down a "drive" that was bare ground with rough terrain but was an access way for vehicles to get to the building. Plaintiff testified that he had to walk in a rut that a truck had made in the drive and that "[f]rom that point on it was at your discretion which way you went. There was no designated path to the job." Plaintiff explained that the rut in which he was walking in the drive did not lead to the building, so he had to keep stepping in and out of different ruts to make his way to the building. He was walking in a normal manner and was not in a hurry. The ruts plaintiff was walking in were consistent with the tires of the lulls that bricklayers use to carry bricks. The width and shape of the tire tracks, along with plaintiff's experience, allowed him to identify the source of the tracks as a lull. Porter used lulls on this site. The ruts were generally about 8 to 10 inches deep. He could not walk on the "tops" of the ruts, meaning ground

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No. 2--09--0347 level, because they were unstable; it was like walking on a peak. The ruts themselves went down from ground level. The ruts were a "little hard" because the sun had not come out yet to "soften stuff up." Low areas of the site were damp and muddy, but the inside of the ruts was "firm." He believed that he must have been sidestepping from one rut to the next, because he could not cross over and put two feet in the same rut. When plaintiff was stepping from one rut into the bottom of another rut, the "side of the rut *** gave way" and he lost his balance and turned his right ankle. Just before he fell, he was looking at the ruts and trying to determine his next step. A few seconds before he fell, Milligan called plaintiff on his cell phone and told him that the quantity of connectors Neal had claimed should be on the site was correct. Plaintiff was on the phone when he fell. Plaintiff was about 25 to 30 yards away from the building and 35 to 40 yards away from the trailer. He was wearing high-top boots with steel toes. For two or three weeks before the accident, plaintiff had complained about the site's condition because trucks could not get close enough to the building to make proper deliveries. Plaintiff said that the site needed to be scraped because the trucks "needed a level laid out surface to bring our material onto the worksite." Deliveries had to be made about 100 or 150 yards from the building, which was not the usual case for construction sites. Plaintiff believed that leveling ruts was the responsibility of the general contractor, construction manager, or whoever was in charge of safety. Plaintiff had worked in construction for over 20 years and had 40 hours of a safety training course. The instruction included keeping an eye on the site's ground to watch where you are walking. Plaintiff was familiar with ruts on jobsites and with muddy and rainy conditions, and he was familiar with how to avoid ruts while walking on jobsites. However, this jobsite was

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No. 2--09--0347 substandard regarding the number, length, and depth of the ruts. As a result of his fall, plaintiff fractured his ankle. Melvin Greathouse testified that he was the general foreman for DTI, which Jones & Brown had hired as a steel erector. At one of the first progress meetings he was involved in, he told Neal that as the general contractor, Dodd was obligated to provide access with a good road and a level dry area to put the steel down. Greathouse believed that the site's condition was even worse than depicted in plaintiff's photos, and he repeatedly complained about conditions. His workers also complained about the muddy conditions when walking to the building site, because "[b]y the time you would get there *** you would have mud *** halfway up your thighs." In his 40 years as an ironworker, Greathouse had been to about 4,500 jobsites. He had been to a few sites with ruts similar to the Churchill School project, but those had been shut down to fix the ruts, whereas Dodd made little to no attempt to fix these ruts. There was one day Greathouse called off his workers due to site conditions. Ronald Tucek ran Kocurek Concrete. He testified that they were scheduled to pour concrete on November 17 but had to postpone until the 22nd due to rain. Tucek described the conditions as those of a "normal jobsite," though he also said that it was "pretty muddy" and he was "surprised that they were working in this kind of mud and that the lulls made it through." Ruts such as those depicted in plaintiff's photos were common on construction sites. The only way to avoid ruts was to put down stone, but it was highly doubtful that any construction contractor would do that because of the expense and the impracticality. Tucek explained that the contractor would then have to remove all of the stone to plant grass. On some projects, his company had been hired to grade out ruts similar to the ruts on this site. However, he had never seen grading done on a daily or weekly

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No. 2--09--0347 basis. Usually, it would be done before a freeze, again in spring after the freeze/thaw cycles, and toward the end of the job. It was a "never-ending battle for ruts" and there was no way for a contractor to avoid them, because anything with rubber tires, especially lulls, would rip up the ground from November until April. Michael Kjellesvik, the plumber foreman of C.R. Leonard Plumbing & Heating, testified that he and his crew did not have any problems accessing the building due to ground conditions. At one point, "they made us [a] stone sidewalk." The sidewalk was installed because of the mud outside and mud being tracked into the building. It was shown in one of plaintiff's pictures as a muddy gravel path. It went from the parking lot to the building. When Kjellesvik parked near the trailer, he would take the gravel path to the building. The number and size of the ruts shown in plaintiff's photographs were typical for a construction site at that time of year. John Kennelly, Porter's superintendent, testified that the quantity and size of the ruts shown in plaintiff's photographs looked typical for that stage of the work at that time of year. Edward Mucha, Porter's foreman, similarly testified that the number and size of the ruts depicted in the photographs were typical for that time of year, and he described the site as "in fairly decent shape." Mucha also testified that there was a "stone road" that went from the parking lot "right to the building," which was used to make deliveries to the building. Steve Freeman of S&K Excavating testified that S&K was on-site at the beginning of the project and at the end to level the ground. Looking at photographs of the site, Freeman stated that it would probably "not do much good" to scrape the site in that condition because it was pretty muddy; his machine probably would not be able to get around in the mud and would be making its own ruts. The ground would first have to "freeze up a little bit." If he leveled out such a muddy site

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No. 2--09--0347 in the morning and machinery continued to be used on the site, the site probably would return to its previous condition within a few hours. Freeman described pictures of the site as depicting a "typical construction site" in terms of the ground condition and number of ruts. He had seen sites where plywood was laid down for workers to have access to the site. Plaintiff filed his initial complaint on March 8, 2006. He filed an amended complaint on June 19, 2006. Count I alleged negligence against Dodd. Plaintiff alleged that Dodd had a duty to exercise reasonable care in the operation of the construction site, "including the provision of a safe, suitable and proper ground condition" for him and other workers. Dodd allegedly breached this duty by violating various sections of the Occupational Safety and Health Act (OSHA); failing to make reasonable inspection of the premises and work; improperly managing and maintaining the premises; failing to provide plaintiff with a safe place to work; failing to warn plaintiff of the dangerous conditions; failing to provide adequate safeguards to prevent injury; failing to supervise the work; and failing to maintain the ground of the construction site in a safe manner. Count II alleged negligence against Porter. Plaintiff alleged that Porter used heavy equipment in the mixing and pouring of concrete and had the authority to order changes in the work that would have prevented the "improperly graded area" caused by its machinery. Count II alleged the same breaches of duty alleged in count I, with the exception of the failure to supervise. Count III alleged negligence against Kluber, Skahan, and count IV alleged negligence against Kocurek Concrete. Plaintiff voluntarily dismissed these defendants on August 29, 2007. Dodd filed a motion for summary judgment on August 12, 2008, and Porter filed a motion for summary judgment on September 25, 2008. The trial court granted the motions on January 9, 2009, finding as follows. Defendants generally had a duty to plaintiff to protect against the harm

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No. 2--09--0347 caused by the unreasonably dangerous condition created by ruts, mud, and water on the construction site. However, an exception to such a duty exists when the danger is open and obvious. In this case, the conditions were open and obvious, and plaintiff had worked in construction for over 20 years and was familiar with the site's conditions. The "distraction exception" to the open-and-obvious doctrine did not apply because defendants did not cause the distraction of plaintiff talking on his cell phone while walking over the ruts and, further, because the distraction was not reasonably foreseeable by defendants. The "deliberate encounter exception" to the open-and-obvious doctrine did not apply because there was an alternative gravel path, which plaintiff admitted existed, and plaintiff chose not to use the path but to instead tackle the ruts. Plaintiff filed a motion to reconsider on February 3, 2009. The trial court denied the motion on March 13, 2009. Plaintiff timely appealed. II. ANALYSIS Summary judgment is appropriate only where the pleadings, depositions, admissions, and affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228 (2007). The purpose of summary judgment is to determine whether a question of fact exists, not to make factual findings, and summary judgment should be granted only where the movant's right to it is clear. Forsythe v. Clark USA, Inc., 224 Ill. 2d 274, 280 (2007). We review de novo a grant of summary judgment. WeatherTite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009). Here, plaintiff alleged negligence against both defendants. The elements of a cause of action for negligence are: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and

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No. 2--09--0347 (3) an injury proximately caused by the breach. Matthews v. Aganad, 394 Ill. App. 3d 591, 598 (2009). Plaintiff's arguments on appeal relate to the element of duty, and we discuss this area of law in some detail before returning to plaintiff's specific arguments. Whether a duty exists is a question of law to be determined by the court. Bonavia v. Rockford Flotilla 6-1, Inc., 348 Ill. App. 3d 286, 291 (2004). The four factors courts typically consider in determining whether a duty exists are: (1) the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden of guarding against injury; and (4) the consequences of placing that burden on the defendant. Grant v. South Roxana Dad's Club, 381 Ill. App. 3d 665, 669 (2008). We consider the first prong of the duty test, foreseeability, by reference to section 343 of the Restatement (Second) of Torts. LaFever v. Kemlite Co., 185 Ill. 2d 380, 389 (1998). Section 343 states in pertinent part: "A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts

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