Hutchcraft v. Independent Mechanical Industries, Inc., No. 4-99-0293

4th District, 21 March 2000

PRESIDING JUSTICE COOK delivered the opinion of the court:

In February 1995, plaintiff, Eric Hutchcraft, was electrically shocked while working at a manufacturing plant construction site of PPG Industries, Inc. (PPG). Plaintiff brought an action against defendants Independent Mechanical Industries (Independent Mechanical) and Ben Hur Construction Company (Ben Hur) alleging negligent operation, placement, and inspection of welding units and welding lead lines at the site. Plaintiff also sued PPG, the facility owner, for failing to control the project and ensure a safe work environment.

Each defendant moved for summary judgment. The circuit court granted the motions in a docket order, ruling that plaintiff could not establish causation in fact based upon "surmise or conjecture as to the injury's cause." We affirm in part and reverse in part.

I. BACKGROUND

Plaintiff worked as a laborer for A.C. Ledbetter, Inc. (Ledbetter). Ledbetter was retained by PPG as the general contractor for a multi-million-dollar construction project to repair a glass furnace and tin bath at PPG's Mt. Zion, Illinois, plant. Ben Hur was working as the concrete subcontractor on the project. Independent Mechanical was a mechanical subcontractor.

The construction site contained a number of welding units placed at various locations in the facility. The units are basically stationary, with long connecting power cords called "leads" that run from the unit to the working end where a weld can be executed. The leads can be interconnected to form a long extension from the unit to the working end.

At a large construction project like the one at PPG, numerous welding leads are draped through the site. David Allie, Ledbetter's on-site safety person, referred to the leads as a "snake pit" in certain areas. He said they were tripping hazards and that one contractor's lead might be plugged into another contractor's welding unit. At times, workers complained because one worker would go on a coffee break and return to find his welding lead unplugged and being used somewhere else by a different contractor.

The record indicates that in the basement area where plaintiff was working, one welding unit and numerous leads were in use. Apparently, some of the leads were connected to welding units on upper levels, and the leads were draped throughout the basement.

On the day of the accident, plaintiff was performing general cleanup at the construction site. He was instructed to pick up scrap metal, boards, pieces of scaffolding, and anything else that seemed out of place. After completing the exterior cleanup work, plaintiff moved to the basement of the project area to continue cleaning. Plaintiff and his coworker, Catherine McCullough, were both cleaning up the basement area. They were piling the debris so that it could be removed from the basement. Robert Watkins, another Ledbetter employee, was passing through the basement area on his tow motor, assisting Ledbetter bricklayers.

The basement floor was concrete but was partially covered in a pool of water. The water entered the basement because part of the roof was removed during the project. McCullough was working in the dry portion of basement, but plaintiff was picking up debris while standing in water that covered his shoes. As plaintiff attempted to lift a large piece of tin, he received an electric shock. Plaintiff blacked out and recalls awakening in a Ledbetter safety trailer at the project site. He was subsequently taken to the emergency room at the PPG plant and then to St. Mary's Hospital in Decatur, Illinois.

Robert Watkins arrived at the scene shortly after plaintiff was shocked. He testified that the welding unit in the basement was sitting on top of the lead. The protective insulation of the lead was destroyed, and the lead was nearly severed into two pieces. The individuals surveying the scene after the incident asked him to use his tow motor to lift the unit so that the defective lead could be removed. He refused (fearing electric shock) and went back to work in another section of the site.

Ultimately, Ledbetter's project manager, Clinton White, retrieved the subject welding lead and took it to Ledbetter's safety trailer on the jobsite. It remained in the trailer until the job was complete, at which time it was shipped back to Ledbetter's home office in Toledo, Ohio.

The welding unit itself was not marked as being property of either Ben Hur or Independent Mechanical. The day after the accident, another Ledbetter laborer went to the basement where plaintiff was injured and obtained the serial number and manufacturer of the unit. Despite this information, plaintiff was not able to determine who owned the welding unit. Plaintiff was also not aware of who was using the welding unit at the time of the incident. Based upon plaintiff's lack of information, defendants moved for and obtained summary judgment. See Yager v. Illinois Bell Telephone Co., 281 Ill. App. 3d 903, 909, 667 N.E.2d 1088, 1093 (1996) (reversing jury verdict for plaintiff, noting that liability cannot be premised upon surmise or conjecture as to the injury's cause).

II. ANALYSIS

A. Review of Circuit Court's Decision Allowing Defendants To File Untimely Motions for Summary Judgment

As a threshold matter, plaintiff argues that the circuit court abused its discretion when it allowed defendants to file their motions for summary judgment outside the time period set forth in the case management order. We disagree. The court has the right and duty to control its own docket. Dawson v. St. Francis Hospital, 174 Ill. App. 3d 351, 354, 528 N.E.2d 362, 364 (1988). Further, the court is vested with wide discretion in granting or denying extensions of time to file pleadings or motions. See 735 ILCS 5/2-1007 (West 1998); 134 Ill. 2d R. 183. The circuit court had discretion to permit defendants to file their summary judgment motions after the time prescribed by the case management order.

B. Summary Judgment

Summary judgment is proper only where the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that no genuine issue as to any material fact exists and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998). A defendant who moves for summary judgment may meet its initial burden of production in two ways. See 4 R. Michael, Illinois Practice