Thompson v. Illinois Power Co.

JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff sustained an electrical shock while climbing off a crane that had become entangled in a high-voltage line. Plaintiff went to trial against three defendants, Koehring Bantam Division, manufacturer of the crane, TomCal Contracting, Inc. (TomCal), owner/operator of the crane, and Illinois Power Company (Illinois Power), owner of the electrical line. Plaintiff sought actual and punitive damages against Koehring Bantam Division and Illinois Power. Plaintiff sought only actual damages against TomCal, which had admitted liability before trial The jury found Koehring Bantam Division not liable, returned a verdict of $1,600,000 against TomCal and Illinois Power, and assessed the latter two defendants’ culpability at 99% and 1%, respectively. Defendants TomCal and Illinois Power appeal the plaintiff’s judgment, and defendant TomCal also appeals from the jury’s denial of its contribution claim against Koehring Bantam Division.

Defendants raise several issues including the late disclosure of an expert witness and the court’s direction of a verdict on the question of comparative negligence. Since we reverse on these two points, there is no need to discuss the remaining issues.

On the day of plaintiff’s injury TomCal was removing a series of concrete barriers from a road construction site. Tom Caldieraro, president of TomCal, was operating the crane, and plaintiff was in the crane’s rear cab. The crane was used to lift the barriers from the ground and to place them on a flatbed truck located a few feet north of the crane. The approximate locations of the vehicles and most of the workers involved are shown in exhibit A. Illinois Power owned the high-voltage lines shown in the diagram.

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After Tom Caldieraro had loaded a few of the barriers onto the truck, he saw Mr. Giloman, the laborer who hooked up the barriers, fall to the ground and curl up. (Giloman is not shown on the diagram; he was a little north of the area shown.) Caldieraro realized that the crane boom had contacted the electrical lines and raised the boom in an attempt to clear the contact. When this attempt was unsuccessful, Caldieraro jumped clear of the crane. At the time Caldieraro jumped, the tires beneath the operator’s cab were on fire.

During these maneuvers plaintiff was in the rear cab of the crane, and he was facing south waiting for Caldieraro to signal him to move the crane to a new location. Plaintiff first became aware of a problem when he looked in his outside rearview mirror and saw the tires on fire. At approximately the same time plaintiff saw Caldieraro jump from the crane. Plaintiff then opened the door to get out, and, as his foot neared the ground, he felt the current surging through his body.

' Plaintiff could have seen that the crane had contacted the line if he had turned around and looked up. Plaintiff testified he was unaware of the fact that the crane had contacted the line when he .left the crane. Defendant Koehring Bantam Division’s exhibit 9, a booklet of “Rulés on Safety” for the operation of cranes, warned about the dangers of operating near overhead lines and provided that, if a power line was hit, the occupants of the crane should:

“*stay inside the cab until line is cleared or power is shut off[;]
*if you must leave the cab, be sure to jump completely clear of the machine.”

After plaintiff testified and was cross-examined about his ability to return to work, Dan Gruber was called to the stand. Defendants objected to Gruber’s testimony because he had not been disclosed either as an ordinary witness or as an expert under Supreme Court Rule 220 (134 Ill. 2d R. 220). The court overruled the objection, and Gruber was allowed to testify to the current working agreement (which defendants had offered to stipulate to) and that a person with plaintiff’s limitations could not do the work of an oiler.

Before turning to the substantive issues in the case, we will address TomCal’s forum non conveniens argument. Plaintiff originally filed this case in Madison County, but after some months he voluntarily dismissed it and refiled it in neighboring St. Clair County. Defendants filed forum non conveniens motions which were denied, and TomCal raises the denial on appeal.

Trial courts have broad discretion in ruling on forum non conveniens motions although their ruling can be reversed for an abuse of that discretion. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.) This case involves an accident which happened in Madison County and an injured plaintiff from St. Clair County. Seventeen witnesses testified, seven were from St. Clair County, three were from Madison County, one from Macoupin County, one from Macon County, one from St. Louis, Missouri, and one each from Nevada, Michigan and New Mexico. Under these circumstances we find no abuse of discretion in the trial court’s denial of the forum non conveniens motions. Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 568 N.E.2d 883.

With regard to the Rule 220 issue, the plaintiff contends that Gruber was not an expert witness because he was not retained to render an opinion and cites Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, in support of his position. Tzystuck involved a treating doctor as did Boatmen’s National Bank v. Martin (1992), 223 Ill. App. 3d 740, 585 N.E.2d 1328, which allowed an undisclosed opinion precisely because the witness was a treating doctor. We recently examined Tzystuck and several of the cases which had expanded the treating-doctor exception to Rule 220 and concluded that the expansion of the exception was unwarranted. (See Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991), 223 Ill. App. 3d 31, 584 N.E.2d 963.) As we pointed out in Wakeford, a requirement of disclosure of all witnesses who are going to render an opinion places little burden on the proponent of the witnesses and prevents the surprise use of expert testimony on crucial issues. In this case, one of the defendants had admitted negligence. Therefore, the only issues remaining for determination as to that defendant were the extent of plaintiff’s injuries and disabilities and his comparative negligence. The latter was removed by a directed verdict, a ruling we will discuss shortly, and the use of an undisclosed expert on the damage question becomes more significant in view of the liability admission.

Plaintiff contended that Gruber was called to counter the defendants’ cross-examination of plaintiff on his ability to work. Plaintiff also stated, however, that Gruber was called to refute the cross-examination testimony of Dr. Salyapongse, one of plaintiff’s treating doctors, on the same issue. We note that Dr. Salyapongse’s testimony was presented by evidence deposition, and the deposition was taken over six months before the trial. This case, therefore, does not present a situation of some emergency necessitating the disclosure of a new expert. Plaintiff knew six months before trial that defendants were contesting the issue of his inability to return to work and yet plaintiff did not disclose Gruber until several days into the trial.

Counsel contemplating whether to provide their opponents with the names of experts would be well advised to heed Robert Frost’s admonition to,

“The witch that came (the withered hag) to wash the steps with pail and rag, was once the beauty, Abishag.”

Frost titled the poem and closed it with the same warning, “Provide, provide!” D. Sohn and R. Tyre, Frost: The Poet and His Poetry 112 (1969).

More important than Frost’s warning are the supreme court rules. The supreme court has called for the disclosure of experts by implementation of Rule 220, and it has also firmly stated:

“At the risk of stating the obvious, it should be pointed out that the rules adopted by this court concerning criminal defendants and guilty pleas are in fact rules of procedure and not suggestions.” People v. Wilk (1988), 124 Ill. 2d 93, 103, 529 N.E.2d 218.

Turning to the issue of the directed verdict for the plaintiff on the question of his comparative negligence, we conclude that the trial court erred in that ruling also. The standard for directed verdicts was set forth years ago in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill. 2d 494, 229 N.E.2d 504:

“In our judgment verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick, 37 Ill. 2d at 510, 229 N.E.2d at 513-14.

What was the evidence on this issue? The record reveals that plaintiff had worked on and off as an oiler for three years. When he arrived for work the morning of his injury, the crane unit had already been located. While plaintiff did not position the crane near the Illinois Power lines, they were obviously present in relatively close proximity to the crane on which he was working. When the crane contacted the lines, the contact point was behind and above the plaintiff, and he testified he did not know contact had been made. Plaintiff did know, however, that the tires on the crane were on fire and that a fellow workman had jumped from the crane. The safety rule book referred to earlier warned occupants of cranes to stay inside the cab or to jump clear. Plaintiff did neither.

Plaintiff said he did not know contact had been made, but negligence is based not only on what actors know but also on what they should know. It is uncontroverted that plaintiff could have seen the contact between the crane and the power lines if he had turned and looked. Given a situation of a crane on a construction site located near overhead power lines whose tires suddenly burst into flame and whose co-workers jumped clear, it would not be unreasonable to require a person to look for the source of the flames and the jumping. Under these same circumstances, if the plaintiff had, without looking, moved the crane unit forward and contacted and injured a workman on the ground, could the trial court have properly directed a verdict for plaintiff on the issue of his negligence? We think not, but the same standard applies, whether the conduct is negligence by the defendant or comparative negligence by the plaintiff:

“Logic demands that one rule govern both the direction of verdicts and determination of the presence or absence of negligence or contributory negligence as a matter of law, for in both situations the issue is whether a court or the jury should decide the negligence issue.” (Pedrick, 37 Ill. 2d at 503, 229 N.E.2d at 510.)

Under the circumstances, the trial court erred in directing a verdict on the issue of plaintiff’s comparative negligence.

Our resolution of these two issues requires reversal and remand for a new trial on damages only as to defendants TomCal and Illinois Power.

As mentioned earlier, the jury returned a verdict for Koehring Bantam Division. Plaintiff has not appealed that result. TomCal, however, appealed the adverse judgment on its counterclaim against Koehring Bantam Division. We have reviewed the record and do not find that result to be against the manifest weight of the evidence and, therefore, affirm the judgment on the verdict in favor of Koehring Bantam Division. See Netzel v. United Parcel Service, Inc. (1989), 181 Ill. App. 3d 808, 537 N.E.2d 1348.

For the foregoing reasons, the judgment of the circuit court is affirmed in part and reversed in part, and this cause is remanded for a new trial on damages only as to TomCal and Illinois Power. While we reverse and remand for a new trial on damages only, we realize that evidence of the defendants’ negligence will have to be presented to the jury so that it can make a meaningful judgment of plaintiff’s comparative negligence.

Affirmed in part; reversed and remanded in part.

WELCH, J., concurs.