Cihon v. Cargill
Annotate this Case
FIFTH DIVISION
Filed: 12/05/97
Nos. 1-96-269 & 1-96-1733 (cons.)
LEE CIHON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant/Cross-Appellee, ) COOK COUNTY
)
v. )
)
CARGILL, INCORPORATED, a foreign )
corporation, )
)
Defendant-Appellee/Cross-Appellant, )
---------------------------------------------)
LEE CIHON, )
)
Plaintiff-Appellant/Cross-Appellee, )
)
v. )
)
CARGILL, INCORPORATED, a foreign )
corporation, )
)
Defendant-Appellee/Cross-Appellant, )
)
(John Ambrose, ) HONORABLE
) CYRIL J. WATSON,
Contemnor-Appellant.) ) JUDGE PRESIDING.
___________________________________________________________________
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Lee Cihon, filed a two-count complaint against
the defendant Cargill, Incorporated (Cargill), alleging common law
negligence and violations of the Structural Work Act. A jury
returned a verdict in favor of Cihon and against Cargill on both
counts and assessed damages totaling $780,000. However, the jury
also found Cihon 35% comparatively negligent and reduced the
damages to $507,000 on the negligence count. The trial judge
granted Cargill's motion for a judgment n.o.v. on both counts.
Cihon appealed that judgment and Cargill cross-appealed to preserve
its rights to certain setoffs (No. 1-96-1733). Cihon's counsel
appealed from a judgment finding him in contempt (No. 1-96-269).
In February 1991, Cihon, an electrician in the construction
trade for 29 years, was working at the construction site of a new
tank farm at the Cargill premises in Chicago Heights. Cargill had
hired Glen Oaks Electric (Glen Oaks) and M & W Contractors (M & W)
to perform the work. Cihon was a general foreman for Glen Oaks.
Cargill's tank farm contained several storage tanks in rows of
two, each resting on separate concrete "pads" that were anywhere
from 16 to 24 inches high. A concrete wall had been built around
the perimeter of the tanks to contain spills. The tanks were
clean, empty, and dry at the time of the incident. The floor of
the tank farm pitched downward from north to south--the north wall
being approximately 31 inches high and the south wall approximately
48 inches high. The south end of the tank farm, the area where
Cihon was working, contained a sump area which angled 6 to 8 inches
below the floor of the tank farm. There was a liquid that appeared
to be water inside the sump area at the time of Cihon's accident.
On February 21, 1991, Cihon had obtained a verbal welding
permit from Paul Wenger, an engineer at Cargill. Cihon intended to
"cad weld" a copper cable to a piece of steel on the side of each
of the storage tanks in order to "ground" them if they were struck
by lightning. According to Cihon, the cad welding process required
the use of an electric grinder to clean any burrs off the cable.
Cihon would then ignite gunpowder in a mold to cause it to weld,
and this required a clean, dry surface.
Sometime before Cihon's accident, the construction workers at
the site had placed a 2 x 10 or 2 x 14 inch plank which ran from
the south wall of the tank farm to the concrete pad in the
southwest corner. The testimony indicates that the plank was
anywhere from eight to fourteen feet long. Cihon's coworker,
Edward Hunt, testified that various workers at the site had used
the plank to enter the tank farm. Hunt believed that the plank had
been used in that manner for a few weeks. The plank sloped
downward from the south wall to the top of the tank pad and ended
at least two feet from the spot where Cihon intended to cad weld
the cable to the metal flap on the tank.
On the day of the occurrence, Cihon walked across the plank
into the tank farm to look at the flap where the welding was to be
done. He set down the mold on the concrete pad and exited the tank
farm via the plank. While Hunt rolled out an extension cord to get
power to the tank farm for the electric grinder, Cihon went to a
trailer to get supplies for the cad welding. As Cihon again walked
down the plank with the cad welding equipment in his hands, the
plank "tipped" and he fell to the floor of the tank farm. Hunt
found Cihon lying on his back partly in the water in the sump area
and about three or four feet north of the south wall. Cihon
testified that he passed out for awhile and awakened in extreme
pain. He sustained serious injury to a ligament in his knee.
On July 1, 1991, Cihon filed a two-count complaint against
Cargill and M & W, setting forth claims under the Structural Work
Act and common law negligence. Prior to trial, Cargill filed a
counterclaim against M & W and a third-party complaint against Glen
Oaks, both seeking contribution. Glen Oaks waived its workers
compensation lien of $177,122.06, and obtained a dismissal. M & W
settled with Cihon for $240,000 and was dismissed after the judge
made a finding that its settlement with Cihon was in good faith.
The trial commenced on October 23, 1995. Cargill stipulated
before trial that it had control of the premises and charge of the
work, which effectively removed those issues from the case.
At trial, Ellen Brady, plant superintendent of Cargill's
Chicago Heights plant at the time of the accident, testified that
she was responsible for the overall operations of the facility.
She said that Cargill relied on a permit system and contractor
checklist to prevent unsafe practices. According to Brady,
Cargill's plant engineer, Paul Wenger, visited the tank farm two or
three times a week and reported to her on the progress of the
construction. Brady testified that she or Wenger could stop the
work if they saw something done in an unsafe manner. She admitted
that Cargill was responsible for providing a safe work site.
Brady said she had seen a plank running from the south wall of
the tank farm to one of the tank pads and had observed workers
using it to walk in and out of the tank farm. She admitted that
there was water in the sump area on the day of Cihon's accident and
that it would have been Cargill's responsibility to remove it.
Cihon's expert, Kenneth Yotz, testified that he was an expert
in occupational and environmental health and safety and was a
former regional director for the Occupational Safety and Heath
Administration (OSHA). Yotz opined that the plank here was
unreasonably dangerous in that it violated OSHA standards, custom
and practice in the industry, and the Structural Work Act. Yotz
also testified that, even if the fall distance did not require a
handrail, OSHA still required the securing of the scaffold to
prevent movement. Yotz said that he had previously seen such
planks used to provide a walking or working surface for workers or
materials. He opined that a plank used in the manner described
here was not a safe practice because it was not secured, it was not
erected by a competent person, it did not have guardrails, and the
workers were not properly trained to recognize the hazard.
Cargill's expert, Eugene Holland, a structural and consulting
engineer in the construction industry, testified that the plank was
not a scaffold since it served only as an access to the tank farm.
He opined that Cargill had no responsibilities for the direct
supervision of Cihon's work, and that Cihon himself was in sole
control of his work. According to Holland, OSHA places safety
responsibility on both employers and employees. He concluded that
Cihon would not have welded while standing on the plank because the
plank did not extend to the area to be welded. Holland said that
the water in the sump area would have had no impact on cad welding,
although he admitted he was unaware that Cihon would have been
using an electric grinder.
The jury returned verdicts in favor of Cihon and against
Cargill with respect to both counts, awarding Cihon $780,000. The
jury found Cihon 35% negligent and, accordingly, reduced the
damages on the negligence count to $507,000.
Cargill filed a motion for judgment n.o.v., arguing that it
had no duty to Cihon under the negligence count and that the plank
was not a support within the meaning of the Structural Work Act.
Cihon filed a post-trial motion arguing that there was insufficient
evidence of comparative negligence and that the trial court's
finding of direct criminal contempt against Cihon's counsel, John
Ambrose, was erroneous. Ambrose also filed a motion to vacate the
trial court's finding of contempt. The court denied Ambrose's
motion on December 19, 1995, and he appealed (No. 1-96-269).
On April 19, 1996, the trial court entered an order granting
a judgment n.o.v. in favor of Cargill and against Cihon on both
counts. Cihon appealed that order (No. 1-96-1733), and this court
consolidated the appeal with appeal No. 1-96-269.
We first address appeal No. 1-96-1733. A judgment n.o.v.
should be entered only in cases where all of the evidence, when
viewed in the light most favorable to the opponent, so
overwhelmingly favors the movant that no contrary verdict could
ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
511, 229 N.E.2d 504 (1967). A court does not weigh the evidence
when ruling on a motion for a judgment n.o.v., nor is it concerned
with the credibility of the witnesses; rather, it may only consider
the evidence, and any inferences therefrom, in the light most
favorable to the party resisting the motion. Maple v. Gustafson,
151 Ill. 2d 445, 453, 603 N.E.2d 508 (1992). Therefore, "[t]he
court has no right to enter a judgment n.o.v. if there is any
evidence, together with reasonable inferences to be drawn
therefrom, demonstrating a substantial factual dispute, or where
the assessment of credibility of the witnesses or the determination
regarding conflicting evidence is decisive to the outcome." Maple,
151 Ill. 2d at 454.
In order to recover on a negligence claim, the plaintiff must
set out sufficient facts to establish that the defendant owed a
duty to the plaintiff, that the defendant breached that duty, and
that the breach proximately caused injury to the plaintiff.
Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 421, 592 N.E.2d 1098 (1992). Whether the defendant owes any duty to the plaintiff,
and, if so, the scope of that duty, is a question of law. Ward v.
K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223 (1990).
Under the Premises Liability Act (740 ILCS 130/1 et seq. (West
1994)), an owner of land, such as Cargill, owes entrants on that
land, such as Cihon and other employees of Glen Oaks, a duty "of
reasonable care under the circumstances regarding the state of the
premises or acts done or omitted on them." 740 ILCS 130/2 (West
1994). Our supreme court has ruled that sections 343 and 343A of
the Restatement (Second) of Torts accurately set forth the duty of
possessors and owners of land to their invitees:
"Generally, under section 343, as well as under
common law, a possessor of land owes its invitees a duty
of reasonable care to maintain the premises in a
reasonably safe condition. [Citation.] Section 343A
provides that a possessor of land cannot be liable for an
invitee's injury if the condition of the land which
caused the injury was known or obvious to the invitee.
[Citation.] Section 343A, however, contains an
exception: Even if the condition of the land was obvious
to the invitee, a possessor of land may be liable if the
possessor should have anticipated the harm." Deibert v.
Bauer Brothers Construction Co., 141 Ill. 2d 430, 437,
566 N.E.2d 239 (1990).
Comment f to section 343A further states in pertinent part:
"There are *** cases in which the possessor of land
can and should anticipate that the dangerous condition
will cause physical harm to the invitee notwithstanding
its known or obvious danger. In such cases the possessor
is not relieved of the duty of reasonable care which he
owes to the invitee for his protection. This duty may
require him to warn the invitee, or to take other
reasonable steps to protect him, against the known or
obvious condition or activity, if the possessor has
reason to expect that the invitee will nevertheless
suffer physical harm.
Such reason to expect harm to the visitor from known
or obvious dangers may arise *** where the possessor has
reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a
reasonable man in his position the advantages of doing so
would outweigh the apparent risk. In such cases the fact
that the danger is known, or is obvious, is important in
determining whether the invitee is to be charged with
contributory negligence, or assumption of risk.
[Citation.] It is not, however, conclusive in determining
the duty of the possessor, or whether he has acted
reasonably under the circumstances." (Emphasis added.)
Restatement (Second) of Torts sec. 343A comment f, at 220
(1965).
Cargill maintains that it did not owe a duty to Cihon, citing
as support section 414 of the Restatement:
"One who entrusts work to an independent contractor,
but who retains the control of any part of the work, is
subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to
exercise his control with reasonable care." Restatement
(Second) of Torts sec. 414 (1965).
Cargill argues that it did not retain sufficient control over
Cihon's work to subject it to liability under the facts of this
case. Comment c to section 414 further states:
"In order for the rule stated in this Section to apply,
the employer must have retained at least some degree of
control over the manner in which the work is done. It is
not enough that he has merely a general right to order
the work stopped or resumed, to inspect its progress or
to receive reports, to make suggestions or
recommendations which need not necessarily be followed,
or to prescribe alterations and deviations. Such a
general right is usually reserved to employers, but it
does not mean that the contractor is controlled as to his
methods of work, or as to operative detail. There must
be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own
way." Restatement (Second) of Torts sec. 414, Comment c,
at 388 (1965).
When presented with a question of the duty of care owed by an
owner of premises to an independent contractor employed by the
owner, section 414 of the Restatement (Second) of Torts is to be
read in harmony with the Premises Liability Act and sections 343
and 343A of the Restatement (Second) of Torts. See Fancher v.
CIPS, 279 Ill. App. 3d 530, 539-40, 664 N.E.2d 692 (1996). Thus,
we must determine whether the amount of control exercised by
Cargill, when considered in light of the foreseeability
requirements of section 343A of the Restatement, was sufficient to
support a duty to Cihon on the part of Cargill.
Cargill stipulated that it had control of the premises and
charge of the work. Cihon testified at trial that he requested
welding or other work permits from Cargill on a daily basis. Brady
verified that Cargill could stop work it deemed unsafe. Brady's
testimony also established that Cargill knew that workers had been
using the plank to access the tank farm. She admitted that Cargill
could have installed a ladder on the wall of the tank farm.
Cihon testified that the plank was not secured and that it had
"tipped," causing him to fall. The evidence indicated that the
plank, which was approximately four feet above the ground and only
ten to fourteen inches wide, was not secured in any manner and had
no guardrails or handrails. There was also some evidence that the
work area around the tank farm was muddy. Thus, Cargill had reason
to anticipate that a worker accessing the tank farm might slip off
of the plank if his boots were muddy or might misstep if carrying
materials at the time. As previously indicated in section 343A of
the Restatement, a possessor of land may, in some cases, owe its
invitees a duty of reasonable care to maintain the premises in a
reasonably safe condition even if the condition of the land was
obvious to the invitee. See e.g. Deibert, 141 Ill. 2d at 438. We
hold that Cargill owed such a duty in this instance.
Whether Cargill breached its duty by failing to exercise
reasonable care in protecting Cihon from harm was a question of
fact for resolution by the jury. Ward, 136 Ill. 2d at 156. The
jury could have found that Cargill did not exercise reasonable care
because it did not take any action to prevent use of the plank as
an access to the tank farm. See Deibert, 141 Ill. 2d at 442. As
Brady testified, it would have been feasible for Cargill to install
a ladder in the tank farm. The record is uncontroverted that
Cargill failed to undertake any safety measures even though it was
aware of the plank's use; therefore, there was sufficient evidence
for the jury to determine that Cargill breached its duty of care.
Whether Cargill's failure to protect Cihon from harm was the
proximate cause of his injury was also a jury question. Turner v.
Roesner, 193 Ill. App. 3d 482, 488, 549 N.E.2d 1287 (1990).
Proximate cause is one which produces the injury through a natural
and continuous sequence of events unbroken by any effective
intervening cause. Cannon v. Commonwealth Edison Co., 250 Ill.
App. 3d 379, 381, 621 N.E.2d 52 (1993). In order to establish
proximate cause, a plaintiff must demonstrate with reasonable
certainty that the defendant's negligent acts caused his injuries.
Cannon, 250 Ill. App. 3d at 381.
The jury here could have properly concluded that Cargill,
which controlled the work area and knew of the plank, had reason to
expect that Cihon would proceed to encounter the known or obvious
danger "because to a reasonable man in his position the advantages
of doing so would outweigh the apparent risk." Restatement
(Second) of Torts sec. 343A Comment f, at 220 (1965). In other
words, Cihon may have concluded that any risk in accessing the tank
farm via the plank was outweighed by the perceived advantage of not
having to walk eighty feet up to the north end of the tank farm and
stepping over that shorter wall. Cihon also may have determined
that it was safer to walk on the plank and thereby avoid the water
in the sump area which he considered dangerous to his use of the
electric grinder. We hold that Cihon presented sufficient evidence
for the jury to find Cargill negligent; therefore, we reverse the
trial court's judgment n.o.v. on the negligence count.
Given our reversal of the judgment n.o.v. on this count, we
now address Cihon's contention that the jury's finding that he was
35% comparatively negligent was not supported by the evidence. A
jury's determination on this issue will not be set aside on review
unless the verdict is contrary to the manifest weight of the
evidence. Shiner v. Friedman, 161 Ill. App. 3d 73, 85, 513 N.E.2d 862 (1987). A verdict cannot be set aside merely because the jury
could have drawn different inferences and conclusions from
conflicting testimony or because the reviewing court would have
reached a different conclusion. Ford v. City of Chicago, 132 Ill.
App. 3d 408, 412-13, 476 N.E.2d 1232 (1985).
The testimony here supported a finding of comparative
negligence. Cihon was required to use ordinary care for his own
safety. See Restatement (Second) of Torts sec. 343A, comment e, at
219 (1965). He testified that it was his decision to walk down the
unsecured plank while carrying materials. The jury could consider
the fact that Cihon had 29 years of experience as a construction
worker, was familiar with unsecured planks being used in this
manner, and yet elected to walk down the plank with an armful of
materials. Thus, the jury's finding of comparative negligence was
not against the manifest weight of the evidence.
Cihon next contends that the trial court's judgment n.o.v. in
favor of Cargill on the Structural Work Act count ignored the
substantial evidence that the plank served as a scaffold under the
Structural Work Act (Act) (740 ILCS 150/0.01 et seq. (West 1994)).
In his memorandum and order on the judgment n.o.v., the trial judge
determined that Cihon used the plank only as a means of going in
and out of the tank farm and, therefore, its intended use at the
time of the injury was not covered by the Act as a matter of law.
The judge found that Cihon had chosen to use the plank to access
his work area even though he was free to enter over the shorter
north wall of the tank farm.
Section 1 of the Act provided in pertinent part:
"All scaffolds, hoists, cranes, stays, ladders, supports
or other mechanical contrivances, erected or constructed
*** for the use in the erection *** of any *** structure,
shall be erected and constructed, in a safe, suitable and
proper manner, and shall be so erected and constructed,
placed and operated as to give proper and adequate
protection to the life and limb of any person or persons
employed or engaged thereon, or passing under or by the
same, and in such manner as to prevent the falling of any
material that may be used or deposited thereon." 740
ILCS 150/1 (West 1994).
Whether a device is a "scaffold," "support," or other "mechanical
device" governed by the Act is a matter of statutory construction
and, therefore, a question of law for the court. Vuletich v.
United States Steel Corp., 117 Ill. 2d 417, 421, 512 N.E.2d 1223
(1987). In order to determine whether a device comes within the
meaning of the Act, a court must ascertain the intended use of the
device in question at the time of the injury, whether the injury
has some connection with the hazardous nature of the device in
question, and the element of danger involved in the use of the
support device and whether it is the type of danger the legislature
intended to alleviate by the Act. Ashley v. Osman & Associates,
Inc., 114 Ill. App. 3d 293, 296-298, 448 N.E.2d 1011 (1983).
A floor is not a "support" within the meaning of the Act when
it is being used merely as a walkway, but if a worker relies on a
partially completed floor for support in the performance of some
hazardous activity or as a working platform, he may recover.
Vuletich, 117 Ill. 2d at 423. In Monk v. Knierim, 266 Ill. App. 3d
145, 639 N.E.2d 928 (1994), the plaintiff was handing insulation
material to a coworker. The plaintiff was standing next to an
opening in the floor which was being used to move materials into
the basement. As he turned to get more insulation, his right foot
slipped off an unsecured board covering part of the hole and he
fell to the basement floor. In reversing the trial court's entry
of summary judgment in favor of the defendant, the reviewing court
determined that, when handing insulation up to his coworker, the
plaintiff used the floor as a support, but when going to get more
insulation, he used the floor as a pathway. Monk, 266 Ill. App. 3d
at 151. The court concluded that the floor was intended to be used
as both a support and a pathway when the accident occurred and was,
therefore, covered by the Act. Monk, 266 Ill. App. 3d at 152.
In Ashley, the plaintiff, who was carrying a propane tank to
use in his work area, fell and was injured as he was walking on
planks or concrete forms placed over deep mud at the work site.
The court concluded that the planks and concrete forms were erected
as supports specifically intended to prevent the workmen from
sinking into the mud as they transferred materials to the worksite
and were, therefore, both a walkway and a support under the Act.
Ashley, 114 Ill. App. 3d at 299-300.
Similarly Cihon was carrying materials into the tank farm in
preparation for cad welding when he fell off of the plank. We
conclude that the evidence here supported the jury's verdict in
favor of Cihon because, at the time of the injury, the plank was
being used, not only as a pathway to the work area, but also to
carry materials necessary for cad welding into the tank farm. We
reverse the finding that the plank served only as a walkway.
The second element under Ashley is whether there was a
connection between the injury and the hazardous nature of the
support. 114 Ill. App. 3d at 298. The evidence here indicated
that the plank was 10 to 14 inches wide, was several feet above the
ground, was unsecured, and had no guard rails. Cihon testified
that he was injured when the plank slipped or "tipped." The
evidence was sufficient to satisfy this criteria.
The third element under Ashley is whether the danger involved
was intended to be covered by the Act. The Act covered those
instances when the worker was engaged in a hazardous task that was
essential to the worker's structural work activities. See Dubrovich
v. Commonwealth Edison Co., 209 Ill. App. 3d 498, 502, 568 N.E.2d 285 (1991). In Dubrovich, the court concluded that the Act applied
to the plaintiff's injury which occurred while he was climbing a
ladder and carrying nuts and bolts to a work area in order to weld
whip restraints. Similarly, we conclude that bringing cad welding
materials into the tank farm was an integral part of Cihon's duties
and was, therefore, covered by the Act.
We conclude that Cihon proved the elements necessary to
prevail under the Act. See Cockrum v. Kajima International, Inc.,
163 Ill. 2d 485, 491, 645 N.E.2d 917 (1994). The record contains
sufficient evidence for the jury to conclude that Cihon was
involved in a structural activity, his activity was performed with
reference to a structure under the Act, the plank was defective
because it was not secure, and this defect caused Cihon to fall and
become injured. Moreover, Brady admitted that Cargill, which
admittedly had charge of the work, was aware that the workers at
the tank farm had been using the plank to access the tank farm.
The jury heard sufficient evidence to conclude that Cargill
wilfully violated the Act. Accordingly, we reverse the trial
court's judgment n.o.v. on the Structural Work Act count.
We note briefly that the trial judge failed to rule
conditionally on Cargill's motion for a new trial as required under
section 2-1202(f) of the Code of Civil Procedure (735 ILCS 5/2-
1202(f) (West 1994)). Under Supreme Court Rule 366(a)(5) (134 Ill.
2d R. 366(a)(5)), this court may enter any judgment and make any
order that ought to have been given or made by the trial court.
Our review of the record, as stated above, indicates that the
jury's verdict in favor of Cihon on the negligence count and the
Structural Work Act count was not against the manifest weight of
the evidence. Therefore, we deny Cargill's motion for a new trial.
Cargill argues in its cross-appeal that it is entitled to
setoffs in the amount of the settlement proceeds paid to Cihon by
M & W and Glen Oaks. Cihon initially asserts that this argument
must fail since Cargill failed to preserve this issue during the
trial proceedings. However, in Decker v. St. Mary's Hospital, 266
Ill. App. 3d 523, 529, 639 N.E.2d 1003 (1994), the court determined
that the issue of whether setoffs are appropriate should be raised
no later than the post-trial motion stage. Since Cargill presented
this issue in its post-trial motion, the question was not waived.
We hold that Cargill is entitled to a setoff of the M & W
settlement as provided under section 2(c) of the Contribution Act
(740 ILCS 100/2(c) (West 1994)), given the trial judge's good faith
finding. See Foster v. Kanuri, 241 Ill. App. 3d 677, 608 N.E.2d 8
(1992). Although the record indicates that the trial judge never
made a good faith finding as to the settlement with Glen Oaks, we
conclude that Cargill is entitled to a setoff in the amount of the
value of its waived workers compensation lien. Under Kotecki v.
Cyclops Welding Corp., 146 Ill. 2d 155, 165, 585 N.E.2d 1023
(1991), Cargill may seek contribution from Glen Oaks in an amount
not greater than its workers compensation liability. As noted,
Glen Oaks waived its lien in full. The only basis for dismissal of
a contribution claim by reason of a settlement with a plaintiff is
provided under section (d) of the Contribution Act (740 ILCS
100/2(d) (West 1994)). Therefore, since Glen Oaks settled with
Cihon for the full amount of its potential contribution liability,
we hold that the settlement was in good faith as a matter of law.
We now address appeal No. 1-96-269, concerning the trial
court's finding of direct criminal contempt against Ambrose. On
appeal, Ambrose argues that the requisite elements of the offense
of direct contempt were not proven beyond a reasonable doubt. The
judge found Ambrose in contempt after Cargill's counsel attempted
to publish certain photographs to the jury. Ambrose said he had
never seen them. The judge stated that Ambrose's associate had
already stipulated to the photos. After Ambrose repeatedly
protested, the court found him in direct criminal contempt and
fined him $250. The judge's order stated that Ambrose had impeded
the trial, diminished the dignity of the court, and displayed
disrespect to the judge, parties, counsel, and the jurors.
The standard of review for direct criminal contempt is whether
there is sufficient evidence to support the finding of contempt and
whether the judge considered only facts within his personal
knowledge. People v. Graves, 74 Ill. 2d 279, 284, 384 N.E.2d 1311
(1979). This court is not persuaded that Ambrose's conduct was
merely that of a vigorous advocate. The judge stated on the record
that "I have extenuated my patience with putting up with (Ambrose)
interrupting me repeatedly when I have made rulings." Our
appellate court has stated:
"When *** the trial court has directly and clearly
informed counsel that their opportunity for argument is
over, that is a nondebatable order, and no misguided
sense of advocacy can be permitted to overcome it. If an
attorney believes that the trial court's finding of fact
or conclusions of law are in error, then that attorney
can file a post-trial motion or appeal. His options,
however, do not include the privilege of interrupting the
trial court as it states its findings or conclusions, nor
do his options include the privilege of arguing with the
court after its rulings have been made." In re Contempt
of Ellis, 206 Ill. App. 3d 388, 397, 564 N.E.2d 186
(1990).
We conclude that sufficient evidence existed for the judge to
impose the $250 fine against Ambrose. The report of proceedings
reveals that some of Ambrose's behavior was in response to the
manner in which he was treated by the judge. We would be remiss in
failing to observe that trial judge's are charged with the
responsibility of maintaining order and decorum in the courtroom
and should be patient, dignified and courteous in their interaction
with attorneys appearing before them. Nonetheless, we believe that
Ambrose's actions were sufficient to support a finding of contempt.
For the foregoing reasons, we reverse the trial court's
judgment n.o.v. as to both counts in appeal No. 1-96-1733. We
affirm the jury's finding that Cihon was 35% comparatively
negligent on the negligence count. We also hold that Cargill is
entitled to setoffs in the amount of $417,122.06. We remand with
instructions to enter judgment on the jury's verdict and grant
Cargill the setoffs to which it is entitled. We affirm the trial
court's finding of contempt in appeal No. 1-96-269.
Appeal No. 1-96-269--Affirmed.
Appeal No. 1-96-1733--Affirmed in part; reversed in part;
remanded with instructions.
HARTMAN, P.J., and SOUTH, J., concur.
Filed: 12/05/97
Nos. 1-96-269 & 1-96-1733 (cons.)
LEE CIHON, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant/Cross-Appellee, ) COOK COUNTY
)
v. )
)
CARGILL, INCORPORATED, a foreign )
corporation, )
)
Defendant-Appellee/Cross-Appellant, )
---------------------------------------------)
LEE CIHON, )
)
Plaintiff-Appellant/Cross-Appellee, )
)
v. )
)
CARGILL, INCORPORATED, a foreign )
corporation, )
)
Defendant-Appellee/Cross-Appellant, )
)
(John Ambrose, ) HONORABLE
) CYRIL J. WATSON,
Contemnor-Appellant.) ) JUDGE PRESIDING.
___________________________________________________________________
JUSTICE HOFFMAN delivered the opinion of the court:
The plaintiff, Lee Cihon, filed a two-count complaint against
the defendant Cargill, Incorporated (Cargill), alleging common law
negligence and violations of the Structural Work Act. A jury
returned a verdict in favor of Cihon and against Cargill on both
counts and assessed damages totaling $780,000. However, the jury
also found Cihon 35% comparatively negligent and reduced the
damages to $507,000 on the negligence count. The trial judge
granted Cargill's motion for a judgment n.o.v. on both counts.
Cihon appealed that judgment and Cargill cross-appealed to preserve
its rights to certain setoffs (No. 1-96-1733). Cihon's counsel
appealed from a judgment finding him in contempt (No. 1-96-269).
In February 1991, Cihon, an electrician in the construction
trade for 29 years, was working at the construction site of a new
tank farm at the Cargill premises in Chicago Heights. Cargill had
hired Glen Oaks Electric (Glen Oaks) and M & W Contractors (M & W)
to perform the work. Cihon was a general foreman for Glen Oaks.
Cargill's tank farm contained several storage tanks in rows of
two, each resting on separate concrete "pads" that were anywhere
from 16 to 24 inches high. A concrete wall had been built around
the perimeter of the tanks to contain spills. The tanks were
clean, empty, and dry at the time of the incident. The floor of
the tank farm pitched downward from north to south--the north wall
being approximately 31 inches high and the south wall approximately
48 inches high. The south end of the tank farm, the area where
Cihon was working, contained a sump area which angled 6 to 8 inches
below the floor of the tank farm. There was a liquid that appeared
to be water inside the sump area at the time of Cihon's accident.
On February 21, 1991, Cihon had obtained a verbal welding
permit from Paul Wenger, an engineer at Cargill. Cihon intended to
"cad weld" a copper cable to a piece of steel on the side of each
of the storage tanks in order to "ground" them if they were struck
by lightning. According to Cihon, the cad welding process required
the use of an electric grinder to clean any burrs off the cable.
Cihon would then ignite gunpowder in a mold to cause it to weld,
and this required a clean, dry surface.
Sometime before Cihon's accident, the construction workers at
the site had placed a 2 x 10 or 2 x 14 inch plank which ran from
the south wall of the tank farm to the concrete pad in the
southwest corner. The testimony indicates that the plank was
anywhere from eight to fourteen feet long. Cihon's coworker,
Edward Hunt, testified that various workers at the site had used
the plank to enter the tank farm. Hunt believed that the plank had
been used in that manner for a few weeks. The plank sloped
downward from the south wall to the top of the tank pad and ended
at least two feet from the spot where Cihon intended to cad weld
the cable to the metal flap on the tank.
On the day of the occurrence, Cihon walked across the plank
into the tank farm to look at the flap where the welding was to be
done. He set down the mold on the concrete pad and exited the tank
farm via the plank. While Hunt rolled out an extension cord to get
power to the tank farm for the electric grinder, Cihon went to a
trailer to get supplies for the cad welding. As Cihon again walked
down the plank with the cad welding equipment in his hands, the
plank "tipped" and he fell to the floor of the tank farm. Hunt
found Cihon lying on his back partly in the water in the sump area
and about three or four feet north of the south wall. Cihon
testified that he passed out for awhile and awakened in extreme
pain. He sustained serious injury to a ligament in his knee.
On July 1, 1991, Cihon filed a two-count complaint against
Cargill and M & W, setting forth claims under the Structural Work
Act and common law negligence. Prior to trial, Cargill filed a
counterclaim against M & W and a third-party complaint against Glen
Oaks, both seeking contribution. Glen Oaks waived its workers
compensation lien of $177,122.06, and obtained a dismissal. M & W
settled with Cihon for $240,000 and was dismissed after the judge
made a finding that its settlement with Cihon was in good faith.
The trial commenced on October 23, 1995. Cargill stipulated
before trial that it had control of the premises and charge of the
work, which effectively removed those issues from the case.
At trial, Ellen Brady, plant superintendent of Cargill's
Chicago Heights plant at the time of the accident, testified that
she was responsible for the overall operations of the facility.
She said that Cargill relied on a permit system and contractor
checklist to prevent unsafe practices. According to Brady,
Cargill's plant engineer, Paul Wenger, visited the tank farm two or
three times a week and reported to her on the progress of the
construction. Brady testified that she or Wenger could stop the
work if they saw something done in an unsafe manner. She admitted
that Cargill was responsible for providing a safe work site.
Brady said she had seen a plank running from the south wall of
the tank farm to one of the tank pads and had observed workers
using it to walk in and out of the tank farm. She admitted that
there was water in the sump area on the day of Cihon's accident and
that it would have been Cargill's responsibility to remove it.
Cihon's expert, Kenneth Yotz, testified that he was an expert
in occupational and environmental health and safety and was a
former regional director for the Occupational Safety and Heath
Administration (OSHA). Yotz opined that the plank here was
unreasonably dangerous in that it violated OSHA standards, custom
and practice in the industry, and the Structural Work Act. Yotz
also testified that, even if the fall distance did not require a
handrail, OSHA still required the securing of the scaffold to
prevent movement. Yotz said that he had previously seen such
planks used to provide a walking or working surface for workers or
materials. He opined that a plank used in the manner described
here was not a safe practice because it was not secured, it was not
erected by a competent person, it did not have guardrails, and the
workers were not properly trained to recognize the hazard.
Cargill's expert, Eugene Holland, a structural and consulting
engineer in the construction industry, testified that the plank was
not a scaffold since it served only as an access to the tank farm.
He opined that Cargill had no responsibilities for the direct
supervision of Cihon's work, and that Cihon himself was in sole
control of his work. According to Holland, OSHA places safety
responsibility on both employers and employees. He concluded that
Cihon would not have welded while standing on the plank because the
plank did not extend to the area to be welded. Holland said that
the water in the sump area would have had no impact on cad welding,
although he admitted he was unaware that Cihon would have been
using an electric grinder.
The jury returned verdicts in favor of Cihon and against
Cargill with respect to both counts, awarding Cihon $780,000. The
jury found Cihon 35% negligent and, accordingly, reduced the
damages on the negligence count to $507,000.
Cargill filed a motion for judgment n.o.v., arguing that it
had no duty to Cihon under the negligence count and that the plank
was not a support within the meaning of the Structural Work Act.
Cihon filed a post-trial motion arguing that there was insufficient
evidence of comparative negligence and that the trial court's
finding of direct criminal contempt against Cihon's counsel, John
Ambrose, was erroneous. Ambrose also filed a motion to vacate the
trial court's finding of contempt. The court denied Ambrose's
motion on December 19, 1995, and he appealed (No. 1-96-269).
On April 19, 1996, the trial court entered an order granting
a judgment n.o.v. in favor of Cargill and against Cihon on both
counts. Cihon appealed that order (No. 1-96-1733), and this court
consolidated the appeal with appeal No. 1-96-269.
We first address appeal No. 1-96-1733. A judgment n.o.v.
should be entered only in cases where all of the evidence, when
viewed in the light most favorable to the opponent, so
overwhelmingly favors the movant that no contrary verdict could
ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494,
511, 229 N.E.2d 504 (1967). A court does not weigh the evidence
when ruling on a motion for a judgment n.o.v., nor is it concerned
with the credibility of the witnesses; rather, it may only consider
the evidence, and any inferences therefrom, in the light most
favorable to the party resisting the motion. Maple v. Gustafson,
151 Ill. 2d 445, 453, 603 N.E.2d 508 (1992). Therefore, "[t]he
court has no right to enter a judgment n.o.v. if there is any
evidence, together with reasonable inferences to be drawn
therefrom, demonstrating a substantial factual dispute, or where
the assessment of credibility of the witnesses or the determination
regarding conflicting evidence is decisive to the outcome." Maple,
151 Ill. 2d at 454.
In order to recover on a negligence claim, the plaintiff must
set out sufficient facts to establish that the defendant owed a
duty to the plaintiff, that the defendant breached that duty, and
that the breach proximately caused injury to the plaintiff.
Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 421, 592 N.E.2d 1098 (1992). Whether the defendant owes any duty to the plaintiff,
and, if so, the scope of that duty, is a question of law. Ward v.
K Mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223 (1990).
Under the Premises Liability Act (740 ILCS 130/1 et seq. (West
1994)), an owner of land, such as Cargill, owes entrants on that
land, such as Cihon and other employees of Glen Oaks, a duty "of
reasonable care under the circumstances regarding the state of the
premises or acts done or omitted on them." 740 ILCS 130/2 (West
1994). Our supreme court has ruled that sections 343 and 343A of
the Restatement (Second) of Torts accurately set forth the duty of
possessors and owners of land to their invitees:
"Generally, under section 343, as well as under
common law, a possessor of land owes its invitees a duty
of reasonable care to maintain the premises in a
reasonably safe condition. [Citation.] Section 343A
provides that a possessor of land cannot be liable for an
invitee's injury if the condition of the land which
caused the injury was known or obvious to the invitee.
[Citation.] Section 343A, however, contains an
exception: Even if the condition of the land was obvious
to the invitee, a possessor of land may be liable if the
possessor should have anticipated the harm." Deibert v.
Bauer Brothers Construction Co., 141 Ill. 2d 430, 437,
566 N.E.2d 239 (1990).
Comment f to section 343A further states in pertinent part:
"There are *** cases in which the possessor of land
can and should anticipate that the dangerous condition
will cause physical harm to the invitee notwithstanding
its known or obvious danger. In such cases the possessor
is not relieved of the duty of reasonable care which he
owes to the invitee for his protection. This duty may
require him to warn the invitee, or to take other
reasonable steps to protect him, against the known or
obvious condition or activity, if the possessor has
reason to expect that the invitee will nevertheless
suffer physical harm.
Such reason to expect harm to the visitor from known
or obvious dangers may arise *** where the possessor has
reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a
reasonable man in his position the advantages of doing so
would outweigh the apparent risk. In such cases the fact
that the danger is known, or is obvious, is important in
determining whether the invitee is to be charged with
contributory negligence, or assumption of risk.
[Citation.] It is not, however, conclusive in determining
the duty of the possessor, or whether he has acted
reasonably under the circumstances." (Emphasis added.)
Restatement (Second) of Torts sec. 343A comment f, at 220
(1965).
Cargill maintains that it did not owe a duty to Cihon, citing
as support section 414 of the Restatement:
"One who entrusts work to an independent contractor,
but who retains the control of any part of the work, is
subject to liability for physical harm to others for
whose safety the employer owes a duty to exercise
reasonable care, which is caused by his failure to
exercise his control with reasonable care." Restatement
(Second) of Torts sec. 414 (1965).
Cargill argues that it did not retain sufficient control over
Cihon's work to subject it to liability under the facts of this
case. Comment c to section 414 further states:
"In order for the rule stated in this Section to apply,
the employer must have retained at least some degree of
control over the manner in which the work is done. It is
not enough that he has merely a general right to order
the work stopped or resumed, to inspect its progress or
to receive reports, to make suggestions or
recommendations which need not necessarily be followed,
or to prescribe alterations and deviations. Such a
general right is usually reserved to employers, but it
does not mean that the contractor is controlled as to his
methods of work, or as to operative detail. There must
be such a retention of a right of supervision that the
contractor is not entirely free to do the work in his own
way." Restatement (Second) of Torts sec. 414, Comment c,
at 388 (1965).
When presented with a question of the duty of care owed by an
owner of premises to an independent contractor employed by the
owner, section 414 of the Restatement (Second) of Torts is to be
read in harmony with the Premises Liability Act and sections 343
and 343A of the Restatement (Second) of Torts. See Fancher v.
CIPS, 279 Ill. App. 3d 530, 539-40, 664 N.E.2d 692 (1996). Thus,
we must determine whether the amount of control exercised by
Cargill, when considered in light of the foreseeability
requirements of section 343A of the Restatement, was sufficient to
support a duty to Cihon on the part of Cargill.
Cargill stipulated that it had control of the premises and
charge of the work. Cihon testified at trial that he requested
welding or other work permits from Cargill on a daily basis. Brady
verified that Cargill could stop work it deemed unsafe. Brady's
testimony also established that Cargill knew that workers had been
using the plank to access the tank farm. She admitted that Cargill
could have installed a ladder on the wall of the tank farm.
Cihon testified that the plank was not secured and that it had
"tipped," causing him to fall. The evidence indicated that the
plank, which was approximately four feet above the ground and only
ten to fourteen inches wide, was not secured in any manner and had
no guardrails or handrails. There was also some evidence that the
work area around the tank farm was muddy. Thus, Cargill had reason
to anticipate that a worker accessing the tank farm might slip off
of the plank if his boots were muddy or might misstep if carrying
materials at the time. As previously indicated in section 343A of
the Restatement, a possessor of land may, in some cases, owe its
invitees a duty of reasonable care to maintain the premises in a
reasonably safe condition even if the condition of the land was
obvious to the invitee. See e.g. Deibert, 141 Ill. 2d at 438. We
hold that Cargill owed such a duty in this instance.
Whether Cargill breached its duty by failing to exercise
reasonable care in protecting Cihon from harm was a question of
fact for resolution by the jury. Ward, 136 Ill. 2d at 156. The
jury could have found that Cargill did not exercise reasonable care
because it did not take any action to prevent use of the plank as
an access to the tank farm. See Deibert, 141 Ill. 2d at 442. As
Brady testified, it would have been feasible for Cargill to install
a ladder in the tank farm. The record is uncontroverted that
Cargill failed to undertake any safety measures even though it was
aware of the plank's use; therefore, there was sufficient evidence
for the jury to determine that Cargill breached its duty of care.
Whether Cargill's failure to protect Cihon from harm was the
proximate cause of his injury was also a jury question. Turner v.
Roesner, 193 Ill. App. 3d 482, 488, 549 N.E.2d 1287 (1990).
Proximate cause is one which produces the injury through a natural
and continuous sequence of events unbroken by any effective
intervening cause. Cannon v. Commonwealth Edison Co., 250 Ill.
App. 3d 379, 381, 621 N.E.2d 52 (1993). In order to establish
proximate cause, a plaintiff must demonstrate with reasonable
certainty that the defendant's negligent acts caused his injuries.
Cannon, 250 Ill. App. 3d at 381.
The jury here could have properly concluded that Cargill,
which controlled the work area and knew of the plank, had reason to
expect that Cihon would proceed to encounter the known or obvious
danger "because to a reasonable man in his position the advantages
of doing so would outweigh the apparent risk." Restatement
(Second) of Torts sec. 343A Comment f, at 220 (1965). In other
words, Cihon may have concluded that any risk in accessing the tank
farm via the plank was outweighed by the perceived advantage of not
having to walk eighty feet up to the north end of the tank farm and
stepping over that shorter wall. Cihon also may have determined
that it was safer to walk on the plank and thereby avoid the water
in the sump area which he considered dangerous to his use of the
electric grinder. We hold that Cihon presented sufficient evidence
for the jury to find Cargill negligent; therefore, we reverse the
trial court's judgment n.o.v. on the negligence count.
Given our reversal of the judgment n.o.v. on this count, we
now address Cihon's contention that the jury's finding that he was
35% comparatively negligent was not supported by the evidence. A
jury's determination on this issue will not be set aside on review
unless the verdict is contrary to the manifest weight of the
evidence. Shiner v. Friedman, 161 Ill. App. 3d 73, 85, 513 N.E.2d 862 (1987). A verdict cannot be set aside merely because the jury
could have drawn different inferences and conclusions from
conflicting testimony or because the reviewing court would have
reached a different conclusion. Ford v. City of Chicago, 132 Ill.
App. 3d 408, 412-13, 476 N.E.2d 1232 (1985).
The testimony here supported a finding of comparative
negligence. Cihon was required to use ordinary care for his own
safety. See Restatement (Second) of Torts sec. 343A, comment e, at
219 (1965). He testified that it was his decision to walk down the
unsecured plank while carrying materials. The jury could consider
the fact that Cihon had 29 years of experience as a construction
worker, was familiar with unsecured planks being used in this
manner, and yet elected to walk down the plank with an armful of
materials. Thus, the jury's finding of comparative negligence was
not against the manifest weight of the evidence.
Cihon next contends that the trial court's judgment n.o.v. in
favor of Cargill on the Structural Work Act count ignored the
substantial evidence that the plank served as a scaffold under the
Structural Work Act (Act) (740 ILCS 150/0.01 et seq. (West 1994)).
In his memorandum and order on the judgment n.o.v., the trial judge
determined that Cihon used the plank only as a means of going in
and out of the tank farm and, therefore, its intended use at the
time of the injury was not covered by the Act as a matter of law.
The judge found that Cihon had chosen to use the plank to access
his work area even though he was free to enter over the shorter
north wall of the tank farm.
Section 1 of the Act provided in pertinent part:
"All scaffolds, hoists, cranes, stays, ladders, supports
or other mechanical contrivances, erected or constructed
*** for the use in the erection *** of any *** structure,
shall be erected and constructed, in a safe, suitable and
proper manner, and shall be so erected and constructed,
placed and operated as to give proper and adequate
protection to the life and limb of any person or persons
employed or engaged thereon, or passing under or by the
same, and in such manner as to prevent the falling of any
material that may be used or deposited thereon." 740
ILCS 150/1 (West 1994).
Whether a device is a "scaffold," "support," or other "mechanical
device" governed by the Act is a matter of statutory construction
and, therefore, a question of law for the court. Vuletich v.
United States Steel Corp., 117 Ill. 2d 417, 421, 512 N.E.2d 1223
(1987). In order to determine whether a device comes within the
meaning of the Act, a court must ascertain the intended use of the
device in question at the time of the injury, whether the injury
has some connection with the hazardous nature of the device in
question, and the element of danger involved in the use of the
support device and whether it is the type of danger the legislature
intended to alleviate by the Act. Ashley v. Osman & Associates,
Inc., 114 Ill. App. 3d 293, 296-298, 448 N.E.2d 1011 (1983).
A floor is not a "support" within the meaning of the Act when
it is being used merely as a walkway, but if a worker relies on a
partially completed floor for support in the performance of some
hazardous activity or as a working platform, he may recover.
Vuletich, 117 Ill. 2d at 423. In Monk v. Knierim, 266 Ill. App. 3d
145, 639 N.E.2d 928 (1994), the plaintiff was handing insulation
material to a coworker. The plaintiff was standing next to an
opening in the floor which was being used to move materials into
the basement. As he turned to get more insulation, his right foot
slipped off an unsecured board covering part of the hole and he
fell to the basement floor. In reversing the trial court's entry
of summary judgment in favor of the defendant, the reviewing court
determined that, when handing insulation up to his coworker, the
plaintiff used the floor as a support, but when going to get more
insulation, he used the floor as a pathway. Monk, 266 Ill. App. 3d
at 151. The court concluded that the floor was intended to be used
as both a support and a pathway when the accident occurred and was,
therefore, covered by the Act. Monk, 266 Ill. App. 3d at 152.
In Ashley, the plaintiff, who was carrying a propane tank to
use in his work area, fell and was injured as he was walking on
planks or concrete forms placed over deep mud at the work site.
The court concluded that the planks and concrete forms were erected
as supports specifically intended to prevent the workmen from
sinking into the mud as they transferred materials to the worksite
and were, therefore, both a walkway and a support under the Act.
Ashley, 114 Ill. App. 3d at 299-300.
Similarly Cihon was carrying materials into the tank farm in
preparation for cad welding when he fell off of the plank. We
conclude that the evidence here supported the jury's verdict in
favor of Cihon because, at the time of the injury, the plank was
being used, not only as a pathway to the work area, but also to
carry materials necessary for cad welding into the tank farm. We
reverse the finding that the plank served only as a walkway.
The second element under Ashley is whether there was a
connection between the injury and the hazardous nature of the
support. 114 Ill. App. 3d at 298. The evidence here indicated
that the plank was 10 to 14 inches wide, was several feet above the
ground, was unsecured, and had no guard rails. Cihon testified
that he was injured when the plank slipped or "tipped." The
evidence was sufficient to satisfy this criteria.
The third element under Ashley is whether the danger involved
was intended to be covered by the Act. The Act covered those
instances when the worker was engaged in a hazardous task that was
essential to the worker's structural work activities. See Dubrovich
v. Commonwealth Edison Co., 209 Ill. App. 3d 498, 502, 568 N.E.2d 285 (1991). In Dubrovich, the court concluded that the Act applied
to the plaintiff's injury which occurred while he was climbing a
ladder and carrying nuts and bolts to a work area in order to weld
whip restraints. Similarly, we conclude that bringing cad welding
materials into the tank farm was an integral part of Cihon's duties
and was, therefore, covered by the Act.
We conclude that Cihon proved the elements necessary to
prevail under the Act. See Cockrum v. Kajima International, Inc.,
163 Ill. 2d 485, 491, 645 N.E.2d 917 (1994). The record contains
sufficient evidence for the jury to conclude that Cihon was
involved in a structural activity, his activity was performed with
reference to a structure under the Act, the plank was defective
because it was not secure, and this defect caused Cihon to fall and
become injured. Moreover, Brady admitted that Cargill, which
admittedly had charge of the work, was aware that the workers at
the tank farm had been using the plank to access the tank farm.
The jury heard sufficient evidence to conclude that Cargill
wilfully violated the Act. Accordingly, we reverse the trial
court's judgment n.o.v. on the Structural Work Act count.
We note briefly that the trial judge failed to rule
conditionally on Cargill's motion for a new trial as required under
section 2-1202(f) of the Code of Civil Procedure (735 ILCS 5/2-
1202(f) (West 1994)). Under Supreme Court Rule 366(a)(5) (134 Ill.
2d R. 366(a)(5)), this court may enter any judgment and make any
order that ought to have been given or made by the trial court.
Our review of the record, as stated above, indicates that the
jury's verdict in favor of Cihon on the negligence count and the
Structural Work Act count was not against the manifest weight of
the evidence. Therefore, we deny Cargill's motion for a new trial.
Cargill argues in its cross-appeal that it is entitled to
setoffs in the amount of the settlement proceeds paid to Cihon by
M & W and Glen Oaks. Cihon initially asserts that this argument
must fail since Cargill failed to preserve this issue during the
trial proceedings. However, in Decker v. St. Mary's Hospital, 266
Ill. App. 3d 523, 529, 639 N.E.2d 1003 (1994), the court determined
that the issue of whether setoffs are appropriate should be raised
no later than the post-trial motion stage. Since Cargill presented
this issue in its post-trial motion, the question was not waived.
We hold that Cargill is entitled to a setoff of the M & W
settlement as provided under section 2(c) of the Contribution Act
(740 ILCS 100/2(c) (West 1994)), given the trial judge's good faith
finding. See Foster v. Kanuri, 241 Ill. App. 3d 677, 608 N.E.2d 8
(1992). Although the record indicates that the trial judge never
made a good faith finding as to the settlement with Glen Oaks, we
conclude that Cargill is entitled to a setoff in the amount of the
value of its waived workers compensation lien. Under Kotecki v.
Cyclops Welding Corp., 146 Ill. 2d 155, 165, 585 N.E.2d 1023
(1991), Cargill may seek contribution from Glen Oaks in an amount
not greater than its workers compensation liability. As noted,
Glen Oaks waived its lien in full. The only basis for dismissal of
a contribution claim by reason of a settlement with a plaintiff is
provided under section (d) of the Contribution Act (740 ILCS
100/2(d) (West 1994)). Therefore, since Glen Oaks settled with
Cihon for the full amount of its potential contribution liability,
we hold that the settlement was in good faith as a matter of law.
We now address appeal No. 1-96-269, concerning the trial
court's finding of direct criminal contempt against Ambrose. On
appeal, Ambrose argues that the requisite elements of the offense
of direct contempt were not proven beyond a reasonable doubt. The
judge found Ambrose in contempt after Cargill's counsel attempted
to publish certain photographs to the jury. Ambrose said he had
never seen them. The judge stated that Ambrose's associate had
already stipulated to the photos. After Ambrose repeatedly
protested, the court found him in direct criminal contempt and
fined him $250. The judge's order stated that Ambrose had impeded
the trial, diminished the dignity of the court, and displayed
disrespect to the judge, parties, counsel, and the jurors.
The standard of review for direct criminal contempt is whether
there is sufficient evidence to support the finding of contempt and
whether the judge considered only facts within his personal
knowledge. People v. Graves, 74 Ill. 2d 279, 284, 384 N.E.2d 1311
(1979). This court is not persuaded that Ambrose's conduct was
merely that of a vigorous advocate. The judge stated on the record
that "I have extenuated my patience with putting up with (Ambrose)
interrupting me repeatedly when I have made rulings." Our
appellate court has stated:
"When *** the trial court has directly and clearly
informed counsel that their opportunity for argument is
over, that is a nondebatable order, and no misguided
sense of advocacy can be permitted to overcome it. If an
attorney believes that the trial court's finding of fact
or conclusions of law are in error, then that attorney
can file a post-trial motion or appeal. His options,
however, do not include the privilege of interrupting the
trial court as it states its findings or conclusions, nor
do his options include the privilege of arguing with the
court after its rulings have been made." In re Contempt
of Ellis, 206 Ill. App. 3d 388, 397, 564 N.E.2d 186
(1990).
We conclude that sufficient evidence existed for the judge to
impose the $250 fine against Ambrose. The report of proceedings
reveals that some of Ambrose's behavior was in response to the
manner in which he was treated by the judge. We would be remiss in
failing to observe that trial judge's are charged with the
responsibility of maintaining order and decorum in the courtroom
and should be patient, dignified and courteous in their interaction
with attorneys appearing before them. Nonetheless, we believe that
Ambrose's actions were sufficient to support a finding of contempt.
For the foregoing reasons, we reverse the trial court's
judgment n.o.v. as to both counts in appeal No. 1-96-1733. We
affirm the jury's finding that Cihon was 35% comparatively
negligent on the negligence count. We also hold that Cargill is
entitled to setoffs in the amount of $417,122.06. We remand with
instructions to enter judgment on the jury's verdict and grant
Cargill the setoffs to which it is entitled. We affirm the trial
court's finding of contempt in appeal No. 1-96-269.
Appeal No. 1-96-269--Affirmed.
Appeal No. 1-96-1733--Affirmed in part; reversed in part;
remanded with instructions.
HARTMAN, P.J., and SOUTH, J., concur.
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