Dodds v. Western Kentucky Navigation

July 6, 1998

                               NO. 5-96-0836

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

CHRIS DODDS,                         )  Appeal from the   
                                     )  Circuit Court of 
     Plaintiff-Appellant,            )  Madison County.
                                     )
v.                                   )  No. 94-L-130
                                     )
WESTERN KENTUCKY NAVIGATION,         )
                                     )
     Defendant and Third-Party       )
     Plaintiff-Appellee and Cross-   )
     Appellant,                      )
                                     )
v.                                   )
                                     )  
OCCIDENTAL CHEMICAL CORPORATION,     )
INC.,                                )  
                                     )  Honorable
     Third-Party Defendant-          )  P. J. O'Neill,
     Cross-Appellee.                 )  Judge, presiding.  
_________________________________________________________________

     JUSTICE GOLDENHERSH delivered the opinion of the court:
     Plaintiff, Chris Dodds, appeals from the trial court's denial
of his motion for directed verdict and his posttrial motion for a
new trial.  Plaintiff, an employee of defendant, Western Kentucky
Navigation, filed a complaint under the Jones Act (46 U.S.C. 688
et seq. (1975)), alleging that defendant negligently caused
injuries to his back and arm.  The jury returned a verdict for
plaintiff in the amount of $200,000, which was reduced by 50% to
$100,000 based upon plaintiff's contributory negligence.  Defendant
moved for a setoff of $190,000 as a result of an earlier settlement
between plaintiff and third-party defendant Occidental Chemical
Corporation, Inc. (Occidental).  The circuit court granted the
setoff and entered a net judgment of zero dollars.
     On appeal, plaintiff presents the following issues:  (1)
whether the trial court erred in failing to grant plaintiff a
directed verdict and (2) whether the trial court improperly
admitted into evidence collateral matters such as collateral source
payments, surrebuttal as to a nurse's gender, and the disciplinary
consequences of professional conduct.  We reverse and remand for a
new trial on the issue of damages.
                                    I.
     On April 26, 1993, plaintiff was engaged as a first mate
aboard the motor vessel Bill McCormick, operated by defendant.  On
the day of the incident, plaintiff was working with three other
crew members, pilot Tom Flowers and deckhands Steve "Ninja" Martin
and Kevin Edwards.  The McCormick was headed southbound on the
Illinois River towing barges, three barges wide and four barges
deep in the front, and three barges, four deep across the back. 
When the McCormick arrived at the Marseilles Lock in Ottawa, the
tow prepared to enter the lock, which is 110 feet wide.  The tow
was 105 feet wide, leaving only a five-foot clearance.  Plaintiff,
Martin, and Edwards were on the front barge, OCC 119, owned by
Occidental.  OCC 119 is a covered barge with a steel deck and had
been freshly painted, including its timberheads.  As the McCormick
approached the long wall of the lock, plaintiff and Martin were on
the starboard bow corner and Edwards was on the port bow corner. 
Plaintiff and Edwards had radios so the crew could communicate with
Flowers in the pilothouse.  Due to the pilot's limited visibility,
plaintiff and the other deckhands informed Flowers of the distance
of the tow relative to the long wall.
     As the barges entered into the lock area, the crew had to get
the tow lined up square along the long wall of the lock.  A line
was taken off the head of the tow and thrown to the lockman on the
long wall.  The lockman secured the line.  Martin caught the line
and wrapped the timberheads on OCC 119.  This line is not tied off
because it feeds through as the tow flattens along the long wall. 
A deckhand's job is to hold the unsecured end of the line as it
feeds through the timberheads.
     The mishap at issue here occurred as the tow began moving
along the long wall.  Plaintiff was watching the stern when Flowers
radioed him to let the line loose.  Plaintiff told Martin to take
the line off.  Martin took the line off the front timberhead and
began to throw the wraps off the second timberhead when the line
jerked out of Martin's hand.  Martin was having difficulty
releasing the line because the line was seizing or sticking to the
paint on the timberhead.  Plaintiff came over to Martin.  There is
a dispute regarding whether Martin told plaintiff the line was
"fixing to shoot," meaning the line would release suddenly and with
tremendous force.  Plaintiff attempted to free the seized line by
throwing off wraps from the timberhead.  The first wrap came off,
but the second only went halfway around the timberhead, sending a
cloud of white paint into plaintiff's face.  The line "shot,"
throwing plaintiff into the steel deck of the barge.  Plaintiff
sustained serious injuries to his left arm and was removed by
emergency personnel and taken to a nearby hospital for medical
treatment.
     At Ottawa Community Hospital, plaintiff was treated by Dr. Bok
Choi, an orthopedic surgeon, for a fractured left forearm. 
Treatment included the insertion of a metal rod.  Plaintiff also
received treatment for injuries to his left knee.  On May 10, 1993,
plaintiff was seen by Dr. Mark Greatting, an orthopedic surgeon in
Springfield, for postsurgery follow-up care.  Dr. Greatting
performed additional surgery on plaintiff's left forearm on August
27, 1993.
     Plaintiff first complained of pain associated with his back on
his December 14, 1993, office visit with Dr. Greatting.  On this
visit, plaintiff stated that the neck pain began about one month
after the accident.  Dr. Greatting examined plaintiff's neck and
found no abnormalities.  Plaintiff did not specifically complain of
lower back pain to Dr. Greatting.  Prior to this office visit,
there are no medical reports indicating that plaintiff complained
of back or neck pain to either Dr. Greatting or the nurses from
Comprehensive Rehabilitation Associates, who were assigned to
accompany plaintiff on checkups for his arm injury.
     Subsequently, plaintiff was examined by Dr. George
Schoedinger, an orthopedic surgeon, for back pain.  Plaintiff was
diagnosed as having herniated disks in his lumbar spine at the L4-5
and L5-S1 levels.  Plaintiff underwent back surgery on January 24,
1995.  Plaintiff was unable to return to his job as first mate,
which involves heavy labor.  At the time of the trial plaintiff was
engaged in light duty at a lumberyard.
     On March 13, 1996, the jury returned a verdict in favor of
plaintiff in the total amount of $200,000, which was reduced by 50%
based upon plaintiff's contributory negligence.  The net amount of
the verdict was $100,000.  Defendant moved for a setoff of $190,000
based upon plaintiff's earlier settlement with Occidental at the
outset of the trial.  The trial court granted the setoff and
entered a net judgment of zero dollars.  Plaintiff filed his
posttrial motion, which was denied.  Plaintiff appeals.
     The following facts are pertinent to defendant's cross-appeal. 
Defendant filed contribution and indemnity claims against third-
party defendant Occidental, which owned the barge plaintiff was on
at the time of his injury.  Defendant also filed a maintenance-and-
cure claim against Occidental for payments made to plaintiff as a
result of Occidental's negligence in providing a tow with a painted
timberhead.  On March 4, 1997, plaintiff settled with Occidental. 
Plaintiff moved to dismiss his unseaworthiness claims against
defendant and proceeded on a negligence theory under the Jones Act. 
Defendant filed an amended answer in which defendant admitted that
"a barge with a painted timberhead was in its tow and that said
timberhead created an unsafe condition by causing the line to
seize."  The trial court dismissed defendant's maintenance-and-cure
action against Occidental and barred defendant from discussing
Occidental during the trial and from having the jury assign a
portion of fault to Occidental.  The trial court further determined
that the Illinois Joint Tortfeasor Contribution Act (740 ILCS
100/0.01 et seq. (West 1992)) applied to the settlement between
plaintiff and Occidental, and the court dismissed Occidental from
the action.  Defendant filed its posttrial motion, which the trial
court denied.  Defendant appeals.
                                    II.
     Plaintiff maintains that the trial court erred in denying his
motion for directed verdict on the issue of defendant's liability
because plaintiff has met his burden of proof by establishing the
following:  that defendant had a nondelegable duty to provide
plaintiff with a reasonably safe place to work; that defendant, by
its own admission, breached that duty by providing a tow containing
a barge with a painted timberhead, which created an unsafe
condition by causing the line to seize; and that plaintiff was
injured attempting to rectify the unsafe condition of the seized
line.  Thus, according to plaintiff, the trial court should have
granted a directed verdict in plaintiff's favor as to liability and
proceeded on the issue of plaintiff's comparative negligence.
     Defendant maintains that its amended answer admitted fault
only to the extent that a barge with a painted timberhead was in
its tow and that the timberhead created an unsafe condition by
causing the line to seize.  Defendant further insists that it
denied all allegations that the painted timberhead caused
plaintiff's injuries.  Instead, defendant asserts that plaintiff's
injuries could have been avoided had he followed proper safety
procedures and not placed himself in harm's way.  We reject this
argument.
     Under the Jones Act, "[a]ny seaman who shall suffer personal
injury in the course of his employment" has rights parallel to
those of railway employees under the Federal Employers' Liability
Act (FELA) (46 U.S.C. 688 (1986)).  Joyce v. Atlantic Richfield
Co., 651 F.2d 676, 681 (10th Cir. 1981).  Section 51 of the FELA
provides, in relevant part, that "[e]very common carrier by
railroad *** shall be liable in damages *** for such injury or
death resulting in whole or in part from the negligence of any
officers, agents, or employees of such carrier."  45 U.S.C. 51
(1986).  In Rogers v. Missouri Pacific R.R. Co., 352 U.S. 500, 506,
1 L. Ed. 2d 493, 77 S. Ct. 443, 448 (1957), the Supreme Court
stated:
          "Under this statute the test of a jury case is simply
     whether the proofs justify with reason the conclusion that
     employer negligence played any part, even the slightest, in
     producing the injury or death for which damages are sought."
Thus, in a Jones Act case, the plaintiff's burden to prove
causation is "very light."  Cella v. United States, 998 F.2d 418,
427 (7th Cir. 1993).  "The plaintiff must merely establish that the
employer's acts or omissions played some part, no matter how small,
in producing the employee's injury."  998 F.2d  at 428.  An employer
may raise a sole-proximate-cause defense if the employer can show
that an intervening and independent cause was the causative factor
in the plaintiff's injuries.  Baker v. CSX Transportation, Inc.,
221 Ill. App. 3d 121, 130, 581 N.E.2d 770, 777 (1991). 
     "For an intervening act, omission, or event to be the sole
     proximate cause, it must be, by itself, the direct and
     immediate cause of the injury, or must be a cause which so
     entirely supersedes the operation of the defendant's
     negligence that it alone, without the defendant's negligence
     contributing thereto in the slightest degree, produces the
     injury."  Baker, 221 Ill. App. 3d at 130, 581 N.E.2d  at 777. 
A directed verdict is proper where "all of the evidence, when
viewed in the aspect most favorable to the opponent, so
overwhelmingly favors movant that no contrary verdict based on that
evidence could ever stand."  Pedrick v. Peoria & Eastern R.R. Co.,
37 Ill. 2d 494, 510, 229 N.E.2d 504, 513-14 (1967).
     Upon a review of the record, we find that plaintiff clearly
established his burden of proof with respect to defendant's duty to
plaintiff, its breach of that duty, and the resulting injury to
plaintiff.  Pursuant to the Jones Act, defendant has a nondelegable
duty to provide plaintiff with a safe place to work and "equipment
that is reasonably fit for the safe performance of the task at
hand."  Saleh v. United States, 849 F. Supp. 886, 892 (S.D.N.Y.
1994).  Defendant, in its amended answer, stated that it "admits
fault to the extent that a barge with a painted timberhead was in
its tow and that said timberhead created an unsafe condition by
causing the line to seize."  Further, at trial, defendant's experts
testified that a painted timberhead was hazardous and presented a
danger because a line would stick to the painted surface, causing
the line to seize.  A seized line would "shoot," potentially
causing injury to the seaman working the line.  The evidence
sufficiently established defendant's duty and its breach of that
duty.
     Turning to the issue of causation, defendant maintains that
the line seizing on the painted timberhead was not the proximate
cause of plaintiff's injury.  Rather, defendant claims that the
cause of plaintiff's injury was his failure to follow certain
safety rules in throwing the line off.  Defendant contends that
plaintiff placed himself in harm's way when he ignored Martin's
warning that the line was "fixing to shoot" and began throwing off
wraps with the line behind him.  Defendant insists that plaintiff's
violation of its safety rules is the sole proximate cause of
plaintiff's injury.  Defendant's argument fails as there is nothing
in the record to support the conclusion that the painted timberhead
in no way caused plaintiff's injuries.  The evidence reveals that
the painted timberhead created the unsafe condition plaintiff was
attempting to rectify at the time of his injury.  Without the
paint, the timberhead would not have presented the hazardous
condition.  Nothing in the record indicates that the injuries
plaintiff sustained were the result of anything other than the
hazardous situation brought about by the painted timberhead. 
Further, defendant's attempt to attribute plaintiff's injuries to
plaintiff's violation of safety rules is contrary to defendant's
expert's testimony that plaintiff was a safe worker.  Even if
plaintiff failed to observe defendant's safety rules, plaintiff's
conduct would, at most, constitute a concurring proximate cause of
the incident, not the sole proximate cause.  Baker, 221 Ill. App.
3d at 131, 581 N.E.2d  at 778.  We find that the evidence
establishes that the painted timberhead was the proximate cause of
plaintiff's injury.  Consequently, we find that the trial court
erred in denying plaintiff's motion for directed verdict as to
liability.
                                   III.
     Since we are reversing and remanding for new trial based on
the directed verdict issue, we will address only those further
contentions of plaintiff that may recur in the retrial of this
cause.  Plaintiff next contends that defense counsel, during his
redirect-examination of David Dewey, president of Western Kentucky,
violated the order in limine prohibiting the introduction of
evidence regarding the maintenance-and-cure payments to plaintiff,
by questioning Dewey about these payments, thereby causing
prejudice to plaintiff.
          "A `motion in limine' allows a party to obtain an order
     excluding inadmissible evidence without having to object to,
     and thereby to emphasize, the evidence before the jury and
     thus enables a party to prevent his opponent from attempting
     to prejudice the jury."  Baker v. CSX Transportation, Inc.,
     221 Ill. App. 3d 121, 132, 581 N.E.2d 770, 778-79 (1991).
     Plaintiff's counsel, during his examination of Dewey as an
adverse witness, inquired into payments made to plaintiff after his
injury when he served as a steersman in the wheelhouse.  Dewey
indicated that plaintiff had not received wages.  On redirect,
defense counsel sought to clarify the kind of compensation
plaintiff received during the time plaintiff worked as a steersman. 
In so doing, defense counsel inquired about the total amount of
compensation plaintiff received, including the maintenance
payments.  At this point plaintiff's counsel made a timely
objection, which was sustained by the trial court.  No further
violations of the in limine order occurred.  Plaintiff argues that
this violation was prejudicial in that it created a perception that
plaintiff's counsel was preventing the jury from hearing evidence. 
While the court's order in limine was violated, plaintiff did not
show prejudice of such a character or magnitude as to deprive
plaintiff of a fair trial.  See Northern Trust Bank v. Carl, 200
Ill. App. 3d 773, 778, 558 N.E.2d 451, 455 (1990).  Since this was,
however, a violation of the in limine order, we do not expect that
it will be repeated upon the retrial.
     Lastly, plaintiff claims that, over plaintiff's objections,
the trial court allowed defense counsel to make improper comments
during closing arguments referring to professional disciplinary
actions against defendant's witnesses for failing to note
plaintiff's complaints of neck and back pain in their medical
reports and making suggestions that an adverse verdict against
defendant would impugn the professional reputations of these
witnesses.  We agree.
     Attorneys are allowed broad latitude in closing argument. 
Lewis v. Cotton Belt Route-St. Louis Southwestern Ry. Co., 217 Ill.
App. 3d 94, 119, 576 N.E.2d 918, 932 (1991).  The scope of a
closing argument is within the sound discretion of the trial court.
Decker v. St. Mary's Hospital, 249 Ill. App. 3d 802, 821, 619 N.E.2d 537 (1993).  In closing arguments, commentary should be
limited to the facts in evidence.  Rush v. Hamdy, 255 Ill. App. 3d
352, 359, 627 N.E.2d 1119, 1123 (1993).  
     During closing arguments, defense counsel stated:
     "And ladies and gentlemen, it is clear that if this nurse, any
     of these nurses, had falsified records, they would be facing
     ethical violations.
                                  * * * 
     And there was none.
                                   * * *
     These nurses would essentially be losing their license.  And
     if Dr. Greatting had ignored him, he would be subject to the
     same problems and so would Dr. Choi."
Defense counsel's inappropriate references to ethical violations
and professional disciplinary actions were made solely to introduce
evidence of good reputation for the truth and veracity of the
professionals who testified.  "Evidence of good reputation for
truth and veracity is not admissible merely because one testified
in a trial."  People v. Doll, 126 Ill. App. 3d 495, 501, 467 N.E.2d 335, 340 (1984).  The suggestion that these professionals are
truthful in their statements because they could otherwise impugn
their reputations and risk disciplinary action interjects an
improper element into the case and appeals to the passions and
prejudices of the jury.  Such comments are immaterial to the
question of defendant's negligence.  Accordingly, we find that,
under the circumstances here, defense counsel's inappropriate
remarks, during closing, interjected irrelevant issues into the
case that should not have been considered by the jury.
     Because of our disposition of this matter, we need not address
those issues raised by defendant in its cross-appeal against
Occidental.       
     For the foregoing reasons, the judgment of the circuit court
of Madison County is reversed, and the cause is remanded for a new
trial on the issue of damages.

     Reversed and remanded.
     MAAG and KUEHN, JJ., concur.