LaFever v. Kemlite Co.
Annotate this Case
FIFTH DIVISION
December 12, 1997
No. 1-96-0753
CARL E. LA FEVER, )
)
Plaintiff-Appellee/Cross-Appellant, )
)
v. ) Appeal from
) the Circuit Court
KEMLITE COMPANY, a Division of DYROTECH ) of Cook County.
INDUSTRIES, INC., )
)
Defendant-Appellant/Cross-Appellee. )
)
__________________________________________) No. 91-L-16362
)
KEMLITE COMPANY, a Division of DYROTECH )
INDUSTRIES, INC., )
)
Third-Party Plaintiff-Appellant, )
) Honorable
v. ) James S. Quinlan, Jr.,
) Judge Presiding.
BANNER/WESTERN DISPOSAL, a Division of )
WASTE MANAGEMENT OF NORTH AMERICA, INC., )
)
Third-Party Defendant-Appellee. )
MODIFIED UPON DENIAL OF REHEARING
JUSTICE THEIS delivered the opinion of the court:
Defendant and third-party plaintiff, Kemlite Company, a division
of Dyrotech Industries, Inc., a wholly owned subsidiary of Crane
Company, a New York corporation (Kemlite), appeals the jury verdict
against it awarding damages for injuries sustained by plaintiff, Carl
LaFever (LaFever), at Kemlite's fiberglass plant in Joliet, Illinois.
LaFever worked as an industrial waste disposal truck driver for Waste
Management of Illinois, Inc., d/b/a Banner/Western Disposal
(Banner/Western). LaFever was injured when he slipped and fell while
servicing the Kemlite facility for Banner/Western and filed suit
alleging that Kemlite failed to maintain a walkway, failed to warn
LaFever of a dangerous condition, and negligently allowed fiberglass
waste, oil or hydraulic fluid, or fiberglass dust to accumulate on the
walkway. Kemlite filed a third-party action against Banner/Western
alleging that LaFever's injuries were proximately caused by
Banner/Western's negligence. The case proceeded to trial and the jury
awarded LaFever $1,122,261.21.
On appeal, Kemlite alleges several trial errors and seeks
reversal of the entire jury verdict, reversal for a new trial on all
issues, or reversal and remand for a remittitur of the entire future
lost earnings award. Kemlite first argues that LaFever did not
establish either duty or proximate cause to hold Kemlite liable in
tort. Kemlite also claims LaFever's counsel made improper remarks in
closing argument. In addition, Kemlite contends that the trial court
erroneously instructed the jury as to LaFever's future lost earnings,
and calculation of LaFever's life expectancy. In the third-party
action, Kemlite argues that the trial court erred by refusing to admit
into evidence the contract between Kemlite and Banner/Western to show
the contractual allocation of liability. On cross-appeal, LaFever
argues that the trial court erroneously allowed Banner/Western to
waive and set off its workers' compensation lien in satisfaction of
its contribution liability to Kemlite, post-trial. For the following
reasons, we affirm in part, reverse in part, and remand.
Kemlite manufactures fiberglass reinforced polyester resin panels
used in the transportation and building products industry. At the
Joliet facility, the panels are manufactured on eight production
lines, 24 hours a day, in three shifts of eight hours each. The edge
trim of the hardened resin panels is the waste byproduct which is
thrown into the compactor. Kemlite contracted with Banner/Western to
haul away all of Kemlite's waste. At trial, the parties referred to
the large industrial dumpster at issue as a closed compactor unit, a
hydraulic unit with a ram located at one end. Kemlite employees would
dump the fiberglass debris into a four-foot pit in the top of the unit
and the ram would then compact the debris from the side.
To remove a filled container, a Banner/Western driver would
secure the container to keep the debris from spilling out. The driver
would then attach a cable in order to pull the waste container onto
the back of the truck, first removing the pinning bar from the side of
the container. After removing the bar, which weighed approximately 40
pounds, the driver would disconnect the container by loosening two
buckles that held the container to the compactor. The driver would
then climb back onto the truck and drive the truck forward to pull the
container away. Finally, the driver would get out of the truck and
clean up any debris that spilled during removal. Once the container
was on the truck, the driver would take it to a landfill, empty it,
and return the empty container back to the customer's site.
Banner/Western provided the containers and would pick up the full
containers once a day. If Kemlite requested, Banner/Western would
make a second pick up on any given day.
At trial, much of the testimony concerned the fiberglass debris,
how it was generated, and who was responsible for cleaning it up. It
was undisputed that the debris was slippery, like ice, and hard to
handle because it was razor sharp. Likewise, walking in the debris
was unavoidable because all roll-off drivers had to walk through the
debris to reach the back of the container in order to disconnect it
from the compactor. Debris often would spill as the Banner/Western
drivers removed the container. In those instances, the roll-off
drivers acknowledged that it was their job to clean up the spilled
debris. If a lot of debris spilled during removal, the Banner/Western
drivers would ask Kemlite for help to clean up the mess.
In addition, however, several Banner/Western employees testified
regarding the condition of the area around the compactor upon their
arrival to the Kemlite plant. For example, Raymond Richards
testified:
"Q Mr. Richards, to your understanding, is it
Kemlite's job to maintain and clean that compactor
area?
* * *
THE WITNESS: What I could say is when we
leave, we clean it up the best way possible, but
the mess is there when we get there, so it's really
not my responsibility. It's their's.
* * *
Q Would it also be fair to say that it was a
problem area and you did encounter debris when you
tried to do your job?
A Yes.
Q Sometimes it would be fine for a couple
days and then be right back to the way it was?
A Yes.
Q Did you ever ask the Kemlite people either
in the dock, loading dock area, or the people who
signed your ticket to try not to over stuff that
box?
A Yes.
Q Why did you do that?
A It's dangerous, number one, and it just
makes a complete mess when it's over packed.
Q It makes what?
A Just a complete mess when it's over packed.
There is no way in controlling what's in that
hopper.
Q Would you let the dispatcher know every
time when the packer was overloaded?
A Yes."
Lynn Smith, a Banner/Western dispatcher, confirmed that the drivers
often called her to report that debris was on the ground when the
drivers arrived. Smith never received a complaint from Kemlite that
the Banner/Western drivers were not doing their job cleaning up spills
they themselves caused during removal.
Regarding Kemlite's responsibility to maintain the compactor
area, Kemlite's production superintendent, Edgar Johnson, testified:
"Q All right, okay. And it's the job of the
utility workers within the Production Department of
Kemlite to maintain that compactor area, correct?
A If they see something that needs cleaned,
yes.
* * *
Q And if there was a necessity out there for
a cleanup, if you've got a mess that people can
trip on that was a hazard, somebody should be
assigned to clean up that compactor area, correct?
A If we're aware of it, yes."
Kemlite utility workers would use shovels and rakes to clean up flakes
and pieces of fiberglass on the ground. Johnson never received any
complaints from Banner/Western nor complained to Banner/Western about
the servicing of the compactor box.
Regarding the respective duties of Kemlite and Banner/Western,
Banner/Western's operations manager, Terry Wilder, testified on cross-
examination:
"Q All right. Do you recall Mr. LaFever had
made complaints about that site before he was
injured to you?
THE WITNESS: Yes.
* * *
Q And other drivers besides Mr. LaFever also
complained to you about the Kemlite site, correct?
A Yes.
Q All right. And some of the problems that
result out there is that Kemlite may dump a
container of material into the hopper into the
compactor unit and just due to the density of it
the ram will not push the material into the unit
and consequently you cannot pin the container to
hold the material in the box and when this happens
a big mess results, correct?
A That's correct.
* * *
Q Kemlite's job in their maintenance
department is to service the grounds at Kemlite and
to take care of that compactor area, correct?
A Yes, I assume.
* * *
Q And the problems you would call Kemlite
with would be too much debris around the compactor,
correct?
A Yes.
Q And your men couldn't pin the box because
it had been overstuffed, correct?
A Yes.
Q And the box was put back in and the area
hadn't been cleaned when your men were off taking
the load to the landfill, correct?
A Yes.
Q And you yourself, sir, said you can't
shovel this material, right?
A Yes, it is very difficult.
Q You almost have to rake it, right?
A Yes."
LaFever testified that, prior to his injury in 1990, he had been
a Banner/Western employee for 21 years and a roll-off driver for 16 to
18 years. Banner/Western held safety meetings to teach the roll-off
drivers how to be careful and supplied its drivers with a shovel and
special shoes for slippery areas. LaFever was told that if he ever
encountered an unsafe situation that he should call Banner/Western
first for instructions. LaFever encountered fiberglass debris and
water on the ground at the Kemlite facility numerous times. LaFever
would notify the dispatcher who in turn would call Kemlite and ask for
help in cleaning up the mess. In his deposition, LaFever had stated
that he would report the debris to Banner/Western and that he had
never spoken to any Kemlite employee about the conditions.
Regarding his fall, LaFever testified on cross-examination:
"Q Now you didn't call anyone to clean
anything up on June 22nd, 1990?
A No. The debris was there when I arrived.
Q You had a shovel on the truck?
A Yes, sir.
Q Did you make yourself a path so you
wouldn't slip on the debris before you walked to
the back of the truck?
Q No, sir, I did --
A You could do that with a shovel, couldn't
you?
Q Probably, yes, I could.
* * *
Q You are saying that Kemlite's employees at
times, you don't know about the date of the
accident, but at times would spill some fiberglass
debris from the loading dock?
A Yes, sir."
LaFever was not distracted by anything when he fell. He could see
clearly and the bar and pin he was carrying did not impede his vision
as to where he was walking. After his fall at Kemlite, LaFever
completed two other loads.
Regarding prior back injuries, LaFever testified that he had
injured his back on three earlier occasions: once in 1974, in 1983,
and again in 1984. LaFever returned to work after all three injuries.
LaFever testified that he saw Dr. Payne and Dr. Ibrahim for the last
injury and recounted his prior injuries to them. LaFever did not
mention the last injury in his deposition or answers to
interrogatories.
During his entire employment with Banner/Western, LaFever had
certain lifting restrictions. LaFever testified that the pain from
this fall was different from that suffered with prior injuries in that
he felt sharp pain down to his feet. The pain worsened after the
fall. LaFever was examined by Dr. Timothy Payne, who ordered a
battery of medical tests. Dr. Payne sent LaFever to physical therapy
and gave LaFever medication and epidural injections for the pain. Dr.
Payne recommended that LaFever return to work. LaFever worked for
several months as a security guard, but the pain in his legs prevented
him from continuing the job.
By evidence deposition, Dr. Timothy Payne, LaFever's treating
physician, testified that LaFever first came to see him June 29, 1990,
about a week after his fall. LaFever apprised Dr. Payne of only one
prior incident when LaFever had sustained a pulled muscle. In Dr.
Payne's opinion, LaFever's fall did not cause any of his degenerative
back conditions, but, rather, was a final insult to his preexisting
back condition. Dr. Payne referred LaFever to a work-hardening
program. After continuing complaints, Dr. Payne referred LaFever to
an orthopedic surgeon, Dr. Kamal Ibrahim, who recommended spine fusion
surgery. After surgery, LaFever returned to physical therapy,
rehabilitation and work hardening. According to Dr. Payne, because
LaFever had done well at work hardening, LaFever "could attempt a
return to his original job if it indeed was available."
According to Dr. Ibrahim, who also testified by evidence
deposition, the surgery was successful. Regarding whether he
instructed LaFever to return to work, Dr. Ibrahim testified that he
did not have a specific instruction in his records. Dr. Ibrahim would
give a routine instruction after surgery to avoid lifting weight more
than 50 pounds above the waist and 20 pounds above their head. Dr.
Ibrahim further stated, "My record here shows that I advised him to go
back to work after he told me that he went through work hardening. So
although I don't have any recollection, but I wonder if I have
discussed with him the weights of the job. I don't know."
LaFever attempted to return to work at Banner/Western. He was
told, however, that he had been absent longer than one year, as
allowed by his union contract, and, therefore, Banner/Western no
longer needed him. LaFever testified that he could not have returned
to work during the one-year period due to the injury he sustained at
Kemlite. LaFever tried bartending and working on a tow truck, but
both jobs bothered his back. In 1995, LaFever returned to Dr. Payne
but did not apprise him of any of his continuing back problems.
Kemlite called Dr. Elizabeth Sterna Kessler, who testified that
she believed that, prior to June 1990, LaFever had significant
degenerative changes in his lower back. If LaFever had sustained any
injury from the fall, it would have been aggravation of a preexisting
condition. Kemlite also called the two treating physicians who
treated LaFever for his 1983 and 1984 falls, respectively. Both
testified that x-rays taken in 1983 and 1984 revealed that LaFever had
spondylolysis and spondylolisthesis, degenerative vertebrae and back
conditions.
At the close of LaFever's case, Kemlite made a motion for a
directed verdict, which the trial court denied. At the close of
Kemlite's case in chief, third-party defendant Banner/Western filed a
motion for a directed verdict, which the court denied. At the close
of all the evidence, Kemlite and Banner/Western filed motions for
directed verdict and LaFever filed a motion for a directed verdict
against Kemlite on liability. The court denied those motions as well.
The court then held a jury instruction conference. Kemlite
objected to the verdict form and instructions regarding future damages
and future loss of earnings. Specifically, Kemlite argued that,
although LaFever testified that he tried to work, he did not say he
could not work. The court determined that there was enough evidence
to send it to the jury and gave the verdict form and general IPI
instructions over objections by Kemlite and Banner/Western. As to
duty, the court explained that, while Kemlite, as an owner of the
property, had a duty to exercise ordinary care to see that the
property was reasonably safe (IPI Civil 3d No. 120.02.01 (1995)),
LaFever also had a duty to use ordinary care for his own safety (IPI
Civil 3d No. B10.03 (1995)).
The jury returned a verdict in favor of LaFever in the amount of
$1,122,261.21, accounted for as follows: disability and disfigurement
$75,000; past pain and suffering $250,000; future pain and suffering
$250,000; medical expenses $92,117.61; past lost earnings $163,117.20;
and future lost earnings $292,026.40. The jury also apportioned fault
as follows: LaFever - 5%; Kemlite - 75%; Banner/Western - 20%. The
court reduced the award by 5% and entered judgment against Kemlite in
the amount of $1,066,148.15.
Kemlite and Banner/Western both filed post-trial motions seeking
judgments notwithstanding the verdict, remittitur for the entire
future lost earnings award, and setoff of Banner/Western's worker's
compensation lien in satisfaction of its contribution owed to Kemlite.
The court denied both post-trial motions but allowed Banner/Western to
waive its worker's compensation lien in the amount of $222,267.02 to
set off its contribution liability to Kemlite under the third-party
complaint. Accordingly, the court modified the jury verdict and
reduced it to $843,881.13.
On appeal, Kemlite first argues that the trial court erred by
failing to grant Kemlite's motions for a directed verdict at the close
of LaFever's case in chief and again at the close of all of the
evidence. Specifically, Kemlite contends that it had no duty of care
toward LaFever because the danger was open and obvious. LaFever
concedes that the danger was open and obvious, but argues that the
open and obvious doctrine does not eliminate Kemlite's duty of
reasonable care.
Motions for a directed verdict and judgments notwithstanding the
verdict should only be granted when all of the evidence, viewed most
favorably for the nonmovant, so overwhelmingly favors the movant that
no contrary verdict based on the evidence could ever stand. Pedrick
v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504,
513-14 (1967). Whether a defendant has a duty of care is a question
of law subject to de novo review. Bucheleres v. Chicago Park
District, 171 Ill. 2d 435, 445, 665 N.E.2d 826, 831 (1996). The
question of duty concerns whether the defendant and plaintiff stood in
such a relationship to each other that the law imposed upon defendant
an obligation of reasonable conduct for the benefit of the plaintiff.
Ward v. Kmart Corporation, 136 Ill. 2d 132, 139, 554 N.E.2d 223, 226
(1990).
Historically, landowners owed no legal duty to take precautions
or warn against risks from open and obvious conditions on the land.
Genaust v. Illinois Power Co., 62 Ill. 2d 456, 343 N.E.2d 465 (1976).
Relying on the Restatement (Second) of Torts, however, the Illinois
Supreme Court has tempered this rule holding that the open and obvious
doctrine no longer operates as a per se bar to a landowner's or
occupier's reasonable duty of care. Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229. Section 343A of the Restatement provides that "[a]
possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose danger
is known or obvious to them, unless the possessor should anticipate
the harm despite such knowledge or obviousness." Restatement (Second)
of Torts 343A, at 218 (1965).
Relying on Comment f to this subsection, Illinois courts have
culled two specific exceptions to the open and obvious doctrine--the
"distraction exception" and the "deliberate encounter exception." The
"distraction exception" finds that a landowner's duty of care is not
negated by an open and obvious condition when the possessor has reason
to expect that the invitee's attention may be distracted from such
condition. Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229; see American
National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14,
18, 594 N.E.2d 313, 314 (1992); Deibert v. Bauer Brothers Construction
Co., Inc., 141 Ill. 2d 430, 566 N.E.2d 239 (1990). The second
exception, known as the "deliberate encounter" exception, arises when
"the landowner has placed the invitee in the position of having to
choose between encountering the obvious danger or foregoing his
employment" (Burse v. CR Industries, Inc., 288 Ill. App. 3d 48, 53,
680 N.E.2d 431, 435 (1997), citing Jackson v. Hilton Hotels Corp., 277
Ill. App. 3d 457, 464, 660 N.E.2d 222, 226 (1995)) and has been
applied when the plaintiff had no reasonable alternative but to
encounter the condition.
Although neither recognized exception applies to the facts of
this case, we nevertheless find, relying on the language of the
Restatement, that Kemlite owed a duty of care to LaFever
notwithstanding the open and obvious nature of the fiberglass debris.
The relevant inquiry is whether Kemlite's "general duty of reasonable
care extended to the risk encountered" by LaFever. Ward, 136 Ill. 2d
at 145, 554 N.E.2d at 229. An open and obvious condition is but one
factor to consider in determining the owner's duty of care.
Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836. Consequently, we
consider the open and obvious nature of the condition in conjunction
with the traditional factors determinative of duty. Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836.
The first consideration is the likelihood of the injury. Ward,
136 Ill. 2d at 140-41, 554 N.E.2d at 226-27. When the condition is
open and obvious, the likelihood of injury generally is considered to
be slight because people encountering the condition are expected to
appreciate and avoid the risks. Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836. In this case, part of LaFever's job removing the
container required him to encounter whatever debris Kemlite allowed to
accumulate. Thus, this prong is not dispositive. While the debris
was open and obvious, LaFever could not avoid it.
The second consideration is the foreseeability of harm to others.
Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836. It is this prong
we find to be dispositive. As adduced at trial, the evidence
demonstrated that Kemlite often overloaded the compactor, allowing the
fiberglass debris to overflow and accumulate on the ground. The
Banner/Western drivers testified that, while they were responsible for
cleaning all spills caused by removing the container, it was Kemlite's
job to maintain the compactor area. Although Kemlite personnel
testified that they never received complaints, the Banner/Western
employees testified that they made repeated complaints to Kemlite
regarding the compactor being overpacked and the area around the
compactor. It was foreseeable to Kemlite that allowing the slippery
fiberglass debris to accumulate on the ground would cause someone to
slip and fall. The foreseeability of injury was magnified by
Kemlite's notice from the Banner/Western dispatcher as well as by
Kemlite's control over the hazardous condition.
Likewise, the magnitude of the burden of guarding against injury
is slight. Kemlite's production operated 24 hours a day and debris
was constantly generated. Kemlite could have scheduled an additional
pickup by Banner/Western. Kemlite could have kept the area around the
compactor clean. Kemlite's production supervisor testified that
Kemlite had utility workers to keep the premises clean.
And finally, the consequences of placing that burden upon Kemlite
also are slight. Ward, 136 Ill. 2d at 140-41, 554 N.E.2d at 226-27.
The duty imposed in this case does not require Kemlite to insure
against all injuries but, rather, to exercise reasonable care.
Kemlite had control over the filling of the compactor and notice from
Banner/Western employees regarding the unsafe accumulation of
fiberglass debris around the compactor. Thus, we find the trial court
did not err in refusing to direct a verdict in favor of Kemlite. The
court correctly determined that Kemlite owed LaFever a duty of care
despite the open and obvious nature of the debris. Kemlite's duty of
reasonable care encompassed the risk that someone would be injured
because of the accumulated fiberglass debris. Ward, 136 Ill. 2d at
157, 554 N.E.2d at 234.
As a related matter, Kemlite claims that LaFever did not prove
that his June 1990 fall proximately caused his back injuries. The
issue of proximate cause is a question of fact for the trier of fact.
In this case, both treating physicians, Dr. Payne and Dr. Ibrahim,
testified that the fall and symptoms were likely related. Both agreed
that LaFever's degenerative condition was in place prior to LaFever's
fall in 1990 and that the fall aggravated the preexisting degenerative
condition triggering LaFever's pain symptoms. Likewise, although
Kemlite's expert, Dr. Kessler, testified that she did not believe the
fall was related to LaFever's symptoms, Kessler did concede that, if
related, then the fall would have aggravated preexisting conditions.
The jury's finding that the fall was the proximate cause of LaFever's
injury was not against the manifest weight of the evidence. Moore v.
Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874, 880,
672 N.E.2d 826, 831 (1996).
Kemlite next argues that the trial court erred by refusing to
admit into evidence the purchase order between Kemlite and
Banner/Western to demonstrate the parties' allocation of liability.
The admission of evidence lies within the sound discretion of the
trial court. Polk v. Cao, 279 Ill. App. 3d 101, 103, 664 N.E.2d 276,
278 (1996). Here, the court noted numerous problems with Kemlite's
purchase order, including that the paper was blank on one side and it
did not evidence a contract with anyone. Counsel for Kemlite admitted
the copy was illegible. Thus, the trial court did not abuse its
discretion by refusing to admit the purchase order into evidence.
Kemlite also asserts that prejudicial, untrue remarks made by
LaFever's counsel during closing argument warrant a new trial.
Specifically, Kemlite objects to the following statement made by
Lafever's counsel as untrue: "They had to hire Dr. Kessler. The only
neurologist in the world? First of all, they didn't have to hire her.
They had to get a continuance of this trial a month ago so they could
get her in this case." Although the court sustained Kemlite's
objection at trial, Kemlite argues that the remark constitutes
reversible error. We disagree. While the remark was improper, it did
not alter the jury's verdict.
As to LaFever's damages, Kemlite first contests the jury award,
in the amount of $250,000, for future pain and suffering. At trial,
Dr. Payne testified that LaFever would likely continue to experience
aches, pains, and discomforts in his lower back. Likewise, LaFever
testified as to his continuing minor pain, stiffness, and loss of
flexibility. From the evidence, the jury reasonably could find that
LaFever would continue to experience future pain and suffering. The
jury's award for future pain and suffering was not against the
manifest weight of the evidence.
Kemlite next argues that the trial court erred by instructing the
jury regarding future lost earnings and by allowing the jury to
calculate LaFever's future lost earnings. Kemlite argued that
LaFever's evidence did not indicate that LaFever could not work, but
rather that he tried a couple of jobs which did not work out. The
trial court admitted the evidence was not strong but determined there
was probably a minimum basis to support such an instruction. Over
Kemlite's objection, the court gave the jury instructions regarding
the nature and amount of damages, and how to calculate future lost
earnings.
Although expert testimony as to future earnings is not required,
there must be some evidence that plaintiff's injury was permanent and
that it prevented him from continuing employment. Antol v. Chavez-
Pereda, 284 Ill. App. 3d 561, 573-74, 672 N.E.2d 320, 329 (1996).
Plaintiff must present "reasonably certain proof" as to future
damages. Brown v. Chicago & North Western Transportation Co., 162
Ill. App. 3d 926, 936, 516 N.E.2d 320, 327 (1987). "[T]he appearance
of the plaintiff on the witness stand, his testimony as to the nature
of the injuries and their duration are sufficient to take the question
of impaired earning capacity to the jury." Patel v. Brown Machine
Co., 264 Ill. App. 3d 1039, 1061, 637 N.E.2d 491, 505 (1994)). Courts
also have acknowledged the physical nature of the disability (Antol,
284 Ill. App. 3d at 574, 672 N.E.2d at 329 (leg amputated below the
knee); Patel, 264 Ill. App. 3d at 1062, 637 N.E.2d at 506 (severed
fingers)) and have relied on physician testimony as to the permanence
of the disability. Patel, 264 Ill. App. 3d at 1062, 637 N.E.2d at
506; Lewis v Cotton Belt Route, 217 Ill. App.3d 94, 117, 576 N.E.2d 918, 936 (1991). Thus, while plaintiff may testify as to his impaired
earning capacity, that testimony must include some reasonably certain
proof of the impairment.
In this case, both treating doctors testified that the surgery
was successful in eliminating LaFever's symptoms and that LaFever
could return to work without restriction. Dr. Payne testified that he
believed LaFever "could attempt a return to his original job if it
indeed was available for he had good flexibility, he could lift
repetitively up to 25 pounds and intermittently up to 50 pounds, and
he wasn't having the complaints of pain that he had prior to surgery."
Due to union rules, however, because LaFever had been off of work for
a year, he was unable to return to his prior position as a
Banner/Western roll-off driver. LaFever briefly worked as a bartender
and a wrecker driver but, according to his own testimony, was unable
to perform either job. LaFever presented no other evidence regarding
his inability to work in the future. Moreover, both doctors testified
that LaFever could return to work. Without some reasonably certain
proof as to LaFever's continued incapacity, we find that the trial
court abused its discretion by sending the issue of future lost
earnings to the jury. Consequently, the jury also should not have
been instructed regarding calculation of LaFever's future lost
earnings.
On cross-appeal, LaFever argues that the trial court erred by
allowing Banner/Western a post-trial setoff of its contribution
liability to Kemlite by waiving its statutory workers' compensation
lien. Specifically, LaFever contends that the post-trial setoff
allowed Banner/Western to circumvent its statutory obligation to pay
its pro rata share of LaFever's fees and expenses. As this issue
presents a question of law, our review is de novo. Corley v. McHugh
Construction Co., 266 Ill. App. 3d 618, 621, 639 N.E.2d 1374, 1377
(1994).
Under the Workers' Compensation Act, an employer must pay its
employees compensation for accidental injuries which arise out of and
in the course of employment. 820 ILCS 305/2 (West 1994). The Act
grants the employer a statutory lien on the proceeds an employee
recoups from a third party, which is equal to the amount of workers'
compensation benefits paid or owed to the employee. 820 ILCS 305/5(b)
(West 1994). The employer's right to reimbursement is known as the
workers' compensation lien. Corley, 266 Ill. App. 3d at 621, 639 N.E.2d at 1377.
If, however, the employer exercises its right to reimbursement,
the employer is obligated to pay its pro rata share of the employee's
fees and expenses for such recovery. 820 ILCS 305/5(b) (West 1994).
"[T]he rationale for imposing this obligation on the employer is that
the employer receives a benefit as a result of the employee's having
prosecuted the third-party action, namely, reimbursement." Ramsey v.
Morrison, 175 Ill. 2d 218, 239-40, 676 N.E.2d 1304, 1314 (1997).
Additionally, an employer may also be held liable for
contribution by a third party. An employer's contribution liability
is limited to the amount of the employer's workers' compensation
liability to its injured employee. Kotecki v. Cyclops Welding Corp.,
146 Ill. 2d 155, 585 N.E.2d 1023 (1991). Thus, an employer may use
the Workers' Compensation Act as a shield from third-party actions
(Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 208, 676 N.E.2d 1295, 1299 (1997)), for example, by waiving its workers' compensation
lien. The instant case questions the interplay between an employer's
contribution liability and an employer's workers' compensation lien.
Although two recent cases touched on this issue, neither resolved the
issue fully.
In Ramsey v. Morrison, 175 Ill. 2d 218, 676 N.E.2d 1304 (1997),
the Illinois Supreme Court held that an employer may not reduce its
contribution liability by its pro rata share of the employee's fees
and costs for recovery against the third party. In so holding, the
court explained that an employer's worker's compensation liability is
defined by the amount of benefits the employer owes under the Workers'
Compensation Act, not by the amount of reimbursement the employer is
entitled to recover from the employee. Ramsey, 175 Ill. 2d at 239,
676 N.E.2d at 1314. Similarly, in Corley v. James McHugh Construction
Co., 266 Ill. App. 3d 618, 639 N.E.2d 1374 (1994), the appellate court
held that an employer's section 5(b) pro rata share of the employee's
attorney fees and costs may not be deducted from the setoff when the
employer waived its workers' compensation lien. In so holding, the
court relied on the fact that the employer had not exercised its right
to reimbursement because it had waived its workers' compensation lien
pretrial.
This case presents the propriety of allowing the employer to
waive its workers' compensation lien post-trial, an issue never
addressed. Applying the reasoning of Ramsey and Corley, we find that
Banner/Western may not avoid its fees and costs obligation to LaFever
by post-trial waiver of its workers' compensation lien and setoff of
its contribution liability to Kemlite. Ramsey reaffirms that an
employer's contribution liability and workers' compensation liability
are two separate obligations. Ramsey, 175 Ill. 2d at 239, 676 N.E.2d
at 1314. Likewise, Corley explains that an employer's workers'
compensation lien constitutes a right to reimbursement. Corley, 266
Ill. App. 3d at 621, 639 N.E.2d at 1377. Consequently, any claimed
waiver of that right must be considered in light of the plaintiff's
recovery from a third party. After plaintiff recovers from a third
party, the employer's right to reimbursement is statutorily reduced
under section 5(b) by the employee's entitlement to a proportionate
share of fees and costs. Thus, Banner/Western's post-trial setoff of
its contribution liability by the full amount of its workers'
compensation lien does not account for the statutory reduction in its
right to reimbursement as contemplated by section 5(b) of the Act.
In this case, the trial court allowed Banner/Western to waive its
workers' compensation lien post-trial in the full amount of
$222,267.02 in satisfaction of its contribution liability to Kemlite
for $224,452,24. The court thus reduced the judgment by the full
setoff amount, reducing LaFever's recovery from $1,066,148.15 to
$843,881.13. By so doing, Banner/Western avoided responsibility for
$58,599.92 in fees and costs to LaFever (calculated by LaFever as
$55,566.75 (25% x $222,267.02) plus $3,033.17, Banner/Western's pro
rata share of LaFever's litigation expenses). While Banner/Western
could have waived its lien pretrial, by waiting post-trial,
Banner/Western gambled that there would be no recovery at all. When
the respective liabilities of the parties are determined,
Banner/Western must reduce the amount of its workers' compensation
lien by the proportionate amount of fees and costs owed to LaFever for
prosecuting the lawsuit. Rice v. McDonald's Corp., 268 Ill. App. 3d
201, 644 N.E.2d 482 (1994).
We recognize that the practical effect of this decision will be
to hold employers potentially responsible for 125% of their workers'
compensation liability. We believe, however, that, under these narrow
facts, the employer should not be allowed to circumvent payment of its
section 5(b) fees and costs, after the cause has proceeded through
trial. Accordingly, we vacate that portion of the trial court order
allowing Banner/Western to waive and set off its workers' compensation
lien without accounting for the statutory fees owed to LaFever.
Affirmed in part and reversed in part; remanded for recalculation
of the judgment consistent with this opinion.
GREIMAN and ZWICK, JJ., concur.
December 12, 1997
No. 1-96-0753
CARL E. LA FEVER, )
)
Plaintiff-Appellee/Cross-Appellant, )
)
v. ) Appeal from
) the Circuit Court
KEMLITE COMPANY, a Division of DYROTECH ) of Cook County.
INDUSTRIES, INC., )
)
Defendant-Appellant/Cross-Appellee. )
)
__________________________________________) No. 91-L-16362
)
KEMLITE COMPANY, a Division of DYROTECH )
INDUSTRIES, INC., )
)
Third-Party Plaintiff-Appellant, )
) Honorable
v. ) James S. Quinlan, Jr.,
) Judge Presiding.
BANNER/WESTERN DISPOSAL, a Division of )
WASTE MANAGEMENT OF NORTH AMERICA, INC., )
)
Third-Party Defendant-Appellee. )
MODIFIED UPON DENIAL OF REHEARING
JUSTICE THEIS delivered the opinion of the court:
Defendant and third-party plaintiff, Kemlite Company, a division
of Dyrotech Industries, Inc., a wholly owned subsidiary of Crane
Company, a New York corporation (Kemlite), appeals the jury verdict
against it awarding damages for injuries sustained by plaintiff, Carl
LaFever (LaFever), at Kemlite's fiberglass plant in Joliet, Illinois.
LaFever worked as an industrial waste disposal truck driver for Waste
Management of Illinois, Inc., d/b/a Banner/Western Disposal
(Banner/Western). LaFever was injured when he slipped and fell while
servicing the Kemlite facility for Banner/Western and filed suit
alleging that Kemlite failed to maintain a walkway, failed to warn
LaFever of a dangerous condition, and negligently allowed fiberglass
waste, oil or hydraulic fluid, or fiberglass dust to accumulate on the
walkway. Kemlite filed a third-party action against Banner/Western
alleging that LaFever's injuries were proximately caused by
Banner/Western's negligence. The case proceeded to trial and the jury
awarded LaFever $1,122,261.21.
On appeal, Kemlite alleges several trial errors and seeks
reversal of the entire jury verdict, reversal for a new trial on all
issues, or reversal and remand for a remittitur of the entire future
lost earnings award. Kemlite first argues that LaFever did not
establish either duty or proximate cause to hold Kemlite liable in
tort. Kemlite also claims LaFever's counsel made improper remarks in
closing argument. In addition, Kemlite contends that the trial court
erroneously instructed the jury as to LaFever's future lost earnings,
and calculation of LaFever's life expectancy. In the third-party
action, Kemlite argues that the trial court erred by refusing to admit
into evidence the contract between Kemlite and Banner/Western to show
the contractual allocation of liability. On cross-appeal, LaFever
argues that the trial court erroneously allowed Banner/Western to
waive and set off its workers' compensation lien in satisfaction of
its contribution liability to Kemlite, post-trial. For the following
reasons, we affirm in part, reverse in part, and remand.
Kemlite manufactures fiberglass reinforced polyester resin panels
used in the transportation and building products industry. At the
Joliet facility, the panels are manufactured on eight production
lines, 24 hours a day, in three shifts of eight hours each. The edge
trim of the hardened resin panels is the waste byproduct which is
thrown into the compactor. Kemlite contracted with Banner/Western to
haul away all of Kemlite's waste. At trial, the parties referred to
the large industrial dumpster at issue as a closed compactor unit, a
hydraulic unit with a ram located at one end. Kemlite employees would
dump the fiberglass debris into a four-foot pit in the top of the unit
and the ram would then compact the debris from the side.
To remove a filled container, a Banner/Western driver would
secure the container to keep the debris from spilling out. The driver
would then attach a cable in order to pull the waste container onto
the back of the truck, first removing the pinning bar from the side of
the container. After removing the bar, which weighed approximately 40
pounds, the driver would disconnect the container by loosening two
buckles that held the container to the compactor. The driver would
then climb back onto the truck and drive the truck forward to pull the
container away. Finally, the driver would get out of the truck and
clean up any debris that spilled during removal. Once the container
was on the truck, the driver would take it to a landfill, empty it,
and return the empty container back to the customer's site.
Banner/Western provided the containers and would pick up the full
containers once a day. If Kemlite requested, Banner/Western would
make a second pick up on any given day.
At trial, much of the testimony concerned the fiberglass debris,
how it was generated, and who was responsible for cleaning it up. It
was undisputed that the debris was slippery, like ice, and hard to
handle because it was razor sharp. Likewise, walking in the debris
was unavoidable because all roll-off drivers had to walk through the
debris to reach the back of the container in order to disconnect it
from the compactor. Debris often would spill as the Banner/Western
drivers removed the container. In those instances, the roll-off
drivers acknowledged that it was their job to clean up the spilled
debris. If a lot of debris spilled during removal, the Banner/Western
drivers would ask Kemlite for help to clean up the mess.
In addition, however, several Banner/Western employees testified
regarding the condition of the area around the compactor upon their
arrival to the Kemlite plant. For example, Raymond Richards
testified:
"Q Mr. Richards, to your understanding, is it
Kemlite's job to maintain and clean that compactor
area?
* * *
THE WITNESS: What I could say is when we
leave, we clean it up the best way possible, but
the mess is there when we get there, so it's really
not my responsibility. It's their's.
* * *
Q Would it also be fair to say that it was a
problem area and you did encounter debris when you
tried to do your job?
A Yes.
Q Sometimes it would be fine for a couple
days and then be right back to the way it was?
A Yes.
Q Did you ever ask the Kemlite people either
in the dock, loading dock area, or the people who
signed your ticket to try not to over stuff that
box?
A Yes.
Q Why did you do that?
A It's dangerous, number one, and it just
makes a complete mess when it's over packed.
Q It makes what?
A Just a complete mess when it's over packed.
There is no way in controlling what's in that
hopper.
Q Would you let the dispatcher know every
time when the packer was overloaded?
A Yes."
Lynn Smith, a Banner/Western dispatcher, confirmed that the drivers
often called her to report that debris was on the ground when the
drivers arrived. Smith never received a complaint from Kemlite that
the Banner/Western drivers were not doing their job cleaning up spills
they themselves caused during removal.
Regarding Kemlite's responsibility to maintain the compactor
area, Kemlite's production superintendent, Edgar Johnson, testified:
"Q All right, okay. And it's the job of the
utility workers within the Production Department of
Kemlite to maintain that compactor area, correct?
A If they see something that needs cleaned,
yes.
* * *
Q And if there was a necessity out there for
a cleanup, if you've got a mess that people can
trip on that was a hazard, somebody should be
assigned to clean up that compactor area, correct?
A If we're aware of it, yes."
Kemlite utility workers would use shovels and rakes to clean up flakes
and pieces of fiberglass on the ground. Johnson never received any
complaints from Banner/Western nor complained to Banner/Western about
the servicing of the compactor box.
Regarding the respective duties of Kemlite and Banner/Western,
Banner/Western's operations manager, Terry Wilder, testified on cross-
examination:
"Q All right. Do you recall Mr. LaFever had
made complaints about that site before he was
injured to you?
THE WITNESS: Yes.
* * *
Q And other drivers besides Mr. LaFever also
complained to you about the Kemlite site, correct?
A Yes.
Q All right. And some of the problems that
result out there is that Kemlite may dump a
container of material into the hopper into the
compactor unit and just due to the density of it
the ram will not push the material into the unit
and consequently you cannot pin the container to
hold the material in the box and when this happens
a big mess results, correct?
A That's correct.
* * *
Q Kemlite's job in their maintenance
department is to service the grounds at Kemlite and
to take care of that compactor area, correct?
A Yes, I assume.
* * *
Q And the problems you would call Kemlite
with would be too much debris around the compactor,
correct?
A Yes.
Q And your men couldn't pin the box because
it had been overstuffed, correct?
A Yes.
Q And the box was put back in and the area
hadn't been cleaned when your men were off taking
the load to the landfill, correct?
A Yes.
Q And you yourself, sir, said you can't
shovel this material, right?
A Yes, it is very difficult.
Q You almost have to rake it, right?
A Yes."
LaFever testified that, prior to his injury in 1990, he had been
a Banner/Western employee for 21 years and a roll-off driver for 16 to
18 years. Banner/Western held safety meetings to teach the roll-off
drivers how to be careful and supplied its drivers with a shovel and
special shoes for slippery areas. LaFever was told that if he ever
encountered an unsafe situation that he should call Banner/Western
first for instructions. LaFever encountered fiberglass debris and
water on the ground at the Kemlite facility numerous times. LaFever
would notify the dispatcher who in turn would call Kemlite and ask for
help in cleaning up the mess. In his deposition, LaFever had stated
that he would report the debris to Banner/Western and that he had
never spoken to any Kemlite employee about the conditions.
Regarding his fall, LaFever testified on cross-examination:
"Q Now you didn't call anyone to clean
anything up on June 22nd, 1990?
A No. The debris was there when I arrived.
Q You had a shovel on the truck?
A Yes, sir.
Q Did you make yourself a path so you
wouldn't slip on the debris before you walked to
the back of the truck?
Q No, sir, I did --
A You could do that with a shovel, couldn't
you?
Q Probably, yes, I could.
* * *
Q You are saying that Kemlite's employees at
times, you don't know about the date of the
accident, but at times would spill some fiberglass
debris from the loading dock?
A Yes, sir."
LaFever was not distracted by anything when he fell. He could see
clearly and the bar and pin he was carrying did not impede his vision
as to where he was walking. After his fall at Kemlite, LaFever
completed two other loads.
Regarding prior back injuries, LaFever testified that he had
injured his back on three earlier occasions: once in 1974, in 1983,
and again in 1984. LaFever returned to work after all three injuries.
LaFever testified that he saw Dr. Payne and Dr. Ibrahim for the last
injury and recounted his prior injuries to them. LaFever did not
mention the last injury in his deposition or answers to
interrogatories.
During his entire employment with Banner/Western, LaFever had
certain lifting restrictions. LaFever testified that the pain from
this fall was different from that suffered with prior injuries in that
he felt sharp pain down to his feet. The pain worsened after the
fall. LaFever was examined by Dr. Timothy Payne, who ordered a
battery of medical tests. Dr. Payne sent LaFever to physical therapy
and gave LaFever medication and epidural injections for the pain. Dr.
Payne recommended that LaFever return to work. LaFever worked for
several months as a security guard, but the pain in his legs prevented
him from continuing the job.
By evidence deposition, Dr. Timothy Payne, LaFever's treating
physician, testified that LaFever first came to see him June 29, 1990,
about a week after his fall. LaFever apprised Dr. Payne of only one
prior incident when LaFever had sustained a pulled muscle. In Dr.
Payne's opinion, LaFever's fall did not cause any of his degenerative
back conditions, but, rather, was a final insult to his preexisting
back condition. Dr. Payne referred LaFever to a work-hardening
program. After continuing complaints, Dr. Payne referred LaFever to
an orthopedic surgeon, Dr. Kamal Ibrahim, who recommended spine fusion
surgery. After surgery, LaFever returned to physical therapy,
rehabilitation and work hardening. According to Dr. Payne, because
LaFever had done well at work hardening, LaFever "could attempt a
return to his original job if it indeed was available."
According to Dr. Ibrahim, who also testified by evidence
deposition, the surgery was successful. Regarding whether he
instructed LaFever to return to work, Dr. Ibrahim testified that he
did not have a specific instruction in his records. Dr. Ibrahim would
give a routine instruction after surgery to avoid lifting weight more
than 50 pounds above the waist and 20 pounds above their head. Dr.
Ibrahim further stated, "My record here shows that I advised him to go
back to work after he told me that he went through work hardening. So
although I don't have any recollection, but I wonder if I have
discussed with him the weights of the job. I don't know."
LaFever attempted to return to work at Banner/Western. He was
told, however, that he had been absent longer than one year, as
allowed by his union contract, and, therefore, Banner/Western no
longer needed him. LaFever testified that he could not have returned
to work during the one-year period due to the injury he sustained at
Kemlite. LaFever tried bartending and working on a tow truck, but
both jobs bothered his back. In 1995, LaFever returned to Dr. Payne
but did not apprise him of any of his continuing back problems.
Kemlite called Dr. Elizabeth Sterna Kessler, who testified that
she believed that, prior to June 1990, LaFever had significant
degenerative changes in his lower back. If LaFever had sustained any
injury from the fall, it would have been aggravation of a preexisting
condition. Kemlite also called the two treating physicians who
treated LaFever for his 1983 and 1984 falls, respectively. Both
testified that x-rays taken in 1983 and 1984 revealed that LaFever had
spondylolysis and spondylolisthesis, degenerative vertebrae and back
conditions.
At the close of LaFever's case, Kemlite made a motion for a
directed verdict, which the trial court denied. At the close of
Kemlite's case in chief, third-party defendant Banner/Western filed a
motion for a directed verdict, which the court denied. At the close
of all the evidence, Kemlite and Banner/Western filed motions for
directed verdict and LaFever filed a motion for a directed verdict
against Kemlite on liability. The court denied those motions as well.
The court then held a jury instruction conference. Kemlite
objected to the verdict form and instructions regarding future damages
and future loss of earnings. Specifically, Kemlite argued that,
although LaFever testified that he tried to work, he did not say he
could not work. The court determined that there was enough evidence
to send it to the jury and gave the verdict form and general IPI
instructions over objections by Kemlite and Banner/Western. As to
duty, the court explained that, while Kemlite, as an owner of the
property, had a duty to exercise ordinary care to see that the
property was reasonably safe (IPI Civil 3d No. 120.02.01 (1995)),
LaFever also had a duty to use ordinary care for his own safety (IPI
Civil 3d No. B10.03 (1995)).
The jury returned a verdict in favor of LaFever in the amount of
$1,122,261.21, accounted for as follows: disability and disfigurement
$75,000; past pain and suffering $250,000; future pain and suffering
$250,000; medical expenses $92,117.61; past lost earnings $163,117.20;
and future lost earnings $292,026.40. The jury also apportioned fault
as follows: LaFever - 5%; Kemlite - 75%; Banner/Western - 20%. The
court reduced the award by 5% and entered judgment against Kemlite in
the amount of $1,066,148.15.
Kemlite and Banner/Western both filed post-trial motions seeking
judgments notwithstanding the verdict, remittitur for the entire
future lost earnings award, and setoff of Banner/Western's worker's
compensation lien in satisfaction of its contribution owed to Kemlite.
The court denied both post-trial motions but allowed Banner/Western to
waive its worker's compensation lien in the amount of $222,267.02 to
set off its contribution liability to Kemlite under the third-party
complaint. Accordingly, the court modified the jury verdict and
reduced it to $843,881.13.
On appeal, Kemlite first argues that the trial court erred by
failing to grant Kemlite's motions for a directed verdict at the close
of LaFever's case in chief and again at the close of all of the
evidence. Specifically, Kemlite contends that it had no duty of care
toward LaFever because the danger was open and obvious. LaFever
concedes that the danger was open and obvious, but argues that the
open and obvious doctrine does not eliminate Kemlite's duty of
reasonable care.
Motions for a directed verdict and judgments notwithstanding the
verdict should only be granted when all of the evidence, viewed most
favorably for the nonmovant, so overwhelmingly favors the movant that
no contrary verdict based on the evidence could ever stand. Pedrick
v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504,
513-14 (1967). Whether a defendant has a duty of care is a question
of law subject to de novo review. Bucheleres v. Chicago Park
District, 171 Ill. 2d 435, 445, 665 N.E.2d 826, 831 (1996). The
question of duty concerns whether the defendant and plaintiff stood in
such a relationship to each other that the law imposed upon defendant
an obligation of reasonable conduct for the benefit of the plaintiff.
Ward v. Kmart Corporation, 136 Ill. 2d 132, 139, 554 N.E.2d 223, 226
(1990).
Historically, landowners owed no legal duty to take precautions
or warn against risks from open and obvious conditions on the land.
Genaust v. Illinois Power Co., 62 Ill. 2d 456, 343 N.E.2d 465 (1976).
Relying on the Restatement (Second) of Torts, however, the Illinois
Supreme Court has tempered this rule holding that the open and obvious
doctrine no longer operates as a per se bar to a landowner's or
occupier's reasonable duty of care. Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229. Section 343A of the Restatement provides that "[a]
possessor of land is not liable to his invitees for physical harm
caused to them by any activity or condition on the land whose danger
is known or obvious to them, unless the possessor should anticipate
the harm despite such knowledge or obviousness." Restatement (Second)
of Torts 343A, at 218 (1965).
Relying on Comment f to this subsection, Illinois courts have
culled two specific exceptions to the open and obvious doctrine--the
"distraction exception" and the "deliberate encounter exception." The
"distraction exception" finds that a landowner's duty of care is not
negated by an open and obvious condition when the possessor has reason
to expect that the invitee's attention may be distracted from such
condition. Ward, 136 Ill. 2d at 145, 554 N.E.2d at 229; see American
National Bank & Trust Co. v. National Advertising Co., 149 Ill. 2d 14,
18, 594 N.E.2d 313, 314 (1992); Deibert v. Bauer Brothers Construction
Co., Inc., 141 Ill. 2d 430, 566 N.E.2d 239 (1990). The second
exception, known as the "deliberate encounter" exception, arises when
"the landowner has placed the invitee in the position of having to
choose between encountering the obvious danger or foregoing his
employment" (Burse v. CR Industries, Inc., 288 Ill. App. 3d 48, 53,
680 N.E.2d 431, 435 (1997), citing Jackson v. Hilton Hotels Corp., 277
Ill. App. 3d 457, 464, 660 N.E.2d 222, 226 (1995)) and has been
applied when the plaintiff had no reasonable alternative but to
encounter the condition.
Although neither recognized exception applies to the facts of
this case, we nevertheless find, relying on the language of the
Restatement, that Kemlite owed a duty of care to LaFever
notwithstanding the open and obvious nature of the fiberglass debris.
The relevant inquiry is whether Kemlite's "general duty of reasonable
care extended to the risk encountered" by LaFever. Ward, 136 Ill. 2d
at 145, 554 N.E.2d at 229. An open and obvious condition is but one
factor to consider in determining the owner's duty of care.
Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836. Consequently, we
consider the open and obvious nature of the condition in conjunction
with the traditional factors determinative of duty. Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836.
The first consideration is the likelihood of the injury. Ward,
136 Ill. 2d at 140-41, 554 N.E.2d at 226-27. When the condition is
open and obvious, the likelihood of injury generally is considered to
be slight because people encountering the condition are expected to
appreciate and avoid the risks. Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836. In this case, part of LaFever's job removing the
container required him to encounter whatever debris Kemlite allowed to
accumulate. Thus, this prong is not dispositive. While the debris
was open and obvious, LaFever could not avoid it.
The second consideration is the foreseeability of harm to others.
Bucheleres, 171 Ill. 2d at 456, 665 N.E.2d at 836. It is this prong
we find to be dispositive. As adduced at trial, the evidence
demonstrated that Kemlite often overloaded the compactor, allowing the
fiberglass debris to overflow and accumulate on the ground. The
Banner/Western drivers testified that, while they were responsible for
cleaning all spills caused by removing the container, it was Kemlite's
job to maintain the compactor area. Although Kemlite personnel
testified that they never received complaints, the Banner/Western
employees testified that they made repeated complaints to Kemlite
regarding the compactor being overpacked and the area around the
compactor. It was foreseeable to Kemlite that allowing the slippery
fiberglass debris to accumulate on the ground would cause someone to
slip and fall. The foreseeability of injury was magnified by
Kemlite's notice from the Banner/Western dispatcher as well as by
Kemlite's control over the hazardous condition.
Likewise, the magnitude of the burden of guarding against injury
is slight. Kemlite's production operated 24 hours a day and debris
was constantly generated. Kemlite could have scheduled an additional
pickup by Banner/Western. Kemlite could have kept the area around the
compactor clean. Kemlite's production supervisor testified that
Kemlite had utility workers to keep the premises clean.
And finally, the consequences of placing that burden upon Kemlite
also are slight. Ward, 136 Ill. 2d at 140-41, 554 N.E.2d at 226-27.
The duty imposed in this case does not require Kemlite to insure
against all injuries but, rather, to exercise reasonable care.
Kemlite had control over the filling of the compactor and notice from
Banner/Western employees regarding the unsafe accumulation of
fiberglass debris around the compactor. Thus, we find the trial court
did not err in refusing to direct a verdict in favor of Kemlite. The
court correctly determined that Kemlite owed LaFever a duty of care
despite the open and obvious nature of the debris. Kemlite's duty of
reasonable care encompassed the risk that someone would be injured
because of the accumulated fiberglass debris. Ward, 136 Ill. 2d at
157, 554 N.E.2d at 234.
As a related matter, Kemlite claims that LaFever did not prove
that his June 1990 fall proximately caused his back injuries. The
issue of proximate cause is a question of fact for the trier of fact.
In this case, both treating physicians, Dr. Payne and Dr. Ibrahim,
testified that the fall and symptoms were likely related. Both agreed
that LaFever's degenerative condition was in place prior to LaFever's
fall in 1990 and that the fall aggravated the preexisting degenerative
condition triggering LaFever's pain symptoms. Likewise, although
Kemlite's expert, Dr. Kessler, testified that she did not believe the
fall was related to LaFever's symptoms, Kessler did concede that, if
related, then the fall would have aggravated preexisting conditions.
The jury's finding that the fall was the proximate cause of LaFever's
injury was not against the manifest weight of the evidence. Moore v.
Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874, 880,
672 N.E.2d 826, 831 (1996).
Kemlite next argues that the trial court erred by refusing to
admit into evidence the purchase order between Kemlite and
Banner/Western to demonstrate the parties' allocation of liability.
The admission of evidence lies within the sound discretion of the
trial court. Polk v. Cao, 279 Ill. App. 3d 101, 103, 664 N.E.2d 276,
278 (1996). Here, the court noted numerous problems with Kemlite's
purchase order, including that the paper was blank on one side and it
did not evidence a contract with anyone. Counsel for Kemlite admitted
the copy was illegible. Thus, the trial court did not abuse its
discretion by refusing to admit the purchase order into evidence.
Kemlite also asserts that prejudicial, untrue remarks made by
LaFever's counsel during closing argument warrant a new trial.
Specifically, Kemlite objects to the following statement made by
Lafever's counsel as untrue: "They had to hire Dr. Kessler. The only
neurologist in the world? First of all, they didn't have to hire her.
They had to get a continuance of this trial a month ago so they could
get her in this case." Although the court sustained Kemlite's
objection at trial, Kemlite argues that the remark constitutes
reversible error. We disagree. While the remark was improper, it did
not alter the jury's verdict.
As to LaFever's damages, Kemlite first contests the jury award,
in the amount of $250,000, for future pain and suffering. At trial,
Dr. Payne testified that LaFever would likely continue to experience
aches, pains, and discomforts in his lower back. Likewise, LaFever
testified as to his continuing minor pain, stiffness, and loss of
flexibility. From the evidence, the jury reasonably could find that
LaFever would continue to experience future pain and suffering. The
jury's award for future pain and suffering was not against the
manifest weight of the evidence.
Kemlite next argues that the trial court erred by instructing the
jury regarding future lost earnings and by allowing the jury to
calculate LaFever's future lost earnings. Kemlite argued that
LaFever's evidence did not indicate that LaFever could not work, but
rather that he tried a couple of jobs which did not work out. The
trial court admitted the evidence was not strong but determined there
was probably a minimum basis to support such an instruction. Over
Kemlite's objection, the court gave the jury instructions regarding
the nature and amount of damages, and how to calculate future lost
earnings.
Although expert testimony as to future earnings is not required,
there must be some evidence that plaintiff's injury was permanent and
that it prevented him from continuing employment. Antol v. Chavez-
Pereda, 284 Ill. App. 3d 561, 573-74, 672 N.E.2d 320, 329 (1996).
Plaintiff must present "reasonably certain proof" as to future
damages. Brown v. Chicago & North Western Transportation Co., 162
Ill. App. 3d 926, 936, 516 N.E.2d 320, 327 (1987). "[T]he appearance
of the plaintiff on the witness stand, his testimony as to the nature
of the injuries and their duration are sufficient to take the question
of impaired earning capacity to the jury." Patel v. Brown Machine
Co., 264 Ill. App. 3d 1039, 1061, 637 N.E.2d 491, 505 (1994)). Courts
also have acknowledged the physical nature of the disability (Antol,
284 Ill. App. 3d at 574, 672 N.E.2d at 329 (leg amputated below the
knee); Patel, 264 Ill. App. 3d at 1062, 637 N.E.2d at 506 (severed
fingers)) and have relied on physician testimony as to the permanence
of the disability. Patel, 264 Ill. App. 3d at 1062, 637 N.E.2d at
506; Lewis v Cotton Belt Route, 217 Ill. App.3d 94, 117, 576 N.E.2d 918, 936 (1991). Thus, while plaintiff may testify as to his impaired
earning capacity, that testimony must include some reasonably certain
proof of the impairment.
In this case, both treating doctors testified that the surgery
was successful in eliminating LaFever's symptoms and that LaFever
could return to work without restriction. Dr. Payne testified that he
believed LaFever "could attempt a return to his original job if it
indeed was available for he had good flexibility, he could lift
repetitively up to 25 pounds and intermittently up to 50 pounds, and
he wasn't having the complaints of pain that he had prior to surgery."
Due to union rules, however, because LaFever had been off of work for
a year, he was unable to return to his prior position as a
Banner/Western roll-off driver. LaFever briefly worked as a bartender
and a wrecker driver but, according to his own testimony, was unable
to perform either job. LaFever presented no other evidence regarding
his inability to work in the future. Moreover, both doctors testified
that LaFever could return to work. Without some reasonably certain
proof as to LaFever's continued incapacity, we find that the trial
court abused its discretion by sending the issue of future lost
earnings to the jury. Consequently, the jury also should not have
been instructed regarding calculation of LaFever's future lost
earnings.
On cross-appeal, LaFever argues that the trial court erred by
allowing Banner/Western a post-trial setoff of its contribution
liability to Kemlite by waiving its statutory workers' compensation
lien. Specifically, LaFever contends that the post-trial setoff
allowed Banner/Western to circumvent its statutory obligation to pay
its pro rata share of LaFever's fees and expenses. As this issue
presents a question of law, our review is de novo. Corley v. McHugh
Construction Co., 266 Ill. App. 3d 618, 621, 639 N.E.2d 1374, 1377
(1994).
Under the Workers' Compensation Act, an employer must pay its
employees compensation for accidental injuries which arise out of and
in the course of employment. 820 ILCS 305/2 (West 1994). The Act
grants the employer a statutory lien on the proceeds an employee
recoups from a third party, which is equal to the amount of workers'
compensation benefits paid or owed to the employee. 820 ILCS 305/5(b)
(West 1994). The employer's right to reimbursement is known as the
workers' compensation lien. Corley, 266 Ill. App. 3d at 621, 639 N.E.2d at 1377.
If, however, the employer exercises its right to reimbursement,
the employer is obligated to pay its pro rata share of the employee's
fees and expenses for such recovery. 820 ILCS 305/5(b) (West 1994).
"[T]he rationale for imposing this obligation on the employer is that
the employer receives a benefit as a result of the employee's having
prosecuted the third-party action, namely, reimbursement." Ramsey v.
Morrison, 175 Ill. 2d 218, 239-40, 676 N.E.2d 1304, 1314 (1997).
Additionally, an employer may also be held liable for
contribution by a third party. An employer's contribution liability
is limited to the amount of the employer's workers' compensation
liability to its injured employee. Kotecki v. Cyclops Welding Corp.,
146 Ill. 2d 155, 585 N.E.2d 1023 (1991). Thus, an employer may use
the Workers' Compensation Act as a shield from third-party actions
(Braye v. Archer-Daniels-Midland Co., 175 Ill. 2d 201, 208, 676 N.E.2d 1295, 1299 (1997)), for example, by waiving its workers' compensation
lien. The instant case questions the interplay between an employer's
contribution liability and an employer's workers' compensation lien.
Although two recent cases touched on this issue, neither resolved the
issue fully.
In Ramsey v. Morrison, 175 Ill. 2d 218, 676 N.E.2d 1304 (1997),
the Illinois Supreme Court held that an employer may not reduce its
contribution liability by its pro rata share of the employee's fees
and costs for recovery against the third party. In so holding, the
court explained that an employer's worker's compensation liability is
defined by the amount of benefits the employer owes under the Workers'
Compensation Act, not by the amount of reimbursement the employer is
entitled to recover from the employee. Ramsey, 175 Ill. 2d at 239,
676 N.E.2d at 1314. Similarly, in Corley v. James McHugh Construction
Co., 266 Ill. App. 3d 618, 639 N.E.2d 1374 (1994), the appellate court
held that an employer's section 5(b) pro rata share of the employee's
attorney fees and costs may not be deducted from the setoff when the
employer waived its workers' compensation lien. In so holding, the
court relied on the fact that the employer had not exercised its right
to reimbursement because it had waived its workers' compensation lien
pretrial.
This case presents the propriety of allowing the employer to
waive its workers' compensation lien post-trial, an issue never
addressed. Applying the reasoning of Ramsey and Corley, we find that
Banner/Western may not avoid its fees and costs obligation to LaFever
by post-trial waiver of its workers' compensation lien and setoff of
its contribution liability to Kemlite. Ramsey reaffirms that an
employer's contribution liability and workers' compensation liability
are two separate obligations. Ramsey, 175 Ill. 2d at 239, 676 N.E.2d
at 1314. Likewise, Corley explains that an employer's workers'
compensation lien constitutes a right to reimbursement. Corley, 266
Ill. App. 3d at 621, 639 N.E.2d at 1377. Consequently, any claimed
waiver of that right must be considered in light of the plaintiff's
recovery from a third party. After plaintiff recovers from a third
party, the employer's right to reimbursement is statutorily reduced
under section 5(b) by the employee's entitlement to a proportionate
share of fees and costs. Thus, Banner/Western's post-trial setoff of
its contribution liability by the full amount of its workers'
compensation lien does not account for the statutory reduction in its
right to reimbursement as contemplated by section 5(b) of the Act.
In this case, the trial court allowed Banner/Western to waive its
workers' compensation lien post-trial in the full amount of
$222,267.02 in satisfaction of its contribution liability to Kemlite
for $224,452,24. The court thus reduced the judgment by the full
setoff amount, reducing LaFever's recovery from $1,066,148.15 to
$843,881.13. By so doing, Banner/Western avoided responsibility for
$58,599.92 in fees and costs to LaFever (calculated by LaFever as
$55,566.75 (25% x $222,267.02) plus $3,033.17, Banner/Western's pro
rata share of LaFever's litigation expenses). While Banner/Western
could have waived its lien pretrial, by waiting post-trial,
Banner/Western gambled that there would be no recovery at all. When
the respective liabilities of the parties are determined,
Banner/Western must reduce the amount of its workers' compensation
lien by the proportionate amount of fees and costs owed to LaFever for
prosecuting the lawsuit. Rice v. McDonald's Corp., 268 Ill. App. 3d
201, 644 N.E.2d 482 (1994).
We recognize that the practical effect of this decision will be
to hold employers potentially responsible for 125% of their workers'
compensation liability. We believe, however, that, under these narrow
facts, the employer should not be allowed to circumvent payment of its
section 5(b) fees and costs, after the cause has proceeded through
trial. Accordingly, we vacate that portion of the trial court order
allowing Banner/Western to waive and set off its workers' compensation
lien without accounting for the statutory fees owed to LaFever.
Affirmed in part and reversed in part; remanded for recalculation
of the judgment consistent with this opinion.
GREIMAN and ZWICK, JJ., concur.
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