Jordan v. National Steel Corp.

Annotate this Case
Jordan v. National Steel Corp., Nos. 84271, 84282 (10/1/98)
Docket Nos. 84271, 84282 cons.--Agenda 35--May 1998.
ANSEL RAY JORDAN, Appellant, v. NATIONAL STEEL
CORPORATION et al. (National Steel Corporation et al.,
Appellees).
Opinion filed October 1, 1998.

JUSTICE NICKELS delivered the opinion of the court:
Plaintiff, Ansel Ray Jordan, filed suit in the circuit court of
Madison County for injuries suffered while working as a
pipefitter at a construction site. Plaintiff alleged that he injured
his back after grabbing a defective handrail at the site.
Defendants at trial were National Steel Corporation (National),
the owner of the site; Davy McKee Company (McKee), a major
subcontractor that had general control of the site; and Clayco
Construction Company, a subcontractor that installed the
handrail. None of the three named defendants was plaintiff's
employer.
The jury returned a verdict in favor of all defendants.
Plaintiff filed a motion for a new trial, asking for a new trial
only with respect to defendants National and McKee. The circuit
court denied plaintiff's motion for a new trial. On appeal, the
appellate court found that the jury's verdict was against the
manifest weight of the evidence and remanded for a new trial.
No. 5--94--0666 (unpublished order under Supreme Court Rule
23). Defendants National and McKee filed petitions for leave to
appeal. We allowed the petitions (166 Ill. 2d R. 315) and
consolidated the appeals. Clayco Construction Company is not
involved in this appeal. We reverse the appellate court.

BACKGROUND
On October 12, 1990, plaintiff was working at a
construction site of a continuous caster facility in Granite City,
Illinois. The facility consisted of a seven-story building that
enclosed a 100-foot-tall caster machine for the manufacture of
steel. Plaintiff was working as a pipefitter for Corrigan
Company, a subcontractor on the project.
At trial, plaintiff testified that, on October 12, he was
working at the facility with another individual, Bernard Mundy.
Plaintiff testified that he and Mundy were checking the grease
lines within the caster for leaks. Plaintiff and Mundy were
walking on a catwalk several floors above the ground. Plaintiff
testified that there was dim temporary lighting in the area and
that he and Mundy used flashlights to make their way. They
reached a series of rungs and steps leading to a higher level. As
plaintiff started up the rungs and steps, he grabbed the adjoining
handrail with his left hand. Plaintiff testified that the handrail
shifted 10 to 12 inches and that he did not expect the handrail
to shift in that manner. He fell backwards and hit his back
against the handrail. After plaintiff hit the handrail, he felt a dull
pain in his back. At that time, Mundy was behind plaintiff and
prevented him from falling. Plaintiff told Mundy that his back
hurt, and later that day, plaintiff completed an accident report
form, which he gave to his foreman. Plaintiff testified that the
pain in his back increased over the next several days and that he
also felt pain in his right hip and leg. Plaintiff sought medical
attention and ultimately had surgery performed on his back.
Plaintiff's condition improved after the surgery.
On cross-examination, plaintiff stated that, after the injury,
he continued his work for the rest of the day. Plaintiff further
testified that he worked for several days after the injury.
Plaintiff did not complain about the handrail to Mundy or
others. Plaintiff also testified that there were a number of similar
removable handrails throughout the caster and that such
handrails are common at job sites. He testified that they are not
intended to move and that he had had no previous problems
with any handrails.
Plaintiff also presented the evidence deposition of Dr.
Harlen Hunter. Dr. Hunter stated that he was a doctor
specializing in the field of orthopedic surgery. He testified that
plaintiff came to see him on October 29, 1990. Plaintiff told him
that he hurt his back on a handrail at work. Plaintiff also told
him that his back pain was getting progressively worse and that
he felt pain in his right leg. After examining plaintiff, Dr.
Hunter determined that plaintiff had a herniated disc in his back.
On November 16, 1990, Dr. Hunter performed surgery and
removed the herniated disc. After the operation, plaintiff's
condition improved. Dr. Hunter stated that plaintiff's activity
should be limited by pain, that plaintiff should avoid any heavy
lifting, and that plaintiff should avoid the possibility of climbing
to heights. Dr. Hunter stated, in his opinion, that these
limitations were permanent. Dr. Hunter also opined that the
accident, as related to him by plaintiff, was the cause of the
herniated disc.
In defense, National called Bernard Mundy to testify.
Mundy testified that he was a self-employed mechanical
engineer. Mundy had not been an employee of any of the
defendants and was testifying in response to a subpoena. Mundy
had been hired to check the lubrication system for the
continuous caster. Mundy testified that plaintiff was one of the
pipefitters helping him on the project. Mundy testified that, on
October 12, 1990, he and plaintiff were checking different
points of the lubrication system.
Mundy testified that he and plaintiff were walking on a
catwalk having a permanent handrail on the left side. Mundy
distinguished between permanent handrails and temporary,
removable handrails at the job site. Permanent handrails are
welded to the superstructure and do not move. In contrast,
removable handrails fit into sockets and will ordinarily have
some play in them. They can be removed to permit access to
machinery and the movement of equipment and personnel.
Plaintiff and Mundy approached a set of steps leading up to
the next chamber. Mundy testified that the handrail next to the
steps was a removable handrail. Mundy stated that the handrail
moved three to six inches when plaintiff grabbed it. Mundy
testified that a removable handrail that is three feet above the
base will ordinarily move three to six inches. Mundy stated that,
as plaintiff ascended the steps, plaintiff suddenly went down and
to the left. Mundy testified that plaintiff did not fall backwards
and did not hit his back against anything. Mundy testified that
he and plaintiff continued their work after the incident, and
plaintiff did not claim there was anything wrong with the
handrail. Mundy did not report any problem with the handrail
because, in his opinion, the removable handrail functioned the
way it would be expected to function. Mundy testified that both
he and plaintiff knew removable handrails were used at the job
site. According to Mundy, the handrail did not move beyond a
normal expected range.
On cross-examination, Mundy testified that he grabbed and
steadied plaintiff after plaintiff lost his balance. Plaintiff told
Mundy later in the day that plaintiff had hurt his back. Later
that day, Mundy reported the incident to the superintendent at
McKee. Mundy testified that plaintiff grabbed a removable
handrail that shifted, as would be expected. The removable
handrail shifted more than a permanent handrail would. The
removable handrail failed to prevent plaintiff from losing his
balance. Mundy also testified that he had built permanent and
removable handrails for 20 years and was therefore familiar with
them.
After hearing the evidence, the jury was instructed on a
premises liability theory. With respect to both National and
McKee, the jury was instructed that plaintiff had the burden of
proving six propositions: (1) that there was a condition on the
property that presented an unreasonable risk of harm to persons
on the premises; (2) that defendants knew, or in the exercise or
ordinary care should have known, that the condition of the
property involved an unreasonable risk of harm to persons on
the premises; (3) that defendants should have anticipated that
persons on the premises would not discover or realize the
danger or would otherwise fail to protect themselves against it;
(4) that defendants performed some negligent act or omission;
(5) that plaintiff was injured; and (6) that the condition of the
property was a proximate cause of the injury to plaintiff. The
jury was also instructed on a count of ordinary negligence
against McKee only. Under this instruction, plaintiff was
required to prove that McKee performed a negligent act or
omission, that plaintiff was injured, and that the negligence of
McKee was the proximate cause of the injury.
The premises liability theory against both defendants and
the count of ordinary negligence against McKee each required
proof of negligent acts or omissions. The jury was instructed on
alleged overlapping negligent acts or omissions by National and
McKee. Plaintiff alleged that National was negligent for failing
to adequately inspect and supervise the work, failing to warn
plaintiff of a hazardous condition, failing to adequately
coordinate the work performed by contractors and
subcontractors, and failing to restrict use of the rungs and steps.
Plaintiff alleged that McKee was negligent for failing to
adequately inspect the work done by subcontractors under its
control, failing to adequately supervise subcontractors under its
control, failing to warn individuals about the danger, and failing
to restrict the use of the rungs and steps. No party has raised
any specific challenge to these jury instructions.
After deliberation, the jury returned a verdict in favor of all
defendants. On September 2, 1994, plaintiff filed a post-trial
motion, seeking a new trial against National and McKee. The
circuit court denied the motion. Plaintiff appealed the circuit
court's denial of the post-trial motion to the appellate court.
The appellate court found that the jury's verdict was against
the manifest weight of the evidence and reversed and remanded
for a new trial. In reaching this conclusion, the court evaluated
each of the six propositions that plaintiff was required to prove.
The court stated that, although there was a dispute as to the
exact details of the accident, certain essential facts were
undisputed. The evidence at trial showed that plaintiff suffered
a back injury following an accident at the work site. The
evidence also showed that the removable handrail swayed when
used by plaintiff and plaintiff was not warned about any hazard
in using the removable handrail.
Justice Chapman dissented. He stated that plaintiff presented
sufficient evidence to warrant consideration by a jury. When the
jury considered the matter, however, plaintiff lost. Although
plaintiff presented evidence supporting his claims, this evidence
did not require the jury to find in his favor. Justice Chapman
stated that the majority had usurped the jury's function of
deciding whether a duty of care was violated and that the
majority substituted its judgment for the jury's on disputed
questions of fact.

ANALYSIS
On appeal, National and McKee argue, inter alia, that the
jury s verdict was not against the manifest weight of the
evidence. They reiterate some of the arguments made by the
dissent in the appellate court. They also rely on this court s
decision in Maple v. Gustafson, 151 Ill. 2d 445 (1992).
In Maple, this court addressed the general principles that
apply to review of the circuit court's denial of a motion for new
trial. This court first discussed the deference given to a jury
verdict when the verdict is challenged:
"An initial step in analyzing the issue before us is to
determine the authority of the jury, trial court, and appellate
court, and their relationship to one another. Unquestionably,
it is the province of the jury to resolve conflicts in the
evidence, to pass upon the credibility of the witnesses, and
to decide what weight should be given to the witnesses'
testimony. [Citation.] A trial court cannot reweigh the
evidence and set aside a verdict merely because the jury
could have drawn different inferences or conclusions, or
because the court feels that other results are more
reasonable. [Citations.] Likewise, the appellate court should
not usurp the function of the jury and substitute its
judgment on questions of fact fairly submitted, tried, and
determined from the evidence which did not greatly
preponderate either way. [Citations.]" Maple, 151 Ill. 2d at
452-53.
This court later stated the standard the circuit court should
use when deciding whether to grant a new trial. The circuit
court should only set aside the verdict if it is against the
manifest weight of the evidence. Maple, 151 Ill. 2d at 454. " `A
verdict is against the manifest weight of the evidence where the
opposite conclusion is clearly evident or where the findings of
the jury are unreasonable, arbitrary and not based upon any of
the evidence.' [Citations.]" Maple, 151 Ill. 2d at 454; see also
Leonardi v. Loyola University, 168 Ill. 2d 83, 106 (1995). This
court further emphasized the deference to be given the circuit
court's ruling on the motion for new trial. This deference is
based on the fact that the circuit court had the benefit of
personally observing and gauging the credibility of the
witnesses. Maple, 151 Ill. 2d at 455-56. This court then applied
these principles to the case before it, determined that there was
sufficient evidence supporting the jury verdict, and found that
the circuit court correctly denied the motion for a new trial.
In the instant case, plaintiff alleged that defendants' liability
arose due to a dangerous condition on the premises. In order to
prove premises liability, plaintiff was required to prove some
negligent conduct by National and/or McKee in connection with
the dangerous condition. Plaintiff separately alleged a theory of
ordinary negligence by McKee predicated on McKee's activities
at the site.
With respect to premises liability, plaintiff was required to
prove six propositions. First, plaintiff was required to prove the
existence of an unreasonably dangerous condition on the
premises. Plaintiff put on no expert testimony about handrail
and safety issues. Aside from his own testimony, plaintiff
presented no evidence that the removable handrail was
unreasonably dangerous or violated any industry or safety
standard. In defense, Mundy testified that the handrail moved
three to six inches and that this is a normal characteristic of
removable handrails. Mundy testified that he was familiar with
handrails because he had been building them for 20 years. The
jury may have viewed Mundy as an impartial witness and given
his testimony greater weight because Mundy was not an
employee of any of the defendants. Based on the evidence, the
jury could have rationally found that the handrail was not an
unreasonably dangerous condition.
Second, plaintiff was required to prove that defendants
knew or should have known that the handrail posed an
unreasonable risk of harm. Plaintiff testified that he did not
know if defendants had any notice of any problems with the
handrail. Plaintiff presented no evidence that anyone had
previously reported a defective handrail to defendants. Mundy
testified that he did not report the handrail because he did not
consider the handrail defective. After the incident, plaintiff
himself did not inform defendants that the handrail was
defective. Accordingly, the jury could have rationally
determined that defendants had no notice that the handrail posed
an unreasonable risk of harm.
Third, plaintiff had to prove that defendants should have
anticipated that individuals would fail to recognize the danger
or would fail to protect themselves against it. Mundy testified
that removable handrails were common at the work site and
were common in the industry. Mundy testified that it is
commonly known that such handrails have some play in them.
Plaintiff had extensive experience in working at industrial sites.
Plaintiff conceded that he had seen such handrails at the caster
work site and on other jobs. Based on the evidence, the jury
could reasonably have concluded that plaintiff recognized the
danger and could have protected himself against it.
Fourth, plaintiff was required to prove some negligent act
or omission by National or McKee. National presented evidence
and argument that it was not negligent by disputing the amount
of control it was required to exercise over the work site,
pursuant to contract. McKee presented evidence and argument
that it was not negligent because the defect, if any, was a design
defect. McKee did not design the caster or specify the use of
removable handrails. Mundy testified that the use of a
removable handrail was an engineering decision and he would
not second-guess this design decision. McKee argued that it
would have no reason to believe the handrail was a dangerous
condition. Based on this evidence and the evidence previously
discussed, the jury could reasonably have determined that
plaintiff failed to prove his case.
There was sufficient evidence to support a jury finding for
defendants on any of the issues addressed above. Similarly,
there was sufficient evidence to support a finding for McKee on
plaintiff's negligence count. The jury was in the best position to
evaluate the evidence and make inferences based on the
evidence. We find that the jury's verdict was not against the
manifest weight of the evidence. Accordingly, the circuit court
did not abuse its discretion in denying the motion for a new
trial. See Maple, 151 Ill. 2d at 455.

CONCLUSION
The judgment of the appellate court is reversed, and the
judgment of the circuit court is affirmed.

Appellate court judgment reversed;
circuit court judgment affirmed.