Dunning v. Dynegy Midwest Generation, Inc.

33 N.E.3d 179

Gerald DUNNING, Plaintiff–Appellee

v.DYNEGY MIDWEST GENERATION, INC., a Corporation, and Avi International, Inc., Defendants and Third–Party Plaintiffs–Appellants (Power Maintenance Constructors, Inc., Third–Party Defendant–Appellee).

No. 5–14–0168.

Appellate Court of Illinois, Fifth District.

April 28, 2015.

Rehearing Denied June 22, 2015.

James L. Hodges, Hennessy & Roach, P.C., St. Louis, MO, for Dynegy Midwest Generation, Inc.

Loretta M. Griffin, Ana Maria L. Downs, Law Offices of Loretta M. Griffin, Chicago, IL, for AVI International, Inc.

Thomas Q. Keefe, Jr., Thomas Q. Keefe, III, Keefe & Keefe, P.C., Belleville, IL, for Gerald Dunning.

OPINION

Justice GOLDENHERSH delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Gerald Dunning, was crushed between a steel I-beam support and a portion of a 28,500–pound water pump being transported on a cart pushed by a forklift. Defendant Dynegy Midwest Generation, Inc. (DMG), owned the water pump, and the cart transporting the pump was pushed by a forklift owned and operated by DMG. The cart was designed and maintained by defendant AVI International, Inc. (AVI). Plaintiff was employed as a pipefitter by third-party defendant Power Maintenance Constructors, Inc. (PMC), which was contracted to provide the labor services for the project. Plaintiff brought separate claims against defendants DMG and AVI for injuries sustained in the incident, and the trial court found in favor of plaintiff. Defendants timely appealed. We affirm.

¶ 2 BACKGROUND

¶ 3 Prior to October 8, 2007, DMG contracted with fellow defendant, AVI, and third-party defendant, PMC, to perform tasks at its Baldwin Power Plant. One of the assigned tasks involved removing a circulating water pump from its casing and out of the power plant.

¶ 4 DMG was in charge of the power plant at the time in question. AVI was contracted to supervise the removal, transfer, loading, and transportation of circulating water pumps from DMG's power plant to AVI's facility in Connecticut for repair and maintenance. AVI also provided a cart that was designed for the purpose of transporting the water pumps. AVI's cart was designed and manufactured by AVI's president, Clifford Burrell, and was designed so that one person could push the cart across a flat concrete floor with a load of up to 40,000 pounds. PMC was contracted to provide the labor for the project, which was performed by plumbers and pipefitters. Plaintiff was employed by PMC as a union pipefitter for the project.

¶ 5 The events surrounding plaintiff's accident are as follows. On October 8, 2007, plaintiff was assisting in the removal of a 28,500–pound water pump at DMG's Baldwin Power Plant. DMG's water pump was lowered from its position and placed onto AVI's cart by PMC employees. Scott Docimo, AVI's only employee on-site at the time of the incident, watched as PMC employees rigged the pump to AVI's cart and a forklift owned and operated by DMG. Docimo recognized that the PMC employees had improperly rigged the pump and cart to DMG's forklift, but did not say anything.

¶ 6 As the forklift began to slowly push the cart forward across a flat concrete floor, it began to veer off its intended path. The wheels on AVI's cart were going in different directions, and the cart was veering from side to side. In an attempt to keep the cart moving straight, PMC employees used their hands to guide the cart. As the PMC employees were pushing on the sides of the cart and pump to keep it moving straight, plaintiff was crushed between a portion of the pump and a steel I-beam support, sustaining serious injuries.

¶ 7 On January 4, 2008, plaintiff brought suit against DMG alleging negligence pursuant to section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965) ). Plaintiff alleged that while he was in the course of his employment as a pipefitter for PMC at DMG's power plant, he was crushed into a steel post by a forklift owned and operated by DMG.

¶ 8 On October 1, 2008, plaintiff filed a first amended complaint adding AVI as a defendant, asserting a single count of negligence against AVI. Plaintiff alleged AVI negligently instructed rigging of the pump, failed to provide training and instruction in the safe operation of forklifts, and failed to inspect the area to ensure safe forklift operation. AVI filed an answer denying all material allegations of negligence and filed a third-party complaint against PMC alleging PMC negligently failed to maintain a lookout for dangers posed to plaintiff in the area it instructed plaintiff to work, failed to inspect plaintiff's surroundings, failed to notify or warn plaintiff of potential dangers, failed to instruct and train plaintiff in his work, and failed to coordinate plaintiff's work with other trades and entities present.

¶ 9 Plaintiff filed a second amended complaint on November 4, 2013, adding a strict product liability count against AVI alleging AVI's cart was defective at the time of the accident. On November 13, 2013, AVI filed a motion to dismiss under section 2–615 of the Code of Civil Procedure (735 ILCS 5/2–615 (West 2012) ) contesting the legal and factual sufficiency of plaintiff's complaint, a motion to dismiss under section 2–619 of the Code of Civil Procedure (735 ILCS 5/2–619 (West 2012) ) asserting statute of limitation and repose defenses, and a motion to continue trial. The trial court denied all three motions, and the matter proceeded to trial on November 18, 2013.

¶ 10 Several witnesses testified for plaintiff and defendants at trial. At the close of plaintiff's evidence, DMG moved for a directed verdict asserting plaintiff failed to show DMG owed a duty of care to plaintiff or that it was negligent. The trial court denied DMG's motion. Also at the close of plaintiff's evidence, the trial court directed a verdict against AVI on the counts of negligence and strict product liability. The trial court established that as a matter of law, AVI's cart was defective and a proximate cause of plaintiff's injuries.

¶ 11 On November 22, 2013, the jury returned a verdict finding plaintiff comparatively negligent, finding against DMG and AVI, and finding against PMC on the third-party claims. The following percentages of fault were assessed: plaintiff 6%, AVI 37%, DMG 47%, and PMC 10%. On December 18, 2013, the trial court entered judgment on the verdict rendered against DMG, AVI, and PMC. DMG and AVI timely filed posttrial motions, each moving for a judgment notwithstanding the verdict or in the alternative for a new trial, and AVI also moving to vacate the order of judgment and set aside the directed verdict entered in favor of plaintiff and against AVI. These posttrial motions were denied. Defendants DMG and AVI timely filed notices of appeal.

¶ 12 ANALYSIS

¶ 13 There are numerous issues raised by defendants on appeal. We first address the issues raised by DMG and then address the issues raised by AVI.

¶ 14 I. DMG

¶ 15 DMG alleges the trial court erred in denying its motion for a directed verdict, judgment notwithstanding the verdict, and motion for a new trial on the grounds that plaintiff failed to show DMG owed plaintiff a duty of care and failed to prove DMG's alleged negligence proximately caused plaintiff's injuries. DMG contends the evidence at the close of plaintiff's case overwhelmingly favored DMG.

¶ 16 A trial court's denial of a motion for a directed verdict or a judgment notwithstanding the verdict is reviewed de novo. Ford v. Grizzle, 398 Ill.App.3d 639, 650, 338 Ill.Dec. 325, 924 N.E.2d 531, 542 (2010). A directed verdict or judgment notwithstanding the verdict is proper where all the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict based on that evidence could ever stand.

Ford, 398 Ill.App.3d at 650, 338 Ill.Dec. 325, 924 N.E.2d at 542. In ruling for a directed verdict or judgment notwithstanding the verdict, the court does not weigh the evidence and is not concerned with the credibility of the witnesses. Ford, 398 Ill.App.3d at 650, 338 Ill.Dec. 325, 924 N.E.2d at 542. The “court may only consider the evidence, and any rational inferences therefrom, in the light most favorable to the nonmoving party.” Ford , 398 Ill.App.3d at 650, 338 Ill.Dec. 325, 924 N.E.2d at 542.

¶ 17 Further, a judgment notwithstanding the verdict may not be granted merely because the court determines a verdict is against the manifest weight of the evidence. Ford, 398 Ill.App.3d at 650, 338 Ill.Dec. 325, 924 N.E.2d at 542. A trial court has no right to enter a judgment notwithstanding the verdict if there is any evidence showing a substantial factual dispute or where the assessment of the witnesses' credibility or the determination regarding conflicting evidence is decisive to the outcome of the trial. Ford, 398 Ill.App.3d at 650, 338 Ill.Dec. 325, 924 N.E.2d at 542–43.

¶ 18 Alternatively, on a motion for a new trial, the court will weigh the evidence and set aside the verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence. Ford, 398 Ill.App.3d at 651, 338 Ill.Dec. 325, 924 N.E.2d at 543. Hence, the standard to be used in determining whether to grant a new trial is whether the jury's verdict was against the manifest weight of the evidence. Kindernay v. Hillsboro Area Hospital, 366 Ill.App.3d 559, 569, 303 Ill.Dec. 679, 851 N.E.2d 866, 875 (2006).

¶ 19 A verdict is against the manifest weight of the evidence where the opposite conclusion is clearly evident or the jury's findings are unreasonable, arbitrary, and not based upon any of the evidence. Kindernay, 366 Ill.App.3d at 569, 303 Ill.Dec. 679, 851 N.E.2d at 875. A trial court's ruling on a motion for a new trial will not be reversed except in instances where it is affirmatively shown that the trial court clearly abused its discretion, as the trial judge had the benefit of observing the witnesses firsthand at trial....