Main v. ADM Milling Co.

2021 IL App (4th) 200313-U

ROGER MAIN, Plaintiff-Appellee, v. ADM MILLING CO.,and ARCHER DANIELS MIDLAND COMPANY, Defendants-Appellants.

NO. 4-20-0313

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

March 19, 2021

NOTICE

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Macon County

No. 16L129

Honorable Albert G. Webber, Judge Presiding.

PRESIDING JUSTICE KNECHT delivered the judgment of the court.

Justice DeArmond concurred in the judgment.

Justice Harris specially concurred.

ORDER

¶ 1 Held: (1) The verdict finding plaintiff had no comparative fault in a premises-liability, deliberate-encounter case is not legally inconsistent with a verdict against defendants.

(2) The verdict finding no comparative fault is not against the manifest weight of the evidence.

(3) The verdict does not exceed flexible limits of fair and reasonable compensation.

¶ 2 In April 2015, plaintiff, Roger Main, suffered an injury while on the property of defendants, ADM Milling Co. and Archer Daniels Midland Company. Plaintiff sought relief through a negligence claim against defendants, asserting, in part, defendants could reasonably expect a reasonable person in plaintiff s position, knowing of the condition on the property that created a risk of harm, would proceed to encounter the condition as the advantage of doing so outweighed the apparent risk. Defendants appeal, arguing (1) the verdict finding no comparative fault by plaintiff is legally inconsistent with a verdict on plaintiff's premises-liability, deliberate-encounter claim against defendants; (2) the verdict of no comparative fault is against the manifest weight of the evidence; and (3) the $450,000 verdict exceeded flexible limits of fair and reasonable compensation. We affirm.

¶ 3 I. BACKGROUND

¶ 4 Plaintiff worked as a truck driver for Pike Feeds, Inc. On the evening of April 8, 2015, plaintiff drove to a St. Louis facility owned and operated by defendants to pick up a load of wheat midds for his employer. After his truck was loaded and weighed, plaintiff exited his truck while it was on a scale, stepped from his truck onto a blue pipe in an open trench, slipped, and fell.

¶ 5 In December 2016, plaintiff filed a complaint, seeking damages for injuries he sustained as a result of the fall on defendants' property. Plaintiff alleged, in part, defendants negligently "failed to provide a reasonably safe means of ingress and egress at its scales for truck drivers" and failed to add a proper walkway to cover the open trench.

¶ 6 In their answer, defendants raised the defense of comparative negligence. Defendants asserted plaintiff failed to maintain proper lookout for the surface conditions at the premises and decided to take a pathway when the condition could have been avoided and alternative exit points were available.

¶ 7 At the February 2020 trial, plaintiff's first witness was Jay Griffin, area safety manager with "ADM." Griffin testified one of his roles was to make the St. Louis Mill and itsoperation reasonably safe. In 2015, the St. Louis Mill had a staging area, where an outside driver would pull into the facility to load or unload wheat. The staging area had a scaling area where trucks were weighed. In the scaling area, adjacent to the scaling surface, were metal grates used as walkways over a trench. The metal grates did not cover the entire trench, there were "sections of that scale *** where there [were] openings" that were "about a foot-and-a-half, two feet" below the surface.

¶ 8 According to Griffin, drivers who dumped wheat at the St. Louis Mill would arrive with a fully loaded truck and drive onto the scale "to get scaled." After being weighed, the drivers backed up to dump their wheat. For those drivers, "it is at that location for the dumping of the wheat where there [was] metal grating." The grating was part of a movable walkway. When drivers arrived to load wheat midds, as plaintiff did, drivers, when out of their trucks, may encounter wet wheat midds that resulted from spillage during "the shakedown process." After wheat midds were loaded on the truck, the process required the driver to exit the truck and to collect paperwork from the scale house. Drivers were told what to do through a one-way intercom from the scale house to the scale. At the end of the scale, on the driver's side to the left was an uncovered trench. A metal grate could have been placed there.

¶ 9 Michael Hahn, a feed loader with "ADM," testified in April 2015, he worked the third shift at the St. Louis facility. Hahn was working on the day plaintiff fell. When drivers arrived at the St. Louis facility, they would pull into a parking lot, circle around, stop in front of the scale, exit their trucks, and walk into the scale house. In the scale house, the driver would provide the feed loader with their order number. The feed loader would record the license-plate number from the trailer of the truck. The driver would sign in. The check-in process lastedapproximately five minutes. Hahn instructed new drivers to pull up to the scales so he could weigh them. First, an empty trailer weight was taken. To accomplish this, the driver pulled up to the end of the scale to get weighed. The driver waited for instructions over the intercom. After the empty weight was taken, the driver drove to the loading facility. The feed loader met the driver there, directing the driver where to park. The loading process took 45 minutes to an hour-and-a-half. During this time, the driver was often told to move up and move back to ensure the entire trailer was filled. Before the driver left the loading facility and returned for a loaded weight, he performed a "shakedown," meaning he pulled forward and hit the brakes to settle the product and covered the product with a tarp. After the truck was loaded and tarped, the driver returned to the truck and drove the truck to the scaling area. The driver pulled his truck up to the end and waited to hear from the feed loader. If the weight was enough, the feed loader told the driver to "come on up and get your paperwork."

¶ 10 Hahn testified, in 2015, drivers would leave their truck on the scale and retrieve the paperwork from the scale house. Hahn was aware an uncovered trench was outside the truck driver's door. Hahn was further aware there was a movable walkway behind the truck. As long as another truck was not waiting to be weighed, Hahn did not care whether the driver left the truck on the scale while he or she retrieved the documents. Hahn acknowledged wheat midds were on the ground in the loading facility. From time to time, those midds would be wet from rain. Wheat midds were slippery when wet. At times, Hahn would clean up the wheat midds. To clean his own boots of wheat midds, Hahn simply walked them off.

¶ 11 On April 8, 2015, Hahn did not see plaintiff fall. When plaintiff arrived at the scale house, he told Hahn that he fell. Two to four days later, plaintiff reported to Hahn he hurthis back when he fell and told Hahn he maybe "was having [a] problem with his leg." Plaintiff showed Hahn the bruising.

¶ 12 Hahn testified he did not tell plaintiff to leave his truck on the scale before entering the scale house. Usually drivers pulled off the scale before exiting their trucks to walk to the scale house. The open trench next to the scale was visible. To avoid that trench, the driver needed to pull forward maybe six to ten feet. Hahn denied telling any driver they could not pull forward. During the eight years between 2007 and 2015 when he was a feed-load operator, no driver complained about the conditions they faced when exiting their trucks to go to the scale house.

¶ 13 Les Eyman, an employee of "ADM," testified he was a feed-load operator at the St. Louis facility in 2015. "Possibly" before April 2015, Eyman had concerns about the uncovered trench. "At times" other drivers commented on the trench. Eyman relayed those concerns as well as his own concerns to a supervisor at the plant. Eyman estimated the trench was "[p]ossibly, two to two-and-a-half" feet deep. The supervisor's response was to move the movable walkway, a metal grate, that was next to a section of the left side of the scale. Eyman tried to move the walkway, but it would not move as the wheels would no longer roll. Eyman believed some grating over the uncovered trench would help drivers who were not often at the facility.

¶ 14 According to Eyman, there was nothing at the St. Louis facility to distract a driver from seeing the trench. Most drivers, according to Eyman, pulled "off the scale before they would walk up to the scale shack" without being told to do so. Eyman agreed it was acceptable for drivers to leave their trucks on the platform scale after receiving final weight as they exitedtheir trucks to enter the scale house for paperwork.

¶ 15 Dr. Matthew Gornet, an orthopedic surgeon whose practice was devoted to spinal surgery, testified regarding his treatment of plaintiff after the April 2015 fall. Plaintiff reported he was injured at work. Plaintiff was standing on something described as a "scale beam" about four feet above the ground, and he had wheat on his shoes. Plaintiff slipped, fell, and landed backwards on his left side after hitting a concrete wall. Dr. Gornet believed plaintiff went to the emergency room after the fall. He was told to see his primary care physician, but plaintiff opted to wait to see a specialist. The first available appointment was four-and-a-half months or so after the injury.

¶ 16 Dr. Gornet reviewed plaintiff's X-rays and a computed tomography (CT) scan. No significant arthritis was revealed. A magnetic resonance imaging (MRI) scan revealed plaintiff suffered a disc injury "at L4-5" and a tear in the disc at L5-S1. The MRI also revealed some degeneration, a normal part of the aging process. Dr. Gornet explained discs that were "a little bit degenerative get injured because they...