Coleman v. Central Illinois Public Service Co.

565 N.E.2d 274, 207 Ill. App. 3d 96, 152 Ill. Dec. 32, 1990 Ill. App. LEXIS 1905
CourtAppellate Court of Illinois
DecidedDecember 20, 1990
DocketNo. 4-90-0225
StatusPublished
Cited by4 cases

This text of 565 N.E.2d 274 (Coleman v. Central Illinois Public Service Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coleman v. Central Illinois Public Service Co., 565 N.E.2d 274, 207 Ill. App. 3d 96, 152 Ill. Dec. 32, 1990 Ill. App. LEXIS 1905 (Ill. Ct. App. 1990).

Opinion

JUSTICE GREEN

delivered the opinion of the court:

Plaintiff Donald Coleman brought suit against defendant Central Illinois Public Service Company (CIPS) following an accident at its Coffeen, Illinois, power plant. At the time of his accident, plaintiff was employed as an ironworker by third-party defendant McCartin & McAuliffe Mechanical Contractors, Inc. (McCartin & McAuliffe). Mc-Cartin & McAuliffe was a subcontractor of CIPS, retained to perform coal silo repairs. Plaintiff alleged that, after being on the repair job at CIPS for five weeks, he was injured when he slipped in a substance (later identified as Nalco), which had leaked from CIPS’ barrels onto the floor. Plaintiff alleged CIPS failed to provide a safe place to work.

On August 25, 1989, following a jury trial in the circuit court of Sangamon County, the court entered judgment on the verdict in favor of CIPS and against plaintiff. On appeal, plaintiff maintains (1) the jury’s verdict was against the manifest weight of the evidence; and (2) the trial court erred in refusing to allow plaintiff to call Lynn Keep-per, an employee of CIPS, as a witness. We hold the verdict was supported by the evidence, and the court acted within its discretion in refusing to allow Keepper to testify. We affirm.

The evidence presented at trial contained some conflict on the question of causation. Plaintiff testified (1) prior to injury, he had worked at the site for five weeks; (2) at the time of injury, April 24, 1984, the project had been finished and he and others were removing tools and materials; (3) he was in the process of lifting a tool box which had been lowered to a landing area when he slipped, fell to his knees, and injured his back when he caught the weight of the box; (4) a substance called Nalco had leaked from barrels which were in the area and had accumulated on the grating and concrete where he worked; and (5) he had seen the substance on his feet after he fell. On cross-examination plaintiff admitted (1) he knew the substance was there; (2) he had stepped around the substance on previous occasions; (3) he knew spilled substances could be hazardous; (4) he did not clean the substance up himself nor did he request his foreman or anyone from CIPS clean it up; and (5) he did not notify anyone from CIPS or McCartin & McAuliffe that the substance was there. Plaintiff described the substance on the floor as “thick grease” which was “very bright.”

Plaintiff’s testimony was corroborated by that of his brother Clyde Coleman, his nephew Kurt F. Coleman, and James L. Kimbro, all of whom testified they were present at the time plaintiff said he slipped and fell. Clyde and Kurt both testified plaintiff slipped and fell to one knee while carrying the tool box. Kimbro stated he did not see whether plaintiff slipped, but the corner of the heavy box which plaintiff was carrying “went down and that’s it.” Clyde described the substance on the floor as “anti-grease type stuff” which was “oily and base.” Kimbro described it as “gooey like ink.”

Most of the conflict in the evidence arose from testimony or exhibits purporting to show that plaintiff had made statements in regard to how he became injured which conflicted with his testimony at trial and indicated the presence of a slippery substance on the floor had not been a cause of his injury. Mary Lou Patterson, an employee of McCartin & McAuliffe, testified that plaintiff completed an accident report which indicated he injured his back while lifting a tool box. The report asked “[wjhat hazardous conditions” contributed to the accident, and the response was “none.” A deposition of Dr. Roger McFarland, whom plaintiff saw on the day of his accident, indicated the history given by plaintiff indicated “he was lifting a tool box on the morning of the 24th and developed pain in his lumbar spine.” Dr. George Shoedinger, his treating orthopedist, who testified by videotaped evidence deposition, said that plaintiff told him that the accident happened while he was lifting a tool box with another worker. He said the “mechanism” of the injury was that he slipped on a welding rod which had been lying on the floor and twisted his back.

Because of the evidence of the conflicting statements of plaintiff, the jury could properly have concluded plaintiff failed to prove his injury arose because the deck was slippery. Thus the jury’s verdict was not contrary to the manifest weight of the evidence.

On August 21, 1989, the first day of trial, CIPS presented a list of witnesses it planned to call during trial, including its employee, Lynn Keepper. Plaintiff’s counsel was informed during an in-chambers conference held immediately prior to trial that Keepper was a chemist who would not be asked to render any expert opinions but would testify as to what chemical was contained in the barrels located near where plaintiff was injured. Plaintiff objected to CIPS’ use of Keep-per at trial, because he had not been disclosed as a witness. CIPS noted that plaintiff had not filed supplemental discovery requests since 1986, and that Keepper’s identity was learned only three weeks prior to trial. The trial court indicated it would allow Keepper to testify and allowed plaintiff to interview him prior to trial. The interview was not recorded.

On the third day of trial, following plaintiff’s interview of Keep-per, plaintiff served notice to CIPS to produce Keepper as a witness pursuant to Supreme Court Rule 237 (107 Ill. 2d R. 237). CIPS objected, indicating plaintiff intended to call Keepper as an expert witness, who had not previously been disclosed pursuant to Supreme Court Rule 220 (107 Ill. 2d R. 220). CIPS noted it had intended to call Keepper only to lay a foundation for the introduction of a sample of the Nalco substance into evidence. Plaintiff then suggested that if CIPS did not intend to introduce a sample of the substance into evidence, he would have no reason to call Keepper in rebuttal. CIPS agreed not to call Keepper as a witness and agreed not to introduce into evidence a sample of the substance.

CIPS then recalled, without objection, its employee Barry Webster. Webster testified he had recently viewed the substance in these barrels and believed it to be the same substance contained in the barrels at the time of plaintiff’s accident. He described the substance as (1) a dark red liquid; (2) looking more like water than heavy antifreeze; and (3) which was not “globby” or “clumpy.” He said that when the water evaporates, it does not leave a residue. This testimony was contrary to plaintiff’s occurrence witnesses, including plaintiff, who had described the consistency of the substance variously as “thick grease,” “anti-grease type stuff” which was “oily and base,” and “gooey like ink.”

Following Webster’s testimony, and CIPS resting, plaintiff again requested to call Keepper as a rebuttal witness. CIPS objected, maintaining that the calling of Keepper was untimely because plaintiff had presented evidence of the degree of slipperiness of the Nalco on the floor of the deck in its case in chief, and defendant had responded with evidence on that subject. CIPS then contended that Keepper had not been disclosed to CIPS as required by Supreme Court Rule 220. As an offer of proof, plaintiff’s counsel indicated, if called to testify, Keepper would state:

“[TJhis is a water base stuff; it has two pounds of a solid substance which remains after the water evaporates if it spills.

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Bluebook (online)
565 N.E.2d 274, 207 Ill. App. 3d 96, 152 Ill. Dec. 32, 1990 Ill. App. LEXIS 1905, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coleman-v-central-illinois-public-service-co-illappct-1990.