Thompson v. Illinois Power Co.

603 N.E.2d 1303, 237 Ill. App. 3d 273, 177 Ill. Dec. 929, 1992 Ill. App. LEXIS 1906
CourtAppellate Court of Illinois
DecidedNovember 20, 1992
Docket5-91-0323
StatusPublished
Cited by5 cases

This text of 603 N.E.2d 1303 (Thompson v. Illinois Power 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
Thompson v. Illinois Power Co., 603 N.E.2d 1303, 237 Ill. App. 3d 273, 177 Ill. Dec. 929, 1992 Ill. App. LEXIS 1906 (Ill. Ct. App. 1992).

Opinions

JUSTICE CHAPMAN

delivered the opinion of the court:

Plaintiff sustained an electrical shock while climbing off a crane that had become entangled in a high-voltage line. Plaintiff went to trial against three defendants, Koehring Bantam Division, manufacturer of the crane, TomCal Contracting, Inc. (TomCal), owner/operator of the crane, and Illinois Power Company (Illinois Power), owner of the electrical line. Plaintiff sought actual and punitive damages against Koehring Bantam Division and Illinois Power. Plaintiff sought only actual damages against TomCal, which had admitted liability before trial The jury found Koehring Bantam Division not liable, returned a verdict of $1,600,000 against TomCal and Illinois Power, and assessed the latter two defendants’ culpability at 99% and 1%, respectively. Defendants TomCal and Illinois Power appeal the plaintiff’s judgment, and defendant TomCal also appeals from the jury’s denial of its contribution claim against Koehring Bantam Division.

Defendants raise several issues including the late disclosure of an expert witness and the court’s direction of a verdict on the question of comparative negligence. Since we reverse on these two points, there is no need to discuss the remaining issues.

On the day of plaintiff’s injury TomCal was removing a series of concrete barriers from a road construction site. Tom Caldieraro, president of TomCal, was operating the crane, and plaintiff was in the crane’s rear cab. The crane was used to lift the barriers from the ground and to place them on a flatbed truck located a few feet north of the crane. The approximate locations of the vehicles and most of the workers involved are shown in exhibit A. Illinois Power owned the high-voltage lines shown in the diagram.

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After Tom Caldieraro had loaded a few of the barriers onto the truck, he saw Mr. Giloman, the laborer who hooked up the barriers, fall to the ground and curl up. (Giloman is not shown on the diagram; he was a little north of the area shown.) Caldieraro realized that the crane boom had contacted the electrical lines and raised the boom in an attempt to clear the contact. When this attempt was unsuccessful, Caldieraro jumped clear of the crane. At the time Caldieraro jumped, the tires beneath the operator’s cab were on fire.

During these maneuvers plaintiff was in the rear cab of the crane, and he was facing south waiting for Caldieraro to signal him to move the crane to a new location. Plaintiff first became aware of a problem when he looked in his outside rearview mirror and saw the tires on fire. At approximately the same time plaintiff saw Caldieraro jump from the crane. Plaintiff then opened the door to get out, and, as his foot neared the ground, he felt the current surging through his body.

' Plaintiff could have seen that the crane had contacted the line if he had turned around and looked up. Plaintiff testified he was unaware of the fact that the crane had contacted the line when he .left the crane. Defendant Koehring Bantam Division’s exhibit 9, a booklet of “Rulés on Safety” for the operation of cranes, warned about the dangers of operating near overhead lines and provided that, if a power line was hit, the occupants of the crane should:

“*stay inside the cab until line is cleared or power is shut off[;]
*if you must leave the cab, be sure to jump completely clear of the machine.”

After plaintiff testified and was cross-examined about his ability to return to work, Dan Gruber was called to the stand. Defendants objected to Gruber’s testimony because he had not been disclosed either as an ordinary witness or as an expert under Supreme Court Rule 220 (134 Ill. 2d R. 220). The court overruled the objection, and Gruber was allowed to testify to the current working agreement (which defendants had offered to stipulate to) and that a person with plaintiff’s limitations could not do the work of an oiler.

Before turning to the substantive issues in the case, we will address TomCal’s forum non conveniens argument. Plaintiff originally filed this case in Madison County, but after some months he voluntarily dismissed it and refiled it in neighboring St. Clair County. Defendants filed forum non conveniens motions which were denied, and TomCal raises the denial on appeal.

Trial courts have broad discretion in ruling on forum non conveniens motions although their ruling can be reversed for an abuse of that discretion. (Bland v. Norfolk & Western Ry. Co. (1987), 116 Ill. 2d 217, 506 N.E.2d 1291.) This case involves an accident which happened in Madison County and an injured plaintiff from St. Clair County. Seventeen witnesses testified, seven were from St. Clair County, three were from Madison County, one from Macoupin County, one from Macon County, one from St. Louis, Missouri, and one each from Nevada, Michigan and New Mexico. Under these circumstances we find no abuse of discretion in the trial court’s denial of the forum non conveniens motions. Boner v. Peabody Coal Co. (1991), 142 Ill. 2d 523, 568 N.E.2d 883.

With regard to the Rule 220 issue, the plaintiff contends that Gruber was not an expert witness because he was not retained to render an opinion and cites Tzystuck v. Chicago Transit Authority (1988), 124 Ill. 2d 226, 529 N.E.2d 525, in support of his position. Tzystuck involved a treating doctor as did Boatmen’s National Bank v. Martin (1992), 223 Ill. App. 3d 740, 585 N.E.2d 1328, which allowed an undisclosed opinion precisely because the witness was a treating doctor. We recently examined Tzystuck and several of the cases which had expanded the treating-doctor exception to Rule 220 and concluded that the expansion of the exception was unwarranted. (See Wakeford v. Rodehouse Restaurants of Missouri, Inc. (1991), 223 Ill. App. 3d 31, 584 N.E.2d 963.) As we pointed out in Wakeford, a requirement of disclosure of all witnesses who are going to render an opinion places little burden on the proponent of the witnesses and prevents the surprise use of expert testimony on crucial issues. In this case, one of the defendants had admitted negligence. Therefore, the only issues remaining for determination as to that defendant were the extent of plaintiff’s injuries and disabilities and his comparative negligence. The latter was removed by a directed verdict, a ruling we will discuss shortly, and the use of an undisclosed expert on the damage question becomes more significant in view of the liability admission.

Plaintiff contended that Gruber was called to counter the defendants’ cross-examination of plaintiff on his ability to work. Plaintiff also stated, however, that Gruber was called to refute the cross-examination testimony of Dr. Salyapongse, one of plaintiff’s treating doctors, on the same issue. We note that Dr. Salyapongse’s testimony was presented by evidence deposition, and the deposition was taken over six months before the trial.

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Cite This Page — Counsel Stack

Bluebook (online)
603 N.E.2d 1303, 237 Ill. App. 3d 273, 177 Ill. Dec. 929, 1992 Ill. App. LEXIS 1906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-illinois-power-co-illappct-1992.