Articles Posted in Workers Compensation

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A recent decision by an Illinois Appellate Court continued the debate regarding the interpretation of the construction statute of repose (Illinois Code of Civil Procedure, Section 13-214(b)).

The construction statute of repose states:

No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.

The statute seeks to protect construction parties from having to defend against stale claims. Since its inception the statute has been a balancing act between the rights of the injured party and the rights of the party responsible for the construction. Illinois courts generally have limited the statute to apply to claims of construction or improvement to real property. However, where some courts differ is on claims brought as to duties of maintenance and inspection.

In Ryan v. Commonwealth Edison Co., Ryan, an electrician, was injured when a circuit breaker exploded. He claimed that ComEd was responsible for the electrical current flowing into the building and that the severity of his accident was increased by ComEd’s negligence regarding its ongoing maintenance duties. ComEd argued that the claim should be barred under the statute because the injury resulted from design flaws in the power system when it was installed 20 years ago, which would place it well outside the 10 year limit imposed by the statute. ComEd’s motion for summary judgment was granted, but the 1st District Appellate Court, Sixth Division, overturned this decision stating that the injury was the result of poor maintenance and inspection rather than design flaws in the original power system and therefore the statute does not apply.

This circuit’s decision focuses on the continuing acts related to the product, rather than the date of the original design of the product. That is significant in that the court looked beyond a hard and fast date of design and instead examined the entire fact background of the power system. The ruling is fair and just and may lead to decisions based on the facts, rather on a certain date of installation, design, sale or manufacture of a product. Motions for summary judgment will be denied where genuine issues of material fact are open for a jury to decide.

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A trucker whose legs were crushed while freight was being shifted on his truck agreed to a $2.5 million settlement in an Illinois personal injury lawsuit.

The accord came on the second day of jury deliberations following more than a week of trial in this case against Precoat Metals, a division of Sequa Corp. Tom, an over-the-road trucker who lived in Shullsburg, Wis., went to a Precoat facility on the Southwest Side to pick up a load of steel coils.

A forklift driver employed by Precoat had agreed to arrange other freight on the flat bed trailer that Tom was using to accommodate the steel. The freight, 20 foot long steel channels, slipped off the forklift and fell on Tom’s legs, resulting in amputation of the left leg above the knee and surgical repair of his right leg. Tom has been unable to return to his work as a trucker driver.

The steel channels, 25 to a bundle, were secured together by four steel bands. There was a codefense raised by the defendant that it was the bands that were defective that caused the channels to break apart when being lifted by Precoat’s forklift driver. However, Precoat was unable to produce the broken bands that it claimed it had stored after this occurrence. Precoat’s safety manager had testified at deposition that although the bands were stored away, they could not be found now. Before the start of the trial, Kreisman moved to bar Precoat from asserting this defense because it could not produce the item that was alleged to be the cause of the injuries to our client. The court agreed and barred any reference to the broken bands during the trial. At the end of the trial and before jury deliberation, also on motion of plaintiff, the court went to the length of instructing the jury about the law as to “missing” evidence, the bands and documents relating to the accident that were also lost. That jury instruction, Illinois Pattern Jury Instruction 5.0 was read to the jury at the conclusion of the case.

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