Fifth District upholds Gleeson in pipefitter's case against Dynegy Midwest Generation, AVI

By Ann Maher | Apr 29, 2015

The Fifth District Appellate Court has affirmed St. Clair County Circuit Judge Andrew Gleeson who presided at the trial of a pipefitter who was crushed between a steel I-beam support and a portion of a 28,500-pound water pump at the Dynegy Midwest Generation (DMG) plant in Baldwin in 2007.

In an opinion published April 28, justices denied post trial motions and moves for judgment notwithstanding the verdict or new trial that defendants DMG and AVI International filed after Gleeson entered judgment on a jury verdict in December 2013.

At the time of the accident, plaintiff Gerald Dunning was employed by Power Maintenance Constructor (PMC) and was assisting in the removal of a water pump that was rigged to an AVI-manufactured cart that was being pushed by a forklift owned and operated by DMG. Dunning was crushed when the cart veered off its path.

In his lawsuit, Dunning claimed he suffered internal bleeding, lost his spleen and had undergone, and would continue to under go, skin grafts.

Dunning was represented by Thomas Q. Keefe, Jr. of Belleville

Following a five day trial, a jury found in favor of Dunning on Nov. 22, 2013, and assessed percentages of fault at 47 percent for DMG, 37 percent for AVI, 10 percent for PMC - a third party defendant - and 6 percent for Dunning.

DMG was represented by James L. Hodges of St. Louis.

AVI was represented by Loretta M. Griffin and Ana Maria L. Downs of Chicago.

Justice Richard Goldenhersh authored the Fifth District decision. Justices Bruce Stewart and Gene Schwarm concurred.

The court addressed each defendant's motions individually.

"After careful review of the evidence presented at trial, we cannot say the jury's findings were unreasonable, arbitrary, or against the manifest weight of the evidence," Goldenhersh wrote with respect to DMG's arguments on duty of care and proximate cause.

"The trial court did not err in denying DMG's motion for a directed verdict or judgment notwithstanding the verdict, nor did it abuse its discretion in denying DMG's 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 negligence proximately caused plaintiff's injuries."

"While it may be true that the forklift did not malfunction and was not driven erratically, the record clearly indicates DMG's employee was operating the forklift that crushed plaintiff into a steel beam. Furthermore, the 28,500-pound water pump being transported on defendant's forklift that crushed plaintiff into the steel beam was owned by DMG, and the accident occurred on DMG's premises."

In AVI's motion for directed verdict and post trial relief, Goldenhersh wrote that evidence "so overwhelmingly" favors plaintiff that "no contrary verdict can stand" on the issue of AVI's negligence and product liability.

The opinion highlighted trial testimony in which AVI employee Scott Docimo admitted he saw workers rigging the load onto the forklift improperly and that he knew it was unsafe, but said nothing.

Docimo said at trial that he did not speak up "because of liability."

AVI president Clifford Burrell also testified during trial and admitted that Docimo should have said something when he saw workers improperly rigging the load onto the forklift.

"Based on these admissions made by Docimo and Burrell, the trial court directed negligence and product liability against AVI," Goldenhersh wrote.

"The trial court never suggested how much fault the jury should attribute to AVI, only that it could not be completely free of fault."


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