Madison - St. Clair Record

Monday, September 16, 2019

Ruth reschedules hearing for construction company's motion to reconsider

By Elizabeth Alt | Jun 7, 2018

Madison County Circuit Judge Dennis Ruth rescheduled a motion hearing for a construction company's motion to reconsider a 2014 order in a suit alleging a subcontractor was injured when she fell while spackling a Bethalto home. 

The motion hearing is set for June 22 at 9 a.m.

Defendants Dan Wyhs, Elaine Whys and Brandon Wyhs filed a motion to reconsider on March 15, claiming the court erred by denying their motion for summary judgment. They argue that general contractor Thery Construction and the plaintiff should be held liable for the alleged injuries. 

The motion states that after nine years of discovery, plaintiff Laurie Hillard has not shown “that defendants owed a duty to plaintiff to protect her from her own negligence.”

Hillard sued Dan Wyhs, Elaine Wyhs, Brandon Wyhs, Wyhsco Construction, Don Waddles, Archway Construction, and Matt Millinex in 2009, alleging she fell from a stairwell while working on a home for the defendants. 

Hillard alleges she was working for Touched by an Angel painting at a Bethalto home being constructed by the defendants when she fell from an unfinished stairwell. 

Hillard’s complaint states the defendants were negligent by removing the railing that served as a barricade from the unfinished stairwell, failing to reasonably inspect the premises, allowing a fall hazard to exist, and failing to exercise reasonable care to protect Hillard from an injury. 

The original 16-count suit sought over $700,000 in damages, seeking compensation for pain and suffering, emotional distress, loss of income and loss of a normal life, disability and medical costs. 

Ruth denied the defendants' request for summary judgment on June 13, 2014, finding that there are issues of fact to be determined by a jury. 

The defendant’s motion to reconsider states that Lou Thery was the general contractor hired to do the construction job at the Bethalto home. Thery hired subcontractors, including Hillard’s employer Touched by an Angel. 

"Lou Thery agreed to serve as the general contractor and build a home for defendants. Lou Thery hired the subcontractors for the project, including Touched by Angel (plaintiff's employer). Lou Thery oversaw and supervised the work of his subcontractors. Lou Thery monitored the site for safety," the motion states. 

"Because the record contains no evidence that defendants retained any degree of control over the manner in which Thery Construction performed its contract with defendants, this court should reconsider its order of June 13, 2014 and grant summary judgment in favor of defendants," it adds. 

The defendants state that Hillard had been told by her employer to be careful, and knew that the stairwell was open. They allege the fall was a result of Hillard's own negligence. 

In fact, they allege Hillard's complaint points to her own testimony, which alleges her inattentiveness - not a distraction - resulted in her fall.

The motion states that Hillard was at the home on the day of the injury to spackle nail holes with a co-worker. The pair customarily started at one end of the house and worked their way to the other end of the house. Hillard began her work by spackling trim in the kitchen area. She would apply spackle and then rub it smooth with a rag. Hillard carried her spackling container lid in her left hand when she executed a pivot turn to come around the corner where she was working. She moved her left foot around the corner while reaching up to spackle the upper corner where the upright trim and the horizontal trip meet when she fell. 

"By her admission if she would have looked into that space she is sure she would have seen the opening," the motion states.

The defendants argue that there is no evidence of any distraction. 

“Illinois Courts have routinely recognized that the danger of falling from an elevated position, including an open stairwell or hole at a construction site, is an obvious risk that is capable of being appreciated and avoided-even by a child," the motion states. 

The defendants are represented by Greensfelder, Hemker & Gale P.C. in Belleville. 

Hillard is represented by Spector, Wolfe and McLaughlin in Kirkwood, Mo.

Madison County Circuit Court, Case number 09-L-791

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