author: JUSTICE PINCHAM LORENZ, P.J., JUSTICE MURRAY,

text:
    HAROLD MEYER, Plaintiff-Appellee, v. CATERPILLAR TRACTOR COMPANY et al., Defendants and Appellants and Third-Party Plaintiffs-Appellants (Engineered Structural Products, Third-Party Defendant-Appellee).
    First District (5th Division)
    No. 86—0625
    Opinion filed November 14, 1988.
    Rehearing denied January 5, 1989.

      MURRAY, J., specially concurring.

      Johnson, Cusack & Bell, Ltd., of Chicago (Thomas H. Fegan, of counsel), for appellants.
    Mark Novak, of Anesi, Ozmon, Lewin & Associates, Ltd., and Paul J. Bargiel, P.C., both of Chicago, for appellee Harold Meyer.
    Tribler & Marwedel, P.C., of Chicago (Willis R. Tribler and Douglas C. Crone, of counsel), for appellee Engineered Structural Products, Inc.
   JUSTICE PINCHAM

delivered the opinion of the court:

Plaintiff, Harold Meyer, brought this action to recover damages for an injury to his knee suffered while working as a millwright for defendant Engineered Structural Products, Inc. (ESP). Plaintiff alleged a violation of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60) and also named as defendants Caterpillar Tractor Company (Caterpillar) and Frazier Manufacturing Corp. (Frazier), which sought indemnity from ESP. The jury awarded $900,000 to plaintiff and found against defendants Caterpillar and Frazier on the indemnity claim. Defendants appeal from this judgment.

On appeal, defendants contend that: (1) plaintiff’s cause of action is not authorized under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60); (2) defendants were denied a fair trial by plaintiff’s introduction of the opinion testimony of five previously undisclosed expert witnesses on the “unsafeness” of the procedure used in unbundling the storage racks during which plaintiff’s injury occurred; and (3) the $900,000 verdict of the jury was grossly excessive for the knee injury sustained by the plaintiff. The facts developed at trial follow.

In 1976, defendant Caterpillar purchased a storage rack system from defendant Frazier. Frazier subcontracted the fabrication, delivery and installation of the racks to defendant ESP. ESP manufactured and installed the rack system. Plaintiff was employed as a millwright for ESP in the installation of the storage rack system at Caterpillar.

On September 8, 1976, plaintiff walked up to a bundle of storage racks sitting on the curb at Caterpillar. Suddenly plaintiff heard a snap and a shout “[I]t’s coming at you.” The bundle of storage racks began to tip over. Plaintiff tried to move away to avoid the racks falling on him but he fell. Plaintiff’s knee hit the curb. Despite plaintiff’s attempt to grab the bundle of storage racks, they toppled over and fell on plaintiff’s knee and injured it. He was treated at Mercy Center’s emergency room, where surgery was performed and his leg placed in a cast. Plaintiff remained in the hospital until September 13, 1976, a period of five days.

The defendants argue that plaintiff is not entitled to recovery under the Structural Work Act because: the storage racks that were involved in his injury only supported material and they did not support workmen and the Structural Work Act applies only to structures intended to support workmen and not materials. Defendants additionally argue that even if the Structural Work Act applies to devices intended to support materials, plaintiff still is not entitled to recover for his injuries because the materials which fell on him were placed on the wrong side of the storage racks and not because the storage racks were not properly supported. Defendants also contend that the Structural Work Act as construed and applied by the trial court in this case was so vague and arbitrary that defendants were denied due process. We disagree with each of these contentions by the defendants.

The Structural Work Act (Act) (Ill. Rev. Stat. 1985, ch. 48, par. 60) provides in pertinent part:

“All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal, or painting of any house, building, bridge, viaduct, or other structure, shall be constructed in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.”

Illinois courts have held that the purpose of the Structural Work Act is to protect workers who are employed in extrahazardous conditions on the construction site from injury while working on, by, or under scaffolds and other support devices. A violation of the Act may occur from the failure to provide a safe scaffold or support device or the failure to provide any scaffold or support device at all, where one is required. The Act should be liberally construed to effectuate its purpose. Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889; Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051.

In the present case, the plaintiff was injured because the defendants failed to provide a safe, suitable, and proper support for a bundle of storage racks weighing approximately 2,000 pounds which tipped over onto plaintiff, causing severe and permanent injury to his left knee. The defendants admit that the plaintiff’s injury occurred when the storage racks fell on plaintiff at the construction site. A defense raised by the defendants in their brief is that “[t]he theory of recovery advanced by plaintiff does not as a matter of law authorize recovery under the Structural Work Act.” This contention is based upon the defendants’ further contention that “[t]he Structural Work Act applies only to devices intended to support workmen” and does not apply to devices which are intended to support materials on the construction site.

• 2 These contentions of the defendants’ are fallacious. The Structural Work Act is intended to cover support devices used on the construction site whether their purpose is to support workmen or materials. In Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051, this court considered this precise contention raised by the defendants herein and rejected it. In Urman, the plaintiff, an iron-worker, was injured when a 600-pound steel roof truss, which a fellow worker was attaching to a sling to be hooked on to a crane for lifting to the building roof, fell on plaintiff’s leg. In Urman, the defendants contended, as do the defendants in the case at bar, that under the Structural Work Act the scaffold or support involved must be one for the support of the workmen and for none other. We there pointed out defendants’ contention as follows:

“Defendants strongly urge us to hold that, for purposes of Structural Work Act liability, the scaffold must be used only for the purpose of supporting workers. If a device is used for any other purpose, it would not be a scaffold and thus would not come within the coverage of the Act. Since plaintiff in this case was standing on the ground, defendants argue, he was not using a scaffold. Nor would cribbing or other ‘supports’ for the trusses constitute a scaffold within the Act’s meaning because the purpose of such cribbing would be to support the trusses, not the workers.” (Urman, 101 Ill. App. 3d at 1090.)

In rejecting the defendants’ contention in Urman that the “sole relevant inquiry under the Act is whether the injury-causing device can be classified as a working platform for persons” (101 Ill. App. 3d at 1093), this court reviewed the prior decisional law analyzing the Structural Work Act.

The analysis review in Urman began with Matthews v. Commonwealth Edison (1980), 90 Ill. App. 3d 1024, 414 N.E.2d 147, which held that the Structural Work Act covered only injuries caused by a faulty device used to support workmen. In Urman, this court criticized the Matthews decision, saying that the declaration in Matthews that the Structural Work Act was limited only to cases involving faulty supports for workers was not supported by the citation of any authorities, and there are not any cases which so hold. This court further stated in Urman that the rationale employed by the Illinois Supreme Court in Structural Work Act cases contradicted the holding of Matthews.

In Navlyt v. Kalinich (1972), 53 Ill. 2d 137, also considered and discussed by the court in Urman, the support device was a type of “lateral stays, supports, shorings, or other mechanical contrivances” which would have prevented the walls of a trench from collapsing and killing a worker who was installing sewer tiles in a trench. In McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, also considered and discussed by the court in Urman, the support device was a crane which should have prevented a 2,000-pound metal pedestal from falling on the worker and killing him while he was unloading equipment. In Urman, this court observed:

“Like the situations in McNellis and Navlyt, the instant facts involve the failure to provide a support device. The crane mentioned in McNellis, if properly used, would have functioned as a support for materials, not workers. The shoring that was not provided in Navlyt likewise would have functioned as ‘stays’ or ‘supports’ rather than scaffolds.
Therefore, even though McNellis and Navlyt were primarily concerned with another aspect of the Act, the reasoning of both cases supports plaintiff’s position.” (Urman, 101 Ill. App. 3d at 1095.)

This court then held in Urman:

“[W]here, as here, the injured party in the performance of his work is struck by unsupported trusses, he can recover if the jury determines from the evidence that he was proximately injured by the defendants’ failure to provide such supports in violation of the Act.” (Emphasis added.) (Urman, 101 Ill. App. 3d at 1096.)

Therefore, Urman pointedly rejected the defendants’ contention in the case at bar that “[t]he Structural Work Act applies only to devices intended to support workmen.”

In Prange v. Kamar Construction (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889, this court again followed the holding in Urman. In Prange, the employee driver of a tractor-forklift was injured when a load of four or five 18-foot-long 500- to 600-pound poles fell off the forklift, which was attached to the front of the tractor, and onto the driver injuring him. The trial court held, on defendants’ motion for summary judgment, that the tractor-forklift was not a mechanical contrivance under the Structural Work Act. On appeal, the reviewing court reversed this ruling of the trial court. The Prange court considered the defendant’s assertion “that the Act was intended to apply only to support devices which are used to support workmen, thus to the exclusion of support devices for material on a construction site” (109 Ill. App. 3d at 1129) and said:

“The defense seeks to narrow the scope of the Act to scaffold and scaffold-like devices. Matthews is cited in support of this argument and interpretation. Such a reading of the Act is much too narrow. It has recently been pointed out that Matthews’ narrow construction of the Act in this regard is not supported by any case authority and runs contrary to the express language of Section 60. [Citation.] ***
* * *
A narrow reading of the Act, focusing upon workman support devices only, ignores that the primary function of hoists, cranes and stays is not as support for men, but rather for materials. Those devices are specifically enumerated in the Act. Furthermore, as the Urman [court] points out, the statutory language indicates a desire to protect workmen in, on, around and under support devices for materials on a construction site. We conclude, as did the Urman court, that the Act is intended to cover support devices used on a construction site, whether their purpose is to support workmen or materials. In so doing, we expressly reject the contrary suggestion in the Matthews case.” (Emphasis added.) (Prange, 109 Ill. App. 3d at 1129-30.)

The Prange court considered that when plaintiff was injured, the tractor-forklift was being used in a “support function” for materials as a “crane or hoist” might be used and, further, concluded that the forklift tractor was a “mechanical contrivance” within the Structural Work Act. The Prange court also rejected the “defense’s other argument that Prange as the driver is unprotected” by the Act because “[i]t rests upon the erroneous conclusion in Matthews that only workers who are on, or who should have been on support devices are intended to be protected by the Act.” (Prange, 109 Ill. App. 3d at 1131.) The court in Prange, and this court in Urman, rejected the proposition advanced by defendants here, that “[t]he Structural Work Act applies only to devices intended to support workmen.”

Although the Urman court and the Prange court rejected the narrow interpretation of the Structural Work Act advanced in Matthews, here asserted by the defendants, the court in Carlson v. Moline Board of Education (1984), 124 Ill. App. 3d 967, 464 N.E.2d 1239, nonetheless, adopted the narrow Matthews interpretation. In Carlson, the reviewing court considered whether a workman, who was severely injured when an assembly of 4,000-pound lockers fell on him, stated a cause of action under the Structural Work Act by alleging “that the assembly of lockers would not have fallen if it had been adequately braced with ‘stays’ or ‘supports.’ ” (124 Ill. App. 3d at 972.) Although the Carlson court found the question troubling, it nonetheless resolved the issue by adopting the narrow approach taken in Matthews and concluded that the plaintiff’s complaint failed to state a cause of action.

Although Carlson and Matthews took the narrow approach that the Structural Work Act applied only to devices intended to support workmen, the better and more logically reasoned Urman and Prange decisions held that the Structural Work Act was intended to apply to support materials as well as workmen.

In Urman, this court employed the literal terms of section 1 of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60) in determining that two classes of persons were protected by the Act, i.e., those working on a support device and those who pass by or under a support device. According to the court, these two classes of persons are protected by the Act from two classes of injuries, i.e., injuries caused by the collapse or failure of any support device and injuries caused by the falling of any material that may be used or deposited in or on the device. This construction finds support in the literal language of section 1 of the Structural Work Act previously set forth. The Act expressly affords workmen protection from “the falling of any material.” It would be unreasonable to conclude that it was the intention of the legislature to protect a workman from falling materials only when the workman was on a support device. Surely, it was the legislature’s intention to also protect the workman anywhere on the construction site from falling materials, and the failure to provide proper support for materials which fall and injure a workman is as much a violation of the Structural Work Act as is the failure to provide proper support for the workman himself, which results in his injury. Any other construction of the Act would be patently absurd, particularly when it is recognized and the reviewing courts of this State have repeatedly held that the Act should be liberally construed when there is a need for liberal construction in order to protect and afford relief to an injured worker. Rayfield v. Homart Development (1981), 100 Ill. App. 3d 620, 427 N.E.2d 193.

Urman and Frange are premised on the literal language and purpose of the Structural Work Act. Matthews and Carlson, on the other hand, ignore the literal language and purpose of the Structural Work Act and judicially engraft an unwarranted limitation on the language of the Act. The Matthews court holds that “[t]he Act does not mandate every kind of support on a construction site, but only those which serve as a source of support for a worker” (Matthews, 90 Ill. App. 3d at 1027), even though there is no such limiting language in the Act, and other courts construing the Act have been properly guided by a liberal approach to the Act’s interpretation. Carlson, similarly, follows Matthews’ narrow approach in the interpretation of the Structural Work Act and relies almost exclusively on the same rationale.

Finally, based upon their erroneous conclusion that plaintiff’s theory of the case is that “the racks had been improperly placed on their edge rather than their side,” defendants attempt to distinguish Ur-man and argue that even under Urman “the absolute necessity that a cause of action involve a support device of some kind remains unchanged.” Plaintiff, of course, agrees that Urman requires the use of a support device or the failure to provide a support device for the existence of a cause of action under the Structural Work Act. Plaintiff’s theory of the case, however, was that he was injured as a proximate result of the defendants’ failure to provide proper support with a forklift truck or cherry picker crane or some other appropriate mechanical contrivance for the bundle of storage racks which fell on him, injuring his left knee. Therefore Urman has direct application to the circumstances of this case.

In Delgatto v. Brandon Associates, Ltd. (1988), 172 Ill. App. 3d 424, 526 N.E.2d 384, this court followed the holding in Frange and Urman. In Delgatto, plaintiff, a sheet metal worker employed by a heating and ventilation company, was injured when an air duct assembly, which was part of a building renovation project, struck plaintiff in his back. Plaintiff filed a complaint which alleged that a radiator had been placed up against the duct work and that as plaintiff moved the radiator to gain access to the duct work, the injury occurred. Plaintiff, Delgatto, alleged that his injuries were the result of defendant's, Brandon’s, failure to comply with the provisions of the Structural Work Act in (1) failing to provide a proper support for the piece of duct work, thereby rendering the duct work in an unstable position; (2) failing to provide a scaffold, support or other mechanical contrivance for the support of the duct work, which was unstable and unsteady; (3) failing to provide a scaffold, support or other mechanical contrivance for the support of the duct work which could have safely and adequately supported the duct work while the plaintiff was working that area; and (4) failing to provide plaintiff with an adequate support, scaffold, or other mechanical contrivance which could have enabled him to avoid being hit by the duct work on the date of his accident. The defendant filed a motion for summary judgment. Finding that there was “no duty whatsoever” under the Structural Work Act, the trial court granted defendant’s motion for summary judgment. (172 Ill. App. 3d at 427.) On appeal this court reversed. The Delgatto court considered Brandon’s assertion that “the Act is not intended to impose liability for the failure to provide ‘stays’ or ‘supports’ ” (172 Ill. App. 3d at 429) and, after an analysis of Matthews and Carlson, relied on by the defendant in Delgatto, as well as the defendants in the instant case, the Delgatto court followed Frange and Urman and stated:

“We decided Urman one year after the decision in Matthews. In Urman, we concluded that a narrow construction of the Act as suggested in Matthews (and now Carlson) is illogical because classifying the other devices enumerated in the Act in addition to scaffolds (hoists, cranes, stays, ladders, supports, or other mechanical contrivances) as synonymous with scaffolding, a platform for workmen, ignores the commonsense usage and dictionary definitions of those terms. [Citation.] As the court in Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889, has correctly observed:
‘A narrow reading of the Act, focusing upon workman devices only, ignores that the primary function of hoists, cranes, and stays is not as support for men, but rather for materials. Those devices are specifically enumerated in the Act. Furthermore, *** the statutory language indicates a desire to protect workmen in, on, around and under support devices for materials on a construction site.’
We therefore reject, once again, a narrow construction of the Act as suggested in Matthews and Carlson and reiterate that the Act is intended to cover support devices used on a construction site, and, necessarily, the failure to supply same, whether their purpose is to support workmen or materials.” (Emphasis in original.) Delgatto v. Brandon Associates, Ltd. (1988), 172 Ill. App. 3d 424, 430-31, 526 N.E.2d 384.

The Delgatto court then held that the plaintiff’s injuries were the proximate result of acts or omissions involving devices covered under the Structural Work Act which caused plaintiff to be struck by falling materials on the site of the renovation project and that plaintiffs complaint stated a cause of action.

The supreme court relied on Urman in Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417. In Vuletich, plaintiff, Mark Vuletich, was employed as a laborer by BMI Industries. U.S. Steel contracted with BMI to clean and repair a furnace located at a U.S. Steel plant. Plaintiff was instructed to clean the furnace. After cleaning the furnace, plaintiff walked to BMI’s tool storage trailer to return the shovel and broom he had been using. Because the trailer was five feet above the ground level, temporary wooden stairs were constructed for entering and existing the trailers. On the day of the accident it had snowed and the stairs were covered with ice and snow and were slippery. As plaintiff exited the trailer and descended the stairs, he slipped and fell on the snow and ice. Plaintiff also alleged that his fall was caused by the wobbling of the stairs and the lack of a handrail. Plaintiff sought recovery under the Structural Work Act. The defendant filed a motion for summary judgment which was granted by the trial court upon concluding that the stairs on which plaintiff slipped did not constitute a “support” within the meaning of the Act. The appellate court reversed and remanded the case to the trial court, holding that there was a factual question as to how the stairs were actually being used at the time of plaintiff’s fall and injury. The supreme court granted leave to appeal, reversed the appellate court and affirmed the circuit court’s summary judgment for the defendant. The court stated “the main controversy in this case centers around whether the stairs were being used as a support or as a mere pathway at the time of plaintiff’s injury.” (Vuletich, 117 Ill. 2d at 422.) The court, relying on Urman, further stated:

“In Urman v. Walter (1981), 101 Ill. App. 3d 1085, the court stated, ‘[A] floor is not a scaffold when it is being used merely as a walkway [citations], but if a worker relies on a partially completed floor for support as a working platform, he may recover.’ [Citation.] Also, in Quinn v. L.B.C., Inc. (1981), 94 Ill. App. 3d 660, the court held that the floor of the building in question was not being used as a working platform at the time of plaintiff’s injury and stated, ‘Plaintiff did not rely on the floor as a support while working on the building; he merely utilized it as a path to reach the stairway and other parts of the structure. Simply stated, the floor was being used as a floor, the purpose for which it was designed.’ [Citation.] We agree with the holdings of these cases. Applying this reasoning to the case before us, we find that the stairs in question did not con stitute a support as that term is used in the Act. The stairs were but a pathway providing ingress and egress to and from the trailer wherein tools were stored. If the stairs had provided support for the plaintiff in the performance of some hazardous activity, or if he had used them as a working platform, then, as noted in the cases last cited, a different situation might prevail.
* * *
At the time of his injury the plaintiff was not engaged in any hazardous activity or any work that can be described as being of a particular hazardous nature. He was simply returning his broom and shovel to the trailer, just as a janitor might ascend some stairs to return a broom and shovel to a closet. If there were no stairs involved in this case, there would have been no serious contention that the injury was one covered by the Act. Under such circumstances Urman and Quinn, cited above, would be directly on point. Plaintiff’s argument that the fact that stairs were involved somehow takes our case out of the law as cited in Urman and Quinn is not convincing.” (Vuletich v. U.S. Steel Corp. (1987), 117 Ill. 2d 417, 423-24.) (Emphasis added.)

The court then held that the stairway in Vuletich “was not a support within the meaning of the Act.” 117 Ill. 2d at 425.

We apply the primary rule of statutory construction that in construing a statute, a court should follow the statute’s literal language, and we also adhere to Urman, Prange, Delgatto and Vuletich. We reject the defendants’ contention and conclude that the Structural Work Act is intended to cover and applies to construction site support devices whether used to support material or workmen.

The defendants further argue that “[e]ven if the Structural Work Act was construed to require stays or supports for materials, plaintiff is still not entitled to recover in this case.” This contention of the defendants’ is predicated upon the erroneous premise that plaintiff’s injury was caused by materials falling on him because the materials were placed on the wrong side of the support racks. Defendants argue that under Urman, a workman who is injured by materials which fall on him because they were wrongfully placed is not entitled to recovery under the Structural Work Act. Plaintiff correctly maintains, however, that he was injured because the materials which fell on him were not properly supported and that defendants’ contrary characterization of plaintiff’s case is not supported by the record.

In plaintiff’s amended complaint plaintiff alleged:

“6. That at said time and place and prior thereto, the Defendants were then and there guilty of wilful violation of the Structural Work Act in one or more of the following ways:
(a) Failed to provide a safe, suitable and proper support for the aforesaid bundle of storage racks to prevent the storage racks from falling.”

It was therefore alleged in a subsequent paragraph “[t]hat as a proximate result of the aforesaid wilful and wrongful acts and or omissions of the Defendant, the Plaintiff then and there sustained severe and permanent injuries.” Thus, the defendants’ conclusion that “[pjlaintiff in this case did not contend that the failure to provide stays or supports for materials was the basis for liability” is inaccurate. The failure to provide proper support for the bundle of storage racks which fell on and injured plaintiff was the basis of plaintiff’s claim under the Structural Work Act, and the trial evidence clearly supports plaintiff’s contention that the failure to provide supports for the bundle of storage racks caused them to topple over.

Defendants quote the following statement of plaintiff’s counsel during the conference on jury instructions:

“[PLAINTIFF’S COUNSEL]: With all due respect, your Honor, I do not believe that should be included. We have heard absolutely no testimony in this case that a stay should have been provided.
* * *
Judge, again, we can’t instruct the jury about a device under the Structural Work Act that they have not heard about. They have heard about cranes. My safety expert, Judge, I asked him what should have been provided to support the bundle here. He said you do it with a crane or you do it with a forklift truck. He didn’t say anything about stays, Judge.
How could all of a sudden now after two weeks of this jury hearing about forklift trucks and cranes suddenly with the instructions we start talking about stays and they are going to say what’s a stay. What does that have to do with this case?” (Emphasis added.)

Defendants mistakenly rely on plaintiff’s attorney’s above jury conference comments as support for the defendants’ contention that plaintiff’s theory of the case was not based on defendants’ failure to provide support for the bundle of storage racks. Plaintiff’s counsel’s above comments were simply that plaintiff’s case was not about stays and he clearly articulated that the case was about supports or, more correctly, was about defendants’ failure to provide a proper support for the bundle of storage racks which fell on plaintiff. The literal import of plaintiff’s counsel’s foregoing statements was that there should be no instruction on stays because the jury heard no testimony concerning stays and that all the testimony was about supporting the bundle with a crane or a forklift truck. We agree with plaintiff’s counsel that an instruction concerning stays was therefore inappropriate.

Other statements of plaintiff’s counsel at the conference on jury instructions fortified plaintiff’s contention. When Caterpillar’s counsel objected to a plaintiff’s instruction because in his view “[tjhere is no issue about cranes or other mechanical devices in this case,” plaintiff’s counsel correctly retorted:

“That is my theory, you have heard the evidence in this case, your Honor, that it was the failure of a crane or a forklift truck, which is the mechanical contrivance to properly support these bundles, racks. That certainly is the issue in this case.”

Plaintiff’s counsel once again made plain that his theory of the case was that the defendants violated the Structural Work Act by failing to provide proper support for the bundle of storage racks which fell on plaintiff and that a crane or forklift truck was the appropriate mechanical contrivance to provide such support. This was also plaintiff's counsel’s position in his opening statement to the jury, when he stated:

“It will be our theory that it was the duty of the defendants under the Structural Work Act to provide safe, suitable and proper supports for these bundles to see that they do not fall over during the erection process.”

Plaintiff’s counsel’s closing argument further confirmed that plaintiff’s theory of the case was that defendants failed to provide proper support for the bundle of storage racks which fell on plaintiff.

Defendants acknowledge that the Structural Work Act has been upheld against attack on constitutional grounds, but defendants argue that the trial court so construed and applied the Act in this case in such a way that defendants were denied due process of law and thus the Act is unconstitutional as applied. The defendants did not present this point in their post-trial motion to the trial court, and the defendants therefore have waived the point for consideration on review by this court. Hollembaeck v. Dominick’s Finer Foods (1985), 137 Ill. App. 3d 773, 484 N.E.2d 1237.

The defendants next contend that they were denied a fair trial by plaintiff’s introduction of the opinion testimony of five previously undisclosed expert witnesses regarding the “unsafeness” of the procedure for unbundling the racks. The defendants argue that the admission of this expert testimony was erroneous for three reasons: (1) the five expert witnesses and their testimony had never been disclosed to defendants as required by Supreme Court Rule 220; (2) the opinion testimony involved matters of common knowledge and was therefore inadmissible; and (3) if the testimony was contended to be “lay” opinion, then it should have been excluded as incompetent.

Supreme Court Rule 220 (107 Ill. 2d R. 220(b)(1)) provides:

“(1) Expert witness. Where the testimony of experts is reasonably contemplated, the parties will act in good faith to seasonably:
(i) ascertain the identity of such witnesses, and
(ii) obtain from them the opinions upon which they may be requested to testify. In order to insure fair and equitable preparation for trial by all parties the identity of an expert who is retained to render an opinion at trial on behalf of a party must be disclosed by that party either within 90 days after the substance of the expert’s opinion first becomes known to that party or his counsel or, if the substance of the expert’s opinion is then known, at the first pretrial conference in the case, whichever is later. *** All dates set by the trial court shall be chosen to insure that discovery regarding such expert witnesses will be completed not later than 60 days before the date on which the trial court reasonably anticipates the trial will commence. Upon disclosure, the expert’s opinion may be the subject of discovery as provided in paragraph (c) hereof. Failure to make the disclosure required by this rule or to comply with the discovery contemplated herein will result in disqualification of the expert as a witness.” (Emphasis added.)

In the case at bar, the plaintiff was permitted to introduce the opinion testimony of expert witnesses that the unbundling procedure was unsafe. None of these expert witnesses was disclosed by plaintiff as potential trial witnesses; therefore, the admission of their expert testimony was in total disregard of the requirements of Supreme Court Rule 220.

In Prater v. Luhr Brothers, Inc. (1977), 51 Ill. App. 3d 685, 366 N.E.2d 399, the court reversed a judgment for a plaintiff in a Structural Work Act case because of the erroneous admission of expert opinion testimony of a previously undisclosed expert witness. In Prater, the action was brought by a bridge painter to recover damages for foot injuries he sustained when he fell from a scaffold. During the trial, plaintiff was permitted to elicit testimony of an expert witness that the scaffold was unsafe and unstable. As in the instant case, the witness in Prater had not been disclosed as a potential witness by the plaintiff in response to the defendant’s discovery requests. The court held that it was error to admit the testimony, stating:

“In the case at bar, the trial court found, and we agree, that the plaintiffs failure to disclose the expert was in violation of the spirit of the rules of discovery. ***
* * *
The content of the expert’s opinion testimony involved matters of common knowledge and understanding. As such the evidence could properly have been held inadmissible. [Citation.] Since the issue before the jury, the safe or unsafe condition of the pics, was not a complicated one, the expert’s testimony could only have been superfluous while adding the personal weight of the expert to the plaintiff’s theory of the evidence. In addition, as the trial court noted, since the expert had not been disclosed until the time of trial, both Luhr and Britz were at a disadvantage in countering his testimony. For these reasons, we are of the opinion that the undisclosed witness should have been excluded from trial.” (Emphasis added.) Prater v. Luhr Brothers, Inc. (1977), 51 Ill. App. 3d 685, 689, 366 N.E.2d 399.

Similarly, in the case at bar, the experts’ testimony was on the unsafeness of the unbundling procedure, a crucial issue in the case, and the defendants were at a distinct disadvantage in countering their testimony because plaintiff failed to disclose them.

• 6 The defendants further argue that the opinion testimony of the expert witnesses that the unbundling procedure was unsafe should have been excluded because it was on matters which required only common knowledge and understanding. Several of plaintiff’s expert witnesses conceded that they had no particular knowledge or expertise in the field. Their opinions on the safety and the unbundling procedure, however, did not involve matters that were difficult of common comprehension or explanation. Their opinions were merely matters of common knowledge and should have been excluded on that basis. It is well settled that expert opinions may not be admitted on matters of common knowledge. (Hernandez v. Power Construction Co. (1978), 73 Ill. 2d 90; Prater v. Luhr Brothers, Inc. (1977), 51 Ill. App. 3d 685, 366 N.E.2d 399.) Because of plaintiff’s improper introduction of the experts’ inadmissible opinion testimony that the unbundling procedure was unsafe, the defendants are entitled to a new trial and the judgment in favor of plaintiff must be reversed.

The defendants contend the $900,000 jury verdict rendered against them in favor of plaintiff was grossly excessive for the injury sustained by plaintiff, and the defendants rely on several arguments in support of their contention, one of which is that the injury to plaintiff’s left knee was not sufficiently serious to warrant a $900,000 jury verdict. We disagree.

Plaintiff underwent three operations to his left knee as a result of his injury at Caterpillar. The first operation was to repair the quadriceps mechanism and remove part of the kneecap. The second operation was to make additional repair to the quadriceps mechanism and the third was to remove the remainder of the kneecap.

The uncontroverted testimony of plaintiff and the medical experts is that plaintiff suffered a severe, permanent, disfiguring injury to his left knee. Although employable, plaintiff’s injury rendered him unable to work again as a carpenter or as a millwright on heavy construction. Therefore, contrary to defendants’ contention, plaintiff’s knee injury was serious and the effects permanent.

Defendants further suggest that the $900,000 verdict for plaintiff is excessive simply because the “entire cost of [plaintiff’s] medical treatment was [only] $7,622.98.” The medical treatment costs, however, do not necessarily render the $900,000 jury verdict in plaintiff’s favor excessive. In Lapidus v. Hahn (1983), 115 Ill. App. 3d 795, 450 N.E.2d 824, the court approved a jury verdict of $350,000 even though medical and hospital expenses were only $3,695. The court noted that although the “award was about 100 times greater than special damages incurred,” that rationale “is not the sole consideration in determining whether the award is excessive.” (115 Ill. App. 3d at 802-03.) The award in Lapidus was approved by the reviewing court because of plaintiff’s deformity, pain, and change of lifestyle as a result of her injuries. Similarly, in the case at bar, because of plaintiff’s pain and deformity as a result of his injuries, we cannot conclude that the $900,000 damages awarded plaintiff are excessive simply because his medical expenses were only $7,622.98.

Defendants also contend that the $900,000 verdict awarded plaintiff by the jury is excessive because the amount “reflects the jury’s acceptance of the requests by plaintiff’s counsel in closing argument.” Defendants then imply that this request by plaintiff’s counsel is without foundation in the record. This contention by defendants is meritless.

Plaintiff’s counsel in his closing argument to the jury requested damages comprised of various components. He requested the jury to find damages for lost wages between the date of plaintiff’s injury and the date of trial in the amount of $246,031.68. The hourly wage rate was determined through the testimony of the business manager for carpenters and millwrights of a local union. Plaintiff was employed through this union at the time of his injury. Plaintiff’s counsel also requested, as another component of damages, the loss of future earnings in the amount of $300,000. This amount was determined by a 40-hour work week, multiplied by an hourly rate of $20.72, which was the 1985 rate for carpenter’s work, times the number of weeks remaining for the plaintiff to work in the future, from the date of trial until he reached 65 years of age, minus an estimate of what plaintiff would be able to earn over the same period of time. This sum was then reduced to its present-day value. This was a reasonable basis for calculating plaintiff’s future earnings. Based upon the trial evidence, we do not conclude that the $300,000 amount for plaintiff’s future wages, from the date of trial to the date of plaintiff’s retirement, is unreasonable.

As another component of plaintiff’s damages, plaintiff’s counsel also requested an award of $50,000 for plaintiff’s pain and suffering for the nine years from the date of plaintiff’s injury to the date of trial and $100,000 for plaintiff’s future pain and suffering. The jury’s award for pain and suffering is left to the jury’s conscience and judgment. Fedt v. Oak Lawn Lodge (1985), 132 Ill. App. 3d 1061, 478 N.E.2d 469; Caley v. Manicke (1962), 24 Ill. 2d 390.

In Fedt v. Oak Lawn Lodge (1985), 132 Ill. App. 3d 1061, 478 N.E.2d 469, the court affirmed an award of $262,800 for plaintiff’s pain and suffering, the limitations on plaintiff’s physical activities resulting from his injuries, the series of operations endured by him and the length of his convalescence. Similarly, in the instant case, plaintiff’s physical activities have been severely curtailed, he has endured three operations and has had a lengthy convalescence. Under these circumstances we cannot say that the $150,000 plaintiff requested and the jury awarded for his pain and suffering is excessive.

Plaintiff further asked as a component of damages an award of $200,000 for disability and disfigurement. Like an award for pain and suffering, an award for disability and disfigurement is also peculiarly within the province of the jury and an award of $200,000 cannot be said to be excessive under the circumstances presented here.

Finally, plaintiff’s counsel requested $7,622.98 in medical bills.

Based upon the trial evidence we do not conclude that the $900,000 jury verdict in favor of plaintiff was excessive.

Lastly, the defendants contend that the jury verdict denying defendants indemnity is against the manifest weight of the evidence. In support of their contention, defendants cite Miller v. DeWitt (1967), 37 Ill. 2d 273, which established that a passively negligent tortfeasor may obtain indemnification from an actively negligent tortfeasor. It is clear from Miller that the determination of whether a party is an active tortfeasor or a passive tortfeasor is a question of fact for the jury. Furthermore, it is the jury’s function to evaluate the weight of the evidence and to assess the credibility of the witnesses. (Bass v. Washington Kinney Co. (1983), 119 Ill. App. 3d 713, 457 N.E.2d 85.) The jury’s verdict will not be disturbed unless the verdict was palpably erroneous, the opposite verdict is clearly compelled, or the findings appear to be unreasonable, arbitrary and not based upon the evidence. Bass v. Washington Kinney Co. (1983), 119 Ill. App. 3d 713, 457 N.E.2d 85.

In the case at bar, the evidence established that the defendants were the active tortfeasors. The defendants were present on the jobsite, were familiar with the construction practices, had the authority to stop work, had the right to schedule the work, actively directed the men, and controlled the machinery. Therefore we will not disturb the jury’s verdict denying defendants indemnity.

For the reasons stated, the judgment in favor of Harold Meyer against Caterpillar Tractor Company and Frazier Manufacturing Corp. is reversed and the cause is remanded for a new trial. The judgment in favor of Engineered Structural Products against Caterpillar Tractor Company and Frazier Manufacturing Corp. on the third-party complaint is affirmed.

Reversed and remanded.

LORENZ, P.J.,

concurs.

JUSTICE MURRAY,

specially concurring:

I specially concur only in the hope that the Illinois Supreme Court or State legislature will clarify the question of whether a device designed and used only to support materials is a scaffold, hoist, crane, etc., within the meaning of the Illinois Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.). The case of Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051, cited by the majority, supports that proposition. The case of Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, 414 N.E.2d 147, and other cases are to the contrary. The recent case of Seeden v. Metropolitan Sanitary District (1988), 172 Ill. App. 3d 239, 526 N.E.2d 482, describes the conflict, but does not resolve it. The recent Illinois Supreme Court decision of Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 512 N.E.2d 1223, seems to resolve the issue contrary to the court’s opinion in this case, but cites the case relied on by the majority on the point of Urman with approval. The issue should be finally decided.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
      In re ESTATE OF MORRIE CHAITLEN, Deceased (Stephen D. Rubin, Plaintiff-Appellant and Cross-Appellee, v. National Boulevard Bank of Chicago, Ex’r of the Estate of Morrie Chaitlen, Deceased, Defendant-Appellee and Cross-Appellant).
    First District (1st Division)
    No. 88—0934
    Opinion filed January 30, 1989.

      James E. Dahl & Associates, of Chicago (Walter P. Dahl, of counsel), for appellant.

      Daley & George, Ltd., of Chicago (John J. George and Dennis J. Aukstik, of counsel), for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

This is an appeal from an order upholding the validity of an agreement to create a trust and directing the creation of a trust. The' issues raised on appeal are whether the trial court erred in imposing a trust and whether the trust should have been imposed retroactively to the date of decedent’s death.

On January 16, 1974, Donna Rubin and plaintiff, Stephen Rubin, were divorced. On the same day, the decedent, Morrie Chaitlen, the father of Donna Rubin, executed an agreement to the effect that he would provide for the support, maintenance and education of the two minor children of the parties in the event that his daughter failed to do so.

The written memorandum provides, in part, as follows:

“In return for effecting the foregoing and for your agreeing that my daughter and I have custody of your minor children, Michael and Wendy Rubin, I will execute a general release to Stephen D. Rubin and to Graver-Dearborn Corporation and Donna will agree to be primarily responsible for the support, maintenance and education of the children. If for any reason she is unable to support, maintain and educate the children, I will agree to assume the responsibility for their support, maintenance and education during whatever period of time that Donna is unable to do so.
In order to fulfill my contingent responsibility to support, maintain and educate Michael and Wendy Rubin if my daughter Donna shall fail to do so, and I shall die during this period, I will, by my last will, provide for the creation of a trust or trusts in such amounts as will amply provide for their support, maintenance and their primary, secondary and college education after my death if my daughter Donna is unable to support, maintain and educate the children.”

Morrie Chaitlen died on August 24, 1983. His will, which was admitted to probate on September 28, 1983, failed to create the trust as provided in the above agreement.

The parties disagree as to the obligation of Morrie Chaitlen under the written agreement. The executor contends that Chaitlen was only obligated to provide for the children via a trust in the event that his daughter failed to provide for the children during his lifetime. The executor claims that as Donna Rubin continued to provide for her children from January 1974 until the time of Chaitlen’s death, the decedent was not obligated to provide for the children in his will. The plaintiff contends that the language of the agreement obligated Chaitlen to provide for his grandchildren after his death in the event that his daughter failed to do so and that Donna Rubin had failed to support the children subsequent to her father’s death. The parties agree that no evidence was heard with respect to specific costs for the support, maintenance or education of the children subsequent to the death of decedent.

The trial court held that a trust in the amount of $240,000 should be established but that the trust should be prospective only. Both parties appealed.

The executor argues that the trial court erred in construing the agreement. The executor’s position is that under the language of the agreement, the decedent was only obligated to provide a trust for the grandchildren in the event that his daughter failed to' support the children during decedent’s lifetime, and as that condition precedent did not occur, decedent was not obligated to provide for the children in his will. The executor argues that the contingent nature of the decedent’s obligation is reflected in the following language:

“In order to fulfill my contingent responsibility to support, maintain and educate Michael and Wendy Rubin, if my daughter Donna shall fail to do so, and I shall die during this period ***.” (Emphasis added.)

The executor’s reading of this provision is that Donna’s inability to provide support during decedent’s lifetime is an express condition precedent to decedent’s responsibility to provide for the children in his will.

The executor also argues that the written memorandum was ambiguous with respect to decedent’s responsibility to provide for his grandchildren, and therefore, under Standard Steel & Wire Corp. v. Chicago Capital Corp. (1975), 26 Ill. App. 3d 915, 326 N.E.2d 33, the court should have allowed extrinsic evidence to be submitted for the purpose of determining the true meaning of the contract. The executor’s position is that the agreement could have been understood to be either that the decedent was not obligated to provide in his will for the grandchildren until his daughter became unable to provide the necessary support or that decedent was required to provide for such support regardless of his daughter’s ability to provide support. For this reason, the executor contends that it should have been permitted to introduce a progression of eight drafts which culminated in the written memorandum. We disagree with both arguments.

In interpreting a contract, the court must determine its meaning from the language used by the parties. (Johnstowne Centre Partnership v. Chin (1983), 99 Ill. 2d 284, 287-88, 458 N.E.2d 480.) A court may resort to rules of construction if the language is ambiguous; but ambiguity exists only where a contract is reasonably susceptible of different constructions, not merely where the parties disagree on the proper construction. (Aqua-Aerobic Systems, Inc. v. Ravitts (1988), 166 Ill. App. 3d 168, 171, 520 N.E.2d 67.) In interpreting a contract, the court must consider the entire document, not merely an isolated part of the contract. Shelton v. Andres (1985), 106 Ill. 2d 153, 159, 478 N.E.2d 311.

Applying the above well-settled principles, we find that there was no condition precedent to the imposition of the trust nor was there any ambiguity to warrant the introduction of extrinsic evidence. At the time the agreement was entered into, Wendy was six years of age and Michael was three years of age. The agreement provided that in the event his daughter failed to provide for them, including their college educations, a trust would be set up in the will to do so. Under the executor’s alternative interpretation, if the decedent had died the day after the agreement was executed and his daughter thereafter failed to provide for the children, decedent’s estate would have no duty to do so. Such a result would be completely contrary to the stated interest of the decedent to be contingently responsible for his grandchildren’s support and education until they completed college. The only reasonable interpretation of the phrase “if my daughter Donna shall fail to do so, and I shall die during this period” is that the “period” referred to is the time between the execution of the contract and the completion of the children’s college education. A plain reading of the language of the agreement indicates that the decedent intended to provide a trust for the support, maintenance and education of the grandchildren after his death in the event his daughter failed to do so. Any other construction would render decedent’s promise to provide contingent support for his grandchildren meaningless and illusory.

We also disagree with the executor’s contention that the written agreement is void as contrary to the public policy of Illinois. The basis for this argument is that the State imposes a duty upon a father to support his children and that duty cannot be bargained away. (See, e.g., Huckaby v. Huckaby (1979), 75 Ill. App. 3d 195, 198, 393 N.E.2d 1256.) While there is no question but that under Illinois law plaintiff has a continuing duty to support his children during their minority, the language of the agreement here in no way relieves him of this duty. It merely provides that Donna Rubin and decedent would be primarily responsible for the support, maintenance and education of the children.

The executor also contends that the trial court erred in finding that the written agreement was supported by adequate consideration. The executor argues that although pursuant to the agreement the consideration provided by the plaintiff included his promise to transfer certain stock and that the custody of his minor children would be granted to Donna Rubin and decedent, such consideration was inadequate as the plaintiff was under a preexisting duty to do so by virtue of the judgment for dissolution of marriage.

The agreement states as follows:

“With reference to the proposed settlement agreement arising out of the pending divorce action between my daughter, Mrs. Donna Rubin, and yourself as Cause No. 72 D 24996 in the Circuit Court of Cook County, Illinois, I make the following proposals in clarification of the said settlement agreement now being negotiated.”

The reference to the “proposed settlement” makes it clear that the agreement was executed prior to the settlement that was included in the judgment for dissolution of marriage; therefore, there is no basis upon which to find that there was insufficient consideration to support the agreement.

We next consider the executor’s argument that the trial court imposed a trust upon the assets of the estate in the amount of $240,000 without an adequate basis in the record. The determination of damages by a trial court sitting without a jury will not be set aside unless manifestly erroneous. (Schatz v. Abbott Laboratories, Inc. (1972), 51 Ill. 2d 143, 148-49, 281 N.E.2d 323.) Although absolute certainty as to the amount of damages is not required, there must be an adequate basis in the record for the court’s determination. Society of Mount Carmel v. Fox (1980), 90 Ill. App. 3d 537, 543, 413 N.E.2d 480.

The trial court here was not presented with any documentary evidence regarding the past, present or anticipated future expenses of either child. The plaintiff testified that costs for the daughter were approximately $20,000 per year and that costs for the son’s private schooling at the time of trial were between $20,000 and $35,000 per year. On cross-examination, Donna Rubin stated that her daughter’s schooling cost $20,000 per year and her son’s schooling cost $30,000 per year and that her son’s formal schooling was expected to be completed in approximately March of 1988. Despite certain contradictory testimony and an apparent lack of documentation, the trial court imposed the trust based upon $20,000 per year in expenses for Wendy Rubin and $40,000 per year in expenses for Michael Rubin. The total amount was projected to cover Wendy Rubin’s remaining two years in college and five remaining years of secondary and college education for Michael Rubin. Because the determination of the amount of the trust is without an adequate basis in the record, we remand this matter to the trial court for a hearing on the question of costs for the support, maintenance and education of the Rubin children.

The plaintiff has raised the issue that the trust should have been established not prospectively from the conclusion of the litigation but from the date of decedent’s death. We agree. The language of the agreement makes it clear that the obligation undertaken by the decedent began not on January 8, 1988, but at his death on August 29, 1983. Although the executor has suggested that there is no evidence that Donna Rubin had failed to support the children in the past and therefore the trust was properly established prospectively, we believe this issue is inadequately addressed in the record. However, we believe the language of the agreement reflects that the trust was intended to be established as of the time of Morrie Chaitlen’s death so that the money would be available at such time as Donna Rubin failed to support the children, not that the trust was to be established only at such time as Donna Rubin failed to support the children. Therefore, on remand, the trial court is directed to calculate the amount of the trust to cover the time period from the date of decedent’s death through a period that would reasonably cover Michael’s anticipated college expenses. The parties have agreed that any unexpended amounts in any year are to be released to the defendant.

In summary, we affirm the trial court’s imposition of the trust, but reverse and remand with directions to create a trust to commence from August 29, 1983, and to recalculate the amount necessary to fund such trust.

Affirmed in part, reversed in part and remanded.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE SCARIANO

text:
    KIM DYER et al., Plaintiffs-Appellants, v. ZONING BOARD OF APPEALS OF ARLINGTON HEIGHTS et al., Defendants-Appellees.-KIM DYER et al., Plaintiffs-Appellees, v. WILLIAM FARRINGTON et al., Defendants-Appellants.
    First District (2nd Division)
    Nos. 87—2814, 87—3566 cons.
    Opinion filed January 31, 1989.
    Jack M. Siegel, of Chicago, for appellees Zoning Board of Appeals of Arlington Heights, Village of Arlington Heights, Gary Dienstag, Anthony Tomaso, William W. Kurnik, Norma Damm, A.T. Berk, George Hauff, and F. Marks.
    James S. Jarvis, of Greenberg, Keele, Lunn & Aronberg, of Chicago, for Kim Dyer, John Dyer, Michael Witt, Diane Witt, and James Jarvis.
    Lee T. Hettinger, of Chicago, for William Farrington and Susan Farrington.
   JUSTICE SCARIANO

delivered the opinion of the court:

In this consolidated action plaintiffs appeal the dismissal of their amended complaint, in which they sought to reverse a certain zoning variation granted to defendants William and Susan Farrington. Additionally, the Farringtons appeal the denial of their motion for sanctions against plaintiffs.

The issues raised in this appeal are as follows: (1) whether the trial court erred in dismissing plaintiffs’ amended complaint for lack of standing and in denying their motion for reconsideration, motion for rehearing and request for leave to file a second amended complaint; (2) whether the trial court erred in denying plaintiffs’ motion to strike the pleadings of the Zoning Board of Appeals of Arlington Heights (ZBA) as being those of a nominal defendant with no interest in the proceedings; and (3) whether the trial court erred in denying the Farringtons’ motion for sanctions against plaintiffs.

The Farringtons lived in a home on a 78-foot lot contiguous to the vacant 50-foot lot which is the subject of this appeal. Sometime prior to September 1985, plaintiffs Kim and John Dyer purchased the Farrington home. At that time they declined to exercise their option to buy the adjacent lot, which was under contract to a builder for the construction of a single-family residence. The Farringtons’ agreement with the builder allowed them to cancel their contract with him if they found someone willing to buy both their home and the vacant lot. The Witts live adjacent to the Farringtons’ lot (the exact location of their property is not specified in the record), and James Jarvis is an attorney who lives in the subdivision.

In September 1985 ZBA denied the contract buyer’s petition for a variation on the vacant lot, i.e., to reduce its size for building purposes from the zoning requirement of 70 feet to 50 feet, but in February 1986 the Farringtons’ petition for the same variance was granted. Plaintiffs then filed a complaint in administrative review in the circuit court of Cook County. The Farringtons’ and ZBA’s motions to dismiss plaintiffs’ complaint were granted; accordingly, plaintiffs filed an amended complaint, alleging that the granting of the variance would alter the essential character of the neighborhood, result in a decrease in the value of the property of adjacent landowners, cause flooding problems for adjacent landowners and that “the plight of the Farringtons was not due to unique circumstances.” Plaintiffs sought an order reversing the ZBA’s decision granting a variance, as well as an order directing the ZBA to file .with the court the transcript of the two meetings at which the variation was discussed. Plaintiffs attached as exhibits to their amended complaint a letter written by Mrs. Farrington to the Arlington Heights planning commissioner and the “findings” of the ZBA. (Plaintiffs attached a more detailed “findings” statement and the minutes of the ZBA hearing at which the variance was -granted to their original complaint but did not include these in their amended complaint.)

In her letter, Mrs. Farrington explained that their house was on a 78-foot lot with some 15 to 20 feet between it and the boundary line of the adjoining vacant 50-foot lot; that because Mr. Farrington’s work required it, they moved out of State, thus putting them under some time pressure to complete the sale of their home; that they had originally hoped to sell their house and vacant lot as one parcel, but after a few weeks they took the advice of their realtor and listed the lots separately; and that if a variance were not permitted for the 50-foot lot, that property would be worthless to them. The ZBA found as follows:

“The petitioner, upon advice of a realtor, sold the house located on 78’ of frontage in 1985, and attempted to sell a 50’ vacant lot to a builder at the same time. The builder has subsequently defaulted on the contract and the Zoning Board of Appeals has previously denied a request by the developer for a variance to construct a single family residence.
* * *
Testimony was introduced that the petitioner would suffer a financial hardship if the variation were not granted and that his property would not yield a reasonable rate of return. ***
Testimony was introduced that a significant portion of the lots and the homes in the area were built on 50’ lots and that the granting of the variation would not alter the property value.”

Defendants’ motion to dismiss the amended complaint with prejudice on the basis of lack of standing was granted, and thereafter the trial court denied plaintiffs’ motion for rehearing which pleaded, in the alternative, for leave to file a second amended complaint. (Transcripts of the hearings on these motions are not included in the record on appeal.) The trial court also denied the Farringtons’ motion for sanctions. (A transcript of this hearing, but not an order denying the motion, is included in the record.) Both parties appeal the denial of their respective motions.

Opinion

Plaintiffs contend that they have sufficiently alleged a protectable interest, and that, therefore, they have standing. Our supreme court has addressed the issue of standing in a zoning matter in a number of cases, including Winston v. Zoning Board of Appeals (1951), 407 Ill. 588, 95 N.E.2d 864, and 222 East Chestnut Street Corp. v. Board of Appeals (1956), 10 Ill. 2d 130, 139 N.E.2d 247, cert. denied (1957), 353 U.S. 984,1 L. Ed. 2d 1143, 77 S. Ct. 1284.

In Winston, plaintiffs’ complaint, in which they sought a review of a zoning board’s decision to grant a variance permitting construction of an apartment building, was dismissed for lack of standing. Plaintiffs had alleged that they were property owners “in the vicinity of the premises involved” and that the value and use of their property would be adversely affected by the granting of the variance. The supreme court upheld the dismissal, stating:

“To show a cause of action, it was incumbent upon plaintiffs to allege specific facts showing that they were parties to the administrative proceeding whose rights, privileges or duties were adversely affected by the decision of the zoning board. [Citations.] This, they have failed to do and, consequently, the complaint does not state a cause of action.” Winston, 407 Ill. at 595.

In 222 East Chestnut, the owner of an apartment building situated in the same zoning district as a proposed apartment building sought to reverse the decision of the board granting a variance to the trustee of the proposed structure. The trial court, “after hearing questions presented by the record, affirmed the board’s decision and dismissed the complaint.” (10 Ill. 2d at 133.) The supreme court affirmed the dismissal, stating:

“We have heretofore held that the right to review a final administrative decision is limited to those parties of record in the proceeding before the administrative agency ‘whose rights, privileges, or duties are affected by the decision.’ (Winston v. Zoning Board of Appeals, 407 Ill. 588.) *** In affirming a judgment dismissing the complaint, this court held that to state a cause of action specific facts must be alleged showing that the plaintiffs were injured or damaged by the decision sought to be reviewed.
In the case at bar the complaint alleges that granting the variation would substantially injure plaintiff’s property in that its light, air and fire protection would be interfered with, its ‘taxable value’ would be diminished, and traffic congestion would be increased near and in front of it. The allegations were denied by defendants. In its brief plaintiff fails to show any evidence whatever to support them, nor have we found such support in the record. *** We think *** that under our decision in the Winston case it was incumbent upon plaintiff to allege and prove it would in fact be adversely affected by the board’s decision.” 10 Ill. 2d at 135-36.

See also 222 East Chestnut Street Corp. v. Board of Appeals (1958), 14 Ill. 2d 190, 192, 152 N.E.2d 465 (“[W]e held it is incumbent upon the party seeking review to both allege and prove that the board’s decision would in fact adversely affect such party. *** This is in accord with the majority view which holds that the right to maintain a suit in such cases depends upon whether the zoning inflicts a special or peculiar injury upon the party bringing the suit”); Allender v. City of Chicago Zoning Board of Appeals (1978), 63 Ill. App. 3d 204, 210, 381 N.E.2d 4 (“The standing of any person to appeal the result of an administrative review proceeding must appear as a factual matter in the record made before the administrative body”).

Plaintiffs argue that they were denied an opportunity to prove their allegations because their complaint was improperly dismissed, i.e., the order dismissing their amended complaint was entered June 11, 1987, and the trial court did not order that the transcript of the hearing before the zoning board of appeals be filed until August 11, 1987, the same day it denied with prejudice plaintiffs’ motions for rehearing and to file a second amended complaint. Defendants respond that the transcript was not necessary in order for plaintiffs to have an opportunity to prove their allegations because the exhibits attached to the amended complaint accurately reflected the proceedings before the ZBA. Defendants further argue that plaintiffs’ allegations are not supported by the record.

Plaintiffs were unable to prove that their allegations appeared as a factual matter in the record because, although the Administrative Review Law requires that “the administrative agency *** file an answer which shall consist of the original or a certified copy of the entire record of proceedings under review, including such evidence as may have been heard by it and the findings and decisions made by it” (Ill. Rev. Stat. 1987, ch. 110, par. 3 — 108), the transcript of the zoning hearing was not before the court at the time it ruled on plaintiffs’ complaint. Were this court to reverse the trial judge’s decision on that basis, we would need to remand this cause in order to allow the trial judge an opportunity to review the transcript and determine whether plaintiffs were successful in proving that they would be adversely affected by the variance. However, inasmuch as that transcript is included in the record here, and, since the appellate court may search the record and affirm the trial court on any basis appearing in the record (Decatur Memorial Hospital v. West Lincoln Township (1976), 38 Ill. App. 3d 356, 347 N.E.2d 804; Panepinto v. Morrison Hotel (1966), 71 Ill. App. 2d 319, 218 N.E.2d 880; Husted v. Thompson-Hayward Chemical Co. (1965), 62 Ill. App. 2d 287, 210 N.E.2d 614), it would not only conserve judicial resources, but it would also be more efficient at this point for this court to review the record to determine whether plaintiffs have standing. We might also point out that the “findings” attached to plaintiffs’ complaint appear to be an unusually complete and full account of the testimony and other evidence presented to the ZBA.

At any rate, the transcript shows that the only witness called to testify as to the value of the property was Ralph Martin, a real estate appraiser who appeared in behalf of the Farringtons and who stated that granting the variance would have no diminishing effect on the value of surrounding property and that building on the vacant lot would not impair light and air to adjacent properties. Mrs. Dyer testified that she spoke with a realtor by phone who told her that a building on the vacant lot would decrease the value of her home, but she did not identify the realtor or explain how he came to this conclusion. A few other neighbors expressed fear of flooding, but no one gave any reasons as to why a building on the subject vacant lot would cause flooding. Nor does the record support in any way plaintiffs’ allegations that granting the variance would adversely affect their property. No evidence was presented to the zoning board which would substantiate plaintiffs’ claim that their property would decrease in value by any specific amount, that flooding would occur, or that the character of the neighborhood would be changed. Indeed, the zoning board found that “the granting of the variation would not alter the property value.”

Plaintiffs contend that the trial court should have reviewed transcripts from both hearings held before the ZBA prior to ruling on whether the record supported their allegations. We disagree. While it is unclear whether the members of the ZBA considered testimony heard at the first hearing in reaching their decision to ultimately grant the variance, it is clear that plaintiffs were given a full opportunity to present testimony and evidence at the second hearing, and we can assume that they took full advantage of that opportunity. Nonetheless, plaintiffs have failed to allege and prove the required “specific facts” showing that they would be adversely affected by the granting of the variance; accordingly, the trial court properly held that they lack standing.

Plaintiffs next argue that the trial court erred in denying their motion to strike the pleadings of ZBA, the Village of Arlington Heights and the individual members of ZBA, who plaintiffs contend are merely “nominal defendants” and thus have no standing to participate in this litigation. In support of their argument plaintiffs rely upon our supreme court’s decision in Speck v. Zoning Board, of Appeals (1982), 89 Ill. 2d 482, 433 N.E.2d 685. In that case, the court held that the Chicago Zoning Board of Appeals did not have standing to appeal a reversal of its own decision, stating:

“There is no question that the Board is entrusted with the duty of protecting the public health, safety and welfare. However, the Board’s obligation to the public is fully discharged when it conducts a hearing and, with due consideration to the public interest, determines the propriety of granting or denying a variation. [Citations.] Its responsibility to protect the public interest does not authorize the Board to act as a representative of the public for the purpose of vindicating its own decision on appeal.” 89 Ill. 2d at 486.

Defendants respond that Speck is not controlling, because the ZBA is defending on appeal rather than appealing the reversal of its own decision. Defendants note that an appellate court has held that a zoning board of appeals, as an appellee, may “ ‘defend a judgment on review by raising an issue not previously ruled upon by the trial court if the necessary factual basis for the determination of such point was contained in the record’ ” (Allender v. Zoning Board of Appeals (1978), 63 Ill. App. 3d 204, 209, 381 N.E.2d 4, quoting Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147, 324 N.E.2d 417), and contend that this necessarily means that a zoning board of appeals has standing to defend an appeal.

We note, however, that the issue of standing was neither raised nor addressed in Allender; therefore, that case is not dispositive of this issue. Nor is Speck, for that case merely held that a zoning board of appeals has no standing to prosecute an appeal. In any event, plaintiffs have not included a transcript of the hearing during which the trial court denied this motion; thus, we do not know the basis for that ruling. Accordingly, since plaintiffs have not demonstrated to this court that that ruling is erroneous, we are constrained to affirm it. Foutch v. O’Bryant (1984), 99 Ill. 2d 389, 459 N.E.2d 958.

The Farringtons brought a motion for sanctions pursuant to section 2 — 611 (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611), contending that plaintiffs’ allegations were baseless and not warranted by existing law, relying, in support of their contentions, on plaintiffs’ failure to present evidence at the hearing before ZBA and on the fact that plaintiffs’ attorneys have not charged a fee for their work in this case.

Section 2 — 611 provides as follows:

“Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name ***. The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation ***. If a pleading, motion, or other paper is signed in violation of this Section, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorneys fee.” (Ill. Rev. Stat. 1987, ch. 110, par. 2-611.)

The purpose of section 2 — 611 is to prevent abuse of the judicial process by penalizing a litigant who brings vexatious or harassing actions that are based on false statements or without legal foundation. (Lee v. Egan (1987), 160 Ill. App. 3d 1078, 1081, 513 N.E.2d 1023.) The Farringtons suggest that, because there are few cases interpreting section 2 — 611 as amended in 1986, this court should follow Federal court decisions construing Rule 11 of the Federal Rules of Civil Procedure, which is virtually identical to section 2 — 611.

Under Rule 11, there must be reasonable inquiry made by the presenter to determine whether a pleading is well grounded in fact and warranted by existing law or reasonably foreseeable legal developments. (Stites v. Internal Revenue Service (5th Cir. 1986), 793 F.2d 618, 620; Davis v. Veslan Enterprises (5th Cir. 1985), 765 F.2d 494, 500.) Sanctions are to be imposed where the pleading is not well grounded in fact (see Albright v. Upjohn Co. (6th Cir. 1986), 788 F.2d 1217, 1221; Hale v. Harney (5th Cir. 1986), 786 F.2d 688), where there is no legal basis for a claim (see Rodgers v. Lincoln Towing Service, Inc. (7th Cir. 1985), 771 F.2d 194, 205; Fox v. Boucher (2nd Cir. 1986), 794 F.2d 34), or where the purpose of a pleading or motion is improper, such as harassment or delay (see Cook v. Peter Kiewit Sons Co. (9th Cir. 1985), 775 F.2d 1030, cert, denied (1986), 476 U.S. 1183, 91 L. Ed. 2d 547, 106 S. Ct. 2919).

In denying their motion, the court stated:

“The F[a]rringtons claim that despite the fact that the Plaintiffs had no standing to pursue the instant Complaint, the Plaintiffs decided to and did pursue their claim for the purpose of preventing the sale of the F[a]rringtons’ property. This Court notes at the outset that while the F[a]rringtons claim that the Plaintiffs have pursued the instant case for the purpose of preventing the sale of the F[a]rrington property, this and other factual allegations remain for the most part unsubstantiated with evidence.
* * *
*** [T]he merits of the Plaintiff’s [sic] charges has [sic] never been ruled on. *** [T]he F[a]rringtons have failed to document their claim that the Plaintiffs filed a baseless lawsuit merely to prevent sale of the F[a]rringtons’ property.”

The plaintiffs argue that there is no evidence that they failed to make a reasonable inquiry prior to filing their action, and moreover, that they had a reasonable argument for the modification of existing law to allow adjacent landowners to bring suit, and that it is surely permissible for an attorney to undertake “pro bono legal work for a coalition of neighbors to protect their neighborhood.” Plaintiffs further argue that the Farringtons’ motion for sanctions is itself an abuse of the judicial process and is therefore sanctionable under section 2 — 611. However, the first time plaintiffs raise the latter argument is on appeal, and thus this court will not consider it. Western Casualty & Surety Co. v. Brochu (1985), 105 Ill. 2d 486, 500, 475 N.E.2d 872.

The denial of a motion for sanctions is within the discretion of the trial court, and a reviewing court will not disturb that determination absent a clear showing of abuse of discretion. (Hengels v. Gilski (1984), 127 Ill. App. 3d 894, 469 N.E.2d 708.) The Farringtons have failed to make such a showing here. Plaintiffs’ action was dismissed on the pleadings because they failed to make a proper record before the ZBA. Under the circumstances of this case, we do not find that the trial court abused its discretion in denying the Farringtons’ motion for sanctions.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

JOHNSON and McMORROW, JJ., concur.