Brian McDaniel v. State of Illinois

OPINION

MCGLYNN, J.

Claimant, Brian McDaniel brings this negligence claim for injuries related to his approximately 15 foot fall from a chapel roof he was working on while an inmate at Vienna Correctional Center (“VCC”). He alleges that Respondent was negligent by failing to provide proper safety measures to prevent his fall. Testifying at a hearing before a Commissioner were both Claimant and Mark Dixon, who was Claimant’s supervisor at the VCC roofing project.

Claimant testified that on November 3, 2009, he was re-shingling the roof of the “Little Chapel,” at VCC. He had been on this project for several days. And prior to it, he completed the same work on the “Big Chapel,” which he had worked on for about two weeks.

At the bottom of the sloped edge of the roof that Claimant was working on, there was a safety rail, about 42 inches high. Under this rail, debris was pushed off the roof into dumpsters down below, which is what Claimant stated he was doing on this particular occasion while standing on top of a piece of metal called a flashing. According to Claimant the roof was not steep; however, the shingles were so dilapidated, the cinders literally acted like ball bearings under his feet. This rendered the flashing, which was on top of these cinders, even more unstable to stand on.

Before pushing debris off the roof, workers had to yell “headache” to warn workers on the ground about the impending debris. As Claimant was yelling this, standing on the flashing with his hands on the safety rail, his feet gave out from underneath him. He landed on his left leg and shoulder. Then his head hit the ground, giving him whiplash.

Claimant testified that he had been a 20-year journeyman union carpenter out of Local 174. Part of his training involved a four-year apprenticeship requiring he pass an OSHA safety course. During that safety course he learned the proper specifications for a handrail on a roof. It is supposed to have two rails and a toe kick: the top one at 42 inches, the middle one (knee kick) at 21 inches, and a toe kick, which is a 2x4 about 3 ½ inches tall. According to Claimant, however, the safety rail on the roof did not have a middle rail or toe kick. He also stated that usually in projects such as this, when you have to throw stuff off, you don’t use a railing system at all but instead a toe kick and/or a harness.

[*157] These standards regarding the safety rails were corroborated by Mark Dixon, who testified that he was Claimant’s supervisor at both the Big Chapel and Little Chapel roof projects. Although Dixon agreed that there was no mid rail or toe kick on the portion of the roof Claimant fell off, he denied Claimant’s contention that there was no middle rail or toe kick on the edge of the roof at all. Dixon explained that on the edge of the roof Claimant was working on, there was a hand rail, mid rail, and toe kick - except for a 10-foot-wide portion where the mid rail and toe kick had been removed from under the 42” high handrail to provide access for the ladder and for the debris on the roof to be pushed off into the dumpsters below. However, Dixon denied that these dumpsters were there when Claimant fell, stating that during that time they were waiting for empty dumpsters to be delivered to the site. He noted that workers were not to drop debris off the roof when the dumpsters weren’t there.

According to Dixon, even though it was not part of his job to be familiar with safety standards, he was familiar with OSHA standards and regulations. He contended that OSHA regulations required one of three measures to be employed to prevent falls on a roof: a toe board, a railing system like he used, or a flagging system where they marked six feet away from the edge of the roof with flags and had someone monitor and tell the worker how close he was getting to the edge once he had gone closer to edge beyond the flags. Dixon testified that he and his two supervisors discussed and decided the safety measures to implement on the roof.

He acknowledged that Claimant was an excellent roofer, maybe even better than he was, but he disagreed that his rail system was unsafe. He did not think that any standards were violated by removing a portion of the mid rail and toe kick because that was the only way to get the ladder access and to throw debris off the roof. When questioned on cross examination about whether he thought the 10 ft.-wide gap under the 42” high handrail was safe, he replied, “I think there was enough rail there to keep anybody on the roof that didn’t want to come off the roof.” He noted that the same rail system was used in the Big Chapel as well, and Claimant’s was the only fall on either project. Further, according to Dixon, the workers were impressed because they had never seen a rail system at a project like that. None of the workers complained about the rails - including Claimant. Dixon explained that Claimant had volunteered for both jobs, and that Claimant, or any of the workers, could have been reassigned if desired.

Dixon and his supervisors used the railing system because they felt it was the safest one to use. Dixon noted that since he worked on the roof with the rest of the workers, his safety was at risk too. However, in the many residential roof jobs he did in the past (both chapel jobs were considered residential), he had always used toe kicks instead of handrails because toe kicks required less work to set up. When asked about roofing jobs that had been conducted at VCC by private contractors, he stated that they did not use a handrail system either, recalling that they just pushed the debris off the ledge.

ANALYSIS

To recover in a claim for personal injury against the State, Claimant bears the burden of proving by a preponderance of the evidence that the State breached its duty of care, and that the State’s breach of duty (its negligence) was the proximate cause of his injury. Horton v. State (1994), 46 Ill.Ct.Cl. 394, 399. Because of the unique relationship between the State and a prison [*158] inmate, the State’s duty of reasonable care to inmates includes a duty to provide them with safe conditions under which to perform their assigned work. Davis v. State (1998), 51 Ill. Ct. Cl. 214.

Having found that Respondent owed Claimant a duty to provide safe working conditions, we now turn to the issue of breach of that duty. To determine whether Respondent breached its duty to Claimant, this Court must apply the appropriate standard of conduct, which in general negligence cases is the reasonable person standard. This is an objective test, based on the “failure to do something that a reasonable, careful person would do, or to do something that a reasonable careful person would not do under circumstances similar to those shown by the evidence.” Dealers Service & Supply Co. v. St. Louis Nat. Stockyards Co., 155 Ill.App.3d 1075, 1081 (5th Dist. 1987).

Evidence of safety standards promulgated by industry, trade groups, and regulatory agencies may be admissible to aid the trier of fact in determining what reasonable safety precautions are called for and the standard of care in a negligence action. Schultz v. Northeast Illinois Regional Commuter R. R. Corp, 201 Ill.2d 260, 297, 775 N.E.2d 964, 986 (2002); Rufiner v. Material Service Corp., 116 Ill.2d 53, 57, 506 N.E.2d 581, 584 (1987). Further evidence of safety standards, rules, regulations, and codes are admissible as evidence of the standard of care even though they are not binding. Schultz, 201 Ill.2d at 298, 775 N.E.2d at 986.

Here, Claimant and Respondent seem to be in agreement that, regardless of whether they legally applied to the state prison, OSHA standards regarding fall prevention at roofing jobs were representative as the standard of care for safety in roofing jobs. Claimant and Respondent also agree that there were three options: railings, toe boards, or flagging. Claimant also seems to suggest that the standard of care regarding toe boards includes harnesses for the workers, but there is no support for that in the record, and Claimant does not point us to any section of OSHA or otherwise to support this. Thus, our focus on Claimant’s argument will be to the extent it involves railings, toe boards, or flagging.

Claimant argues that the State breached its duty to provide safe working conditions by providing the wrong safety mechanism. Specifically, he asserts that the railing system was inappropriate in a job where debris was going to be thrown off the roof because in order to provide access to a ladder and to prevent workers from having to pick up and throw debris over an almost 4-foot handrail, they would have to remove the mid rail and toe kick for a portion of the roof. Claimant argues that this is the reason that railings systems are not used in residential projects. Claimant also notes that to the extent that the gap was required for ladder access, the rails and toe kick could have been put back up once the workers were on the roof, and they could have thrown the debris off the hand rail.

Claimant alleges that the industry standard in residential jobs is to use toe kicks. According to Claimant, if Respondent had used a toe kick instead, then that entire edge of the roof would have been protected. There would have been no gap of 10 feet, where he could have slid off the roof because, according to Claimant, if he was sliding down a roof that had a toe kick, his shoe would have caught on it and prevented him from sliding off.

[*159] Thus, the crux of Claimant’s argument regarding breach is that Respondent’s conduct fell below the standard of care because a portion of the roof had no toe kick. Respondent counters that it is unimaginable that a toe kick would have prevented him from sliding off the roof. When testifying, Dixon made a special point to state that toe kicks were installed to prevent tools from sliding off the roof.

What weakens Claimant’s argument the most is that OSHA standards as explained by Dixon, and agreed with by Claimant, include the option of “flagging.” In that situation, there is nothing on the roof at all to physically prevent a worker from falling. There are just one or two monitors down below who warn the worker if he is too close to the roof’s edge. Regardless of how Claimant felt about there being no toe kick below a ten-foot stretch of handrail on the roof’s edge, that still seems to be as safe - or even safer - than having a monitor below warning workers about getting too close to the edge of a roof that has no physical barriers on it to prevent falls.

Accordingly, we find that Respondent did not breach its duty to provide Claimant a safe workplace; Claimant has not met his burden in establishing that Respondent was negligent.

THEREFORE, Claimant’s claim is hereby DENIED.