# Mundt v. Ragnar Benson, Inc. > Illinois Supreme Court · June 2, 1975 · 61 Ill. 2d 151 URL: https://www.frixlaw.com/law-library/cases/9740170 ## Case - **Full name:** REX MUNDT, Appellant, v. RAGNAR BENSON, INC., Et Al., Appellees - **Court:** Illinois Supreme Court - **Decided:** June 2, 1975 - **Citations:** 61 Ill. 2d 151; 335 N.E.2d 10; 1975 Ill. LEXIS 257 - **Precedential status:** Published - **Opinion:** Dissent by Goldenhersh - **Judges:** Ward, Goldenhersh - **Cited by:** 55 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9740170 ## Opinion text MR. JUSTICE GOLDENHERSH, dissenting: I dissent. On this record the question of plaintiff’s contributory negligence should have been submitted to the jury, and the circuit court erred in directing a verdict. As stated in the majority opinion the concrete was poured on plywood decks. The testimony of Earl Hauge, labor foreman for plaintiff’s employer, shows that when the concrete was poured it was covered with Sisalkraft paper and insulated blankets and that propane gas heaters were used to “keep heat underneath.” The Sisalkraft paper, blankets and heat remained in place for at least three days. The curing process took a week and in most instances the deck was not “stripped” from beneath the concrete until seven days had elapsed. The stripping was not done until after the blankets and Sisalkraft paper had been removed. The concrete in the bay where plaintiff fell had been poured only four days prior to the occurrence, the Sisalkraft paper had not been removed and plaintiff was entitled to assume that the decking was still in place. The testimony shows, too, that there was a great deal of paper, plywood and other materials lying around and there is no basis in the testimony for concluding that plaintiff should have known that the plywood covered an opening. The majority cites the testimony of Herbert Johnson, superintendent for defendant Ragnar Benson, that the plywood had been placed over the opening and nailed to the bulkhead. A comparison of his testimony with that of plaintiff and Edward Albrecht, plaintiff’s helper, would lead to the conclusion that they were not discussing the same opening. Johnson testified that there was no Sisalkraft paper under the plywood and that “the paper was taken off and the protecting blankets were taken off.” Plaintiff testified that he moved the piece of plywood in order to get to a long strip of paper underneath it. Albrecht testified that after plaintiff fell he ran to the place where plaintiff had been, and saw the hole in the paper covering the opening through which plaintiff had fallen. Johnson also stated that there were no “cleats” under the plywood and that it was nailed flush to the bulkhead with eight-penny nails. There is no testimony that plaintiff used a hammer or other tool to remove the nails and no one has attempted to explain how, if it were nailed, he could by hand, without tools, lift the plywood free of the bulkhead. Several witnesses saw the plywood the next morning but the record fails to show that any of them saw any nails. The majority stresses the fact that plaintiff had seen the opening in question prior to the date of his fall, and that he had probably papered it. On that basis it cites as authority for its position cases involving elevator shafts, a trap door in a kitchen and a hatch in a ship. None of these are in point. In this case there were numerous holes in numerous bays and if plaintiff had ever previously seen the hole through which he fell it was four days earlier when that bay was poured. Contributory negligence is measured against the conduct of a reasonably careful person under circumstances similar to those shown by the evidence. This court has consistently held that entering into a hazardous area is not per se contributory negligence and that the presence of an apparent defective or hazardous condition is a circumstance to be considered in determining whether a plaintiff was contributorily negligent. See Pauckner v. Wakem, 231 Ill. 276 ; Swenson v. City of Rockford, 9 Ill.2d 122 . The record is replete with testimony which shows that the job. was inadequately lighted and that manholes and other openings were not properly barricaded or covered. The evidence shows that plaintiff and his helper were assigned the task of covering the newly-poured concrete and that the supply of materials provided for that purpose was inadequate. Plaintiff was not working in the serendipitous situation of a properly lighted, adequately protected construction job; he was confronted with the stern realities of going into a cold dark area to obtain the materials necessary to complete his work. The fact that the area was dark, that plaintiff turned off his flashlight, and that he knew that there were openings provided in the deck were all circumstances to be considered by the jury, but it, and not the court, should have determined whether he was contributorily negligent. To demonstrate the wisdom of leaving for jury determination the question whether plaintiff was contributorily negligent I find particularly apposite the language of the Court of Appeals for the Fifth Circuit in Keating v. Jones Development of Missouri, Inc. (5th Cir. 1968), 398 F.2d 1011 . In that case the district court had entered summary judgment in an action for personal injuries suffered in a swimming pool owned by the defendant. The plaintiff had charged the defendant with negligence in failing to provide supervisory attendants and in failing to use proper safety equipment. In reversing the judgment the court said “Negligence is a seldom enclave for trial judge finality. Negligence is a composite of the experiences of the average man and is thus usually confined to jury evaluation. Swimming pool accidents provide no exception. Judges can claim no special competence to pass upon the safeguards appropriate to swimming pools. In fact, it is a safe assumption that they are used more by jurors than by judges. We therefore find that the district court erred in not granting the appellant a trial before his peers.” 398 F.2d 1011 , 1015. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9740170. Public record. Not legal advice.