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Gannon v. C.





APPEAL from the Appellate Court for the First District; — heard in that court on appeal from the Circuit Court of Cook County; the Hon. JOHN R. GUTKNECHT, Judge, presiding.


The circuit court of Cook County entered judgment on a jury verdict awarding plaintiff, John Gannon, $45,000 under the civil liability provisions of the Illinois Structural Work Act, for personal injuries he sustained while engaged in construction work on the premises of defendant, Chicago, Milwaukee, St. Paul and Pacific Railway Co. The Appellate Court reversed that judgment, (25 Ill. App.2d 272,) and we have allowed plaintiff's petition for leave to appeal.

The essential issue is the nature of the owner's liability under the Structural Work Act (Ill. Rev. Stat. 1953, chap. 48, pars. 60 to 69,), commonly referred to as the Scaffold Act.

The controlling facts are not controverted. From early September 1955 to November 3, 1955, the date of the occurrence, the freight dock on defendant's premises was being rebuilt. The engineering and architectural plans for the work were prepared by the office of the chief architect of the railroad, who was also charged with inspecting the work to see that it was constructed according to specifications. All the construction work, including the bricklaying, assembling and construction of the scaffolds and other operations were done by E.H. Marhoefer & Co. and its employees under a contract with the railroad. Although the railroad architect and engineers made frequent inspections of the structural activities, there was no inspection of the scaffolds or ladders or other appliances at any time, and they exercised no control over the manner in which the work was being done.

The scaffolds used on the project by Marhoefer were constructed of metal tubing, with wooden planks on top of it, and consisted of several sections which were assembled and reassembled by Marhoefer's employees as the work progressed. The particular scaffold involved consisted of two 5-foot sections fitted together to make a 10-foot high scaffold, and had no guardrail. Marhoefer employees also constructed the ladder, which was approximately 14 to 16 feet long, consisting of wooden two-by-fours with one-by-fours as rungs.

At approximately 1:30 P.M. on November 3, 1955, the bricklayers were working on the south wall of the structure. The scaffold was in place, and a ladder had been set against it to enable the men to climb upon it. Since the structure was not under roof and it had snowed the night before, there were patches of ice and slush on the concrete floor, and the ladder was set on such a spot. The ladder was not nailed to the scaffold, although according to the testimony of the bricklayers it should have been under the custom of the trade. In fact, none of the Marhoefer employees who testified noticed whether any of the ladders on this construction job were nailed to the scaffolds. It is not clear from the evidence, moreover, just how long the ladder had been in place at the time of the occurrence, for other employees who had been working on the south wall before lunch testified that they had used it. Two of the bricklayers were on top of the scaffold waiting for guide marks to continue laying bricks, and another bricklayer was at the 5-foot level of the scaffold to hand the bricklayers the necessary equipment as they worked. Plaintiff had been assisting the Marhoefer foreman in "shooting some points," or guides to aid the bricklayers in establishing heights for the construction of doors and windows. He needed his level, which was on top of the scaffold, and started up the ladder. As he was about to step onto the scaffold, the ladder began to slip. There was no railing on the scaffold and he grabbed the ladder and fell on top of it, face down, on the concrete floor of the building.

Plaintiff was helped into the shanty by two bricklayers, and then taken to the hospital. No employees of the railroad were present at the time of the accident. According to medical testimony, plaintiff sustained a compressed fracture of several vertebrae and suffered certain disc pathology which is deemed permanent. We shall not review the extent of the injuries, since they are not an issue.

On the basis of substantially the foregoing evidence, the jury returned a verdict for plaintiff for $45,000, on which the court entered judgment. The Appellate Court reversed that judgment on the grounds that there could be no recovery against an owner under the civil liability provisions of the Structural Work Act, unless he was in charge of the construction work, and that the evidence did not establish that the defendant owner was guilty of any wilful violation of the act.

Inasmuch as the material facts in this case are not in dispute, and the controversy is over the proper construction of the Structural Work Act, hereinafter referred to as the Scaffold Act, and whether the facts sustain a cause of action thereunder, the case presents essentially a question of law (Babbitt v. Grand Trunk Western Railway Co. (1918), 285 Ill. 267) within the purview of our review under section 92(3)(b) of the Civil Practice Act. Ill. Rev. Stat. 1959, chap. 110, par. 92(3)(b).

In view of the fact that liability under the Scaffold Act is an important part of the daily grist of our legal and economic affairs, and since both parties and the Appellate Court have cited the Kennerly case (Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431) in support of diametrically opposite interpretations of the act, we believe that a clarification of this law is warranted. Consequently, we shall re-examine the cases construing the act and submit our interpretation in the light of the statutory history and objectives of the act.

The Scaffold Act was enacted in 1907. The relevant portions of the statute involved in this litigation provide:

"§ I. * * * all scaffolds, hoists, cranes, stays, ladders * * * erected * * * by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any * * * building * * * shall be erected and 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 * * *.

"§ 9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building * * * or other structure within the provisions of this act, shall comply with all the terms thereof, and any such owner, contractor, sub-contractor, foreman or other person violating any of the provisions of this act shall upon conviction thereof be fined not less than $25, nor more than $500 or imprisoned for not less than three months nor more than two years or both fined and imprisoned in the discretion of the court * * *. For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby."

The act was first construed by this court in Claffy v. Chicago Dock and Canal Co. (1911), 249 Ill. 210. The court specifically stated at p. 217, "* * * we are concerned, in the decision of this case, only with said section 7." The relevant portion of that section requires owners or contractors to enclose elevator shafts with an 8-foot barrier. The section does not contain the qualifying words "having charge of" after the word "owner," as appears in section 9.

It was argued in the Claffy case that liability under section 7 was that of the contractor and not of the owner. The court set forth the reasoning in the New York case of Rooney v. Brogan Construction Co. 107 App. Div. 258, 194 N.Y. 32 (1909), which construed a New York statutory provision similar to section 7. The New York court stated at p. 35 that whether compliance with the statute rested upon both owners and contractors irrespective of control was open to grave doubt, that the more reasonable construction would impose such duty only upon the person who had possession and control, and that the evidence therein left considerable doubt whether the owner ever did part with control and supervision of the building, but the inference was that it did not not. It may be noted that in subsequent cases the New York court followed that construction. Sweeney v. Spring Products Co. (1939), 257 App. Div. 104, 12 N.Y.S.2d 72; Italiano v. Jeffrey Garden Apts. (1957), 3 N.Y.2d 977, 169 N.Y.S.2d 737.

Without clearly accepting or rejecting the New York court's reasoning, our court in the Claffy case followed the same approach and found that the owner therein retained control of the premises and was therefore liable for violating section 7 of the act. The court stated at p. 222: "In our opinion it was intended by section 7 to, and said section 7 does, impose upon both the contractor and the owner the duty of complying with the provisions of said section so far as civil liability is concerned, but under the facts in this case the owner never parted with the control and supervision of the building to any contractor, but through its agent, the architect, retained control and supervision of the work and was subject to the civil liabilities provided by the act for a failure to comply with the requirements of section 7. We cannot agree with the contention of appellant that the architect, under the facts in this case, can be considered as an independent contractor having exclusive control and charge of the building and the work."

The Claffy case was reviewed several years later in two Appellate Court decisions. (Mindrop v. Gage, 189 Ill. App. 599; Breton v. Levinson (1917), 207 Ill. App. 406.) In 1914, in Mindrop v. Gage, involving liability under section 9 of the act for the improper operation of a derrick, the court found that the decision in the Claffy case was predicated on "the retention of control by the owner," and that the court had construed only the language of section 7. Since that section specifically imposed upon both the contractor and the owner the duty of compliance, but did not contain the limitation "having charge of" found in section 9, the court held that the owner or contractor was in a different position in section 7 than in section 9. In rejecting the contention that it was implied by the statute that any owner, contractor, etc., connected with any erection must, in the ...

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