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Larson v. Commonwealth Edison Co.

APRIL 6, 1964.




Appeal from the Circuit Court of Cook County; the Hon. JACOB M. BRAUDE, Judge, presiding. Affirmed.


This is a Scaffold Act case, in which plaintiff was seriously injured in a fall from a scaffold erected by and for the use of plaintiff's employer, Paschen Contractors, Inc., in the course of a general rehabilitation and remodeling project of a plant of defendant Commonwealth Edison Company. Plaintiff appeals from a directed verdict and judgment in favor of defendant Sargent & Lundy, consulting engineers, and from a jury verdict and judgment in favor of defendant Edison. He appeals upon the theory that the directed verdict was improper, and that trial errors and an erroneous instruction invalidate the jury verdict.

The controlling facts are not controverted. The project rehabilitation was commenced by Edison on November 1, 1955. The plan under which the rehabilitation was to proceed was prepared by Sargent & Lundy, a partnership firm of consulting engineers, and the major portion of all the contracts was prepared by them. They were "designers only" and had no authority with regard to the actual construction work. Edison let all of the contracts, and six of their employees were on the job at all times to inspect the progress of the work. A representative of Edison's Safety Department made regular visits to the construction site "for the safety of the operating personnel in the station and not of the construction project," and "he had no authority to enforce any suggestions" as to contractors' employees. There were about 75 to 80 contracts with a large number of contractors, and each had a specific function or job to accomplish in connection with the rehabilitation. Two or three of these contracts were with Paschen.

The plant consisted of a number of buildings and occupied an area of at least three city blocks. The work involved clearing out the buildings entirely, leaving only the outside walls. It was accomplished in piecemeal fashion, so that old turbines were kept running while new generating turbines were being installed. The work was divided into "units," and we are concerned with operations in and about Units 7 and 8. Prior to the demolition of Unit 8, turbines were installed in Unit 7, and as the work moved from Unit 7 to Unit 8, a temporary barricade or partition (16 feet high) was erected between the two units.

The contract between Edison and Paschen consisted of a purchase order from Edison to Paschen to "furnish all labor, materials, tools and equipment required to install preliminary structural work for Unit #8, Crawford Station, as directed by the Station Construction Department, and in accordance with drawings to be issued by Sargent & Lundy. . . . General Conditions, Exhibit `C' dated 7/1/53, are a part of this purchase order."

The "General Conditions, Exhibit `C'" were prepared by Sargent & Lundy and include the following:

"9. Safety of the Work. The Contractor agrees to carry on the Work in a proper, safe, and secure manner with the utmost care so as to prevent loss, injury, or damage to the Owner's property or the property on the Premises and/or surrounding property, and so as to prevent danger to the lives or persons of individuals and, if in the opinion of the Engineers the Work is not being so carried on, they may order the Work stopped immediately and not resumed until, in their opinion, proper means and methods have been adopted by the Contractor to insure the carrying on of the Work so as to prevent such threatened loss, injury, damage, or danger. The Owner reserves the right, however, to order the Work stopped whenever the Work interferes or threatens to interfere with the operation of the Owner's equipment until such interference is eliminated. All equipment used on the Premises shall be in first class condition and any equipment which, in the opinion of the Owner or the Engineers, shall be considered inadequate or unsafe, shall be removed at the expense of the Contractor. The Contractor shall provide and maintain all passageways, guard fences, lights, and other facilities for protection required by the Public Authorities or rendered reasonably necessary by local conditions, also all barricades for the Work at all times, also for all openings during construction as required by any Public Authority, and shall erect proper shelters wherever necessary so as to properly protect the Work from damage. All barricades shall be so arranged as to insure the safety of the workmen and passersby and shall be kept painted with red paint. The Contractor shall plank over openings instead of providing barricades around openings where, in the Owner's opinion or the opinion of the Engineers, the progress of the Work will be benefited. All safety barricades and planking shall be installed to the satisfaction of the Engineers. The Contractor agrees that all Work shall comply with the provisions of Clause 8 preceding and with the decisions of building inspectors and other Public Authorities having jurisdiction over the health and safety of employes, and particularly with an Act of Legislature of the State of Illinois entitled `An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts and other structures and to provide for the enforcement thereof' approved June 3, 1907, and in force July 1, 1907, and any amendments thereto. This Clause shall not be construed as implying any responsibility on the part of the Owner or the Engineers with regard to securing the safety of the work."

Paschen contracted with Edison to construct the partition between Units 7 and 8 on a "cost-plus" basis. To aid in building the partition, scaffolds were erected by the Paschen employees, and it was from one of these that plaintiff fell on August 7, 1958. The use of this type of scaffolding was regulated by rules promulgated by the Industrial Commission of the State of Illinois pursuant to the mandate of the Health and Safety Act. These rules require the wall brackets be secured to the wall by bolts.

No bolts were provided for the scaffold from which plaintiff fell, nor for any of the scaffolds previously erected by Paschen in the course of the work. These scaffolds were fastened with spikes, and as the scaffolds were moved from place to place, the brackets were pulled off and renailed to the new position. The scaffold in question was erected by nailing an upright to the partition wall and attaching a bracket. Planks were placed across this bracket to form the scaffold. When plaintiff reached the scaffold and stood upon it, the bracket pulled away from the wall and broke, and the end of the scaffold upon which he was standing fell, and plaintiff was injured.

Plaintiff charges each of these defendants with a violation of the Structural Work Act (Ill Rev Stats 1957, c 48, §§ 60-69 inclusive). Each defendant contends that the provisions of the act were inapplicable because each denies being "in charge of the work."

Initially, we agree that it was "proper" for plaintiff to undertake to prove that both Commonwealth and Sargent & Lundy had an obligation under the statute. In Gannon v. Chicago, M., St. P. & P. Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785 (1961), the court stated (p 322):

"Any employee or other person injured by a wilful violation of the act by any of the enumerated persons having charge of the structural work still has an action against such party. This is a very real remedy, when we consider that structural work frequently involves the operations of several contractors or subcontractors who are each in charge of a phase of the work, and the injured person has a right of action against any one of them, other than his employer, who may wilfully violate or fail to comply with the act."

Plaintiff contends that the directed verdict in favor of Sargent & Lundy was improper, and that "the court erroneously quashed the subpoena which demanded the production" of the contract between Edison and Sargent & Lundy. Plaintiff sought the production of this contract "to determine what agreement had been made between them pertaining to the supervision of the work and the distribution of responsibility," and argues that it was evidence in the possession of Sargent & Lundy and it "was relevant to the question of who was in charge of the work," and "by quashing the subpoena the court made it impossible for plaintiff to present the evidence."

The quashed subpoena is not part of the record on appeal. From the record, it appears that during the trial a subpoena duces tecum was served upon Robert Roe, auditor and accountant of Sargent & Lundy, at 1:35 p.m. on September 11, 1962, "commanding him to appear here at the hour of 2:00 p.m., of the same date, in this court room and to produce at that time any and all records, plans, account records, approval sheets, contracts, cost sheets, proposals, progress reports construction and alteration — Units 7 and 8, on the barrier wall. . . ." The motion to quash was made because "it is too general and broad in its scope and constitutes nothing but a fishing expedition on the part of the plaintiff . . .," and because the case had been pending since 1959 and "no discovery procedures were followed at any time by the plaintiff in regard to Sargent & Lundy employees or records."

In a discussion between court and counsel, plaintiff expressed a willingness to delay the production of the records until later in the trial. The court ruled "that Sargent & Lundy were the consulting engineers on the job and weren't actively engaged in any supervisory work. I don't see why they should be required to produce those records . . . I mean you are going fishing. . . . it is on the basis, I think you are trying to get something not germane to the issues involved. If it was a question of time, we could extend the time."

We think the subpoena was untimely and unreasonable in its scope. As noted, this case has been pending since 1959, and the amended complaint filed August 8, 1960, includes the defendant "A. Kolflat doing business as `Sargent and Lundy' a partnership." During the intervening two years before trial, plaintiff failed to use Rule 17 of the Illinois Supreme Court Rules. This rule provided plaintiff with the means of inspecting and copying specified documents "relating to the merits of the matter in litigation," in the possession of any defendant, which plaintiff deemed "relevant to the case against Sargent & Lundy." Also, we fail to find anything in the record which occurred during the trial to warrant "a broad catch-all demand for the production of `all' documents of several vague categories." We find no abuse of discretion here.

Plaintiff further asserts that Sargent & Lundy clearly participated in the work, and "their employee Shapiro was in regular attendance at meetings on the job site." This contention rests upon the testimony of the superintendent for Paschen Contractors that "there was a job meeting, I believe it was once a week or once every other week where all of the contractors and the Commonwealth Edison people attended and usually there was one man from Sargent & Lundy's at the meetings. Those meetings were held weekly or biweekly. . . . The representative of Sargent & Lundy's who attended these meetings was generally a Mr. Shapiro. At these meetings Mr. Shapiro did not at any time give me directions as to how I was to perform the construction phase of the work. . . . I never talked to Sargent & Lundy's people. . . . They were not supervising on the job." We ...

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