Appeal from the Circuit Court of Cook County; the Hon. JOSEPH
J. DRUCKER, Judge, presiding. Judgment reversed and cause
remanded with directions.
MR. JUSTICE LYONS DELIVERED THE OPINION OF THE COURT.
Rehearing denied March 2, 1965.
Plaintiff appeals from an order granting defendant's motion for summary judgment.
Appellant brought suit against appellee to recover damages for an injury incurred in a fall on February 15, 1957. On that date appellant was an employee of the Ace Metropolitan Restoration Service, owned and operated by his brother-in-law Harry Kiriluk. This company had a contract (which was not placed in evidence and which has only been alluded to by Kiriluk) with the appellee to clean and wash the windows in the appellee's buildings. On the day of the accident, at about 8:45 a.m. while working on a scaffold about 50 feet above the ground, two supporting metal rods in the scaffold broke, plunging appellant and the device onto a concrete ramp below. He was seriously injured and hospitalized. Appellant brought suit under the Indiana Dangerous Occupations Act, Burns Ind Stats Ann 1961, Sections 20-301 to 20-305.
The pertinent provisions of the Indiana Dangerous Occupations Act herein involved are as follows:
"It is hereby made the duty of all owners, contractors, subcontractors . . . engaged in the . . . construction . . . of any building . . . to see and to require that all . . . rope . . . appliances . . . contrivances . . . are carefully selected, inspected and tested, so as to detect and exclude defects and dangerous conditions, and that all scaffolding, . . . and all contrivances used, are amply, adequately and properly constructed, . . . and, generally it shall be the duty of all owners, . . . contractors, subcontractors, and all other persons having charge of, or responsible for, any work, . . . involving risk or danger to employees, . . . to use every device, care and precaution which it is practicable, . . . to use for the protection and safety of life, limb and health, . . . without regard to additional cost . . . the first concern being safety to life, limb and health." Burns Indiana Statute Annotated, Sec 20-304.
In paragraph 4 of his complaint plaintiff alleges
4. That prior to and at the time and place aforesaid the defendant operated, used, maintained and controlled a certain staging or scaffolding of which defendant had charge and for which defendant was responsible in connection with the care, operation, management and maintenance of said building, which staging or scaffolding was at a height exceeding 30 feet elevation from the ground.
By its answer appellee admitted existence of the statute but denied that it had been negligent as charged, or that plaintiff had been injured as the result of any negligent or wrongful act on the defendant's part.
Appellee's motion for summary judgment was supported by two affidavits. One was the affidavit of J.L. Ridinger, appellees' Director of Safety and Plant Protection, which in substance stated that appellee did not supply the scaffold; that no scaffold was given to the appellee by Ace for inspection, or any other purpose; that appellee at no time inspected or approved any of the scaffolding used in the operation. The second affidavit was that of Harry Kiriluk, who stated that he had purchased and assembled the scaffold in 1954; that it had been used in the window washing business from 1954 until the day of the accident; that at no time did he give the scaffolding to the appellee for any purpose including inspection; that appellee did not at any time direct, order or interfere with the construction and erection of the scaffold.
Appellant filed three counteraffidavits executed by Clare Murphy, an associate of plaintiff's attorney. The first stated that Kiriluk had informed affiant that the affidavits filed by the appellee did not tell all the facts relating to the case and that justice required that the deposition of Kiriluk be taken for action on the motion for summary judgment. The deposition was taken and a second affidavit by Murphy was filed, wherein excerpts of Kiriluk's testimony in the course of his deposition were set out. It averred among other things that Kiriluk had attended monthly safety meetings conducted by appellee after having received a written notification from the company thereof; that he had purchased the scaffolding in 1954 or 1955 and brought it to appellee's plant and it was inspected by their safety department, naming the inspectors as Reguly, Kelly and Mitchell; that after said inspection he was allowed to use the scaffold; that appellee's safety men circulated around the grounds during working hours, checking on men and equipment and informing the contractors to correct or remove anything that did not meet appellee's safety standards and that he was required to report each day to appellee's safety department, which he did by 'phone, whereupon a member of the safety department would come and observe the manner in which the work was performed. The third affidavit was filed on behalf of appellant in which Murphy swore to excerpts from the deposition of appellant, Blonar. It alleged in substance that all equipment used on the appellee's property had to go through, and be inspected by the Safety Department and that this particular scaffold had been so inspected; that appellant had been told by Kiriluk that safety lines were strung along the scaffold as required by appellee's safety department; that when appellant first started to work he was shown a letter by Kiriluk from appellee's safety department approving the scaffold.
It is appellant's theory that, in light of the absolute duty imposed by the statute, the entry of summary judgment for appellee was error where there was a disputed question of fact as to whether appellee-owner of the building upon which the scaffolding was being employed, reserved control over and undertook to inspect the said scaffold. It is the theory of appellee, that the affidavits, counteraffidavits and depositions established, as a matter of law that the appellee, did not have charge of, nor was it responsible for the scaffold used for the window washing work, which had been let to Ace, and accordingly, that the court properly entered summary judgment for appellee.
[1-4] It must be kept in mind that this is an appeal from an order of summary judgment in which the principal question to be decided is whether the summary judgment for the appellee was proper. It has been repeatedly held that a summary judgment is proper only when there is no triable issue of fact present. When there is an issue of fact present, a Trial Court must deny a motion for summary judgment. In Halloran v. Belt Ry. Co. of Chicago, 25 Ill. App.2d 114, 166 N.E.2d 98 (1960), at pages 118, 119, the Court stated:
". . . only when the undisputed facts are susceptible of but a single inference does the issue become one of law. (Inland Steel Co. v. Industrial Commission, 18 Ill.2d 70, 78 (1959).) Questions which are composed of factors sufficient to cause reasonable men to arrive at different results should never be determined as matters of law. (Ney v. Yellow Cab Co., 2 Ill.2d 74, 84 (1954).) Defendant's right to judgment must be free from doubt. If the pleadings, discovery ...