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Kobus v. Formfit Co.

MARCH 1, 1965.

BRUNO G. KOBUS, PLAINTIFF-APPELLANT,

v.

THE FORMFIT CO., A CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Superior Court of Cook County; the Hon. JOSEPH J. DRUCKER, Judge, presiding. Affirmed. MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.

Plaintiff, Bruno Kobus, appeals from the entry of summary judgment in favor of defendant, the Formfit Company, in his action to recover damages for personal injuries allegedly occasioned by a wilful violation of the Illinois Structural Work Act (Ill. Rev Stats 1961, c 48, §§ 60-69), commonly referred to as the Scaffold Act.

The original complaint joined as defendant the Formfit Company, owner of the premises where the construction work and alleged injuries took place, C.W. Johnson, a heating contractor, and Roberts-Lang-Gray, Inc., a mason contractor. Summary judgments were entered for the contractors and no appeal was taken from those orders.

Plaintiff's amended complaint alleged that on August 10, 1959, defendant was the owner of certain premises located at 5150 W. Roosevelt Road in Chicago, and was in the process of erecting and constructing an addition to the building located there; that defendant "acting as its own general contractor, did hire and engage certain contractors and subcontractors to perform the work under the direction and control of defendant; that plaintiff, a sheet metal worker, was employed by Airway Heating & Ventilating Systems, Inc., the contractor engaged in installing the heating system in the building; and that plaintiff, while engaged in installing air ducts was required to make use of a scaffold from which he fell and sustained severe injuries."

It was further alleged that defendant, while in control of the work and the premises through its agents, wilfully committed one or more of the following violations of section 60 of the Structural Work Act, directly and proximately causing the injuries complained of: (a) failed to provide proper safeguards and other protection in and around the scaffold; (b) failed to provide plaintiff with safe supports for the scaffold; (c) failed to erect and construct the scaffold in a safe, suitable and proper manner; (d) permitted the scaffold to be in use while not constructed in a safe manner, and while it did not give proper and adequate protection to the life and limb of plaintiff; and (e) failed to provide guards or rails in and around the scaffold.

Defendant's answer to the amended complaint admitted that it was the owner of the premises but denied inter alia that it was "acting as its own general contractor," or that "it was in control of any work being performed on the premises."

In its amended motion for summary judgment defendant alleged in substance that plaintiff was an employee of Airway, one of the contractors performing construction work on the building addition to its factory; that it did not furnish or provide Airway with any material or supplies to be used in the performance of their contract; that it did not furnish any ladders or scaffolds for use by Airway or any other contractor on the premises; that it did not furnish any superintendents or supervisory employees to work with Airway in the performance of the contract; and that the scaffold from which plaintiff allegedly fell was owned and erected at the jobsite by Airway employees, who were under the supervision and followed the instructions of George Ulbrick, an employee of Airway.

The affidavit of R.E. Foster, assistant manager of operations of Formfit, filed in support of defendant's motion for summary judgment, was in substantial agreement with the averments of the motion. In further support of the contention that it was not in charge of the work, defendant attached to its motion the discovery depositions of George Ulbrick, a foreman, and Frank Ulbrick, a superintendent of Airway. In opposition to the motion, plaintiff filed the discovery deposition of Sidney C. Finck, the architect employed by defendant.

George Ulbrick, in his deposition, after describing the type of scaffold which was one usually used by sheet metal men, testified that the scaffolding was owned and erected by Airway; that the employees of Airway received no instructions from the defendant regarding the scaffold or how to put up the ventilating, and that defendant did not furnish Airway with any materials or supplies. Frank Ulbrick testified in his deposition that plaintiff was under the control of the Airway foreman.

In substance, the discovery deposition of Sidney C. Finck, submitted by plaintiff in opposition to the motion for summary judgment, indicated that he prepared the plans and specifications, took bids, and discussed the contracts with the owner, and then contracts were prepared between the owner and the contractors, and "we observed the construction until it was completed." Continuing, he testified that periodic inspections were made at the work site either by him or someone from his office, two or three times a week, for a half to two hours at a time.

He denied that he had ever had occasion to give any directions to the foreman or anyone working in the area, but that dissatisfaction with the work done would be reported directly to the contractor. He did not remember finding the quality of any of the work done to be lacking. Periodic construction reports were prepared by him and contractors would sometimes assemble in his office and would be informed when "to take care of their portion of the work, to fit in with each other."

The American Institute of Architects short form for construction contracts used by defendant and Airway was introduced into evidence. By its terms Airway was described therein as the contractor, and Formfit as owner. The contractor undertook to furnish labor and materials and perform work for ventilation as shown on drawings and specifications prepared by Sidney C. Finck, architect. Progress payments were to be made only on certificates signed by the architect for "satisfactory progress of the work."

Among the general provisions of the contract there appears the following: the contractor shall permit and facilitate the inspection of work by the owner and his agents and public authorities at all times; the owner may order changes in the work, the contract sum being adjusted accordingly; the contractor shall re-execute any work that fails to conform to the requirements of the contract appearing during the process of the work; the owner has the right to let other contracts in connection with the work; the architect shall have general supervision of the work, and is authorized to stop the work if necessary to insure its proper execution, and shall certify to the owner when payments under the contract are due and the amounts to be paid.

On the basis of the pleadings, depositions and affidavits filed, the trial court granted defendant's motion for summary judgment. In urging reversal, plaintiff's theory on appeal is that "an owner is `in charge of' the work being performed within the meaning of section 9 of the Scaffold Act, where the owner acts as its own general contractor, engages an architect to select the various contractors, maintains liaison with said contractors through the said architect who, on behalf of the owner, coordinates the work being done, receives progress reports, reserves the right to make alterations or corrections in the work, and reserves other powers of supervision." Plaintiff further suggests that as the other contractors involved in the construction have already been dismissed, affirmance of the judgment below would result in the anomalous situation of a sizeable construction project with no one in overall charge.

Defendant contends that the affidavits and depositions filed in support of and in opposition to its motion for summary judgment create no triable issue of fact on the question of defendant's having charge of the work involving an alleged violation of the Scaffold Act.

Inasmuch as the controlling facts in this case are not in dispute, and the controversy is over the proper interpretation of the Scaffold Act, the question presented for decision is essentially one of law. The relevant portions of the statute involved in this litigation provide:

§ 1. . . . all scaffolds, hoists, cranes, stays, ladders, . . . erected . . . by any person, firm or corporation in this State for 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 scope and extent of an owner's liability under the Act has been the subject of controversy since the first decided case, Claffy v. Chicago Dock & Canal Co., 249 Ill. 210, 94 N.E. 551 (1911). "Although the statute was originally enacted in 1907, and amended slightly only once, problems arising from litigation in Illinois have only recently ...


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