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Miller v. Dewitt

OPINION FILED JANUARY 19, 1967.

HAROLD A. MILLER ET AL., APPELLEES AND CROSS-APPELLANTS,

v.

LYLE

v.

DEWITT ET AL., D/B/A DEWITT-AMDAL & ASSOCIATES, APPELLANTS.



APPEAL from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 27, 1967.

The plaintiffs, Harold A. Miller, Ellis Furry and Donald E. Engel were injured as the result of the collapse of the roof of a school gymnasium on which they were working as employees of a contractor, Fisher-Stoune, Inc. They brought this action to recover for their injuries against the supervising architects, Lyle V. DeWitt and Russell M. Amdal, d/b/a DeWitt-Amdal & Associates, and the owner, Maroa Community Unit School District No. 2, alleging common-law negligence by the architects and a violation of the Structural Work Act by both the architects and the school district. The architects filed a third-party complaint against the contractor which was dismissed on the contractor's motion before any evidence was heard. At the trial the jury returned verdicts against the architects and for the plaintiffs, Miller, Furry and Engel, in the amounts of $30,000, $90,000 and $5,000 respectively. The jury also found for the defendant school district, and judgments were entered on the verdicts.

The architects appealed from the verdicts against them and from the order dismissing their third-party complaint. Plaintiffs cross-appealed from the judgments against them in favor of the school district. The Appellate Court for the Fourth District in an exhaustive opinion affirmed all the actions of the trial court. (Miller v. DeWitt, 59 Ill. App.2d 38.) The case comes before us on the certification of the appellate court that the case involves a question of such importance that it should be decided by this court. Ill. Rev. Stat. 1965, chap. 110, par. 101.32.

At the outset this case presents a novel issue of first impression before this court relating to the obligations of architects who undertake both the design and supervision of construction. Stated briefly it is the position of defendant architects, and various associations of architects who have filed a brief as amici curiae, that a supervising architect has neither the right nor the duty to control the methods used by the contractor but has only the duty to see that the construction when completed meets the plans and specifications contracted for by the owner.

Plaintiffs insist, however, that under the facts of this case the architects had a duty to prevent the contractor from carrying out the work in a faulty manner.

This question must be posed in its proper factual context. Prior to April 14, 1959, Maroa Community Unit School District No. 2 decided to remodel and enlarge the gymnasium at the high school and contracted with defendant architects for architectural services in connection therewith. Pursuant thereto, the architects prepared the necessary plans, specifications and proposed contracts, and caused bids to be received which resulted in the letting of three contracts, one to Fisher-Stoune, Inc., for the general construction work, one for the plumbing and heating, and one for the electrical work.

The plans for the remodeling job called for the removal of the west wall of the gymnasium; the removal of a proscenium truss from that point to the new west wall of the new gymnasium; the removal of two steel columns in the old west wall, which together with the proscenium truss originally supported the west ends of four east-west roof trusses; the substitution of a new north-south main-bearing truss into which would be fastened the west ends of the old roof trusses and the east ends of the trusses in the new structure. The plans showed the reaction at each end of the main-bearing truss, which would be the total weight to be supported by that truss upon completion of the new and remodeled building. This weight was the total of the weight of the new roof and the weight of the old roof, including both the dead load (weight of the structure itself) and the live load (snow, gymnasium equipment attached to the roof, impact from the use of such equipment, etc.). The weight of the new roof could be computed from the information shown on the plans; and by subtracting that figure from the total reaction shown on the plans the weight of the old roof could be obtained.

Late in April, 1960, Byron Beals, superintendent for the contractor, after making personal observation of the original structure and examining the plans, determined to shore up the west ends of the east-west trusses during the transition by means of columns of tubular steel scaffolding placed approximately under the west ends of each of the said four east-west trusses, plumbed and snugged up against said trusses with timbers. This system was followed, with each of the columns of shoring being identical, and similarly placed. The columns were tied together only by a nailing strip to hold up a canvas tarpaulin, and a 2 x 4 strip covered with plywood and covering approximately the lower four feet on the inside.

On the morning of May 3, 1960, an ironworker crew employed by Fisher-Stoune, Inc., which included the three plaintiffs, Paul Shaffer, and their foreman, Nate Vandervoort, came to the scene and started the removal of the proscenium arch and the steel columns at the west end of the old gymnasium, the brick wall having theretofore been removed. They first erected two steel columns at the west end of the new gymnasium, then disconnected the two center east-west roof trusses from the proscenium truss, and the proscenium truss from the two steel columns, and moved it to its new location. It was stipulated that when the two center east-west roof trusses were disconnected from the proscenium truss, all of that part of the roof load which had theretofore been supported by the west ends of such two center east-west trusses was transferred respectively to the shores thereunder. This occurred at approximately 11:00 A.M.

About 1:00 P.M. operations were commenced to remove the north steel column. A crane was placed in the area of the new building, with a derrick or boom extending over in the vicinity of that column. A steel cable with a loop or eye at each end, called a choker, was then wound around the column above the center, and with one loop threaded through the other and then hooked to the boom. At that time, a "strain" was taken on the cable by the crane operator sufficient to take up the slack and take the kinks out of the choker for the purpose of holding the column from falling down when it was disconnected. The heads of the bolts connecting the north roof truss to the webbing of the north column were then cut off; and while the plaintiff Miller, with an acetylene torch, was cutting off the base of the column, one of the other plaintiffs was out on the truss, knocking the bolts out. When the last bolt was knocked out, the crane took the column away and the plaintiffs moved over to repeat the process on the south column.

It was stipulated that upon the removal of the north column, that part of the roof theretofore supported by the west end of the north truss was transferred to the shore thereunder. The time was then approximately 2:00 P.M.

The method of removal of the south column was similar. The crane was moved to the south and the boom extended over to the vicinity of that column at an angle. The choker was then attached to the column at a point which was variously testified to as being some five to eleven feet from the top. A "strain" was then taken on it sufficient to take up the slack and take out the kinks in the steel cable. Plaintiff Miller proceeded to cut off the base of the column and then stepped back to the east against the tarpaulin to see if he could see daylight underneath and thus determine that it was cut clear through. There is a dispute in the evidence as to whether or not a second additional strain was taken at that time.

While Miller was cutting the column off at the bottom, plaintiff Furry was out on the south of the east-west trusses, knocking the bolts out at the top where the west end of the truss was fastened into the east webbing of the column. Plaintiff Engel was standing on the roof watching. At the approximate time that Furry knocked out the last bolt, the roof collapsed. The force of the air and the movement of the tarpaulin knocked Miller out into the new part of the the building and entangled him in the tarpaulin. Engel rode the roof down. Furry was caught under some of the steel purlins and pinned therein.

The relevant provisions of the contract between the architects and the school district were as follows:

"The Architect agrees to perform, for the above named work, professional services as hereinafter set forth.

"The Parties hereto further agree to the following conditions:

"1. The Architect's Services: The Architect's professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings, for architectural, structural, plumbing, heating, electrical, and other mechanical work; obtaining approval of governmental agencies having jurisdiction over certain phases of the work consisting of Fire Marshal, Health Department, County Superintendent of Schools, and Department of Education; assistance in the drafting of forms of proposals and contracts; the issuance of Certificates of Payment; the keeping of accounts, and the general administration of the construction contracts, and supervision of the work.

"6. Supervision of the Work: The Architect will endeavor to guard the Owner against defects and deficiencies in the work of the contractors, but he does not guarantee the performance of their contracts. The supervision of an Architect is to be distinguished from the continuous personal superintendence to be obtained by the employment of a clerk-of-the-works.

"When authorized by the Owner, a clerk-of-the-works acceptable to both Owner and Architect shall be engaged by the Architect at a salary satisfactory to the Owner, and paid by the Owner, upon presentation of the Architect's monthly statements."

The construction contract between Fisher-Stoune, Inc. and the school district provided, in its relevant parts, as follows:

"Article I. Scope of the Work.

"The General Contractor shall furnish all of the materials and perform all of the work to complete the General work shown on the drawings and described in the specifications entitled `Second Addition to Maroa High School, Community Unit School District No. 2, Macon & DeWitt Counties, Illinois'.

"Article 6. The Contract Documents.

"The General Conditions of the Contract, the Specifications and the Drawings, together with this Agreement, form the Contract, and they are as fully a part of the ...


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