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Donovan v. Raschke

FEBRUARY 25, 1969.

PATRICIA A. DONOVAN, PLAINTIFF-APPELLANT,

v.

HENRY RASCHKE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. LIONEL J. BERC, Judge, presiding. Judgments reversed and cause remanded.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.

Plaintiff, Patricia A. Donovan, brought suit against Richard Matuszczak and Emilia Matuszczak, owners of a certain building, and against Henry Raschke and Donald Tilseth, masonry contractors, to recover damages for injuries sustained by her as a result of the negligence of the defendants in causing certain materials to be placed upon the public sidewalk in front of the building while remodeling work was being done. Defendants Raschke and Tilseth were partners in a business known as the Lanite Company. They shall be referred to in this opinion as Lanite, and the Matuszczaks shall be referred to as owners.

The owners filed a counterclaim against Lanite claiming indemnity and alleging active negligence. The cause proceeded to trial on the complaint and counterclaim. The trial court directed a verdict in favor of the owners, and the jury returned a verdict in favor of Lanite. Plaintiff appeals from judgments entered on those verdicts and from an order denying her motion for a new trial.

Plaintiff contends that the trial court erred in directing a verdict in favor of the owners, that as to Lanite the court erred in refusing certain instructions tendered by the plaintiff, and by improperly restricting counsel for plaintiff's closing argument.

As to the occurrence, on December 2, 1958, the plaintiff and her husband, John L. Donovan, were walking on the sidewalk coming to 1143 Milwaukee Avenue, Chicago, where the remodeling was being done. There was a pipe scaffold erected in front of the building which extended across the sidewalk almost to the curb and for about 17 feet along the front of the building, which had a frontage of about 23 feet. The building itself was two stories high with a store on the first floor and an apartment on the second floor. The scaffolding extended to the roof. Various construction materials and tools were on the sidewalk, which was 8 to 10 feet wide. In addition to the scaffolding, there were bags of mortar or cement, a mortar box, a wheelbarrow, and a roll of wire mesh about 3 feet high standing on end.

When they approached the site, plaintiff and her husband who were walking side by side had to proceed in single file through a narrow space on the sidewalk. They were unable to walk in the street because a truck was parked at the curb. Plaintiff walked several steps behind her husband, and as she proceeded through the area, she tripped over the roll of wire mesh which fell in front of her as she passed by, and she was injured. Henry Raschke, one of the owners of Lanite, testified that metal wire lath was applied prior to application of the synthetic stone, and that this metal lath resembled wire mesh. There were workmen on the scaffolding at the time of the accident.

As to the parties involved, prior to the occurrence, the owners had contracted with Peterson Store Fronts for the remodeling of the entire front of the building. A synthetic stone veneer was to be applied to the frame exterior. Peterson issued subcontracts for various phases of the work, and one of the subcontractors was Harry Dufford doing business as Artstone Construction Company. Dufford in turn contracted with Lanite to manufacture and apply the stone. Lanite hired Eugene Tilseth to apply the stone. Eugene Tilseth, not a party to this suit, was a brother of defendant Donald Tilseth, one of the owners of Lanite. Peterson and Dufford had been dismissed from the suit and counterclaim prior to trial, and are not involved in this appeal.

Plaintiff first contends that the trial court erred in directing a verdict in favor of the owners at the close of plaintiff's case.

An owner of property which abuts a public sidewalk owes a duty to keep the sidewalk free from any condition which may create a danger or a hazard to persons lawfully upon the street. Girdzus v. Van Etten, 211 Ill. App. 524 (1918). And the duty thus imposed on the owner is non-delegable. Boyd v. Chicago and N.W. Ry. Co., 217 Ill. 332, 75 N.E. 496 (1905). In Andronick v. Daniszewski, 268 Ill. App. 543 (1932), plaintiff was injured when struck by a chisel dropped by a workman on a scaffold over the sidewalk. In affirming a judgment for plaintiff, the court stated at page 555:

"The work required to be done was dangerous to persons using the sidewalk on the public street, and defendants, we hold, did not perform their affirmative duty to take precautions against possible and probable injuries by erecting a barricade or by other appropriate means. Defendants were not insurers, but they were under obligation to see that reasonable care was exercised in making the improvement. They could not delegate that duty."

However the owners contend that the owner of a building is not responsible to third persons for any act of negligence by an independent contractor or his servants unless the work is inherently dangerous, arguing that the principle announced in the Andronick case is limited to instances where the work contracted to be done was inherently dangerous.

In resolving this issue, we do not believe that it is necessary to attempt to define the imprecise expression "inherent danger." Rather we find that the proper test to be applied concerning the liability of an owner for the act of negligence of an independent contractor is whether there was sufficient evidence presented so that the trier of fact could determine that the work to be done was a probable and foreseeable source of injury to a party such as plaintiff unless proper precautions were taken. See Johnson v. Central Tile & Terrazzo Co., 59 Ill. App.2d 262, 207 N.E.2d 160 (1965).

In Donohue v. George W. Stiles Const. Co., 214 Ill. App. 82 (1919), in discussing the liability of an employer for the negligence of an independent contractor, the court quoted with approval from Henry Pierson and Sons v. Gohr, 126 Md. 385, 400, 94 A 1021, as follows at page 91:

"An employer will be liable where work is being done by an independent contractor if the injury `be such as might have been anticipated by him, as a probable consequence of the work let out to the contractor, and he took no precaution to prevent it,' and `whether the injury might reasonably have been anticipated as a ...


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