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Kaspar v. Clinton-jackson Corp.

DECEMBER 31, 1969.

CHARLES J. KASPAR, PLAINTIFF-APPELLEE,

v.

CLINTON-JACKSON CORPORATION, DEFENDANT AND CROSS-COMPLAINANT-APPELLANT, AND C.A. THARNSTROM & CO., DEFENDANT AND CROSS-DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. CHARLES R. BARRETT, Judge, presiding. Judgments affirmed.

GOLDENHERSH, P.J.

Plaintiff brought an action for personal injuries against defendants, Clinton-Jackson Corporation, hereafter called Clinton-Jackson, and C.A. Tharnstrom & Co., hereafter called Tharnstrom. Clinton-Jackson cross claimed against Tharnstrom for indemnity. The jury returned a verdict in the amount of $400,000 for plaintiff and against Clinton-Jackson, found in Tharnstrom's favor and against plaintiff, and for Tharnstrom and against Clinton-Jackson on its cross complaint. The court entered judgments on the verdicts. Clinton-Jackson appeals from the judgments adverse to it, and plaintiff appeals from the judgment entered in favor of Tharnstrom in plaintiff's action.

On July 14, 1959 Clinton-Jackson, as owner, and Tharnstrom, as contractor, executed a contract in connection with the construction of a building at 550 W. Jackson Boulevard in Chicago. Tharnstrom, as contractor, agreed to supply labor, materials, tools and equipment necessary to complete "the entire Concrete Work including General Conditions." On May 6, 1960, Tharnstrom and six subcontractors were engaged in various parts of the construction work, one of whom was plaintiff's employer, Economy Plumbing & Heating Company.

At this stage of the construction, cement had been poured on the steel deck of the second floor. The west wall of the building backs up to another structure, but the north, east, and south sides of the building were open. The walls were to be of glass and curtain-wall construction. On the east side of the building, for a distance of 24 feet, the second floor was recessed to a depth of 2 feet, 7 1/4 inches. Draperies extending from the second floor ceiling to the ground floor were to be hung in the recessed space. There was no recess of this type on any other floor.

Plaintiff was putting pipe hangers on the second floor ceiling. He was working alone. The distance from the second floor to the ceiling is 12 feet, 6 inches, and plaintiff was using a movable scaffold, mounted on wheels. Customarily the scaffold is pushed to the area where work is to be done, and in so doing it is necessary to look at the ceiling in order to position the scaffold under the work. The wheels are then locked by means of a lever. Plaintiff was working from north to south on the east side of the building. He has no recollection of what occurred, but a witness working nearby saw the scaffold flying through the air, and saw plaintiff fall to the ground.

Leonard Tharnstrom, president of Tharnstrom, testified that his company employed only two subcontractors; the other contractors were subs for Clinton-Jackson, which acted as its own general contractor. Donald E. Ruud was superintendent for Clinton-Jackson, and Otto Roos, Tharnstrom's superintendent, received his orders from Ruud.

Mr. Ruud testified he was Clinton-Jackson's representative and performed the same functions as would be performed by the representative of an architect. He coordinated the work of the various contractors, and inspected the work being done.

There is a conflict in the testimony as to whether there were ever, at any time, barricades around the outer perimeter of the building. Thomas Tranchita, superintendent for plaintiff's employer, testified he complained to Roos because no barricades were put up, and thereafter the stairwells were barricaded by Tharnstrom's employees. Leonard Tharnstrom testified his company did not, at any time, erect barricades at the outer perimeters of the building. Mr. Roos testified there were barricades up "during our part of the work."

Mr. Ruud testified that from April 13, 1960, the day Tharnstrom "cleaned the second floor" through May 6, 1960, there were no barricades around the outer perimeter of the building on the second floor. During that period he complained to Roos about barricades for the stairways and elevator shafts but no other complaints "relative to safety." Clinton-Jackson did not build any barricades on the outer perimeter of the building on any floor. Tharnstrom had completed all its work on the second floor except for sweeping out and cleaning up, and a "punch list" about a month before May 6, 1960. A punch list is the list of the items to be corrected.

Clinton-Jackson's first contention is that it "has a clear legal right to judgment" against Tharnstrom in the amount of plaintiff's judgment against Clinton-Jackson. It argues that the contract required Tharnstrom to erect and maintain barricades at all openings and at the perimeters of the floors, and Tharnstrom failed so to do. In support of its argument Clinton-Jackson cites paragraph 16 of the Building Contract which provides:

"The parties agree that the work to be done . . . shall be in accordance with the approved plans and specifications . . . and in strict compliance with the rules and regulations, specifications and requirements as may exist at the time of this contract or as may subsequently be required by the City of Chicago, Illinois. . . . It is the intention of this contract that all plans, specifications, rules, regulations and requirements heretofore set forth shall be and are a part of this contract and in the event that same should in any way conflict, the most stringent shall apply.",

the following portion of the "General Conditions":

"12. LAWS AND ORDINANCES a. `. . . All work shall comply with laws, ordinances, rules and regulations of the State of Illinois, the City of Chicago, and other authorities having jurisdiction.'"

and the Chicago "Safeguards During Construction" Ordinance (sections 76-1 to 76-6.2, Municipal Code of ...


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