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Jacobson v. 190 N. State St.

NOVEMBER 9, 1971.

ANN JACOBSON, ET AL., PLAINTIFFS-APPELLEES,

v.

190 NORTH STATE STREET, INC. ET AL., DEFENDANTS-APPELLANTS, — (190 NORTH STATE STREET, INC. ET AL., THIRD-PARTY PLAINTIFFS-APPELLEES,

v.

FRED HAMILTON, INDIVIDUALLY AND D/B/A FRED HAMILTON DECORATING CO., THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. HARRY J. STARK, Judge, presiding.

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

This action was brought under the Structural Work Act of Illinois, sometimes referred to as the Scaffold Act (Ill. Rev. Stat. 1969, ch. 48, pars. 60, 69), to recover damages for the death of plaintiffs' father who fell from the top of an elevator cab while painting the elevator shafts in defendants' building. Defendants filed a third-party action against the decedent's employer, Fred Hamilton Decorating Co., seeking indemnity. A jury trial was held. At the close of all the evidence defendants moved for a directed verdict against plaintiffs and the third-party defendant. The third-party defendant moved for a directed verdict at the close of the third-party plaintiffs' case. The trial court granted a directed verdict for third-party plaintiffs and denied the other motions. The jury then returned verdicts in favor of John Jacobson for $4500, in favor of Mariann Jacobson for $7500, in favor of Anthony Jacobson for $3500 and in favor of the adult children as executors of the estate of their mother, Ann Jacobson, for $10,000. The posttrial motions of both the defendants and the third-party defendant were denied. Defendants and the third-party defendant have appealed from those orders.

On March 13, 1964, plaintiffs' decedent, August Jacobson, then employed by Fred Hamilton Decorating Co., was engaged in painting the elevator shafts in defendants' building, the State and Lake Building at 190 North State Street. He accidentally fell from the top of an elevator cab which he was using as a painting platform and died from injuries sustained in the fall.

Sometime prior to March 13, 1964, Fred Hamilton had been approached by John Engler, the building manager of the State and Lake Building, concerning a smoke odor which had remained in the building following a recent fire. Hamilton had done painting work in that building for twenty-seven years. His recommendation regarding this problem was that, in addition to other renovations, the elevator shafts should be washed and painted. Engler concurred, and Hamilton submitted a written cost estimate. No written contract was executed.

Because this was an office building, and still in use, it was agreed that the work in the elevator shafts would be done after 5:00 P.M. each day. In lieu of a painting scaffold, Engler made available an elevator, whose top could be used as a painting platform. He also offered to supply either an elevator operator or, alternatively, to install a "whip," a remote control device which would allow the painters to operate the cab themselves. Hamilton selected the latter and Engler arranged for his electrician, Daniel Sarenac, to install the "whip" whenever it was needed. At approximately 4:30 P.M. each day the elevator needed for that evening would be taken out of normal service, equipped with a "whip" and turned over to the painters. Defendants do not contend that their agent, Engler, was unaware of either this routine or the purpose for which the elevator was used. Except for this elevator-scaffold, all painting equipment was supplied by Fred Hamilton from his storeroom in the basement. During the day the work was supervised by his foreman, who, before leaving at night, would also instruct the evening painters. No one from the building ever told the painters how to do their work, although instructions were given as to the use of the "whip."

On March 13, 1964, Jacobson and another painter, Norman Sorensen, arrived at the State and Lake Building at about 4:15 P.M. and entered an elevator cab at 4:30 P.M. They were taken to the twelfth floor by Sarenac who installed the "whip" before leaving the painters. The top of the cab was covered with oil droppings which were, in turn, covered by a drop-cloth. No railings or other safety device were used. Sorensen and Jacobson began painting the walls of the shaft, occasionally having to lean over the edge of the cab while holding the cable in order to reach the southwest corner. After about fifteen minutes of painting, Sorensen happened to turn around and saw Jacobson falling head first from the southwest side of the cab.

OPINION

As the basis of their appeal, defendants-appellants object to the failure of the trial court to direct a verdict in their behalf at the close of all the evidence. Specifically, they contend there was a failure of proof on the issue of "having charge," a failure sufficient to justify granting their motion pursuant to Pedrick v. Peoria & Eastern R.R. Co. (1968), 37 Ill.2d 494, 229 N.E.2d 504. Plaintiffs-appellees respond that defendants' agents exercised considerable supervision over the work in general and the elevator-scaffold in particular, thereby rendering their principals "in charge" and subject to liability under the Scaffold Act.

• 1, 2 Until 1961, Illinois law imposed upon an owner a duty of compliance with the Scaffold Act by the mere fact of ownership. Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431, 150 N.E.2d 134. This position was abandoned in Gannon v. Chicago, Milwaukee, St. Paul and Pacific R.R. Co. (1961), 22 Ill.2d 305, 319, 320, 175 N.E.2d 785, which held that the plain words of the Scaffold Act precluded deletion of the element of "having charge":

"As aptly stated by the Federal court at p. 88 of the first Schmid opinion (154 F. Supp. 81), antedating the Kennerly case, `It was not the intention of the legislature that the owner should be liable regardless of who was in charge of the work, but to hold the person in charge of the work responsible regardless of whether it was the owner, contractor, sub-contractor, foreman or other person having charge of the building project. This can be the only logical conclusion. If the legislature intended otherwise, certainly more appropriate and clearer and less ambiguous language could have been used!"

Proof of ownership, without further evidence tending to establish that the owner was "in charge," is therefore insufficient to establish liability under the Scaffold Act.

• 3-5 Whether one may be deemed as "having charge" of a particular project is an issue to be resolved upon the particular facts and circumstances of each case. While ownership is insufficient by itself, an owner may be "in charge" of any project or portion thereof over which he retains significant powers of control or supervision. Clearly, such supervisory powers must exceed the inherent right of an owner to observe the course of work or to terminate unsatisfactory performance. (Melvin v. Thompson (1963), 39 Ill. App.2d 413, 417, 188 N.E.2d 497.) Where an owner hires, instructs and inspects, and also either directs and controls the continuing operations or retains power to alter or change the work, such evidence raises an issue for a jury determination. Kobus v. Formfit Co. (1966), 35 Ill.2d 533, 221 N.E.2d 633.

The defendants-owners, 190 North State Street, Inc. and B & K Management Corporations, assert that they exercised only minimal supervision over the renovation conducted by an independent contractor, Fred Hamilton Decorating Co. According to Fred Hamilton's testimony, defendants' agent and building manager, John Engler, had orally contracted with him for the repainting of the elevator shafts in the State and Lake Building. Hamilton had done painting work for that building for the past twenty-seven years. For this particular job, Engler had contacted Hamilton and informed him of a smoke odor in the building's elevator shafts, the result of a recent fire. It was Hamilton who recommended washing and painting the walls to relieve the odor. He testified repeatedly that no one representing the building management told him how to do his work; not then nor "ever" in the past twenty-seven years.

John Engler's testimony confirmed his minor role in initiating the painting work. He described his conversations with Fred Hamilton as "consulting" and added: "I asked him what needed to be done, tell me, tell him what our problem is and ask ...


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