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Nowicki v. Union Starch & Refining Co.

OPINION FILED JANUARY 26, 1973.

HENRY S. NOWICKI, APPELLEE AND CROSS APPELLANT,

v.

UNION STARCH AND REFINING COMPANY, APPELLANT AND CROSS APPELLEE.



APPEAL from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County; the Hon. FRED P. SCHUMAN, Judge, presiding.

MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:

The plaintiff, Henry S. Nowicki, brought an action in the circuit court of Madison County to recover damages from Union Starch and Refining Company, the defendant, for personal injuries he received on the defendant's premises. The jury returned a verdict for the plaintiff in the amount of $65,000, and judgment was entered on the verdict. The Appellate Court, Fifth District, one judge dissenting, reversed the judgment and remanded the cause for a new trial. (1 Ill. App.3d 92.) Both parties filed petitions for leave to appeal, and after the appellate court granted a certificate of importance, pursuant to Rule 316 (50 Ill.2d R. 316), the petitions for leave to appeal were dismissed as moot.

Before we consider the merits of the case, a procedural matter should be mentioned. In its certificate of importance the appellate court said: "The ground for so certifying is that this case involves the following question", and then stated a lengthy question. In their briefs the parties have referred to this statement of the appellate court as the "certified question" or "certified questions." Rule 316 of this court and its predecessors have long provided for the issuance of a certificate of importance by a division of the appellate court, but the certification of a particular question or questions by the appellate court is neither necessary nor appropriate.

The plaintiff's employer, Minnette Boiler and Sheet Iron Works, had entered into a contract with the defendant to fabricate and install two stainless steel tanks in the defendant's plant. The work was being done in a building known as the "steep house," which was about 100 feet long and 40 feet wide, and contained a number of large tanks used for the purpose of "steeping" corn in order to produce starches, syrup, glucose, caramels, textiles and paper. Each of the new tanks was to have a capacity of 3500 bushels and was to be 15 feet in diameter and 47 feet in circumference.

The new tanks were to be constructed in accordance with specifications prepared by Union. The specifications provided that the work was to be done while the plant was in operation, and that the bidders were to "examine site and all conditions thereon. Proposal shall take into consideration all such conditions as may affect Contract work." The specifications further provided: "The Contractor shall provide appropriate barricades and safety devices to protect plant personnel, as well as his own personnel, where such are necessary." The proposal submitted by Minnette Boiler and Sheet Iron Works, the successful bidder for that portion of the total proposal which embraced the fabrication and erection of the two tanks in question, provided that the tanks would be fabricated by a subcontractor. The proposal stated that the time that Minnette would require to complete the work, based upon a 40-hour work week, was eight weeks.

The circumstances directly relating to the plaintiff's accident were thus described by the appellate court (1 Ill. App.3d 92, 94):

"The evidence further showed that due to a hailstorm in April, 1964, the roof on the steep house was damaged and that when it rained, the roof leaked in many places and particularly over the area where tanks seven and ten were being erected. In between the tanks were steel I-beams which ran from the east wall to the west wall in the steep house which were about seven and one-half inches wide and over the I-beams was a catwalk which did not extend completely to the wall of the building.

"The plaintiff, a boilermaker for twenty-two years, commenced working in the defendant's plant about the middle of May, 1965, and had been working about five weeks before June 22, 1965, the date of the incident in question. In the afternoon of June 22, 1965, the plaintiff was instructed to fit a roof on to tank number seven. The roof consisted of two pieces of steel and weighed about one thousand pounds. The pieces for the roof were picked up by a chain fall from the top of tank number eight and moved over to tank number seven. It was necessary to use the I-beam on both sides of the tank to put on the roof. The plaintiff walked out from the catwalk onto the I-beam and was using a sleever to pry the roof up to fit on the lugs so it could be welded. His foot slipped out from under him and he fell on to a chute which was on top of the old wooden tank injuring his left knee.

"It is not controverted that the plaintiff saw the roof leaking and saw water on the I-beam before he went out on it and that his shoes were not dry as he walked out on the I-beam."

The plaintiff's complaint against this defendant was in two counts. Count I alleged that the present defendant negligently failed to provide the plaintiff with a safe place to work; negligently "permitted the roof of said premises wherein said work was being accomplished to leak, and consequently for rain to fall onto the portion of the premises upon which Plaintiff was standing, and to cause same to be slick and hazardous, causing him to slip and fall and injure himself as aforesaid"; and negligently "caused the Plaintiff, in the course of his work, to stand above an open and dangerous area without proper guards or protection to prevent his falling therefrom." Count II charged the defendant with a violation of the Structural Work Act "in that it failed to furnish Plaintiff a suitable and proper scaffolding upon which to work." At the conclusion of the plaintiff's evidence the court granted the defendant's motion for a directed verdict as to count II on the ground that "the plaintiff fell from a permanent part of the building in question and not from a scaffold." This ruling has not been challenged.

The case was submitted to the jury upon count I of the complaint under instructions which did not mention either the fact that the plaintiff was the employee of an independent contractor, or the element of supervision or control of the plaintiff in the course of his work. The defendant's tendered instructions concerning assumption of risk were refused.

The position taken by the trial court in its instructions to the jury, and advocated by the dissenting judge in the appellate court, would broaden the scope of the duty owed by one in possession of property to an independent contractor and his employees to such a degree that the Structural Work Act would be supplanted by the common-law duty thus created. In our opinion the appellate court properly rejected that position and properly relied upon the proposition asserted in Calvert v. Springfield Electric Light and Power Co. (1907), 231 Ill. 290 293. "The law is well settled that an owner or occupant of land who by invitation, express or implied, induces or leads others to go upon premises for any lawful purpose is liable for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist without timely notice to the public or to those who are likely to act upon such invitation, and if there are hidden dangers upon the premises he must use ordinary care to give persons rightfully upon the premises warning thereof, and that the owner owes such duty to an independent contractor or his servants while working upon his premises." See also Craig v. Olin Mathieson Chemical Corp. (7th Cir. 1970), 427 F.2d 962, cert. denied, 400 U.S. 964, 27 L.Ed.2d 383, 91 S.Ct. 365.

The appellate court, however, remanded the cause for a new trial, and this disposition is challenged by the defendant on the ground that its motion for judgment n.o.v. should have been allowed. The plaintiff argues that, "Where the defendant, as here, not only owned the premises but retained supervision of the work and work area, it had a duty to furnish plaintiff with a safe place to work irrespective of whether the defect was latent or the knowledgibility [sic] of it by either party." To establish the defendant's control of the work, the plaintiff first points to the provision of the contract that the work was to be done while the plant was in operation. When the plant was operating, the floor area was wet. It does not appear, however, that the condition of the floor had anything to do with the plaintiff's injury.

The plaintiff also asserts that the defendant had an engineer supervising the work. The testimony relied upon to sustain this assertion, however, goes no further than to show that kind of supervision on the part of the defendant which would be necessary to insure that the work was done properly. (Cf. Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316.) Moreover, the question and answer primarily relied upon by the plaintiff to show the defendant's control of the work, failed to do so. That question, like a great many others put by counsel for the plaintiff, contained so many facets as to be misleading and to render the answer so ambiguous as to deprive it of significance. The question, put to an engineer for the defendant, was: "That was, as you say, something in connection with some ...


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