APPEAL from the Circuit Court of Cook County; the Hon. BEN
SCHWARTZ, Judge, presiding.
MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:
Plaintiff, a professional house painter, was injured on November 6, 1968, when he fell from a scaffold while painting the windows of a building owned by defendant Weiss and defendant Myron Rischall (now deceased). Defendant Bowker was the building's resident janitor. Plaintiff's amended complaint alleged both negligence and willful violations of the Structural Work Act (Ill. Rev. Stat. 1971, ch. 38, pars. 60-69). By his briefing in this court, however, plaintiff has abandoned the negligence count.
After discovery, defendants Weiss and Rischall moved for summary judgment on the grounds that they were not in charge of the work being performed on the building. In support of their motion, they filed excerpts from plaintiff's deposition, an affidavit of defendant Weiss, a written memorandum of the oral contract for the work entered into between Weiss and plaintiff's employer, Frazier Painting & Decorating ("Frazier"), and an affidavit of defendant Rischall. The trial court granted the motion under the authority of Ill. Rev. Stat. 1971, ch. 110, par. 57, finding that there entitled no genuine issue of material fact and that defendants were entitled to judgment as a matter of law.
Plaintiff testified at his deposition that the day of the occurrence was his first day on that particular job, and that he was employed by Frazier. A Frazier foreman drove him and a co-worker to the building. They were to paint and repair windows, and do whatever the janitor had for them to do. When they arrived on the job, Bowker, the building janitor, was present and the scaffolding had already been suspended from the building.
In his affidavit, defendant Weiss stated that he had a 75% ownership interest in the building and Myron Rischall owned the other 25%. The building was managed by Weiss' wholly owned company, A.H. Weiss & Company. He contracted with Frazier to scrape, putty, paint, and caulk 337 windows on the building. He had visited the building to check the progress of the work being done by Frazier, but he denied that he exercised any control over the Frazier employees. He did not provide any scaffolding for the project or exercise any control over its use. Rather, Frazier was given full "charge."
Olga Rischall stated in her affidavit that her husband, Myron Rischall, had owned a 25% interest in the building on the day of the occurrence; that she never contracted with Frazier, never hired or fired Frazier employees, and never visited the building.
The written memorandum of the contract described the work to be done as "Scrape, putty, caulk paint two (2) full coats on (337) windows. Repair (5) Replace (2) windows." It also stated, "All above work guaranteed to be of a good grade of paint and workmanship."
Plaintiff filed objections to the motion for summary judgment on the grounds that at the time of the occurrence Weiss and Myron Rischall owned the building, that Weiss, in his capacity as the sole proprietor of A.H. Weiss & Company, managed the building as the agent of the owners and employed defendant Bowker as janitor of the building, and that Weiss, Myron Rischall, and A.H. Weiss & Company were in charge of the work through their agent and employee, Bowker. In support of his objections, plaintiff filed excerpts from his own deposition and that of Weiss.
In his deposition, defendant Weiss testified as to the ownership of the building on the date of the occurrence, and that A.H. Weiss & Company managed the building by virtue of an oral agreement which enabled Weiss to authorize all major work to be done on the building. Chester Bowker was the janitor of the building in November of 1968, and he was employed by Weiss individually and in his capacity as A.H. Weiss & Company.
In plaintiff's deposition, he testified that the janitor was "Chester Bowler, or Boker" and that neither plaintiff nor his partner had worked at that location before. The painters got their instructions with regard to the work that had to be done from the janitor, who showed them where the paint was, where the crew had left the scaffold the day before, and where broken windows were to be replaced. In addition, he told them where to start painting. At about 11:00, without his having experienced any difficulty with slippery scaffold ropes, plaintiff, along with his co-worker, stopped working because it was near lunch time and it was raining. When they returned at approximately 11:40 A.M., the janitor said, "Get back up there and let's get it done. It should have been done already."
Both plaintiff and defendants filed excerpts from the deposition of Chester Bowker to support their respective positions. On September 11, 1972, the complete deposition of defendant Bowker was filed. Bowker testified that he was in charge of the building in question for a period of five years, including the date of the occurrence. He had been hired by Weiss and had the title of engineer. During the entire period, Weiss had visited the building once or twice a week, depending on the time of the month. Bowker was on the premises 24 hours a day, residing in an apartment on the first floor. His duties included cleaning, maintaining the boiler, replacing fuses, checking leaks and doing tile jobs in the bathrooms, changing water faucets, and clamping steam leaks inside the walls. Prior to the paint job, which had been going on for more than one month prior to the occurrence at issue, Weiss told him that the painters would be at the building some time in the next week to paint the building windows. He was asked to cooperate with the painters by using his master keys to let them in apartments to get to their scaffolding. Weiss had duplicates of these keys. Prior to the arrival of the painters, Weiss told Bowker, "Just watch and see that they are painting the windows or if they are not painting the windows."
When the painters first came on the job, they came to Bowker's apartment and wanted to know if they could store their equipment in there because they weren't going to start that day. On the first day of work, three painters showed up, bringing with them a scaffold that Bowker described in detail. They stored their equipment in the laundry room, but they left the scaffold hanging when they finished each day. Bowker did not have to unlock the laundry room to let the painters get their equipment, but they did have to ring his bell each morning to get into the building. He observed them for about five minutes when they were putting their scaffold up. He did not help them at all. He spoke to the three men who were on the job the first day at lunch time.
The painters were present on the job once or twice a week, and had spent approximately 18 days working prior to the occurrence. On each of the 18 days, he observed them painting at least part of the day. His chores in the building took him to places where he could not help but see the painters. He gained prior experience with scaffolding from a three-year period he spent as a tuckpointer. Each time he saw the painters, there was always a new man on the job. Bowker did not pay any attention to who was painting because he had lost interest in the painters.
During the paint job, Weiss came out to the building a couple of times. Bowker never saw Weiss give orders to the painters. On these visits, Weiss asked Bowker how many windows the painters had painted, and whether they had completed an entire side of the building. There was no Frazier foreman on the ...