APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH
M. WOSIK, Judge, presiding.
MR. JUSTICE BURKE DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 26, 1974.
This is an action seeking damages because of personal injuries suffered by Richard Alan Long against Duggan-Karasik Construction Company (hereinafter "Duggan-Karasik") under the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.) and against Ceco Corporation (hereinafter "Ceco") on the theory of products liability. Prior to the trial, the court struck a counterclaim of Duggan-Karasik against Ceco based upon the theory of active-passive negligence. The case proceeded to trial and at the close of all the evidence, the court directed the jury to find that Duggan-Karasik was "in charge of" the work and that the device upon which plaintiff was working at the time he was injured was a scaffold. The court also instructed the jury that plaintiff was entitled to recover damages as a matter of law against one or both of the defendants. The jury returned a verdict in the amount of $175,000 in favor of plaintiff and against Duggan-Karasik. The jury also returned a verdict of not guilty in favor of Ceco. Duggan-Karasik appeals.
On May 13, 1965, plaintiff was injured while engaged as an employee in the construction of an addition to the West Chicago High School. He was standing on a longspan bar joist which fell. This longspan bar joist was designed and installed to support the roof of the gymnasium addition to the school. At the time of the occurrence, the plaintiff was employed by Commercial Steel Supply Company (hereinafter "Commercial"). Plaintiff filed a complaint against the Board of Education (hereinafter the "Board"), the owner of the property; Duggan-Karasik, the general contractor; Bergen, Kelly, Unteed and Associates (hereinafter "Bergen"), the architects; and Ceco, the manufacturer and supplier of the longspan bar joist. Plaintiff's complaint insofar as defendants, the Board, Duggan-Karasik and Bergen, was for injuries to the plaintiff because of alleged violations of the Structural Work Act of the State of Illinois. Plaintiff's complaint against Ceco alleged that this defendant had manufactured and supplied a defective product.
Thereafter, the Board and Duggan-Karasik filed a third-party complaint against Commercial, plaintiff's employer. This third-party complaint contended that Commercial by contract indemnified the Board and Duggan-Karasik for all injuries arising out of the execution of its work. Third-party plaintiffs, the Board and Duggan-Karasik, thereafter made a motion for judgment on the pleadings against Commercial insofar as the third-party actions were concerned and on December 17, 1969, the court entered an order granting the motions for judgment on the pleadings against Commercial. On October 8, 1971, a motion was made to substitute attorneys for Duggan-Karasik and the Board and to dismiss the third-party complaints of the Board and Duggan-Karasik against Commercial, and the court entered an order accordingly. Thereupon Duggan-Karasik and the Board filed a counterclaim against Ceco alleging that the Board and Duggan-Karasik, if liable at all in this cause, could only be passively liable and that Ceco was actively liable.
On January 6, 1972, Ceco filed a motion to dismiss the counterclaim against it of Duggan-Karasik and the Board. The primary basis for this motion was the contention that Commercial had taken over the defense of Duggan-Karasik and the Board, and under such circumstances section 22(3) of the Civil Practice Act (Ill. Rev. Stat. 1973, ch. 110, par. 22(3)) required that any complaint brought by Duggan-Karasik and the Board against Ceco show on its face that the complaint was for the benefit of Commercial. Thereafter, Ceco filed a counterclaim against Commercial. The court granted Ceco's motion to dismiss, holding that any complaint of Duggan-Karasik must show on its face that it was for the use and benefit of Commercial. Duggan-Karasik was given the opportunity to file an amended counterclaim against Ceco provided that the amended counterclaim reflect on its face that it was for the use and benefit of Commercial. Duggan-Karasik refused to take this action. Thereupon a motion was filed in behalf of Commercial to strike the counterclaim of Ceco, which the court denied. At this juncture the court granted the motion of Duggan-Karasik to sever all third-party actions.
Prior to the trial plaintiff dismissed Bergen and the Board from the case.
Donald Lee Hurst, an iron-worker employee of Commercial, was called as a witness in plaintiff's behalf. Mr. Hurst had been a certified welder for 7 years and had worked on the West Chicago High School gymnasium addition for Commercial. He testified that the general contractor on this job was Duggan-Karasik and that Duggan-Karasik was represented on the job by a general superintendent named Ken Munson. In April of 1965, Mr. Hurst as foreman, with other employees of Commercial, began to install the supports for the roof area of the gymnasium. These supports consisted of longspan bar joists, which were approximately 115 to 120 feet in length and each weighed about 8000 lbs. At the time of installation Ken Munson, the general superintendent of Duggan-Karasik, was on the job daily and coordinated variations of work.
When the longspan bar joists were brought to the construction site, the truck driver would go through the Duggan-Karasik work area. Mr. Hurst testified that the longspan would be laid down at "proper spacing" and that the setting would be checked or inspected by Ken Munson, the general superintendent of Duggan-Karasik.
Mr. Hurst testified that all of the longspans had been permanently installed in April 1965. He further testified that there was an architectural representative on the job named Fritcher or Jim Bell, who inspected the erection of the steel joists.
Mr. Hurst further testified that the iron workers walked across the top of the longspan bar joist at the time they were doing their work and that this was the method utilized to get from one place to another. He testified that the joists were used for support.
Mr. Hurst categorized the function of Ken Munson, Duggan-Karasik's superintendent, as that of "watching what was going on" while the longspan bar joists were being set. After the first bar joist was installed, guy wires were attached. In the installation of the first or southernmost longspan bar joist, initially it was installed 1 foot off on one side. When this error was discovered, the welds on the one side were burnt off and a longspan joist was moved 1 foot and rewelded.
The installation of the longspan bar joists was completed in April 1965 and the entire Commercial crew left the job for 2 or 3 weeks. This crew returned to the job on May 13, 1965, the day of the occurrence. The Commercial crew on the day of this occurrence was composed of Mr. Hurst who was the foreman, the plaintiff Long and another iron worker named Clifford Landry. Mr. Hurst testified that upon returning to the scene of the occurrence on May 13, 1965, at about 2 P.M., there was a conversation with Ken Munson, the superintendent of Duggan-Karasik, and Bill Holman, the foreman of the Commercial crew, about moving the southernmost longspan bar joist to the north. This conversation took place at the Duggan-Karasik shack on the job site where the architectural prints were kept. Mr. Hurst further testified that he was present at another conversation between Ken Munson of Duggan-Karasik, Bob Lewis and Dale Washburn, at which they discussed another method of getting the short bar joists out of the gymnasium. This conversation took place about the middle of April and concerned the use of a cinder athletic track for Commercial's vehicles. Mr. Munson refused to permit the Commercial crew to use the athletic track.
After the conversation with Mr. Munson on May 13, 1965, Mr. Hurst and the plaintiff received orders from Bill Holman, the Commercial foreman, to start preparing the southernmost longspan bar joist for moving. Mr. Hurst and the plaintiff went up the east wall of the gymnasium and got up on the longspan bar joist. Mr. Hurst testified that thereupon he and plaintiff removed the bridging between the southernmost bar joist and the number two bar joist. Mr. Hurst then removed or loosened one of the guy wires in preparation for moving the longspan. Thereafter, Mr. Hurst moved off of the longspan and down the wall in order to obtain a welding torch which was on the ground level. Mr. Hurst testified that at this time Commercial had a crane in the gymnasium but that the crane was not being utilized at this point. Mr. Hurst testified that he next recalled hearing a loud crack and seeing the southernmost longspan bar joist on the ground below. He did not see the longspan bar joist fall down but he did see the plaintiff in the air. The witness further testified that Bill Holman, the Commercial foreman, immediately upon seeing what had happened, hollered and Ken Munson of Duggan-Karasik, who was in the door of the job shack, called an ambulance. Mr. Hurst saw Mr. Munson there immediately after this occurrence took place. Mr. Hurst further testified that he took his orders from Bill Holman, the Commercial foreman.
Mr. Hurst further testified that when his crew left the site in April, they had four cables attached to the truss. At the time of the occurrence, the cable about 20 feet from the west end had been removed. There was a cable about 20 feet from the east end and two in the center. The middle cable running to the south had been loosened from its taut position. Mr. Hurst testified that neither he nor anyone in his iron working crew had loosened that cable; that the Commercial crew found the cable loose when they came back and were out on the job site.
Mr. Hurst further testified that it was the responsibility of Ken Munson, the general job superintendent, for the prevention of accidents. He testified that during the discussion that was held in the trailer immediately prior to moving the beam, it was Ken Munson's decision to move the beams over the wall. Mr. Hurst testified that there were alternate methods of moving the longspan beams and that one of the methods involved the use of the athletic track. The witness further testified that Mr. Holman, the Commercial foreman, preferred to use the planking method used on the athletic track in order to move the longspan joists. Mr. Hurst further testified that Mr. Munson of Duggan-Karasik preferred moving the longspan joist and directed that the project be done in this manner.
Mr. Hurst further testified that it was customary for the supervision of the foreman of the subcontractors to come from the superintendent or his equivalent with the contractor and that this custom was adhered to on this particular job.
Mr. William H. Holman was called as a witness and testified on plaintiff's behalf. On the day of the occurrence Mr. Holman was the foreman of the Commercial crew. He had four iron workers in his crew, plus one crane operator. He testified that when he arrived on the construction site on the date of the accident, he had a conversation with Ken Munson, the general superintendent of Duggan-Karasik. Mr. Holman testified that Ken Munson "jumped me when we first got on the job about being late and wanted us to get going and get the trusses moved so we can get our bar joists up in place." After this conversation Mr. Holman proceeded to start to work. He had his crew go up and start disconnecting the bridging. The longspan bar joist which was to be moved was the southernmost joist. As the work began Mr. Holman observed that the four guy wires were attached to the longspan joist but that one of them had been loosened. Mr. Holman and his crew were there in order to move the southernmost bar joist in order to make room to get certain other steel out of the gymnasium. As foreman, Mr. Holman did not request that the crane be hooked up to the joist at any time before the occurrence. Mr. Holman further testified that in order for his crew to move from one place to another to do their work, it was necessary for them to walk on the trusses and the structural steel. He further testified that he and the rest of his crew walked on the bar joists and that to his knowledge there was no other scaffolding on this job relating to the iron workers.
After Mr. Holman instructed the Commercial iron worker to get the torch, one of the iron workers came down from the longspan bar joist. Plaintiff Long remained on the longspan bar joist and all of a sudden Mr. Holman saw the longspan bar joist roll over and drop into the hole and he saw the plaintiff fall. Mr. Holman did not know whether Mr. Munson of Duggan-Karasik was in the near vicinity or within the view of the operation of removing the longspan bar joists when plaintiff fell. Mr. Holman did testify that Ken Munson had been on the job site all afternoon on the date of the occurrence.
Mr. Holman further testified that as foreman of the Commercial crew on this job he had "running contact through the day every day" with Ken Munson, the general superintendent of the general contractor, Duggan-Karasik. Mr. Holman testified that the purpose of this contact was to "get okays or rejections of things" which they had to do. He further testified that the decisions relative to the scheduling of this job were made by Ken Munson of Duggan-Karasik and that Mr. Munson as superintendent made inspections on a regular basis of the work done under various foremen of the general subcontractors. There were conferences or decisions to be made relative to interpretations of the specifications or the plans on the job and the final decision was always made by the superintendent, Ken Munson. Mr. Holman further testified that as a foreman he had received direct orders as to things which he could do or could not do from the general superintendent of Duggan-Karasik, Mr. Munson. Mr. Holman further testified that his superior on the job would be the general superintendent of Duggan-Karasik. Mr. Holman testified that prior to moving the shortspan joists out of the gymnasium, Mr. Munson told him "what he wanted done."
Mr. Holman testified that he was the head man on the job for Commercial on the day of the mishap and that as such he was responsible for his men and their safety.
Herman Clark, a crane operator employed by Commercial, was called as a witness by plaintiff. Mr. Clark testified that when he came to the job site prior to the installation of the longspan bar joists, he saw Mr. Kenneth Munson of Duggan-Karasik. Mr. Clark stated that there was a problem at the job site because of the mud in the area and he asked Ken Munson of Duggan-Karasik how to get his crane into the gymnasium area. Mr. Munson showed Clark how to get his crane into the gymnasium area. Mr. Clark testified that there were 15 longspan bar joists put in during the initial operation and that this operation took approximately three weeks. Mr. Clark testified that during this 3-week period, he had occasion to see Mr. Munson, the general superintendent of Duggan-Karasik, every day and that he had numerous conversations with Mr. Munson. Mr. Clark stated that he received a couple of orders directly from Mr. Munson of Duggan-Karasik. Mr. Clark remembered twice asking Mr. Munson if they could use the tracks to drive along side the building in order to get out of the mud and Mr. Munson told them that they could not use the tracks. Mr. Munson further gave Mr. Clark orders to move some pipe for the plumbers. Mr. Clark also heard Mr. Munson give orders to Mr. Clark's foreman, Bobby Lewis, on two occasions. These orders consisted of directions to stay off the track and to unload steel in a certain place. Mr. Clark also heard Mr. Munson give two orders to Mr. Holman of Commercial. The orders given to Holman were to stay off the track and to move bar joists back. Mr. Clark further testified that Mr. Munson was the only person that he could identify from Duggan-Karasik on this job site.
Mr. Clark testified that on the afternoon of the occurrence, he arrived on the job site about 2 P.M. or 2:30 P.M. He saw Mr. Munson, the general superintendent of Duggan-Karasik. Mr. Clark testified that the Commercial crew were waiting for the instructions on how the general contractor wanted the bar joists moved. Mr. Clark testified that he was present at a conversation between Ken Munson of Duggan-Karasik and Mr. Holman of Commercial during which Ken Munson, the general superintendent of Duggan-Karasik, stated, "It's about time you guys got here. You were supposed to be here this morning. Let's get the damn trusses moved back so we can get these other bar joists over the wall." Mr. Clark further stated that Ken Munson said, "This is the only way to do it, you can't go on the track."
After this conversation, Mr. Clark stated that the iron workers started working. Don Hurst and plaintiff Long climbed up the wall and climbed to the top of the first truss. They began to undo the bridging. The next thing Mr. Clark observed was a crash and the joist came down. Mr. Clark saw the longspan bar joist roll to the south immediately prior to its falling.
Plaintiff offered and the court received in evidence over the objection of Duggan-Karasik, plaintiff's Exhibit No. 24, which consisted of certain excerpts of the general conditions of the contract between the Board as "Owner" and defendant Duggan-Karasik as "Contractor" as follows:
"GENERAL CONDITIONS OF THE CONTRACT
"The Contract Documents consist of the Agreement, the General Conditions of the Contract, the Supplementary General Conditions, the Drawings, and the Specifications, including all modifications thereof incorporated in the Documents before their execution. These form the Contract.
The Owner, the Contractor, and the Architect are those mentioned as such in the agreement. They are treated through out the Contract Documents as if each were of the Singular number and masculine gender.
The term sub-contractor includes all persons and parties defined as a sub-contractor in Section 21 of the Mechanics Lien Act of the State of Illinois.
The Contractor shall take all necessary precautions for the safety of employees on the work, and shall comply with all applicable provisions of Federal, State and Municipal safety laws and Building codes to prevent accidents or injury to persons on, about, or adjacent to the premises where the work is being performed.
The Contractor shall in connection with his work, determine the need for, erect and properly maintain at all times, as required by the conditions and progress of the work, passage ways, guard fences, barricades, lights, danger signs warning against hazards and all ...