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Scrimager v. Cabot Corp.

OCTOBER 24, 1974.

WILLARD SCRIMAGER, PLAINTIFF-APPELLANT, CROSS-APPELLEE,

v.

CABOT CORPORATION, DEFENDANT-APPELLEE, CROSS-APPELLANT.



APPEAL from the Circuit Court of Douglas County; the Hon. JAMES N. SHERRICK, Judge, presiding.

MR. PRESIDING JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

Plaintiff sued to recover for personal injuries alleging violation of the Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, pars. 60-69). Upon a bench trial the court awarded damages in the sum of $27,415.03. Plaintiff appeals urging that such award is inadequate as a matter of law.

Defendant cross-appeals urging that the evidence does not support the finding that the defendant was "in charge of" the work as provided in such Act, and that the trial court committed prejudicial error by accepting into evidence rules prepared by the Industrial Commission of the State of Illinois upon the authority of the Health and Safety Act, Ill. Rev. Stat. 1967, ch. 48, par. 137.3.

Plaintiff was a member of a painters union, employed by the Hartman-Walsh Paint Company to paint the roof of the defendant's warehouse. He fell from the roof suffering injuries. At such time the building had no permanent railings or gutters on the roof and no safety devices of any type were being used.

Defendant had a written contract with Hartman. The trial court particularly noted the many provisions of the contract with regard to the "right to control" the work, which included and provided for the right of defendant to cause the discharge of any incompetent employee; to require compliance by Hartman with instructions for safety given by the defendant's engineer; that the right to terminate the work when weather did not permit satisfactory quality; the right of defendant to determine whether or not there should be night work and the right of defendant to suspend work on the job. In a somewhat contradictory vein, the contract provided:

"It is stipulated and agreed that [Hartman-Walsh] is an independent contractor and has full power and authority to select the means, methods and manner of performing the work herein contracted for, and is responsible to [defendant] only for the results herein contracted for, and that [defendant] shall not have the power or authority to direct, supervise or control [Hartman-Walsh] in the means, manner or method of the performance of the work, but that said [Hartman-Walsh] shall be responsible to [defendant] for the faithful completion of the work herein contracted."

It appears from the testimony that defendant did not, in fact, exercise any authority or control under the contract and did not have any dealings with the painters performing the job. Essentially, it seems that no authority or control was actually exercised in behalf of the defendant.

• 1-4 Liability under section 9 of the Scaffold Act (Ill. Rev. Stat. 1973, ch. 48, par. 69) follows from "having charge of the * * * painting of any building * * *," and not from mere ownership of the building upon which the work is being performed. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785.) Although the term "having charge of" has been said to be one of common usage and understanding, not requiring further definition (Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247), a few specific principles concerning that term have developed. The retention of the right to control the work is sufficient to establish a duty under the Act. (Larson, supra; Buehler v. Toynan Construction Co., 52 Ill.2d 214, 287 N.E.2d 691.) One upon whom the statute imposes duty cannot be freed from that duty by failure to exercise the control he has retained. (Larson, supra; (Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724, cert. denied, 393 U.S. 935.) One possessing the right to stop the work if it is being done in a dangerous manner is a person "having charge" within the meaning of the Act. (Miller v. DeWitt-Amdal & Associates, 37 Ill.2d 273, 226 N.E.2d 630.) Whether a particular person has charge of the work is a question to be resolved by the trier of fact. (Gannon, supra.) The jury's determination of "having charge" will not be disturbed upon review if it is not contrary to the manifest weight of the evidence. (Crabb v. Robert R. Anderson Co., 87 Ill. App.2d 291, 232 N.E.2d 44.) The same standard of review applies to a bench trial, and the trial court's factual determination will not be disturbed unless contrary to the manifest weight of the evidence. (Hall v. Burnett, 5 Ill. App.3d 33, 282 N.E.2d 509.) Here, Hartman-Walsh had by contract agreed to require its painters to obey defendant's engineer's safety regulations, and defendant retained the right to terminate the contract if Hartman were to willfully violate its terms, and to stop the work if it appeared to be in defendant's best interests. The trial court could reasonably find that defendant had the right to stop the work if it were being done in an unsafe manner. (Miller v. DeWitt, supra.) In Weber v. Northern Illinois Gas Company, 10 Ill. App.3d 625, 295 N.E.2d 41, it was concluded that the owner cannot by contract assume control of the work, but by the same contract exclude responsibility for safety.

Defendant asserts that it was error to admit into evidence certain rules of the Industrial Commission of the State of Illinois prepared under the authority of the Health and Safety Act. By its terms, such rules are applicable only between an employer and his employees. (Jones v. S.S. & E. Corp., 112 Ill. App.2d 79, 250 N.E.2d 829; Tenenbaum v. City of Chicago, 11 Ill. App.3d 987, 297 N.E.2d 716.) Among such rules, one provided for a standard scaffold or catch platform for work upon all roofs of a quarter pitch or more.

In Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724, it was held that the application of the Structural Work Act cannot be avoided by a failure to provide a scaffold and that such failure to so provide a scaffold-like appliance may be a violation of the Act.

In Parizon v. Granite City Steel Company, 71 Ill. App.2d 53, 218 N.E.2d 27, it was noted that the Structural Work Act does not state when or under what circumstances there is a duty to provide a scaffold. See also the dissenting opinion in Barenfanger.

• 5 We conclude that the authorities establish the admissibility into evidence of such rules. In Larson v. Commonwealth Edison Co., 48 Ill. App.2d 349, 353-54, 199 N.E.2d 265, an action under the Structural Work Act, the court noted that the use of the type of scaffold "was regulated by rules promulgated by the Industrial Commission of the State of Illinois pursuant to the mandate of the Health and Safety Act." The supreme court (33 Ill.2d 316, 319, 211 N.E.2d 247) said:

"[I]t is undisputed that the scaffold did not comply with rules promulgated by the Industrial Commission to implement the statute." (Emphasis supplied.)

In Clements v. Schless Construction Co., 91 Ill. App.2d 19, 234 N.E.2d 578, the complaint charged a violation of the Structural Work Act in that the acts of the defendant were in violation of the safety rules issued ...


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