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Davis v. Commonwealth Edison Co.

OPINION FILED SEPTEMBER 26, 1975.

GARY DAVIS

v.

COMMONWEALTH EDISON CO. ET AL. — (BONESZ, MAAS & BUCCOLA, APPELLANT,

v.

J.A. BOULTON & CO., APPELLEE.)



Appeal from the Circuit Court of Cook County; the Hon. Mel R. Jiganti, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 21, 1975.

On August 15, 1972, the plaintiff, Gary Davis, a steel worker, was injured while working at a restaurant construction site in Prospect Heights. He suffered severe burns and shock when the boom of a crane, which was located in an area adjacent to where he was working, came into contact with electrical transmission wires. The plaintiff filed a complaint in the circuit court of Cook County naming 17 defendants, including the architect, Bonesz, Maas & Buccola (hereafter Bonesz), and the general contractor, J.A. Boulton & Co. (Boulton). The complaint alleged that Bonesz and Boulton, inter alia, violated the Illinois Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60 through 69) through their "faulty erection, operation and placement" of the crane. The defendant Bonesz brought a cross-complaint against Boulton, and other defendants, seeking indemnity from Boulton for any judgment which might be gotten against Bonesz on the plaintiff's complaint. In count II of the cross-complaint, Bonesz claimed a right to indemnification from Boulton, based on a contractual provision that obligated Boulton to pay all claims or judgments for any injuries, whether caused by Bonesz's negligence or not, arising out of the construction of the restaurant, including all claims or judgments under the Illinois Structural Work Act. Boulton moved to be dismissed from the cross-complaint, arguing that the indemnity agreement set out in count II was void as against public policy because of an "Act in relation to indemnity in certain contracts" making void any agreement indemnifying one against his own negligence in construction contracts. Section 1 of the statute provides:

"With respect to contracts or agreements, either public or private, for the construction, alteration, repair or maintenance of a building, structure, highway bridge, viaducts or other work dealing with construction, or for any moving, demolition or excavation connected therewith, every covenant, promise or agreement to indemnify or hold harmless another person from that person's own negligence is void as against public policy and wholly unenforceable." Ill. Rev. Stat. 1971, ch. 29, par. 61.

The circuit court held that the statute prohibited enforcement of the indemnification provision and entered an order striking the second count of the cross-complaint and dismissing it with prejudice. The court found there was "no just reason for delaying enforcement or appeal" under Rule 304(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 304(a), 50 Ill.2d R. 304(a)) and we took Bonesz's appeal under Rule 302(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 302(b), 50 Ill.2d R. 302(b)).

Prior to the enactment of the indemnity statute, this court had held that agreements indemnifying one against one's own negligent conduct were not void as against public policy. (John Griffiths & Son Co. v. National Fireproofing Co., 310 Ill. 331.) Holdings such as these did not, of course, preclude the legislature from declaring that such agreements are contrary to the public policy, for as this court observed in Griffiths: "The public policy of the state is to be found in its constitution and statutes, and, where these are silent, in its judicial decisions." 310 Ill. 331, 341.

The first contention Bonesz makes is that section 1 of the Act violates the equal protection clause of our constitution (Ill. Const., art. I, sec. 2), and also its prohibition of special legislation (Ill. Const., art. IV, sec. 13). The argument is that the legislative classification in the statute is unreasonable because it applies only to what may be broadly described as construction contracts. Indemnity and hold-harmless provisions in other types of contracts, it says, continue to be enforceable.

There is no question that the legislature may establish classifications, for "perfect uniformity of treatment of all persons is neither practical nor desirable." (Grasse v. Dealer's Transport Co., 412 Ill. 179, 193.) A classification, however, cannot be arbitrary or unreasonable. It must be based on a rational difference of condition or situation existing in the persons or the objects upon which the classification rests. (Illinois Coal Operators Association v. Pollution Control Board, 59 Ill.2d 305, 311; Youhas v. Ice, 56 Ill.2d 497, 500; Begich v. Industrial Com., 42 Ill.2d 32, 35; People ex rel. County of Du Page v. Smith, 21 Ill.2d 572, 578.) This was described in People ex rel. County of Du Page v. Smith, 21 Ill.2d 572, 578, where this court said: "If there is a reasonable basis for differentiating between the class to which the law is applicable and the class to which it is not, the General Assembly may constitutionally classify persons and objects for the purpose of legislative regulation or control, and may pass laws applicable only to such persons or objects." A differentiation or distinction "is not arbitrary if any state of facts can reasonably be conceived that would sustain it." Illinois Association of Fire Fighters v. City of Waukegan, 37 Ill.2d 423, 425, quoting Bagdonas v. Liberty Land & Investment Co., 309 Ill. 103, 110.

The prohibition against special legislation does not mean that a statute must affect everyone in the same way. It means simply that "a law shall operate uniformly throughout the State in all localities and on all persons in like circumstances and conditions." (People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 364.) The burden of demonstrating that a classification is unreasonable or arbitrary is upon the person attacking the validity of the classification. People v. Palkes, 52 Ill.2d 472, 477.

Bonesz's claim that in order to have had a valid legislative classification the statute would have to be applicable to all contracts that contain indemnity or hold-harmless agreements must be rejected. We consider there are sufficient differences between the industry affected, which we may generally describe as the construction industry, and others to form a reasonable basis for the classification.

Work in the construction industry is often hazardous and if it is not performed with proper safeguards and precautions, workers (Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 322) and members of the general public as well are exposed to danger of injury. It is not inappropriate to observe that the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, pars. 60 through 69) was enacted to protect those engaged in particularly hazardous construction work and to lessen the extent of the dangers in such work. (Halberstadt v. Harris Trust & Savings Bank, 55 Ill.2d 121, 127; Kobus v. Formfit Co., 35 Ill.2d 533, 537.) It has been held that the Act, which is applicable to construction activities, is based on a valid classification (Claffy v. Chicago Dock and Canal Co., 249 Ill. 210), and a liberal construction of the Act has been adopted to meet the legislative aim of protecting the construction worker. McNellis v. Combustion Engineering, Inc., 58 Ill.2d 146, 151; Crafton v. Lester B. Knight & Associates, Inc., 46 Ill.2d 533, 537.

It is generally known that indemnity and hold-harmless agreements are most widely used in the construction industry. The legislature in enacting section 1 may have considered that the widespread use of these agreements in the industry may have removed or reduced the incentives to protect workers and others from injury. (See Prosser, Handbook of the Law of Torts sec. 4 (4th ed. 1971).) For example, persons having "charge of the work" and, thus, persons liable for violations of the Structural Work Act are able to escape the consequences of this liability by requiring indemnifying agreements from, let us say, general contractors or subcontractors. Having arranged the avoidance of the burdens of liability they no longer have the same motivation "to lessen the extent of the danger" (Halberstadt v. Harris Trust & Savings Bank, 55 Ill.2d 121, 127) to the prejudice of the worker's safety and interest. Too, the members of the general public protected from dangers presented by, for example, the improper design, construction and maintenance of buildings would be obviously affected adversely if those charged with responsibility were able to avoid the consequences of liability through indemnity agreements. Viewed in this light, we consider that section 1 of the indemnity statute serves to protect workers in the industry and the public as well from dangers associated with construction work. The statute would thwart attempts to avoid the consequences of liability and thereby insure a continuing motivation for persons responsible for construction activities to take accident prevention measures and provide safe working conditions.

The legislature was not required to nullify the use of indemnity agreements in every industry or area where their use might be deemed to be contrary to public interest. In Illinois Coal Operators Association v. Pollution Control Board, 59 Ill.2d 305, 312-13, it was contended that our constitution's prohibition of special legislation was violated because sounds from construction equipment were exempted from the Pollution Control Board's regulations, though identical equipment used in mining was regulated. We rejected the contention, saying: "We would also remark that so far as legislative classification is concerned, it has been recognized that evils in the same field may be of different dimensions and reform may take place one step at a time. The legislature may address itself to one stage of a problem and not take action at the same time as to other phases. [Citations.]"

We would add that at least three States, California, Michigan and New York, have statutes resembling ours which declare certain indemnity contracts relating to construction to be contrary to public policy. (Cal. Civil Code sec. 2782 (West 1974); Mich. Comp. Laws sec. 691.991 (1970); N.Y. Gen. Oblig. Law sec. 5-324 (McKinney 1974).) Only the Michigan statute appears to have been challenged on constitutional grounds (Brda v. ...


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