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Crothers v. La Salle Institute





APPEAL from the Circuit Court of Cook County; the Hon. JAMES B. CROSSEN, Judge, presiding.


Plaintiff, Leonard M. Crothers, appeals from a judgment entered upon a jury verdict for defendant, La Salle Institute, a not-for-profit Missouri corporation, in an action arising from plaintiff's fall from the roof of defendant's gymnasium where he was working as an apprentice roofer. Plaintiff filed a two-count complaint, charging defendant with negligence in one count and violations of the Structural Work Act in the other. (Ill. Rev. Stat. 1967, ch. 48, par. 60 et seq.) Plaintiff dismissed the negligence count prior to trial. The trial court denied plaintiff's post-trial motion for a judgment notwithstanding the verdict or, in the alternative, a new trial.

On appeal plaintiff contends that the trial court erred in the following:

(1) failing to direct a verdict or grant a judgment notwithstanding the verdict against defendant;

(2) failing to hold as a matter of law that defendant was "in charge of the work" within the meaning of the Structural Work Act;

(3) failing to submit plaintiff's tendered instruction defining the gymnasium roof as the scaffold which allegedly was in violation of the Act;

(4) excluding from evidence a letter written by defendant's agent to plaintiff's employer;

(5) denying plaintiff's motion in limine, as well as a later motion for a mistrial, to exclude reference to defendant as a not-for-profit corporation; and

(6) not granting plaintiff a new trial on the ground that the verdict was contrary to the manifest weight of the evidence.

We conclude that the judgment must be reversed and the cause remanded for a new trial due to errors in the instructions and the improper exclusion of evidence. The pertinent facts follow:

Prior to the presentation of any evidence plaintiff made a motion in limine that no reference be made before the jury to defendant as a not-for-profit corporation or as a religious organization. The trial court denied the motion. The case then proceeded to trial and the following evidence was presented.

Plaintiff testified: on July 27, 1967, he was employed by Norton & Sons Roofing as an apprentice roofer for approximately four months. For three or four days he had been working at a construction project on the campus of Lewis College, in particular, on the roof of a gymnasium. The only person who gave him orders at the job site was George Anderson, Norton's foreman. Although the structural steel portion of the gymnasium roof had been installed, skylights remained to be put in place and the insulation for the roof was to be installed. On July 27 the wind was gusting. Plaintiff was assigned to stuff insulation material into the cracks between sections of the steel roof. He began by working backwards toward the edge of the roof with his back to the edge. This enabled him to prevent the wind from blowing out insulation he had already laid. Wooden boards were scattered around the roof to prevent other insulation from being blown away. As he neared the edge a gust of wind threw plaintiff off balance, causing him to fall over the edge onto a concrete landing some 35 feet below, sustaining severe and permanent injuries.

Edward Stephenson, a safety inspector for the Illinois Department of Labor, testified on behalf of plaintiff. He supervises State inspectors who police the safety of construction projects in Illinois. When improper safety measures are found his department has authority to order construction stopped until appropriate measures are implemented. He was familiar with the customary safety practices in Will and Cook Counties in 1967. Where men are working on a flat roof, perimeter butting is the customary safety method for protection from falling. This can be accomplished in a variety of ways; safety belts with lead lines given to the men; use of safety nets; and by the use of imbedded pins and uprights or welded uprights connected by ropes or cables. Ladders can also be extended up to the roof and connected with lines of some kind. In some instances, merely ropes with streamers attached can be used as an appropriate warning to workmen. Stephenson also testified that it was the custom of the industry to use one or more of these safety devices to protect men working on a flat roof.

On cross-examination Stephenson stated that a safety device considered appropriate for a particular building under construction would depend upon the physical layout of such building. He admitted that he did not know the physical layout of defendant's gymnasium. He added, however, that a perimeter rope with streamers would be the least desirable if any of the other devices were available.

Robert Messer was called by plaintiff as an adverse witness. He had been chief estimator for the Paxton Construction Company at defendant's project. Paxton had been hired as the general contractor. Messer's function for Paxton was to evaluate costs and answer questions for the subcontractors as to the intent of the architect's plans. He stated that defendant subsequently dismissed Paxton as the general contractor and he was then hired by defendant to work as its project manager. His function for defendant was to evaluate costs and answer questions of the subcontractors if they had difficulty in interpreting the architect's plans. He had nothing to do with the manner in which the construction was carried out, and the methods of doing the work were left to the various subcontractors. He only interpreted the plans and inspected work to insure that defendant was getting its "money's worth." His approval, as well as that of the architect, was necessary before defendant made payment to a subcontractor for completed work. Messer was the only person at the project to schedule the subcontractors by informing them of the progress of the construction and when to come to begin their particular part of the work. Although the architect was not on the job site at all times, the final interpretation of the plans and the final determination of conformity of the work with the plans was left to the architect.

Brother Joel Damian was called by plaintiff as an adverse witness. He was the legal equivalent of a corporate secretary to defendant. Defendant was a not-for-profit Missouri corporation licensed to do business in Illinois, and had contracted with Paxton Construction Company to erect several buildings on the campus of Lewis College. Paxton was the general contractor and he in turn engaged the various subcontractors on the project. Subsequently, the architect informed defendant that Paxton was not performing satisfactorily, and defendant then dismissed Paxton. Brother Damian wrote to the subcontractors and asked them to continue work under the same terms as in their contracts with Paxton. Each of them agreed to complete work in accordance with the former terms. Defendant did not enter into any new agreements with the subcontractors. Following the dismissal of Paxton there was no general contractor for the project although defendant did hire Robert Messer, previously employed by Paxton. The method of performance of the work was left to the subcontractors and this included the question of whether scaffolds were needed. Messer's duties were to inspect the final product and coordinate the trades only to the extent of informing them the work was at a certain stage of completion and that they should come onto the job at a certain time. Brother Damian denied that Messer was the supervisor of the construction and stated that the architect had the responsibility of supervising the subcontractors. He stated that although Messer attended weekly meetings of the subcontractors at which the status of the work was reviewed, Messer merely coordinated the trades. He admitted, however, that he had referred to Messer as the "superintendent of the project" in a letter to the subcontractors advising them of Paxton's dismissal as general contractor; the Messer's function was in reality that of a job inspector whose duties were to help individual subcontractors keep the project ...

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