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Mcgovern v. Standish

OPINION FILED OCTOBER 1, 1976.

JOSEPH MCGOVERN, APPELLANT,

v.

JOSEPH D. STANDISH, APPELLEE.



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County; the Hon. Harold R. Clark, Judge, presiding.

MR. JUSTICE CREBS DELIVERED THE OPINION OF THE COURT:

The issue in this case involves the scope of an architect's liability under the Structural Work Act (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.).

The plaintiff, Joseph McGovern, filed suit against the defendant, Joseph D. Standish, as a result of injuries sustained by the plaintiff in a fall from a scaffold at a construction site. In count I of his complaint, the plaintiff alleged that the defendant had entered into a contract with St. Elizabeth's Hospital to perform certain architectural services in connection with the construction of an addition to the hospital, which is located in Granite City, Illinois. In particular, the plaintiff alleged that the defendant had agreed to perform certain duties of inspection and supervision relating to the execution of a contract between the hospital and S.M. Wilson and Company, a general contracting firm hired by the hospital to undertake the construction of the hospital addition. The plaintiff further alleged that, on June 4, 1969, in the course of his employment as an ironworker for Wilson, he was placing reinforcing steel rods in the walls of the hospital addition when the scaffold upon which he was standing tipped to one end, causing him to fall to the ground. Finally, the complaint alleged that the defendant was a person having charge of the work within the meaning of the Structural Work Act (hereinafter referred to as the Act), that the defendant had failed to comply with the Act in several particulars, and that, as a direct and proximate result of the defendant's violation, the plaintiff had suffered serious and permanent injury. Count II of the complaint was based upon allegations of negligence and is not here at issue.

The defendant filed an answer in which he denied that he had agreed to perform the aforementioned duties of inspection and supervision, that he had been in charge of the work within the meaning of the Act, or that he had violated the Act in the manner alleged.

The case was tried before a jury in January, 1974. At the close of all the evidence, the defendant moved for a directed verdict. This motion was denied, and the jury returned a verdict for the plaintiff in the amount of $35,000. The defendant's post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial, was denied. On appeal, the Appellate Court for the Fifth District reversed, with one justice dissenting. (McGovern v. Standish, 33 Ill. App.3d 717.) We have granted the plaintiff leave to appeal from the judgment of the appellate court.

Although the defendant raised a number of other issues before the appellate court, the sole basis for the appellate court's decision was its determination that the defendant was not a person having charge of the work within the meaning of the Act. Hence the sole issue before this court is the propriety of that determination. Accordingly, we must review the evidence adduced at trial and determine whether that evidence, when viewed in the light most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494.

The first witness to testify at trial was the plaintiff, who testified primarily to the factual circumstances surrounding his employment and the incident in question. The plaintiff stated that he had worked at the construction site for a three to four week period prior to the time of the accident. Regarding the defendant, the witness testified that he had never seen the defendant on the job, that he took orders from his foreman, Wesley Dix, and that he had never taken any orders from the defendant. The plaintiff also stated that he had no personal knowledge concerning the relationship between the defendant and any other person on the job.

James Roach testified that he was an ironworker employed by S.M. Wilson at the same construction site as was the plaintiff. Roach stated that he took orders from Dix, his foreman, who was the only person, to his knowledge, in charge of the work in that area. Asked during cross-examination if he had seen or taken orders from "this gentleman" during his eight months on the job, the witness replied in the negative. While counsel presumably intended to refer to the defendant, the identity of the individual in question is not clarified in the record.

The next witness was the defendant, Joseph Standish, who was called to testify as an adverse witness. The defendant testified that he had entered into a contract with the Sisters of Divine Providence to perform architectural services in connection with the construction of an addition to St. Elizabeth's Hospital. Subsequently, he prepared a contract to be entered into between the Sisters and the contracting firm selected to undertake the construction. Incorporated into that contract were certain general conditions and specifications. The witness testified that these conditions and specifications were standard provisions used by the Public Health Service and required to be included pursuant to Federal law. The defendant also testified that working drawings for the construction were prepared under his direction. The witness identified a letter sent by him to S.M. Wilson and Company, the successful bidder, authorizing the latter to proceed with the construction in accordance with the contract. He also identified the contract executed by Wilson and Sister Mary Marce, on behalf of the Sisters of Divine Providence, together with his signature as an attesting witness.

In addition, the defendant testified that he had a project inspector at the construction site who was hired by him at the direction of the hospital. He had discharged the first inspector at the request of the hospital and then hired a second inspector agreeable to the hospital. The second inspector, Ron Earl, was a full-time employee but had only been on the job for two or three days as of the date of the plaintiff's accident. The defendant stated that he had paid Earl's salary, which was to be reimbursed by the hospital.

On redirect examination, the defendant stated that authorization by the owners was necessary before an inspector could be employed. He explained that the inspector's duties were to familiarize himself with the plans and specifications, observe the construction work as it proceeded, discuss the construction and any problems thereto with the contractor's superintendent and the defendant, and generally see that the end result might be a "representation of the working drawings and specifications prepared by the architect." The inspector did not have any authority, however, to instruct any of the workmen in their duties or to shut down the work. As architect, the defendant's duty was to see that the end result conformed with the plans and specifications.

A deposition by Dr. Alan Morris was read to the jury. Dr. Morris, a physician, related the treatment he had given the plaintiff, his opinion as to the cause of the plaintiff's injury, and his prognosis for the plaintiff's recovery.

The plaintiff's final witness was Frank McGinness, the controller of St. Elizabeth's Hospital, who testified that the defendant had billed the hospital for "professional services rendered in supervision of the additions and alterations to St. Elizabeth Hospital." According to McGinness, the defendant did not bill the hospital separately for salaries of the two inspectors hired.

The defendant testified once again on his own behalf. He stated that any decisions he might make regarding the contract or specifications, or any warnings or notices he might give, were subject to arbitration, pursuant to the terms of the General Conditions. The defendant also stated that he never gave an order to any of the employees of the general contractor or the subcontractors. He acknowledged, nevertheless, that at times it became necessary to discuss matters with the general contractor or the subcontractors. The witness also testified that erection of the scaffolding was generally the responsibility of the general contractor. Finally, the defendant admitted that he made numerous decisions regarding the construction of the addition, but only within the purview of the contract as he understood it.

The last witness to testify was Roy Pixley, construction manager for S.M. Wilson and Company. Pixley testified that he and other representatives of Wilson submitted a list of subcontractors to the defendant for his approval. He characterized this procedure as one accepted on virtually all construction jobs. The witness stated that Wilson imposed the responsibility for ensuring safety directly upon its superintendents. As the person in charge of the superintendents, he too shared in that responsibility. Asked who was in charge of the work insofar as S.M. Wilson was concerned, Pixley replied that direct supervision at the job site was exercised by Ward Borror, the project superintendent, who answered to him as construction manager. Below the two of them were various foremen and subsuperintendents, as well as the subcontractors, over whom they also exercised supervision. Pixley testified that erection of the scaffolding was the responsibility of the contractor and that ironworkers, as a matter of custom and practice, insist on building themselves the scaffolding upon which they would work. The witness stated that he believed that the defendant had the right to stop the work if it were not being performed correctly. However, he also admitted that the General Conditions contained no direct recognition of such authority. Pixley acknowledged that the General Conditions provided an arbitration mechanism for the settlement of all disputes, including those involving the architect. In Pixley's view, any decision by the architect to stop the work would be subject to arbitration.

The witness identified a letter sent to the defendant, certifying that all temporary shoring, scaffolding, hoists and like items would be designed to support all dead loads plus a 50% safety factor. This letter, required by the specifications, was requested by the defendant and sent by Pixley, on behalf of Wilson.

Pixley further testified that the defendant had not, to his recollection, given any direction or order regarding the details or manner in which the work should be executed. He stated that the defendant was on the job numerous times and generally at least weekly. At times, he requested the defendant to meet him at the job site to discuss matters such as the defendant's interpretation of the contract documents and drawings. He also elicited the defendant's recommendations concerning solutions to problems which developed on the job. The defendant examined the work, according to Pixley, in order to ascertain whether there was compliance with the specifications.

During cross-examination, the witness stated that, since the defendant was concerned about compliance with the specifications, he assumed that the defendant was concerned about those specifications relating to the scaffolding.

Portions of the relevant contractual agreements were read to the jury. The contract between the defendant and the Sisters of Divine Providence contained these provisions:

"The Architect's professional services consist of the necessary conferences, the preparation of preliminary studies, working drawings, specifications, large scale and full size detail drawings, for architectural, structural, plumbing, heating, electrical, and other mechanical work; assistance in the drafting of forms of proposals and contracts; the issuance of Certificates for Payment; the keeping of accounts and the general administration of the construction contracts.

* * *

The Architect will endeavor by general administration of the construction contracts to guard the Owner against defects and deficiencies in the work of the contractors, but he does not guarantee the performance of their contracts. The general administration of the Architect is to be distinguished from the continuous on-site inspection of a Project Inspector.

When authorized by the Owner, a Project Inspector acceptable to both Owner and Architect shall be engaged by the Architect at a salary satisfactory to the Owner and paid by the Owner, upon ...


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