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Emberton v. State Farm Mutual Auto Ins.

OPINION FILED DECEMBER 29, 1976.

WILEY EMBERTON, PLAINTIFF-APPELLEE,

v.

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY ET AL., DEFENDANTS-APPELLANTS. — (UTLEY-JAMES CORPORATION, INTERVENOR-APPELLANT.)



APPEAL from the Circuit Court of Peoria County; the Hon. EDWARD E. HAUGENS, Judge, presiding.

MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 2, 1977.

Plaintiff Wiley Emberton suffered a back injury while moving a portable scaffolding during the construction of a corporate headquarters building for defendant State Farm Mutual Automobile Insurance Company. Plaintiff brought a personal injury action against State Farm, owner of the premises, and against Ellerbe Associates, Inc., architects for the project, alleging that defendants' violation of the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 60 et seq.) was the cause of his injury. State Farm and Ellerbe filed third-party complaints against the general contractor, Utley-James Corporation. Before trial Utley-James assumed the defense for State Farm and Ellerbe, and defendants dismissed their third-party complaints. At the conclusion of the trial, the jury returned a verdict for $36,500 in favor of plaintiff. Defendants appeal from the judgment and from the denial of their post-trial motions.

Joining in this appeal is Utley-James Corporation which was denied leave to intervene to protect its right of subrogation under the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(b)).

The principal issue for review is whether, under the Structural Work Act, the owner and the architect of the State Farm building project had charge of the construction operation in which plaintiff was engaged at the time of his injury. Under section 9 of the Act, any "owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, * * *" is liable for injuries occasioned by wilful violations of the Act. Ill. Rev. Stat. 1975, ch. 48, par. 69.

• 1 The Illinois Supreme Court has stated that whether a defendant is a person having charge of work within the meaning of the Act is primarily a factual question and must rest upon an assessment of the totality of the circumstances. Before a defendant may be found to be in charge of the work, plaintiff must show that defendant had some direct connection with construction operations, and that he was in charge of the particular operations which resulted in the alleged injury. McGovern v. Standish (1976), 65 Ill.2d 54, 357 N.E.2d 1134.

Prior to the McGovern decision, courts often gave primary consideration to whether the owner or architect had a right to stop the work if it did not comply with the plans and specifications from which could be inferred the right to stop work if it was being done in a dangerous manner. (Voss v. Kingdon & Naven, Inc. (1975), 60 Ill.2d 520, 328 N.E.2d 297; Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630.) We believe the McGovern decision retreats from such a broad interpretation of the statute.

• 2, 3 In McGovern the plaintiff, who was injured in a fall from a scaffold during construction of a hospital addition, filed suit against the architect employed to design the addition and to supervise the work to see that it was in compliance with the construction contract. The supreme court affirmed the appellate court's reversal of the judgment for plaintiff, and held that the defendant architect was not a person having charge of the work under the Act. After examining the provisions of the construction contract, the court concluded that defendant did not have a right to stop work if it were being done in a dangerous manner where dangerous methods did not affect the quality of construction. Unlike Voss, the defendant in McGovern had no broad authority to discharge workmen or suspend work, and, furthermore, defendant had never attempted to exercise control over the work by issuing orders to the builders. After concluding from the evidence that defendant's function was limited to overseeing the work generally so as to ensure conformity with the contract, the court stated:

"It is true that the contract between [the hospital and the general contractor] recognized in the defendant a right to supervise the work. But, as a general rule, even the `duty to "supervise the work" merely creates a duty to see that the building when constructed meets the plans and specifications contracted for.' [Citation.] The right to inspect the work, also given the defendant, is but ancillary to the defendant's right to supervise. These rights, as afforded the defendant in this case, cannot alone form a basis for a finding of coverage under the Act.

We realize that the Act has traditionally been given a liberal construction in order to effectuate the legislative purpose of protecting the construction worker. [Citations.] Yet we have also held that the Act was not intended `to cover any and all construction activities whatsoever' [citation], nor was it intended to predicate a duty, and thus a corresponding liability for its violation, upon mere ownership of the premises upon which construction is undertaken [citation]. Were the defendant to be held in charge of the work on these facts, he would in essence be subjected to liability as a result of his status as a supervising architect alone. In our view, the imposition of such an onerous burden is neither in keeping with, nor required by, the salutary purpose underlying the Act." 65 Ill.2d 54, 69, 357 N.E.2d 1134, 1142.

Turning to the case at bar, we have examined the record closely and find that the only contractual document in evidence was Plaintiff's Exhibit 12 which was part of an agreement between the owner and architect requiring Ellerbe to perform the duties set out in "AIA Document A201." (That document was not placed in evidence.) The agreement also required Ellerbe to make periodic visits to the site to observe whether the work met the specifications of the contract, and authorized him to prepare "Change Orders" and to issue the owners' instructions to the contractor. The only provision relating to the right to stop work was as follows:

"The Architect shall have authority to reject Work which does not conform to the Contract Documents. The Architect shall also have authority to require the Contractor to stop the Work whenever in his reasonable opinion it may be necessary for the proper performance of the Contract." Plaintiff's Exhibit 12.

There was a further provision for a fulltime Project Representative to the employed by Ellerbe, but his duties, responsibilities, and limitations of authority were apparently set out in a separate document which was not introduced into evidence. According to the testimony of Joseph Ostrander, the architect's project representative, he was authorized to reject work that did not conform with the contract, but he could not issue directions as to means, methods, or sequences of construction or "procedures for safety prevention."

• 4 On the basis of the limited evidence relating to contractual rights and duties contained in the record, plaintiff clearly did not establish defendants' right to stop the work ...


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