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Taskay v. Foschi Brothers Inc.

OPINION FILED DECEMBER 30, 1976.

JOHN TASKAY, PLAINTIFF-APPELLEE,

v.

FOSCHI BROTHERS INCORPORATED, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. ROBERT E. HIGGINS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal from a judgment in favor of the plaintiff, John Taskay, and against the defendant, Foschi Brothers Incorporated, after trial by jury in Will County. The jury's verdict and award of $55,000 as damages was predicated upon the defendant's alleged liability under the Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, par. 60 et seq.).

The prime contractor, Illinois Bank Building Corporation, had a contract to build a new bank in Joliet, Illinois. On November 6, 1967, the defendant entered into two subcontract agreements with the prime contractor. One contract required the demolition of two buildings in the city of Joliet by the defendant and the second contract required that the defendant do excavating work, including stripping of overburden, rock excavation and disposal of all excavated material.

Frank Peterson, superintendent for the prime contractor, testified that the defendant, Foschi Brothers Incorporated, decided how the old building was to be razed and how the excavating was to be done, that the defendant was to follow dimensions set forth on prints but as to methods of excavating, equipment to be used and number of men needed were all decisions to be made by the defendant. During the course of excavating at the building site it was deemed necessary to put up beams and supports in order to brace and support the wall of a building immediately north of the construction site. The decision to install such shoring beams was made by both the prime contractor and the defendant. It was the further testimony of the witness Peterson that the beams and pipes were installed by Lockport Iron who had a contract with the prime contractor to do the structural steel work on the new bank building and that such installation was made at the direction of the prime contractor. Peterson's testimony was that the defendant had nothing to do with the installation of the supporting beams and pipes or with the hiring of the Lockport Iron people.

A witness Edward Kure testified as follows: that he and his brother were owners of Lockport Iron, that they were hired by the prime contractor to install the bracing which was to support the wall adjacent to the building site, that such installation was not part of the contract they had entered into with the prime contractor, but was additional employment, and that he and his employees were on the payroll of the prime contractor. Kure further stated that on December 5, 1967, he received a message that he was to go to the bank site the next day, but he had no knowledge as to who had called in the message. On December 6, 1967, Kure, John Taskay, the plaintiff, and a fellow employee, John Plese, were on the construction site. He further testified that on that particular date the only other people present were associated with the defendant and that it was necessary to remove portions of the bracing since it was interfering with the defendant's excavating operation. Certain supports consisting of pipes pinned to the ground and other pipes running at an angle from the ground to vertical supporting beams were removed and the defendant continued to excavate with the use of a bulldozer, pneumatic drill, end loader, air compressor and trucks. When it came time to replace the bracing at approximately 4 o'clock in the afternoon one of the beams had shaken loose from the wall and it fell and struck the plaintiff on the head. It was the further testimony of Kure that he dealt entirely with the Foschi people or in other words, the defendant. Lockport Iron on December 6, 1967, the day of the accident, had on the building site a truck with a hoist, a cutting torch and welding machine.

The testimony of John Plese was that on December 6, 1967, he was on the building site and received his orders from his boss, Ed Kure, but that he heard one of the defendant's men tell his boss that it would be nice if the pipes could be taken down so that they could continue with the excavating. Plese's version of the accident was the same as that of the witness Edward Kure.

The testimony of the plaintiff in regard to the events on the building site is substantially the same as that of Edward Kure and John Plese with the exception that he saw an employee of the defendant, Sal De Angelos, talking to Edward Kure about the removal of the pipes.

Edward Foschi testified that he was the president of the defendant company and that on December 6, 1967, he had five men on the building site and that the boss of the crew was Sal De Angelos. He was not on the site at the time of the accident and he had not contacted Lockport Iron to come to the site but had contacted Mr. Peterson, superintendent of the prime contractor, about the beams being in the way of the excavating operation and that he wanted them moved.

Salvatore De Angelos, previously referred to as Sal De Angelos, testified that he was labor foreman for the defendant and that he told Ed Foschi that he would have to get somebody to get the beams out of the way so that the north wall could be completed. He stated that with the exception of saying "Hi" to one of the Kure brothers on December 6, 1967, he had no further conversation with anyone connected with Lockport Iron.

In examining the record it becomes clear that Peterson, superintendent of the prime contractor, was not on the site at the time the men of Lockport Iron were, and further that the Lockport Iron crew were aware of the fact that on December 6, 1967, they were on the payroll of the prime contractor. The record further discloses that the supporting beams and braces were installed by Lockport Iron in August or September, 1967, which was several months prior to the date of the accident and at the time of installation the crew or men of Lockport Iron were not acting in the capacity of employees of a subcontractor, but were in fact employees of and on the payroll of the prime contractor.

The paramount issue to be determined in this appeal is whether or not the defendant was a person having charge of the work within the meaning of the Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, par. 60 et seq.).

• 1 Section 9 of the Structural Work Act imposes civil liability for wilful violation of the Act, or wilful failure to comply with any of its provisions upon "Any owner, contractor, sub-contractor, foreman, or other person having charge of the erection, construction, repairing, alteration, removal, or painting of any building, bridge, viaduct, or other structure within the provisions of this act, * * *" (Ill. Rev. Stat. 1967, ch. 48, par. 69.). Construing this language our Supreme Court has stated that "the legislature intended to hold liable those named persons who are in charge of the work * * *." Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785.

Whether a defendant is a person "having charge of" the work within the meaning of the Act is primarily a factual question. (Voss v. Kingdon and Naven, Inc. (1975), 60 Ill.2d 520, 328 N.E.2d 297.) Our supreme court has also held that the term "having charge of" is one of common usage and understanding and any attempt to define the term would only lead to confusion and error. (See Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247.) Nevertheless, before a defendant may be found to be in charge of the work there must be a showing that he had some direct connection with the construction operations. (See Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247.) In addition the defendant must have been in charge of the particular operations which involved the violation from which the alleged injury arose. Warren v. Meeker (1973), 55 Ill.2d 108, 302 N.E.2d 54; Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457.

Having set forth the requisite legal guidelines it now becomes incumbent upon this court to make a determination of the pivotal question as to whether or not the defendant was in charge of the work when the ...


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