Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. James B. Crosson, Judge, presiding.
MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 23, 1977.
The plaintiff, Leonard Crothers, was injured as the result of a fall from the roof of a gymnasium being constructed for the defendant owner, La Salle Institute, on the campus of Lewis College (now Lewis University) in Lockport, Illinois. Crothers' third amended complaint alleged he suffered the injury because La Salle had been negligent and had violated the Structural Work Act (Ill. Rev. Stat. 1967, ch. 48, pars. 60-69). Crothers dropped the negligence count. The jury returned a verdict in the circuit court of Cook County for La Salle but the appellate court reversed. 40 Ill. App.3d 984.
La Salle had engaged Paxton Construction Company as the general contractor for the construction, but at the time of the injury, July 27, 1967, there was no longer a general contractor. Due either to Paxton's bankruptcy or unsatisfactory performance the record is not unequivocally clear its services were terminated. (Brother Joel Damian, the legal equivalent of corporate secretary for La Salle, testified that La Salle removed Paxton, on the advice of the architect, for failure to perform satisfactory service.) Subcontractors, including Crothers' employer, Norton & Sons Roofing, had been hired before Paxton's departure.
On the day of the injury Crothers was atop the roof installing insulation. He was working toward the edge of the roof with his back to it when he apparently misjudged his location, lost his balance and fell 35 feet to the concrete below.
Crothers testified that the day was windy "very gusty" and that the roof had been completed except for the installation of insulation and skylights. His orders, he said, came only from his foreman and never from the Christian Brothers, that is, the defendant, La Salle Institute. As he fell, he said, he grabbed for and pulled with him loose pieces of wood which were lying at the edge of the roof.
A construction safety advisor from the Illinois Department of Labor, called by the plaintiff, testified that the customary precautions for a flat roof are safety belts with lead lines, safety nets, secured ladders, and ropes strung around the edge, sometimes with streamers. One could also "extend weighted concrete," use "imbedded pins and uprights," and "weld uprights and attach cable or rope across and around the perimeter edge." On cross-examination the witness said the safety devices used would depend upon the particular construction involved and implied he himself had not been to Lewis College.
The next witness to testify was Robert Messer, who had been chief estimator for Paxton and had been hired by La Salle as "project manager" after Paxton's dismissal. He said his job function was to schedule the subcontractors, answer their queries as well as those of supervisors, and inspect the work and its progress. He further testified he had nothing to do with the actual methods, which were left to the individual trades, nor did he become involved in the resolution of disputes, which was in the province of the architect's duties. Messer admitted that both his and the architect's approval were needed before payment was made by La Salle.
Brother Joel Damian, in addition to confirming facts already testified to, explained other aspects of the case. Although conceding he had referred to Messer as the "superintendent of construction" in the letter he had written to the subcontractors asking them to continue with their work after Paxton, the general contractor, was terminated, he denied Messer had that responsibility. Messer was the job inspector or project manager who coordinated the trades, while the architect was the construction supervisor. Brother Damian said no Christian Brother was involved in the day-to-day supervision of the jobs but that the architect had the responsibility of modifying or stopping the work. He also stated that after Paxton's departure, he requested the subcontractors to continue with the same contract they had with Paxton. They agreed.
There was also testimony regarding Crothers' injuries.
Counsel for Crothers then made two post-hearing motions which are significant in this case. The first was a motion to find La Salle "in charge of" the construction as a matter of law. This was denied. The second motion sought to reopen the plaintiff's case after counsel for Crothers had closed his case, although before La Salle had rested. Crothers' counsel wished to enter the letter from La Salle to the subcontractors, noted above (hereinafter the letter), as an offer of proof to establish Messer's position as "supervisor of construction" and evidence La Salle's control of construction. From the record, it seems the court was inclined to reopen the case and admit the letter into evidence but then refused to do so over La Salle's objection. Counsel for La Salle contended that not only did counsel for Crothers have the letter in hand during the trial but that the letter was simply being offered to impeach Brother Damian's testimony that Messer was not supervisor of construction. However, because Brother Damian admitted referring to Messer as supervisor of construction, counsel for La Salle said, the letter did not impeach but was cumulative. The court apparently agreed. Counsel for Crothers admitted it had possessed the letter but said he had inadvertently failed to offer the letter before the close of plaintiff's case.
The only other point of concern to us in this case is the trial court's refusal to give one of Crothers' tendered instructions (Illinois Pattern Jury Instruction, Civil, No. 180.14 (2d ed. 1971) (hereinafter IPI Civil)). Crothers had substituted the word "roof" for scaffold, hoist, crane, stay, ladder, support, or "other mechanical contrivance or device," as alternatively offered in IPI Civil No. 180.14, so that his suggested modified instruction read:
"Elsewhere in these instructions I have used the term `violation of the Structural Work Act.' The statute was violated if the roof in question was not safe so as to give adequate protection to the life and limb of any person employed thereon and the defendant knew of the condition or, in the exercise of ordinary care it could have discovered it."
The appellate court reversed, holding that the proffered instruction should have been given and that the letter should have been admitted into evidence. The appellate court declined to reverse the trial court's denial of Crothers' motions for directed verdict or judgment notwithstanding the verdict and motion to find La Salle "in charge" as a matter of law, both motions the appellate court finding to be "interdependent."
Although the plaintiff frames the broad issue as whether the trial court should have granted his motion for a directed verdict or judgment notwithstanding the verdict, we believe the specific issues before us are:
(1) Whether the trial court correctly refused to find La Salle Institute in charge of construction as a matter of law.
(2) Whether the trial court abused its discretion by refusing to reopen plaintiff's case to admit into evidence the letter from La Salle to the subcontractors.
(3) Whether the trial court properly refused to give the instruction that the Structural Work Act was violated if the roof was unsafe. (That is, plaintiff's instruction based on IPI Civil No. 180.14.)
First, we agree with the appellate court that plaintiff's motions for directed verdict or judgment notwithstanding the verdict and for a finding that La Salle was in charge of the work as a matter of law are interdependent; at least to the extent that if La Salle was not conclusively in charge of the work, then Crothers' motion for directed verdict or judgment notwithstanding the verdict must be denied. We further agree with the appellate court that the evidence regarding control of the work was clearly of a nature about which reasonable people could disagree.
The Structural Work Act provides that 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, shall comply with all the terms thereof * * *." (Ill. Rev. Stat. 1967, ch. 48, par. 69.) It is clear from the statute and the cases (see, e.g., Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305) that, before an owner is liable for injuries under the Act, it must have been in charge of the project. This is ordinarily a question of fact for the jury. In Gannon, the defendant railroad owned the premises (on which the plaintiff was injured when he fell from a scaffold), made frequent inspections, and prepared the engineering and architectural plans. The scaffolds, however, were under the individual control of the construction company, plaintiff's employer. This court found the facts undisputed but held: "Under these circumstances, it was at most a disputed question of fact whether the owner could be deemed to be in charge of the construction within the meaning of the act, and it would be the province of the jury, under proper instructions, to make that determination." (22 Ill.2d 305, 323.) Accordingly, mere ownership (Kobus v. Formfit Co. (1966), 35 Ill.2d 533) and actual exercise of supervision or control (Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316) are not conclusive, as to being in charge and therefore as to liability, but only factors to be considered by the jury.
In the instant case, Crothers said he took his orders only from his foreman, and Messer testified the manner of construction was entirely in the hands of the subcontractors. There is little doubt that there was a disputable issue of fact as to control and supervision and that the trial court correctly denied Crothers' motions and left it to the jury to decide the liability of the defendant owner.
Lest there be any doubt as to the correctness of the trial court's handling of Crothers' motion for a directed verdict or judgment notwithstanding the verdict, we wish to add a few words on that issue. In McGovern v. Standish (1976), 65 Ill.2d 54, this court found, on the basis of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, that the evidence, even though viewed in a light most favorable to the plaintiff, so overwhelmingly favored the defendant architect, alleged to be in charge, that no contrary verdict could stand, so that the defendant should have been granted a directed verdict. First noting that it is a fact question, this court then said that "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 ...