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Moore v. Clearing Industrial Dist.

OPINION FILED SEPTEMBER 11, 1978.

CLARENCE MOORE, PLAINTIFF-APPELLEE,

v.

CLEARING INDUSTRIAL DISTRICT, INC., DEFENDANT-APPELLANT AND THIRD-PARTY PLAINTIFF-APPELLEE. — (HANSEN & HEMPEL, INC., THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE FIEDLER, Judge, presiding.

MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:

On November 24, 1971, plaintiff-appellee Clarence Moore suffered a back injury when he fell from a scaffold used for masonry work on a wall being added to an existing building.

Subsequently, Moore filed an action for damages in the circuit court of Cook County against the owner of that construction, Clearing Industrial District, Inc. (hereafter Clearing), on the basis of the Illinois Structural Work Act, which creates a right of action for injuries occasioned by wilful violations of that act against any owner or contractor having charge of the construction where the injury occurred (Ill. Rev. Stat. 1975, ch. 48, pars. 60, 69). Clearing in turn brought a third-party action against Moore's employer, Hansen & Hempel, Inc. (hereafter Hansen), seeking indemnification under an active-passive joint negligence theory. See Moroni v. Intrusion-Prepakt, Inc. (1960), 24 Ill. App.2d 534, 165 N.E.2d 316.

The two actions were tried jointly, with the only evidence presented being that produced by Moore. At the close of evidence, on motions for directed verdicts by Clearing, the circuit court reserved ruling as to Moore's action but entered a contingent directed verdict for Clearing against Hansen. The case was submitted to the jury solely on the issue of Clearing's liability to Moore and judgment was entered for Moore for $275,000. Thereafter, the circuit court entered a directed verdict for a like sum against Hansen on Clearing's indemnification action.

On appeal, Hansen joins Clearing in urging error in the circuit court's failure to enter a directed verdict for Clearing on Moore's action. Hansen itself urges error in the directed verdict against it on Clearing's action.

For the reasons stated below, we find no error in the judgments entered in the circuit court.

The uncontradicted evidence presented at trial included the following points:

(1) Clearing owned the site where Moore was injured and had hired Moore's employer, Hansen, to do masonry work.

(2) The scaffold from which Moore fell was 12 to 14 feet above the ground. It was 100 feet long, but did not extend the full width of the work area at the end where Moore was working. Its end was not closed by a guardrail.

(3) It is common practice to use guardrails on scaffolds when they are at a height of about 12 feet or more. Federal Occupation Safety and Health Administration regulations call for guardrails on all scaffolds over 10 feet above ground. A guardrail could have been installed in about 10 minutes at a cost of about ten dollars.

(4) Moore fell when, while working backwards laying brick, he stepped on a piece of brick or a block he had positioned to warn him he was near the end of the scaffold, then lost his balance, and the plank on which he was standing shifted. There was testimony that bricklayers commonly worked forward and backward to avoid unnecessary movement.

(5) The scaffold was provided by Hansen.

(6) Hansen's contract required it to take all necessary precautions for the safety of employees, including complying with Federal, State and local safety laws. It also provided that Clearing could make good any deficiency in Hansen's performance of its duties under the contract, and in the event of Hansen's persistently disregarding laws or committing any substantial violation of any provision of the contract, Clearing could, on three days' written notice, terminate Hansen's employment.

(7) In its contract with Hansen, Clearing made extremely detailed specifications regarding not only materials to be used but also the way they were to be prepared, cleaned and protected, and reserved the right to modify instructions.

(8) One Clearing employee was regularly in contact with Hansen's supervisors and made frequent inspections of the worksite. However, he did not directly contact Hansen's nonsupervisory personnel and did not ...


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