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Gruszeczki v. Acme-cleveland Corp.

OPINION FILED APRIL 12, 1979.

IRENE GRUSZECZKI, INDIV. AND AS EX'R OF THE ESTATE OF FRANK C. GRUSZECZKI, DECEASED, PLAINTIFFS-APPELLANTS,

v.

ACME-CLEVELAND CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Henry County; the Hon. CONWAY L. SPANTON, Judge, presiding.

MR. PRESIDING JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 9, 1979.

Plaintiff Irene Gruszeczki brought suit in the Circuit Court of Henry County to recover damages for the death of her husband, Frank Gruszeczki, allegedly as a result of violations of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.). Named as defendants were Acme-Cleveland Corporation, owner of the building under construction; Del Construction Company, general contractor; and Thomas Plumbing and Heating Company, plumbing subcontractor. The trial court granted defendants' motions for summary judgment, and plaintiff appeals.

In August of 1974 construction of a new factory and office building for Shalco System Division of Acme-Cleveland Corporation was begun in Kewanee, Illinois. The owner, Acme-Cleveland, engaged an architect to prepare building plans and specifications. The general contract, which was awarded to Del Construction Company, provided that the architect was to be the owner's representative during the construction project, and that the architect's services would include issuing certificates for payment, checking progress and quality of the work for compliance with the contract, and exercising the right to condemn work which fails to conform to the contract. A provision in the contract stated explicitly that the architect would "not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs." In another provision, the general contractor was given the responsibility for supervising all subcontractors and coordinating their work, for securing compliance with all applicable laws, ordinances, rules and regulations, and for initiating, maintaining, and supervising all safety precautions and programs in connection with the work.

A separate subcontract governed the plumbing work. Included within the scope of the work was an item as follows:

"A complete system of water service exterior to building with connections to city mains at road, or edge of property, service line through property to building, fire hydrants, connection to water meter, including excavating and backfill."

The initial phase of the project included the installation of exterior water service and two fire hydrants. When Thomas Plumbing employees were ready to install the first fire hydrant and its connecting service pipe, Del's project foreman, Oswald Schlack, together with Gordon Mullooly, foreman for Thomas Plumbing, determined the correct location of the hydrant in relation to the building. The hydrant was then placed in position, a trench was dug, and the service pipe was installed from the hydrant north towards Page Street. Since the city water main was located on the far side of Page Street, Thomas Plumbing placed its service pipe under the street to a point four or five feet from the water main.

An ordinance of the City of Kewanee provided as follows:

"9-5-3: PUTTING IN SERVICE: In all cases the tapping of the main and putting in of the service pipes * * * between the main and the meter shall be done by the City, at the expense of the applicant or owner of the premises. * * * In installing a water service, the Superintendent or person authorized by him will tap the main, inserting a stop cock, which shall be known as the corporation cock, and shall lay the service pipe from the main to the meter, which shall, if possible, be placed in the cellar."

In compliance with this ordinance, Mullooly contacted the Kewanee Water Department to arrange for the connection to the city main and was informed that the city's equipment for digging trenches would be in use elsewhere so Thomas Plumbing would have to make the excavation. On the morning of September 9, 1974, at the direction of water department employee Frank Gruszeczki, a trench 10 feet long, eight feet wide and six feet deep was dug around the main by an employee of Thomas Plumbing using a backhoe.

After the trench was dug, Gruszeczki and another city employee went into the trench and cut into the side of the main to make the tap. Although the water supply to this segment of the main had been shut off at valves located a block or two on either side of the work site, the water remaining in the large pipe came out through the hole. The city workers hooked up a pump to carry off the water, but the pump failed to work. While the men waited for a second pump to arrive, the trench filled with water and remained filled for about one-half hour. After the second pump had pumped out most, but not all, of the water and mud, the two city workers went back into the trench to complete the connection. The backhoe operator, a Thomas Plumbing employee, warned Gruszeczki not to go back into the trench until the bottom was drained and checked, but Gruszeczki said he could work in the water. A few minutes later a chunk of one wall of the trench fell into the trench, knocking Gruszeczki against the water main and partially burying him in dirt. Gruszeczki was hospitalized with a broken pelvis and died four days later of a blood clot.

Decedent's widow, individually and as executor, filed this cause, charging defendants with alleged violations of the Structural Work Act and seeking $155,000 damages.

Motions for summary judgment were filed by all three defendants, supported by affidavits and depositions. The trial court allowed the motions and entered summary judgment. In a written opinion, the court found that the work involved here was the city's responsibility and was in fact being performed by the city, through its employees, as required by ordinance. Plaintiff appeals, contending that summary judgment was erroneously entered because genuine issues of ...


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