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Svenson v. Miller Builders





APPEAL from the Circuit Court of Cook County; the Hon. ALLEN HARTMAN, Judge, presiding.


Defendant and third-party plaintiff (Miller) appeals from judgments in favor of plaintiff (Svenson) and third-party defendant (Brosio & Son) in an action brought under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.). On appeal, Miller contends that the verdicts, judgments and answers to the special interrogatory were contrary to law and against the manifest weight of the evidence and that the trial court erred in (1) allowing plaintiff to file an amended complaint at the conclusion of the evidence; (2) allowing certain improper questions; (3) failing to instruct the jury properly on Miller's theory of the case; and (4) failing to grant judgment in Miller's favor on count II of the third-party complaint.

The following facts are pertinent to this appeal.

Svenson initiated this action by filing a complaint against Miller alleging that he sustained injuries while employed as a bricklayer by Brosio & Son. The complaint alleged violations of the Structural Work Act. Miller subsequently filed a third-party complaint against its subcontractor, Brosio & Son, alleging that the latter was responsible for any violations of the Structural Work Act. Miller also alleged that Brosio & Son had contractually agreed to indemnify and hold Miller harmless from any claim for injury or damage, but had failed to perform this condition.

The following pertinent evidence was adduced at trial.

Robert J. Nielsen, Director of Administration, Miller Builders, under section 60

On December 10, 1969, he was employed as operations manager of Miller's housing division and had an office on the premises of Miller's Northgate housing project. Miller was general contractor for the Northgate project. As of December 10, 1969, approximately 200 single-family homes had been constructed at the project. A total of 700 homes was planned. Miller had sublet portions of the work on the project to various subcontractors. Miller, as general contractor, was responsible for the scheduling and supervision of the entire project including the engagement and supervision of the subcontractors. He inspected the buildings on the project two or three times per week. Miller also had five other men on the job to supervise the subcontractors. The subcontractors were required to allow Miller to inspect their work. He had the authority to halt any unsafe practices on the project. He was aware that the Illinois Structural Work Act applied to the work being performed on the project.

The excavation and backfilling on the project was performed by Embico, a corporation wholly owned by Miller. Nielsen was an officer of Embico. Embico's responsibilities included excavating each building site and returning compactible soil against the completed concrete foundation of each building. He was not aware of any complaints regarding the level of the backfill, but was aware of complaints about the difficulty of compacting the frozen soil.

During his inspections he observed masonry scaffold used by Brosio & Son, plaintiff's employer and a subcontractor on the project. The masonry scaffold was portable and was erected on the backfill surrounding each building. The ground conditions would determine the footing or bearing to be placed under each scaffold. Where the underlying soil is loose or soft it is necessary to place bricks, lumber or plywood under the scaffold to prevent the scaffold from sinking into the ground. The height of a scaffold would generally determine whether it should be secured to the building. The purpose of securing a scaffold is to prevent it from "tipping over." He did not know whether the scaffold used by Brosio & Son was secured to anything.

The backfill at the Northgate project was "all clay" and came to within a foot of the top of the foundation. The masons normally began brick work on a house two weeks after completion of the backfill.

On direct examination he testified that he did not tell employees of Brosio & Son how to do their work.

Raymond Brosio, President of Brosio & Son, Inc., under Section 60

He is a bricklayer. His company contracted with Miller sometime prior to December 10, 1969, to do certain brickwork on the Northgate project. It was the practice of Brosio & Son "to stack and scaffold a building" before the bricklayers began working.

On December 10, 1969, he, his brother Louis Brosio, and Svenson were working together on a tubular steel scaffold with four legs. The scaffold was erected by Albert Walker, a Brosio & Son employee. It was three tiers high, the third level being approximately 15 feet off the ground. There were bricks stacked on the second tier; he did not know whether there were any on the third tier. He did not know whether the soil under the scaffold was backfill of whether it was properly compacted. However, he admitted that in his deposition he had testified that the scaffold sunk because the backfill under the scaffold was not compacted.

The scaffold was placed on mud sills which are pieces of planking used to distribute the weight of the scaffold. The scaffold was not secured to the building in any way. After they had been working on the scaffold for about an hour one corner suddenly gave way and the bricks fell. A brick struck plaintiff. He and his brother attempted to aid plaintiff and called for an ambulance.

All of the scaffolding used by Brosio & Son was owned and maintained by Brosio & Son. He did not make any formal written complaints about the backfill to Miller prior to the accident.

Louis Brosio

On December 10, 1969, he was vice-president of Brosio & Son and was working on the scaffold with Svenson on that date. The scaffold was about 20 to 25 feet high, contained four or five levels, and was placed along the south side of the building. The brick was stacked to about 15 feet. He did not recall whether the scaffold was braced or tied to the building, but stated that there was no need to secure it to the building. The custom in the construction industry was to brace the scaffold where "you are going extremely high" and where the ground was not solid. The scaffold was tied to other scaffolding which ran around the house and was also given vertical support by planking which connected it to the other scaffolding. The scaffold was built upon planking which had been placed over frozen backfill. As he, Svenson and Ray Brosio were working on the scaffold "the ground gave away" and "it tipped." The scaffold did not fall over. When the scaffold tipped 10 or 12 bricks fell. He testified that if the backfill appeared to be getting soft as the weather warmed up, "we'd stop and fix it." The inspectors from Miller would inspect his company's work anywhere from one to six times a day.

On cross-examination he stated that the scaffold was level and in good shape when they began work. The scaffold was owned, constructed and used exclusively by Brosio & Son. If the backfill appeared inadequate, Brosio & Son would level it before erecting the scaffold. He admitted that the inspectors from Miller did not give him directions.

On redirect he stated that where scaffolding is tied to adjoining scaffolding there is no need to brace it to the building.

William Fontana, Foreman, Brosio & Son, Inc., under section 60

At the time of Svenson's accident he was working on the inside of the same building. The scaffold on which Svenson was working was not tied to the building in any way. Scaffolding was only tied to the building when the bricklayer thought it necessary. In his opinion the scaffold would have "sunk on one end" even if it had been tied to the building. Nothing would prevent the scaffold from tipping if the backfill were to give way. He did not believe there was any way to prevent the accident.

The night before the accident it had rained "pretty hard." The ground was frozen at 8 a.m. on the morning of the accident, but "warmed up" soon thereafter. The scaffold tipped when one leg "gave way down into the backfill." Bricks were stacked on the second level of the scaffold, approximately 10 or 12 feet off the ground. The scaffold was not braced because "we didn't think it needed it." He admitted that Miller had nothing to do with erecting the scaffold.

Arthur Svenson, on his own behalf

He had been employed as a bricklayer by Brosio & Son for approximately 13 months prior to the accident. Brosio & Son utilized a "pre-stacking" procedure whereby the laborers would build scaffolding around the entire building and stack all the necessary bricks on the scaffold. The bricklayers were not present during this ...

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