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Norton v. Wilbur Waggoner Co.

OPINION FILED JULY 19, 1979.

IRVIN L. NORTON, APPELLANT,

v.

WILBUR WAGGONER EQUIPMENT RENTAL AND EXCAVATING CO. ET AL. (COLLINSVILLE COMMUNITY UNIT DISTRICT NO. 10, APPELLEE).



Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Madison County, the Hon. Moses W. Harrison, II, Judge, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 28, 1979.

The plaintiff, Irvin L. Norton, filed an action against the defendants, Collinsville Community Unit District No. 10 (hereafter the school district), Architectural Associates, Inc. (hereafter the architect), and Wilbur Waggoner Equipment Rental and Excavating Co., under the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.), in the circuit court of Madison County for injuries he sustained while working on the construction of a new school building. Waggoner and the architect were dismissed without prejudice by plaintiff during trial. Norton contended that the defendant school district, as owner, was liable under the Act as a person "having charge" of the erection of the building (Ill. Rev. Stat. 1971, ch. 48, par. 69). A jury returned a verdict for plaintiff for $175,000. The appellate court reversed on that issue alone with one justice dissenting (52 Ill. App.3d 442), and we granted the plaintiff leave to appeal.

At the time of the injury, Norton was employed by R & R Construction Company, the general contractor for the project. In order to complete the construction of one of the buildings (E), a crane was used to lift large bundles of roofing material to the top of the building, where they were deposited on the bar joists located 22 feet above the floor level. Hoisting straps were attached to a hook, 8 to 10 inches long, which was immediately beneath a steel "headache ball," 10 to 12 inches in diameter and weighing 80 to 100 pounds, at the end of the crane's cable. Once these bundles were placed across the bar joists, which had no scaffolding beneath them, Norton would walk or crawl out on the bar joists or on the bundle itself, disconnect the hoisting straps, and drop them to the ground. On June 25, 1971, Norton crawled onto a bundle of roofing material to disconnect the hoisting straps. The crane operator, acting on relayed signals, inadvertently lowered the "headache ball" and hook onto his back. Within a short time he experienced severe pain and was taken to a doctor's office.

The issue on appeal is whether the defendant school district was an owner having charge of the erection so as to render it liable for violations of the Structural Work Act; that is, for failure to "provide planking or scaffolding" for the plaintiff to stand on. (See Ill. Rev. Stat. 1971, ch. 48, par. 60.) Section 9 of the Act provides:

"Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, [or] construction * * * of any building, * * * within the provisions of this act, shall comply with all the terms thereof * * *.

For any injury to person * * * occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby * * *." (Ill. Rev. Stat. 1971, ch. 48, par. 69.)

A duty is placed upon each class of persons in the statute only if such person or persons has charge of the work. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 323, overruling Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431.) The question of who has charge of the construction is a question of fact for the jury. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 323; Crothers v. La Salle Institute (1977), 68 Ill.2d 399, 406.) Moreover, this court has determined that the term "having charge of" should not be defined for the jury because it is "one of common usage and understanding, and * * * further attempt at definition can only lead to confusion and error." (Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 323.) Hence Illinois Pattern Jury Instructions Civil, section 180.16 (2d ed. 1971), provides for no such instruction. It is true there may be insufficient evidence to create a factual question of whether a defendant has charge of the work. A trial court's decision on a motion for judgment notwithstanding the verdict or for a directed verdict, necessitating a review of the evidence, may show as much. However, reversal of a jury verdict in favor of the plaintiff must be supported by evidence, which, when viewed most favorably to the plaintiff, nevertheless so overwhelmingly favored the school district that no contrary verdict could stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510.) Application of the Pedrick test supports the trial court's denial of the school district's motions for a directed verdict, judgment n.o.v., and dictates reversal of the appellate court.

William Delaney was employed by the school district as "Clerk of the Works for the construction" involved here (and as the supervisor of maintenance or of buildings and grounds generally for the school district) at the time of the accident. Under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60), he testified that his duties were to record the progress of the construction, inspect the construction, serve as liaison between the architect and contractor, and take "a head count" of the workers. He was expected "to keep the contractor honest" by making certain all specifications were met, he said. Delaney also testified he had an office at the site but no staff, was there five days a week but not for the whole day, and had weekly meetings with the architect, contractor and subcontractors but safety was never discussed. An experienced contractor himself, Delaney stated he was familiar with the bar joists at the site, having been on them 35 to 40 times, and had been on the bar joists on which plaintiff was injured a few times himself. He said no safety superintendent was appointed, and no safety meetings or discussions were ever held. He also said any changes he felt necessary had to be reported to the architect in order to effect them.

Jack E. Olsen, associated with the architect, testified (also under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 60)) that the school board had the right to inspect the construction, including for safety, and employed a "Clerk of the Works," Delaney. The clerk, Olsen stated, "supervised the construction for the owners"; reported, jointly with the architect, to the school district at its board meetings on the progress of the construction; made certain that contractual specifications were met; and was familiar with construction methods. Olsen said the clerk would be the first to know of any deviations and would report them to the architect. He also testified that the school board could terminate the contract between it and the contractor although it had to provide 10 days' notice to the contractor. Acting on behalf of the school board, the architect, Olsen further testified, could inspect the works and was "the final judge of the quality and suitability of the work."

Testimony by others shows Delaney had significant supervisory input into the construction, such as having work redone at his direction.

The contract between the school district and contractor, and the documents constituting it, provided that the contractor would be responsible for safety on the construction site and for appointing a safety superintendent. The contract also provided that the owner had to be given reports and records of the work from the contractor such as the owner requested; the owner had to give prior written approval for all changes in work; the owner could order extra work or make changes; the owner could determine whether the date of completion should be extended; the owner had to have access to the work at all times; and the owner and the architect could establish limits on the operations of workmen.

The school district, citing McGovern v. Standish (1976), 65 Ill.2d 54, and acknowledging Emberton v. State Farm Mutual Auto Insurance Co. (1978), 71 Ill.2d 111, among other cases, contends that its association with the construction on its property was that of mere ownership and nothing more. It supports its contention by noting it could not "stop" work on the construction other than by giving 10 days' notice to the contractor, and by arguing it had no direct connection with the construction operations, was not in charge of the particular operations which involved the violation resulting in the injury, and lacked "the ability to put safety measures in force."

While it is true that mere ownership, without more, is insufficient to establish liability under the Structural Work Act (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 319-20; Kiszkan v. Texas Co. (1961), 22 Ill.2d 326, 329; Warren v. Meeker (1973), 55 Ill.2d 108, 111 (where the owners-lessors were found not to be liable for injuries under the Structural Work Act because they did not commission the repair work and accordingly were not in charge)), retention of supervision and control of the work by the owner is not essential to establish liability. This court in Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 321-22, stated:

"While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated `having charge' with `supervision and control' in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term `having charge of' is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word `charge' in People v. Gould 345 Ill. 288, 323: `The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. "To have charge of" does not necessarily imply more than to care for or to have the care of.' * * *. [C]onsistent with its beneficent purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure." (Emphasis added.)

The court added that "the plain language of the statute does not limit duty and liability to owners retaining control and supervision of the work." 33 Ill.2d 316, 322.

In McGovern, the plaintiff filed suit against the architect for injuries sustained in a fall from a scaffold used in construction which, plaintiff alleged, the architect was in charge of under the Structural Work Act. This court held that a defendant "must have been in charge of the particular operations which involved the violation from which the alleged injury arose" (65 Ill.2d 54, 67), and found for the architect on the basis of at least three evidentiary factors. First, the architect did not have the right to stop the work, as contemplated by Miller v. DeWitt (1967), 37 Ill.2d 273, 284, 286, because stoppage could only occur upon 10 days' notice. Second, the architect's right to supervise, together with the ancillary right to inspect, was simply a duty to see that contractual specifications were met. Third, the architect's authority was not broad or sweeping (as in Voss v. Kingdon & Naven, Inc. (1975), 60 Ill.2d 520, where the defendant had authority to discharge workers and suspend work). Several observations are necessary. First, Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 119, clarified McGovern's rule regarding a defendant's control of "the particular operations," above: "If the language in the majority opinion in McGovern was intended to mean that it may be shown that a person was `in charge of the particular operations which involved the violation from which the alleged injury arose' (65 Ill.2d 54, 67) either by proof that he exercised control, or that the right to control the work existed, whether exercised or not, it correctly states the law." (Emphasis added.) Second, as the McGovern court noted, the right to stop the work is not "conclusive in resolving the question of whether a person has charge of the work within the meaning of the Act. [Citations.] Rather, such a determination must rest upon an assessment of the totality of the circumstances." (Emphasis added.) (65 Ill.2d 54, 68.) Third, in the case before us, the school district could do more than merely see that contractual plans and specifications were met. It could order changes; had to approve changes; ordered, through Delaney, that certain work had to be redone; served as liaison, through Delaney, between the contractor and architect; and had an office at the site and was there, through Delaney, five days a week. Fourth, the school district's authority may not have been as expansive as in Voss, above, but it was much more so than this court found in McGovern, where evidence showed the defendant never exercised control over the work.

In Emberton, an employee of the general contractor was injured while moving a portable scaffold. This court found the architect and the defendant State Farm, owner of the site, in charge of the construction: all employees of State Farm made frequent inspections of the construction; although State Farm denied having control, its assistant vice-president for building design frequently visited the construction site; and State Farm ordered periodic changes. Here, the contractor performed all the construction work but Delaney made daily inspections for the school district and, according to ...


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