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Westerfield v. Arjack Co.

OPINION FILED OCTOBER 24, 1979.

JOHN WESTERFIELD ET AL., PLAINTIFFS-APPELLEES,

v.

ARJACK COMPANY, INC., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT. — (CHICAGO HOUSING AUTHORITY ET AL., DEFENDANTS; CHICAGO HOUSING AUTHORITY, THIRD-PARTY PLAINTIFF; PRESBITERO AND SONS, INC., THIRD-PARTY DEFENDANT-APPELLEE.)



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM F. PATTERSON, Judge, presiding.

MR. JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Plaintiffs John Westerfield, Sammie Lee Whisenton and Phillip Winters brought this action under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60-69) against defendant Arjack Company, Inc., for injuries sustained when the platform of a material hoist on which they were riding fell to the ground. Arjack was the general contractor of the construction project. It brought a third-party action for indemnity against the plaintiffs' employer, Presbitero & Sons. The jury returned a general verdict totaling $90,000 in favor of the plaintiffs and against Arjack. In the third-party action, the jury returned a general verdict in favor of Arjack. Two special interrogatories were answered by the jury as follows:

1. Do you find that Arjack violated the Structural Work Act by allowing plaintiffs to ride the hoist in question and that that violation was a proximate cause of this occurrence and plaintiffs' injuries?

YES

If yes, do you find that that violation of the Structural Work Act was an active violation?

YES

2. Do you find that Arjack violated the Structural Work Act by failing to provide plaintiffs with a ladder and that that violation was a proximate cause of this occurrence and plaintiffs' injuries?

NO

The court entered judgment on the general verdict in favor of plaintiffs. In the third-party action, the court entered judgment in favor of Presbitero based on the jury's answer to special interrogatory No. 1.

Arjack contends that: (1) it was not in charge of the work within the meaning of the Act; (2) it did not wilfully violate the Structural Work Act; and (3) any violation of the Structural Work Act by Arjack was passive, and there was no evidence to support the jury's answer to special interrogatory No. 1 finding that the violation was active. We affirm.

The accident occurred at the Chicago Housing Authority project at 1309 South Independence Boulevard. The C.H.A. had employed Arjack as the general contractor for the project which consisted of 18 buildings. The C.H.A.-Arjack contract provided that Arjack was to have a competent superintendent satisfactory to the C.H.A. on the jobsite at all times. Except as otherwise specifically stated in the contract, Arjack was to pay for and provide, among other items, all materials, labor, tools and equipment. Arjack could subcontract the work with the written approval of the C.H.A., but it was responsible for the work of the subcontractors. Under the contract, the C.H.A. could issue a written stop order if Arjack did not provide enough men or equipment or did not perform the work in accordance with the contract. Another provision of the contract required Arjack to "exercise proper precaution" at all times for the protection of persons and property and to observe the safety provisions of applicable laws and construction codes.

Arjack appointed Arthur Conboy as construction superintendent and James Mayberry as assistant superintendent of the project. No other Arjack employees worked at the jobsites. Mayberry testified that he checked on the subcontractors to see that the work was being done properly, but he had nothing to do with the individual employees of the subcontractors. It was also his duty to insure that the guard railings were installed and ladders were present on the site.

Arjack subcontracted with Presbitero to do some of the masonry work on the project. The subcontract incorporated the contract between Arjack and the C.H.A.

In January 1978, Presbitero leased a hoist from Arrow Contractors. The hoist, bearing a sign which read "No Riders," was used on the construction site. Despite the sign and safety code provisions which forbade persons to ride material hoists, various workers on the jobsite rode it. The three plaintiffs testified that they rode the hoist on many occasions. According to their testimony, they had to ride the hoist if there were no ladders at a given site. Some Presbitero employees testified that they rode the hoist in the presence of the Presbitero bosses. Milton Dennis, the ...


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