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Molloy v. Santucci Construction Co.

OPINION FILED NOVEMBER 2, 1979.

THOMAS J. MOLLOY, SR., PLAINTIFF-APPELLANT,

v.

SANTUCCI CONSTRUCTION COMPANY, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS J. GILIBERTO, Judge, presiding.

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

Plaintiff appeals from a summary judgment entered in favor of defendant, and the sole issue raised is the propriety of the judgment.

This action for personal injury was brought by plaintiff, a bricklayer, under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.) (hereinafter referred to as the Act) against defendant and others. In his complaint, plaintiff alleged that he was injured when he fell from a scaffold during construction work on the premises of defendant; that the scaffold was unsafe, in violation of the Act; and that defendant was in charge of the work being performed. In its answer, defendant admitted ownership of the premises but denied all other pertinent allegations of the complaint.

Defendant then moved for summary judgment supported by the affidavit of its vice president, Angelo Ventrella, in which he stated that defendant had retained contractors to perform construction work on the premises; that no scaffolds or appurtenances thereto were supplied by it to any of the contractors involved, and that defendant "did not instruct, direct, interfere with, or otherwise participate in the way, manner, method or equipment used by the contractors involved." Also attached to the motion was a copy of the contract entered into between plaintiff's employer and defendant. In opposition to the motion, plaintiff submitted his own affidavit, stating that during the course of his work on defendant's premises he was instructed by a man he knew only as "Angelo," whom he believed to be defendant's president, to leave certain openings in the brickwork so that electrical wiring and outlets could be installed for a sign to be placed later; that he had also discussed with "Angelo" the proper method of refilling an opening in a wall resulting when a window became loose during the construction; that "Angelo" instructed him not to replace the window at that time; that "Angelo" made inspections of the progress of the work on almost every day of plaintiff's employment; that defendant's employees removed certain bumper guards to permit brickwork repair, and they replaced them when the brickwork was completed; that on a number of occasions lumber was obtained from defendant to level the scaffolds constructed for use by the bricklayers; that defendant's trucks hauled away all waste material from the work site; and that defendant made available its electric hammers for use by the bricklayers.

The trial court in entering summary judgment for defendant found (1) the contract did not reserve the right to control nor did defendant exercise control over the work; (2) the affidavit of plaintiff failed to raise an issue of fact as to whether defendant had charge of the work; and (3) as a matter of law, defendant was not in charge of the work.

OPINION

• 1 It is established that summary judgment should be granted only when the pleadings, depositions and admissions on file, together with the affidavits (if any) show there was no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1977, ch. 110, par. 57(3); Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457; Heidelberger v. Jewel Companies, Inc. (1974), 57 Ill.2d 87, 312 N.E.2d 601.) However, summary judgment is a drastic remedy and should be granted only when the movant's right thereto is clear and free from doubt (Marshall v. City of Chicago Heights (1978), 59 Ill. App.3d 986, 376 N.E.2d 657), and, in passing on the motion, the trial court must construe the documents presented strictly against the movant and liberally in favor of the opponent (Littrell v. Coats Co. (1978), 62 Ill. App.3d 516, 379 N.E.2d 293). Further, the opponent may rely upon reasonable inferences which may be drawn from the materials considered on the motion in the determination of whether a genuine issue of material fact exists. Gehrman v. Zajac (1975), 34 Ill. App.3d 164, 340 N.E.2d 184.

In the instant appeal, the trial court found as a matter of law that defendant was not a person "having charge of" the work, as that term is used in the Act, and the single issue presented here is whether from the pleadings and affidavits a factual question exists in that regard.

• 2 The duty is placed upon each class of persons named in the Act, including the owner, if such person or persons has charge of the work. (Ill. Rev. Stat. 1977, ch. 48, par. 69; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785.) In Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247, the court stated:

"The term `having charge of' is one of common usage and understanding, and it is our opinion that further attempt at definition can only lead to confusion and error." (33 Ill.2d 316, 323, 211 N.E.2d 247, 252.)

The courts> have held, however, that the question as to who has charge of construction work is ordinarily one of fact for the jury. (See McInerney v. Hasbrook Construction Co. (1975), 62 Ill.2d 93, 338 N.E.2d 868; Voss v. Kingdon & Naven, Inc. (1975), 60 Ill.2d 520, 328 N.E.2d 297; Kobus v. Formfit Co. (1966), 35 Ill.2d 533, 221 N.E.2d 633; Larson v. Commonwealth Edison Co.; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co.) In this regard, however, summary judgment was held to be proper where no facts were disclosed from which the trier of fact could have found that a person had charge of the work being performed. For example, in Kiszkan v. The Texas Co. (1961), 22 Ill.2d 326, 175 N.E.2d 401, the court in affirming summary judgment stated that there was "not a scintilla of evidence that the defendant owner had charge of the construction * * *." (22 Ill.2d 326, 330, 175 N.E.2d 401, 403.) See also Carruthers v. B.C. Christopher & Co., where summary judgment was granted in favor of a lessee of premises where there was no basis to submit the question of having charge to the trier of fact.

In its consideration of the motion for summary judgment in the instant case, the trial court had only the information presented by defendant in the affidavit of its vice-president, Angelo Ventrella; namely, that while defendant was the owner of the premises, it did not supply any scaffold or appurtenances thereto and did not instruct, direct, interfere with or otherwise participate in any manner, method or equipment used by the contractors involved. The contract between plaintiff's employer and defendant was attached to the affidavit but consisted only of a single page spelling out the specific work to be performed by plaintiff's employer.

• 3 We initially note that defendant's affidavit attempted only to negate supervision and control, which is only one factor to be considered in determining whether a person has charge of the work. As stated in Larson v. Commonwealth Edison Co.:

"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.' Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is `in charge,' they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather, consistent with its beneficient 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 ...


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