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Fruzyna v. Walter C. Carlson Associates





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


Plaintiff, John Fruzyna, brought an action pursuant to the Structural Work Act (the "Act") (Ill. Rev. Stat. 1975, ch. 48, par. 60 et seq.) for personal injuries suffered as the result of a fall from a beam at the construction site where he was employed. Plaintiff sued several defendants, including defendant-appellee, Walter C. Carlson Associates, Inc. ("Carlson" or "architect"). The circuit court granted Carlson's motion for summary judgment and made that order final and appealable pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 304(a)). Plaintiff appeals, contending that a triable issue of fact exists as to whether Carlson was a person "having charge" of the work under the Act.

On September 12, 1975, the day of the accident, plaintiff was employed by D.A. Nichols Co. (Nichols) and was engaged in the erection of structural steel for a warehouse and office building. Boise Cascade ("Boise" or "owner") owned the property. J. Emil Anderson & Son (Anderson) was the general contractor. Nichols was a subcontractor.

The construction contract between Boise and Anderson designated Carlson as the architect for the project. Boise and Carlson also entered into a written contract dated September 30, 1975, for architectural services. Carlson began work pursuant to an oral agreement before the architectural contract was reduced to writing. Accordingly, although the architectural contract was dated after the accident, it evidences Carlson's responsibilities and connections with the construction.

Under the architectural contract Carlson agreed to undertake administration of the construction contract pursuant to its terms. Carlson was the representative of the owner and all of Boise's instructions to Anderson were to be issued through Carlson. Carlson was to make at least weekly visits to the job site to familiarize himself with the progress and quality of the work. He was to determine whether the work was proceeding in accordance with the contract documents. He was obligated to inform the owner of defects and deficiencies in the work immediately.

The contract further provided that: "The Architect shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work * * *." Based on his observations, Carlson was to determine the amount owing to the general contractor. He was to issue all interpretations required. Carlson had the authority to reject any work not in conformance with the construction contract and to require the contractor to remove and replace rejected work. Carlson was to prepare change orders. Finally, he was obligated to provide all other normal and customary services of an architect.

The construction contract between Boise and Anderson provided Carlson with essentially the same duties expressed in the architectural contract: The architect was to provide general administration of the construction contract. He was designated as the owner's agent and representative. He was allowed access to the work at all times. The architect had authority to reject work (defined to include all necessary labor, materials and equipment) which did not conform to the contract documents. The contractor was required to correct promptly all rejected work. Boise had the right to stop work. Both Boise and Carlson had the right to require that any subcontractor be changed. The general contractor Anderson was responsible "for initiating, maintaining and supervising all safety precautions and programs in connection with the Work." He was obligated to comply with all applicable safety laws, rules and regulations and to maintain all required safeguards. The contractor was also obligated to "designate a responsible member of his organization at the site whose duty shall be the prevention of accidents." Anderson was "solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract."

Deposition excerpts from Walter Carlson, president of the Carlson corporation, revealed the following: Mr. Carlson was the only architect assigned to the project. He reviewed the construction contract and prepared the architectural contract. Mr. Carlson first visited the construction site approximately nine months prior to the accident. Thereafter he generally made weekly visits to observe the progress of the work. Mr. Carlson would spend from one to eight hours per visit. He also attended four progress meetings during the course of the construction.

Mr. Carlson testified that if he saw a contractor doing work not in accordance with the contract or specifications, his responsibility was to tell the owner rather than the contractor. Mr. Carlson had occasion to advise the owner that work did not meet specifications. He did not reject any work.

Mr. Carlson was familiar with safe construction practices as well as with Occupational Safety & Health Act (OSHA) regulations concerning construction. If he observed a subcontractor or the general contractor violating a safety practice or an OSHA regulation, he would first inform the Anderson job superintendent, and then Boise. Carlson did not observe any dangerous practices on this job. He did see violations of OSHA regulations and informed both Anderson and Boise. Carlson never made a report to Boise as to whether or not Anderson was complying with his contractual requirements regarding safety. Carlson had no conversations with the foreman from Nichols (plaintiff's employer) nor did he observe work being done by Nichols.

This cause comes to us on appeal from the granting of a motion for summary judgment. Summary judgment may be granted only when the pleadings, affidavits, exhibits and depositions on file show there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1975, ch. 110, par. 57.) The purpose of summary judgment procedure, then, is not to try an issue of fact, but rather to determine whether a question of fact exists. Weber v. Northern Illinois Gas Co. (1973), 10 Ill. App.3d 625, 635, 295 N.E.2d 41.

• 1 Summary judgment is "a remedy to be awarded with some caution so as not to preempt the right to trial by jury or the right to fully present the factual basis for a case where a material dispute may exist." (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App.2d 80, 87, 243 N.E.2d 40.) While the pleadings, affidavits, exhibits and depositions should be construed strictly against the party moving for summary judgment and liberally in favor of the opponent (Shockley v. Ryder Truck Rental, Inc. (1979), 74 Ill. App.3d 89, 392 N.E.2d 675), summary judgment is a means to avoid the expense and delay of trial where no genuine issue of fact exists. (Rivan Die Mold Corp. v. Stewart Warner Corp. (1975), 26 Ill. App.3d 637, 325 N.E.2d 357.) Its use is to be encouraged in a proper case as it benefits both litigants and the community. Allen v. Meyer (1958), 14 Ill.2d 284, 152 N.E.2d 576.

• 2 Section 9 of the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 69) provides in part:

"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; * * *."

For a defendant to be culpable under the Act, he must be one "having charge" of the work. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785.) More than one person or entity may have charge of the work. (Carlson v. Metropolitan Sanitary District (1965), 64 Ill. App.2d 331, 213 N.E.2d 129.) The issue of who has charge is generally a question of fact for the jury. (Gannon.) Nonetheless, "there may be insufficient evidence to create a factual question of whether a defendant has ...

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