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Kirk v. Walter E. Deuchler Associates

OPINION FILED DECEMBER 7, 1979.

NORMAN ESLEY KIRK ET AL., PLAINTIFFS-APPELLEES,

v.

WALTER E. DEUCHLER ASSOCIATES, INC., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Kane County; the Hon. MARVIN D. DUNN, Judge, presiding.

MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:

The plaintiff herein and his wife brought suit against the Aurora Sanitary District (District) and Walter Deuchler Associates, Inc. (Deuchler) under the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, pars. 60-69). Plaintiff was employed by the Matt Walton Sewer Construction Company (Walton), which was installing a sewage system in Aurora for the District. Walton is not a party to this action, and it is surmised that plaintiff proceeded under the Workmen's Compensation Act, insofar as the liability, if any, of Walton was concerned.

Trial was had in the circuit court of Kane County in February 1977. During that trial a great deal of evidence was introduced by the plaintiffs. At the close of the plaintiffs' case they were allowed to amend their original complaint to conform to the proofs. In essence the amended complaint alleged that the defendants violated the Structural Work Act by allowing the use of a particular method of lifting the load which injured the plaintiff and also by the failure of the defendants to require the use of a complete and adequate system of hand signals in conjunction with that lifting system. At the same time each of the defendants moved for a directed verdict on the grounds that they were not in charge of the work and that the plaintiffs had not proven a case as a matter of law. These motions were denied. Neither of the defendants presented any testimony.

The jury returned a verdict for the plaintiff, Norman Kirk, in the sum of $250,000 for actual and prospective damages and $20,000 in actual and prospective damages to the plaintiff Helen Kirk for loss of consortium. The post-trial motions for judgment n.o.v. of the defendants were denied, and they appeal.

Four issues must be resolved to properly dispose of this case: (1) whether a jury question existed as to which, if either, of the defendants were "in charge of the work"; (2) whether section 67 of the Structural Work Act imposes liability as a matter of law upon an engineer or architect for the absence of a complete or adequate system of signals for use in the lifting or hoisting of materials on a job site; (3) whether the evidence fails to support the jury's verdict in favor of the plaintiff; and (4) whether the trial court committed prejudicial error related to voir dire examination, admission of evidence, or instructions to the jury.

I

We consider first who was "in charge of the work." Section 9 of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 69) provides, in pertinent part, that "[a]ny owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of * * * or other structure within the provisions of this act * * *" shall be liable "[f]or any injury to person or property, 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 * * *."

We have examined the record and conclude that it would serve no purpose to set out the contractual relationship between the defendants and the plaintiff's employer in detail. It is sufficient for us to note that the District had the right to take over the work upon 10 days notice after a failure by Walton to fully or adequately perform the work; or due to his financial incapacity. Additionally, the District had its limited right to modify the plans during the project as well as the right to inspect the system prior to its acceptance. The sole direct connection between the District and the work on the site was an inspector in its employ. That inspector, Gerald Abel, appeared at the site for an undetermined period of time most every day that work was in progress. His instructions from the District were to report back to them as to the quality of the work being performed. The record reveals that upon occasion, however, Abel gave "advice" to Walton's foreman on the site. However, the record is equally clear that this "advice" was informal in nature and was outside the scope of Abel's actual authority.

Deuchler, the general project engineer, acted as the District's principal agent under the contract. As such, it was vested with authority to approve suspensions in the work; to itself suspend the work due to unfavorable weather conditions or other factors; to make or approve variations in plans or materials; and to require the removal of a contractor's employee from the project for carelessness, obstructionism or incompetence. Additionally, the engineer had an independent right to inspect the project. To this end it maintained its own field inspector on the site to monitor quality control. The record also reveals testimony by the Walton Construction Company's co-owner, Hallie Gene Moore, that the engineer (an employee of Deuchler) was "virtually our boss."

• 1 The standards which are to be applied in reviewing whether a jury properly found a defendant to be "in charge of the work" under the Structural Work Act have been recently discussed by the supreme court in Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 485-86, 394 N.E.2d 403, 405, where the majority stated that:

"The question of who has charge of the construction is a question of fact for the jury. [Citations.] 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.' [Citation.] Hence Illinois Pattern Jury Instructions Civil, section 180.16 (2d ed. 1971), provides for no such instruction."

• 2 The facts involved in Norton closely parallel those in the case before us with regard to the Aurora Sanitary District. It, like the school district in Norton, was related by contract with the injured workman's employer and that contract provided for the rights to stop work and to modify the work in progress, as well as to inspect. Additionally, both the District here and the school district in Norton controlled the construction through a general agent. In Norton the agent was the architect, here it was the project engineer, Deuchler. The sole difference between these cases, which we do not find to be determinative, is the fact that the school district in Norton itself maintained a "clerk of the work" who subjected the site to continuous close scrutiny while here we only had periodic inspection by an employee of the District. As a result of this close similarity to Norton, we will not disturb the finding of the jury that the Aurora Sanitary District was "in charge of the work."

• 3 Regarding Deuchler, we have a slightly different situation. In Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 373 N.E.2d 1348, the supreme court specifically held that an architect was clearly within the provisions of the Structural Work Act because he had the contractual right to stop or suspend the work in order to insure the proper performance of the contract. In the instant case, Deuchler had a similar right and, in addition, had the other duties and rights enumerated above. Therefore, we will not disturb the jury's finding that Deuchler was also "in charge of the work."

II

We are next confronted with the question as to whether Deuchler, the engineer, can be held liable under the provisions of section 7a of the Structural Work Act. With respect to this issue, we observe that the essential violation of the Structural Work Act relied upon by the plaintiffs as a basis of both defendants' liability was their failure to require or insure the use of a complete and adequate signaling system during the operation of the lifting apparatus. Deuchler contends that section 7a does not impose any duty upon an engineer as to signals and thus it cannot be said, as a matter of law, that he committed a wilful violation of the Act. In this connection "wilful" or "wilfully" has been construed by our supreme court as synonymous with "knowing" or "knowingly" and does not here mean "reckless" or "recklessly." See Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431, 150 N.E.2d 134.

In Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785, the supreme court considered in detail the question of the liability of the owner, and in reversing, held that it was a disputed question of fact whether the owner should be deemed to be in charge of the work and that this issue should have been submitted to the jury under proper instructions to make that determination.

In Gannon the court reviewed in detail the history and decisions of the courts> following the enactment of the Structural Work Act in 1907, modelled on the New York act. The Act was first construed by the supreme court in Claffy v. Chicago Dock & Canal Co. (1911), 249 Ill. 210, 94 N.E. 551. The court reviewed that ...


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