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Diomar v. Landmark Assoc.





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


Naming nine defendants *fn1 in his first amended complaint (hereinafter complaint) for personal injury damages he allegedly sustained when working as a pipe fitter while an employee of a subcontractor, plaintiff James L. Diomar, claimed that the sole defendant involved in this appeal, Landmark Associates (hereinafter Landmark), the architect, was one of the entities in charge of the work and was amenable to him for damages under the Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, pars. 60, 69) (hereinafter the Act). Landmark's answer denied, among other things, that it was in charge of the erection, supervision and control of the construction project.

Landmark thereafter filed its motion for summary judgment supported by a copy of the American Institute of Architects' "standard form of agreement" (hereinafter AIA contract) between the general contractor, Inland Construction, Inc., and Landmark, and an affidavit of Landmark's president. Plaintiff filed his response to the summary-judgment motion, including copies of the same supporting documents previously filed by Landmark as well as certain applications and certificates for payment certified by Landmark, copies of correspondence, notices and minutes of job site meetings. A reply was filed by Landmark to plaintiff's answer. A hearing was held on the summary-judgment motion which was granted by the trial court with appropriate Supreme Court Rule 304(a) language (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a)). It is from this order that plaintiff appeals raising the questions of whether the evidence supporting Landmark's motion for summary judgment was free from doubt and whether there was a sufficiently direct connection between Landmark's responsibilities and the work performed on the construction site as to impose liability under the Act. For the reasons which follow, we affirm.

The facts we set forth emanate from the pleadings, exhibits, affidavit and documents filed in support of and in opposition to the motion for summary judgment. Plaintiff asserted that while working in the second floor area of the construction site of the Fox Valley Shopping Center, Aurora, Illinois, he fell through an unprotected opening in the concrete floor, sustaining the alleged personal injuries. The complaint identified certain alleged wilful violations of the Act committed by the defendants of which Landmark was accused of having been guilty, including failure to provide adequate scaffolding and other protective devices. Landmark's answer denied all allegations of such conduct and asserted that it had not in any way participated in the erection, supervision or control of the project. In its motion for summary judgment, Landmark cited the absence of any genuine issue of material fact and contended that it at no time participated in any of the construction or erection work, it did not own, control or maintain any of the scaffolding on the job site, it did not give any instructions with regard to job safety, and it at no time gave directions to plaintiff or his employer, Advance Heating and Air Conditioning.

The affidavit submitted by Landmark's president outlined Landmark's role during the course of the construction, which was to become a J.C. Penney department store, and maintained that Landmark had no authority under the terms of its contract with the general contractor to stop the work on the project or that it ever attempted to do so. The affidavit also averred that Landmark had no continuous on-site representation at the project nor any duties or responsibilities concerning the manner or methods of construction employed on the project site.

The AIA contract upon which both parties relied contains the following provisions, among others:

"1.1.14 The Architect shall make periodic visits to the site to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. On the basis of his on-site observations as an architect, he shall endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor. The Architect shall not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. 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, and he shall not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents.

1.1.21 The Architect shall not be responsible for the acts or omissions of the Contractor, or any Subcontractors, or any of the Contractor's or Subcontractors' agents or employees, or any other persons performing any of the Work."

Other factual considerations will be identified in the body of the opinion.

• 1-3 The rules by which summary judgment procedures are governed have been well established. Recognized as a salutary procedure in the administration of justice (Allen v. Meyer (1958), 14 Ill.2d 284, 152 N.E.2d 576), summary judgment is a remedy which nevertheless must be cautiously granted so that the respondent's right to trial is not usurped in the presence of material evidentiary conflicting facts and inferences. The function of this procedure is to determine the existence or absence of triable issues of fact, not to try them. The moving party for summary judgment must affirmatively show that his right thereto is clear, free from doubt and determinable solely as a matter of law. If any material fact or facts upon which reasonable persons may disagree are identified, or inferences may be fairly drawn from those facts leading to differing conclusions, the trial court must deny the motion and direct that the resolution of those facts and inferences be made at trial. (Ill. Rev. Stat. 1977, ch. 110, par. 57; Nolan v. Johns-Manville Asbestos & Magnesia Materials Co. (1979), 74 Ill. App.3d 778, 794, 392 N.E.2d 1352; Littrell v. The Coats Co. (1978), 62 Ill. App.3d 516, 519-20, 379 N.E.2d 293; Century Display Manufacturing Corp. v. D.R. Wager Construction Co. (1977), 46 Ill. App.3d 643, 648, 360 N.E.2d 1346.) Although a complaint and answer may purport to raise issues of material fact, if such issues are not further supported by evidentiary facts through affidavits, summary judgment is appropriate, particularly when the moving party supplies facts uncontradicted by counteraffidavits, and which entitle the movant to a judgment as a matter of law. Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 N.E.2d 457; DiPrima v. Edwards (1977), 55 Ill. App.3d 633, 371 N.E.2d 252; Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App.3d 1050.

• 4-6 The actionable language of the Act involved in this appeal is to be found in section 9 (Ill. Rev. Stat. 1975, ch. 48, par. 69), which 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; * * *."

The foregoing statutory duty devolves upon each class of persons identified by the statute only if they "have charge of" the work (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 323, 175 N.E.2d 785), which is usually a question for the trier of the fact. There may be instances, however, in which there is "* * * insufficient evidence to create a factual question of whether a defendant has charge of the work" (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 486, 394 N.E.2d 403), which may be determined not only from the written contracts but also from the surrounding circumstances and from the role assumed by such a defendant. (Fruzyna, 78 Ill. App.3d 1050, 1054; McGovern v. Standish (1975), 33 Ill. App.3d 717, 341 N.E.2d 739, aff'd (1976), 65 Ill.2d 54, 357 N.E.2d 1134.) The many and sometimes ambiguous interpretations of the statutory "having charge of" language are discussed in detail in Norton and need not be repeated here except in summary: whereas 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 question of "having charge of" the work, they are neither necessary nor conclusive (Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 321-22, 211 N.E.2d 247); contract provisions giving an architect the duty to supervise the work and guard the owner against defects and deficiencies with authority to "stop the work," if necessary, carry with them implications of "having charge of" the work (Miller v. DeWitt (1967), 37 Ill.2d 273, 286, 226 N.E.2d 630); such right to "stop the work" means the right to stop work being done in a dangerous manner or involving dangerous methods, rather than simply the right to reject defective materials and workmanship and require their correction (McGovern v. Standish (1976), 65 Ill.2d 54, 68-69); "having charge of" means having charge of particular operations which involved the violation from which the alleged injury arose shown by proof that such control was exercised, or that the right to control existed whether exercised or not, or that the architect maintained a "direct connection" with the work (Emberton v. State Farm Mutual Automobile Insurance Co. (1978), ...

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