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Zajac v. Ill. Htg. & Ventilating Co.

OPINION FILED MARCH 31, 1980.

JOHN ZAJAC, PLAINTIFF,

v.

ILLINOIS HEATING & VENTILATING COMPANY ET AL., DEFENDANTS. — G.A.K. CONSTRUCTION & DEVELOPMENT COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT,

v.

BARNES CONSTRUCTION CORPORATION ET AL., THIRD-PARTY DEFENDANTS. — (MIDWEST STEEL ERECTION COMPANY, INC., THIRD-PARTY DEFENDANT-APPELLEE).)



APPEAL from the Circuit Court of Cook County; the Hon. PAUL ELWARD, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

This appeal arises from the dismissal of G.A.K. Construction and Development Company's third-party complaint against Midwest Steel Erection Company, Inc. On appeal, G.A.K. contends that the complaint alleged a valid cause of action for indemnity against Midwest.

We reverse and remand.

On May 21, 1976, John Zajac filed an action against G.A.K. Construction and Development Company (G.A.K.) and other defendants for injuries sustained when he fell from a steel column at a construction site. On May 31, 1976, Zajac filed a two-count amended complaint. Count I, based on the Structural Work Act, was directed at all defendants. Count II was based on negligence and was directed solely at G.A.K.

G.A.K. filed a third-party complaint against Structural Sales, Inc. (Structural Sales) and Midwest Steel Erection Company, Inc. (Midwest). This complaint, as well as an amended third-party complaint and a second amended third-party complaint, were dismissed as to Midwest upon Midwest's motion. G.A.K. was given leave to amend.

G.A.K. filed its third amended third-party complaint against Midwest and Structural Sales. This complaint alleged that at the time Zajac was injured, a subcontract existed between G.A.K. as contractor and Structural Sales as subcontractor whereby Structural Sales agreed to construct the structural steel for the building and furnish all materials and labor, including scaffolding. Structural Sales thereafter entered into another subcontract with Midwest, Zajac's employer, whereby Midwest agreed to erect the structural steel, perform all necessary labor, and furnish all tools, equipment, and appliances. The terms of the principal contract were incorporated by reference into the Structural Sales-Midwest contract. Hence Midwest and Structural Sales had the duty to erect and supervise the work on the structure upon which plaintiff was injured.

The complaint alleged that G.A.K. was not, by virtue of these subcontracts, involved in the supervision, work direction or performance of the erection of the structural steel. G.A.K. further alleged that the conduct of Midwest and Structural Sales was the major cause of Zajac's injuries in that they either improperly supervised or failed to supervise the erection and construction of the structural steel, although both were charged with the duty of supervision by subcontract. Moreover, Midwest Steel and Structural Sales improperly erected and constructed the column from which John Zajac fell by improperly positioning holes for anchor bolts in a base plate, thereby causing the column attached to the base plate to move. Midwest and Structural Sales also failed to provide adequate scaffolding.

G.A.K. further alleged that the only basis of liability on its part, if any, was its failure to discover the improper actions of Midwest and Structural Sales. The primary or major cause of Zajac's injuries was the improper construction of the columms by Midwest and Structural Sales and therefore, if G.A.K. was held liable to Zajac, Midwest and Structural Sales were required to indemnify G.A.K.

Midwest presented a motion to dismiss the third amended third-party complaint. After a hearing, the trial court granted the motion and dismissed the complaint as to Midwest with prejudice on the grounds that the complaint failed to allege both an active-passive situation between G.A.K. and Midwest and a pre-tort relationship between G.A.K. and Midwest.

First, G.A.K. contends that the complaint alleged a qualitative distinction between the conduct of G.A.K. and the conduct of Midwest, that is, it properly alleged that Midwest was the active tortfeasor while G.A.K.'s fault was merely passive. We agree.

• 1 A third-party complaint in an action for indemnity must allege a qualitative, i.e., active-passive, relationship between the negligence of the third-party plaintiff and third-party defendant and a pre-existing relationship between these parties. (Mullins v. Crystal Lake Park District (1970), 129 Ill. App.2d 228, 262 N.E.2d 622, citing Muhlbauer v. Kruzel (1968), 39 Ill.2d 226, 234 N.E.2d 790.) An active wrongdoer's conduct is generally characterized as the primary cause of injury while a passive wrongdoer's conduct is a secondary cause. (Burgdorff v. International Business Machines (1975), 35 Ill. App.3d 192, 341 N.E.2d 122.) Moreover, this theory of indemnity is applicable to Structural Work Act cases where willfulness rather than negligence is an element of the original claim. Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630.

Because this case is before us on the pleadings, we are required to follow the rule enunciated in Fitzgerald v. Chicago Title & Trust Co. (1978), 72 Ill.2d 179, 187, 380 N.E.2d 790, 794:

"Because the judgment was entered upon allowance of defendant's motion to dismiss, all facts properly pleaded in the complaint must be taken as true. (Acorn Auto Driving School, Inc. v. Board of Education (1963), 27 Ill.2d 93, 96.) This court has repeatedly held that a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle plaintiffs to recover. (Fechtner v. Lake County Savings & Loan Association (1977), 66 Ill.2d 128; Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298; Winnett v. Winnett (1974), 57 Ill.2d 7; Miller v. DeWitt (1967), 37 Ill.2d 273."

• 2 We find that G.A.K.'s third amended third-party complaint contains sufficient allegations of fact indicating active conduct on the part of Midwest and passive conduct on the part of G.A.K. The complaint alleges that G.A.K. had no role in the erection of the structure and that Midwest was charged this duty under the terms of the subcontract between it and Structural Sales. Moreover, the complaint alleges that Midwest's conduct was the major cause of Zajac's injuries since Midwest improperly positioned the base plate to which was ...


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