APPEAL from the Circuit Court of Lake County; the Hon. ROBERT
K. McQUEEN, Judge, presiding.
MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 4, 1980.
The plaintiff, David R. Robinson, brought this action under the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60 through 69) against defendants, Greeley and Hansen, a partnership, to recover damages for injuries sustained by plaintiff on March 30, 1973, when he fell from an iron ladder affixed to the wall of a concrete sewer lift station being constructed for the North Shore Sanitary District. Defendants, who were the engineers employed by the sanitary district to design the system and supervise its construction, brought a third-party action for indemnity against plaintiff's employer, E & D Robinson Construction, Inc., the general contractor for this project. After trial by jury judgment was entered in the principle action on the general verdict returned in favor of plaintiff and against defendants in the sum of $325,000. In the third-party action the jury found in favor of third-party defendant, E & D Robinson Construction, Inc., as to Greeley and Hansen's claim for indemnity, and they appeal from both judgments.
In the case in chief the primary question is whether an action will lie under the Structural Work Act against engineer-draftsmen without pleading and proving they were "in charge" of the work.
The complaint as amended was in two counts in each of which plaintiff sought recovery against Greeley and Hansen for alleged violations of the Structural Work Act; a negligence count contained in the initial complaint was withdrawn by plaintiff before trial. Count II of the complaint under which the case was tried was in the traditional form required in an action under this Act and, essentially, alleged that defendants were "in charge" of the construction of the lift station and its ladder and wilfully failed to erect and construct a safe and suitable ladder so as to give adequate protection to the persons employed thereon as is required by section 1 of the Act (Ill. Rev. Stat. 1971, ch. 48, par. 60). Count II further alleged plaintiff was injured as a proximate result of defendants' wilful failure to comply with the Act and that a right of action accrued for his damages pursuant to section 9 thereof (Ill. Rev. Stat. 1971, ch. 48, par. 69).
In count I, however, plaintiff did not allege that Greeley and Hansen were in charge of the construction or work in question, but only that they had prepared the plans, specifications and drawings used in the construction and had failed to do so in a safe, suitable and proper manner to protect the safety of persons employed on the structure in violation of sections 1 and 8 of the Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60 and 68), thereby subjecting the defendants to this action under the Act.
In submitting count I to the jury, the trial court, over defendants' objection, gave a burden of proof instruction offered by plaintiff (based upon Illinois Pattern Jury Instructions, Civil, No. 180.09 (2d ed. 1971)) (hereinafter IPI Civil), which provided as follows:
"The plaintiff has the burden of proving each of the following propositions in Count I of his complaint:
First, that the defendant, Greeley & Hansen, prepared the plans and specifications for the lift station in question.
Second, that the defendant, Greeley & Hansen, failed to prepare such plans and specifications in a safe manner as claimed by the plaintiff as stated to you in these instructions and that in so acting or failing to act the defendant violated the Structural Work Act.
Third, that the plaintiff was injured and sustained damages.
Fourth, that a violation of the Structural Work Act by the defendant was a proximate cause of the injury and damage to the plaintiff.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant."
The applicable provisions of the Structural Work Act which we consider in resolving the issue ...