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Winter v. Davis





APPEAL from the Circuit Court of Cook County; the Hon. JAMES TRAINA, Judge, presiding.


Plaintiff, James Winter, brought an action under the Structural Work Act (or Act) (Ill. Rev. Stat. 1975, ch. 48, pars. 60-69) for injuries he incurred in a fall from a ladder while he was painting the home of defendant, Claude Davis. At the close of all evidence in a jury trial, both parties moved for directed verdicts. The circuit court of Cook County denied plaintiff's motion and granted the motion of defendant.

Plaintiff appeals, seeking the reversal of the directed verdict for defendant and the ordering of a directed verdict in his favor and a remand for further proceedings. The parties raise four issues on appeal: (1) whether defendant, a private homeowner, is subject to the Structural Work Act; (2) whether defendant had charge of the work; (3) whether defendant wilfully violated the Act; and (4) whether the proximate cause of plaintiff's injury was defendant's violation of the Act.

Defendant, Claude Davis, owned a two-story home in Palatine, Illinois. During April of 1976, Davis entered into an oral contract with Henry Sampson, who was acting for himself and on behalf of plaintiff, James Winter, and Robert Darnell. Sampson, Winter and Darnell were high school teachers who agreed to scrape, prime and paint Davis' home.

Davis agreed to pay hourly wages for scraping and a flat sum for one coat of paint. Each painter kept an accounting for his hours and Davis paid them individually by check. The workers decided between themselves how many workers were needed, which days and hours they would work, and which person would do a particular task at a given time. They generally worked after school, on weekends and during their summer vacation. Davis only stipulated that the job be completed by a certain date.

Davis provided various equipment for their use: scrapers, torches, brushes, one wooden extension ladder, ladder jacks and a walk board. When the workers experienced difficulties with the propane torches, he bought an additional gas torch for their use. Sampson borrowed a second extension ladder from his neighbor to enable the erection of a scaffold that would reach the second floor. There were no clamps or stops on the bottom of the walk board to keep the ladder and jack from moving past the length of the walk board. Also, the ladder lacked rubber or plastic tips on the tops. The workers were not required to use this equipment; they could have supplied their own, but chose to use it.

Davis told Sampson that about 20 coats of old paint had to be removed to assure that the new paint would adhere. He demonstrated how the old paint could be blistered up with a blow torch and removed with a scraper knife. Davis testified that although he suggested this method, the workers were free to substitute any equally effective method of paint removal. Davis specified that a particular primer be used, and he mixed the primer and provided it for the workers. Davis did not give the workers instructions on the use of the ladder, walk board or ladder jacks, nor instruct them how to set up the scaffold.

Davis generally was not home while the men were working. He did remember observing them work on a couple of occasions when he returned home after work. He saw them use the scaffold once. Davis once instructed the men to scrape the paint off a specific area they had missed.

Sampson had painted houses on numerous occasions, had used scaffolding six or eight times, but had never scraped paint using torches. Davis had painted houses since he was 12 years old, and had begun work on his home with his son prior to hiring the workers. Winter had never used scaffolding before; he had done interior house painting commercially, and both interior and exterior painting on his own home.

On July 6, 1976, Davis left his home on a business trip. He was not present during the accident and did not return for several weeks. On July 6, 1976, Sampson and Winter were working, scraping and painting a section of the house above the dining room window. Both ladders were extended, with the walk board between them. The ends of each ladder rested against the house on wet paint. The ladder bottoms were placed outside a sidewalk on the grass. Facing the house, the ladder on the right belonged to Sampson's neighbor, and the left ladder was owned by Davis. Darnell was working on the opposite side of the house.

Immediately prior to the accident, Sampson was on the left side of the walk board and Winter was on the right ladder, four or five rungs above the walk board. Winter started to come down the ladder. When he stepped down, he felt a jiggling kind of bounce in the ladder. Winter testified that this motion was not uncommon when the workers moved on the scaffold. However, this time the shaking was more severe and the ladder Winter was on started moving to the right. Winter jumped off and tried to reach the bay window of the house, but fell upon the sidewalk, sustaining serious injuries. The ladder Winter was working on came to rest against the porch, and the walk board fell to the ground.

The painters solely determined how to position and set up the scaffold. Sampson and Winter believed the manner this was done was safe and adequate to do the job. They neither saw nor complained of defects in the equipment Davis furnished, nor did they know what caused the accident.

After the accident, Sampson and Darnell continued working on the house in substantially the same manner. They finished several weeks later. In a September 1976 conversation with Sampson, Davis first learned about Winter's accident.

The directed verdict in favor of defendant Davis must be reviewed in light of the familiar rule of Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504. A party is entitled to a directed verdict in those cases in which all the evidence, when viewed in its aspect most favorable to the opponent, ...

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