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Bishop v. Crowther





APPEAL from the Circuit Court of Cook County; the Hon. EDWARD C. HOFERT, Judge, presiding.


Rehearing denied January 26, 1981.

Plaintiff, Robert Bishop, brought an action pursuant to the Structural Work Act (the Act) (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.) for injuries suffered when he fell from the top of a ladder while carrying shingles to the roof of defendant Lee Crowther's home. The jury returned a verdict against defendant and the circuit court of Cook County entered judgment on the verdict. Defendant appeals, seeking a judgment notwithstanding the verdict or a new trial. He contends that: (1) because plaintiff covenanted not to execute against defendant's personal assets, defendant is not legally responsible for damages; (2) defendant, a private homeowner, is not "in charge of" the work under the Act; (3) plaintiff's testimony constituted a judicial admission that barred his claim; (4) safety standards were improperly admitted into evidence; (5) other trial errors prejudiced him; and (6) the Act, though constitutional when drafted, has become unconstitutional by judicial misinterpretation and misapplication.

Defendant Lee Crowther testified that he had been a roofing and sheet metal contractor since 1955. In 1973 he was well versed in the work that roofers and sheet metal workers perform and was familiar with the customs and practices of that industry. He also had knowledge as to various construction practices, including carpentry. From time to time Crowther worked as a field superintendent, directing field operations, including journeymen-carpenters, roofers, etc.

In 1973 Crowther decided to build an addition to his home in Joliet. He determined that excavation work was necessary and the size of the addition. Crowther accepted a bid from Kofoid & Tilon, construction contractors, and entered into an oral agreement that they build the singlestory family room addition. Kofoid was not to perform the waterproofing, heating, air-conditioning and roofing. Various other contractors were to perform these jobs. Crowther, Inc., of which defendant was a principal or shareholder and vice-president, was to install gutters and shingle the roof. Crowther testified that either someone told him the work was ready for shingles or he observed that it was ready.

Crowther had seen "material hoists" used to transport shingles up to rooftops. Crowther, Inc., does not own a conveyor system to transport shingles to the roof. He didn't think Crowther, Inc., got the bundles of shingles up to the roof.

Crowther further testified that if he were home while work was being done, he would probably call unsafe work practices to the workers' attention. There were days when Crowther was at the work site during daytime hours while different tradesmen were there. He stated that he probably possessed far greater knowledge of the construction industry than the average homeowner. Crowther admitted that unlike the average homeowner he coordinated the work between Kofoid and Crowther, Inc. He paid Kofoid "progress payments" by personal check and made sure Kofoid had performed the amount of work represented. As owner of the house, Crowther had the authority to stop the work of Kofoid if it was being done in an unsafe manner. Crowther believed he had particular or unique knowledge compared to an average homeowner of what an unsafe condition would be. He also had the right to schedule the work of the various contractors.

On the date of the accident, the shingles were supposed to be on the job site on the roof when plaintiff arrived. However, there were not enough shingles. The ground at the job site was uneven, but Crowther did not recall if it was muddy. The perimeter area of the addition had experienced settling of backfill, forming a trench. The backfill had to be redone so the ground was not so uneven. Crowther testified that he has seen times where workmen had to place ladders on muddy, bumpy areas. However, if a man working for Crowther, Inc., placed a ladder against new gutters and climbed the ladder with an 85-pound bundle of shingles, Crowther would have fired him.

Crowther admitted that he was not on the job site as a Crowther, Inc., superintendent, but as owner of the house. During the course of the construction, he had conversations about the work with Carl Kofoid and probably his partner. Defendant made specific recommendations about the work. Crowther also testified that the general contractor has the responsibility of job safety. He was familiar with OSHA (Occupational Safety & Health Administration) laws.

Frank Budzinski testified that on December 12, 1973, he was a journeyman carpenter working on Crowther's home. He was an employee of Kofoid. Budzinski considered either Mr. Crowther or Mr. Kofoid to be the general contractor and took orders from whichever man was present. Both men were basically "overseeing the job." Lee Crowther ran the job on the days he was present and gave specific orders. On the day of the accident, the new gutters were up. Backfilling had been performed and had settled. Budzinski did not witness the accident, but saw plaintiff lying on the ground with his legs entangled in the ladder.

Carl Kofoid, partner of Kofoid & Tilon, testified that it is unusual for a homeowner to schedule the work. The general contractor usually schedules the work and coordinates the work between the trades. Crowther scheduled some of the work and coordinated some of the work. It was assumed that Crowther would handle his areas of specialization (sheet metal, heating and roofing) and Kofoid would handle his. Kofoid believed that the general contractor is responsible for job safety. The same safety considerations apply to the construction of a single-family house addition as on a large construction project.

From time to time Crowther and Kofoid walked around the job site and discussed the work finished and the work to be done. They discussed work progress more than once a week. According to Kofoid, both men were functioning as general contractors.

Charles Schulz testified that he was a construction safety consultant employed by the State of Illinois. He was experienced in safety requirements applicable to all types of construction, including small construction. There is no difference between the safety rules and regulations applicable to a small or large job. Standards pertaining to the use of ladders are equally applicable to small and large construction sites. Schulz was familiar with the general customs and practices of the construction industry in the Joliet area in 1973. These customs and practices concerning the placement and erection of ladders are exemplified by various written standards which state:

* * * Ladder feet shall be placed on a substantial level base, and the area in the vicinity of the bottom should be kept clear. Both the top and the bottom of the ladder should be secured to prevent displacement. Use ladder shoes, stakes, or other means of securing.

In ascending or descending ladders workmen should test the ladder and use both hands to hold onto side rails. If material must be moved from one level to another, a rope, block and tackle, or other means should be used. Materials should not be hand carried on ladders.

Footing support: The ladder base section must be placed with a secure footing on a firm level base. Ladder level boards may be used for this purpose. Safety shoes of this substantial design shall be installed on all ladders. Where ladders with no safety shoes or spikes are used, a foot ladder board or similar device should be employed. Do not use ladders on ice, snow or slippery surfaces unless suitable means to prevent slipping are employed.

Portable ladders shall be placed on a substantial base and the area around the top and the bottom of the ladder shall be kept clear.

Portable ladders in use shall be tied, blocked or otherwise secured to prevent their being displaced."

Schulz was asked a hypothetical question setting forth the pertinent facts of the case. He answered that the ladder was not placed upon a safe foundation or properly secured. It did not comply with the standards regarding safe placement of ladders and was not properly tied in. In his opinion, the ladder should have been placed on a "mud sill," which is either a scaffold plank or a piece of plyboard that the ladder feet can rest on without being displaced. Standard safety shoes are not sufficient to prevent the ladder from slipping in mud. Schulz also believed that the ladder should have been secured ...

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