APPEAL from the Circuit Court of Cook County; the Hon. JOHN A.
NORDBERG, Judge, presiding.
MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
This appeal involves a third-party action for indemnity brought by Perkins & Will Architects, Inc. (P & W), defendants in a Structural Work Act case. The third-party defendant, Caisson Corporation, was the employer of the construction worker whose widow was plaintiff in the action against P & W. The jury rendered a verdict of $429,000 against P & W, and a verdict for Caisson. Judgments were entered on both verdicts.
The issues on appeal are whether the trial court erred in refusing to give and in modifying a proposed jury instruction. However, the fundamental question is whether a defendant who has been held liable for violation of the Structural Work Act can seek implied indemnity from a third-party defendant based on alleged misconduct which constitutes common law negligence, but does not violate the Act.
P & W was held liable, under the Structural Work Act, for the death of Donald Przybylski, a drilling rig operator employed by Caisson Corporation, the contractor which had been hired to build foundation caissons during the construction of the Whitney M. Young, Jr., High School in Chicago. On September 13, 1973, Przybylski walked near the edge of an unsupported caisson shaft. The edge gave way, he fell about 30 feet to the bottom, the caisson caved in on top of him, and he was asphyxiated.
Plaintiff's theory was that failure to provide adequate support, shoring, or stays violated the Structural Work Act, and that P & W was liable for these violations as one of the corporations "having charge of" the work because P & W was (1) contractually obligated to inspect Caisson's work and (2) contractually empowered to stop work which violated Caisson's contractual duty of taking all necessary precautions to protect workers on the job site.
Caisson's theory was that P & W was guilty of major fault in causing Przybylski's death because P & W allegedly knew of, and withheld from Caisson, information about the instability of the soil at the job site.
At the instructions conference, P & W obtained leave to file an amended third-party complaint which, in substance, alleged that if P & W was found liable, it would only be on the basis "secondary, technical, passive, or minor fault" on its part, while Caisson's fault was "primary, active and major." In support of these conclusions the amended third-party complaint set forth allegations of negligence as subparagraphs 1 through 5.
P & W also asked the court to give an issues instruction (Illinois Pattern Instructions, Civil, No. 500.02 (1977 Supp.) (hereinafter IPI)) setting forth subparagraphs 1 through 5 as specific allegations of major fault. The trial court refused to give the proffered instruction and gave a modified version of section 500.02 which included, in lieu of specific allegations of misconduct, the following paragraph:
"If third party plaintiff, PERKINS & WILL ARCHITECTS, INC., is held liable to the plaintiff, it will be as a result of mere passive or secondary conduct on the part of PERKINS & WILL, whereas the primary or active conduct of third party defendant CAISSON CORPORATION, proximately resulted in the death of plaintiff's decedent." (Emphasis added.)
P & W contends that it was deprived of the right to present its theory of the case to the jury and that the "active/passive" terminology of the court's instruction was misleading. Caisson argues that it was proper to reject P & W's instruction because the challenged subparagraphs do not allege conduct which violates the Structural Work Act and, they therefore could not be a proper basis for the jury to conclude that Caisson was guilty of major fault in causing Przybylski's death.
The Structural Work Act promotes safety in the construction industry by creating a cause of action for injuries brought about by violations of the Act. (Ill. Rev. Stat. 1979, ch. 48, par. 69.) Corporations and persons who are in charge of the type of work covered by the Act are encouraged to eliminate hazardous conditions on job sites because contributory negligence and assumption of the risk are not defenses to actions brought under the Act. Lindsey v. Dean Evans Co. (1973), 11 Ill. App.3d 432, 297 N.E.2d 8.
Illinois courts have advanced the purpose of the Act, and increased the number of potential defendants, by broadly construing the phrase "having charge of." (Bua, Third Party Practice in Illinois: Express and Implied Indemnity, 25 De Paul L. Rev. 287, 307 (1976).) One result of the expansive construction of this phrase is that, "[P]ersons who had no direct contact with the injury may be held liable for damages because of supervisory power in the general work area." Bua, at 307.
Even though a violation of the Structural Work Act is not based on negligence, Illinois courts apply, to cases brought under the Act, the rule that a passively negligent tort-feasor can obtain indemnity from a joint tort-feasor who was actively negligent. (Isabelli v. Cowels Chemical Co. (1972), 7 Ill. App.3d 888, 289 N.E.2d 12.) This means that, if a defendant is held liable merely because of its supervisory power on the job site, ...