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Lyle v. Sester





APPEAL from the Circuit Court of Kane County; the Hon. JOHN A. LEIFHEIT, Judge, presiding.


The plaintiff, Emerson Lyle, brought an action under the Structural Work Act (Act) (Ill. Rev. Stat. 1977, ch. 48, pars. 60-69) for injuries he sustained on August 16, 1978, when the scaffolding upon which he was working collapsed while he was framing the home of the defendant, Joe Sester. The court denied the defendant's motion for a directed verdict at the close of the plaintiff's case and similarly denied both parties' motions for directed verdicts at the close of all the evidence. The questions of liability and damages under the Act were submitted to the jury, which rendered a verdict for the plaintiff and against the defendant in the sum of $15,000. The court then entered judgment on the verdict.

Both parties have perfected separate appeals, which have been consolidated for appellate review. On appeal, the plaintiff first contends that certain comments which defense counsel made during closing argument implied that the defendant was not insured and were prejudicial to the plaintiff on the issue of damages. Secondly, the plaintiff asserts that the verdict of the jury was palpably inadequate under the facts of this case and a new trial should be granted on the issue of damages. On the other hand, the defendant maintains on review that liability was improperly imposed upon him because he did not "have charge of" the work and was not guilty of a "wilful violation" of the Act's provisions as those terms are used in section 9 of the Act (Ill. Rev. Stat. 1977, ch. 48, par. 69). Accordingly, he asserts that the trial court erred by not directing a verdict for him or entering a judgment notwithstanding the verdict in his favor as requested in his post-trial motion.

The testimony in this cause reveals that the defendant hired his brother, Gayle Sester, and the plaintiff, both of whom were journeymen carpenters, to frame the house which defendant was having constructed. When completed, the house would serve as the defendant's residence. The carpenters were hired to construct the floor, exterior walls, and the roof of the structure. They were not involved with either the excavation and laying of the foundation or the concrete, brick, and plasterboard work, all of which the defendant hired someone else to perform.

The plaintiff, whom the defendant paid on a weekly basis, related that he knew the defendant was not a carpenter and that the defendant was relying on his expertise as a carpenter. He explained that the defendant appeared at the job site quite often, either in the morning, at noon, or after he finished working for the telephone company. In July of 1978, the defendant visited the work site almost daily. The defendant's visits in the morning and at noon were confined to observing how the work was proceeding. When the defendant worked on the house at night and on the weekends, however, he helped the carpenters by nailing boards together for them. When the defendant came to the job site to help in the work, he sought the plaintiff's advice regarding what work he could accomplish without getting himself in trouble or getting in the way of the carpenters. The defendant never interfered with the plaintiff's work. Furthermore, the plaintiff knew what framing work had to be done and went ahead and did it. The defendant did not instruct him regarding how to do the work; did not tell him what tools and materials to use or what hours to work; and did not direct the order or manner in which the work was to proceed. The plaintiff supplied his own tools, and he and the other carpenter set their own hours.

The plaintiff further testified that he owned four blue brackets which the carpenters employed to support the scaffolding that they used while framing the house. The metal brackets were affixed to the wall studs by 16-penny nails which were nailed through the holes in the brackets. The nail holes on these brackets had notches to catch or secure the heads of the nails.

In addition to the blue brackets, the carpenters used a red bracket on the day in question to help secure the scaffolding to the north wall of the house. This bracket was also fastened by the use of 16-penny nails. The defendant purchased the red bracket, which the plaintiff believed was inferior in quality to the blue ones. According to the plaintiff, the red bracket was not as heavy as the blue brackets and had an extremely large nail hole at the top; this large hole, however, did contain a notch similar to those on the blue brackets. The plaintiff, who had seen such red brackets used on other jobs, recognized the difference in construction between the two types of brackets before they were affixed to the studs. The defendant's brother nailed the red bracket to the wall stud. When the defendant first brought the red bracket to the job site, the plaintiff remarked that it was not as good as the blue brackets. In addition, the two carpenters expressed some concern among themselves regarding the use of the red bracket.

The plaintiff also stated that he did not get on a scaffold unless he was satisfied that it was safe, but admitted that he did not check the brackets before he stepped onto the scaffold on the day in question. If he would have inspected the red bracket to ascertain if it was properly fastened to the stud, he would have known what to look for. The plaintiff could not recall whether the defendant had anything to say about the use of the red bracket, but stated that he had never asked the defendant whether he (the plaintiff) should use the red bracket. He acknowledged, however, that the defendant had never told the carpenters where to use the scaffold and had not helped them put up the scaffold.

On August 16, 1978, the defendant's brother, Gayle Sester, nailed the five brackets to the studs on the north wall of the partially-constructed building. In particular, he placed a 16-penny nail in each small hole at the bottom of the red bracket and at least six of those nails in the larger hole at the top of the bracket. Once the scaffolding was erected, the carpenters stepped onto it and began to work alongside each other. The scaffold suddenly collapsed and both men fell 16 feet to the ground. The red bracket also fell to the ground while the nails which had been placed in the bracket's top hole remained in the stud. The four blue brackets, however, stayed in place. Gayle Sester concluded that the top hole had been too large for the cluster of nails and the bracket had pulled over the top of those nails. Both carpenters stated that, in retrospect, a lag bolt should have been used to secure the red bracket to the wall stud.

Gayle Sester stated that the defendant was the general contractor on the job and usually came to the job site in the evenings to inspect the work which had been done during the day. While the defendant was not a carpenter and relied on the carpenter's expertise, he nonetheless helped with the carpentry work. The defendant did the wiring and the plumbing work on the house. According to the witness, the defendant had never before attempted to build a house and had not worked for anybody as a carpenter, although he had some knowledge in the field of carpentry and had done some carpentry work on his own. Gayle and the plaintiff directed the defendant to purchase the red bracket involved in the accident.

Gayle did not believe his brother had any experience with or expertise concerning the construction or use of scaffolds and had never observed the defendant put up a scaffold. In addition, the defendant did not put up the scaffold in question; did not tell the carpenters how to construct or secure the scaffold; and did not inform them how to carry out the construction work. According to Gayle Sester, both he and the plaintiff, as journeymen carpenters, knew how to construct a scaffold and what to look for when building it, but the defendant, as a layman, did not have sufficient knowledge to know what to look for if he attempted to ascertain whether the brackets had been installed properly. Gayle was satisfied that the scaffold was safe before he got onto it.

David Aldridge, a journeyman carpenter, stated that the blue brackets were adequately secured by the use of 16-penny nails, because these brackets were able to slip onto the heads of the nails. By contrast, however, the red bracket should have been secured by something that had a head larger than a 16-penny nail, such as a lag bolt. In his opinion, a cluster of 16-penny nails placed in the top hole of the red bracket would be inadequate to support the bracket. He also rendered his professional opinion that a person who was not trained as a journeyman carpenter and who did not have the expertise of an experienced carpenter would not know what to look for in determining whether a support bracket had been installed properly and would not appreciate the effect of putting a cluster of nails into the large hole in the top of the red support bracket.

The defendant, who worked as a telephone switchman, related that he was not a carpenter, had not received any training as such, and had never worked for anybody in that capacity. He bought the original plans for the house, made changes in them, and designed the house. He wired the house and installed the plumbing himself, but hired others to do the rest of the work. Never having built or framed a house before, he hired the carpenters to frame the house. He visited the job site almost daily to see how the work was progressing. He had the right to change things if they were not constructed in accordance with the plans, although there never was anything that needed to be changed.

In the evenings he helped the plaintiff and Gayle with the carpentry work, but the carpenters would tell him where they needed him. He asked the plaintiff's advice regarding how things should be done, but the plaintiff never asked him for counsel regarding the performance of the carpentry work. In addition, the defendant did not tell the carpenters how or the order in which they were to perform their work; did not set the hours they were to work or assign them daily tasks; and did not tell the carpenters, who supplied their own tools, which tools ...

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