Appeal from the Circuit Court of Madison County; the Hon.
William E. Johnson, Judge, presiding.
JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 15, 1982.
On October 10, 1977, plaintiff James Peoples was employed as an ironworker on a pollution control project at Granite City Steel Company (Granite City). To comply with government standards, Granite City contracted with the Carborundum Company (Carborundum) to construct a facility which would collect pollutants given off from its basic oxygen furnace. Carborundum, in turn, subcontracted with Granite Sheet Metal Works (Sheet Metal) to erect the structural steel, baghouses, bags, duct work and much of the dust collection system at the facility. Sheet Metal orally subcontracted all of the structural steel work to G.H. Sternberg and Company (Sternberg), which directly employed the plaintiff.
That day, the plaintiff was working with fellow ironworker Pat Haggerty attaching horizontal beams and diagonal braces to vertical steel supports. Haggerty and the plaintiff had finished attaching the top horizontal beam, at about 20 or 25 feet above ground level, and two diagonal braces were the next pieces to be installed. The plaintiff climbed to the top of the vertical support, inserted a bolt to attach the brace to the support, and threaded the bolt down one full nut. Haggerty, working on the first horizontal beam down from the top, attempted to secure the other end of the brace in a similar manner, but the brace was several inches short. Jack Drennan, Sternberg's foreman for the ironworkers, who was on the ground, instructed Haggerty to rest the bottom of the brace on the horizontal beam, and it would be modified and attached later.
Haggerty and the plaintiff then started to fasten the remaining brace. The plaintiff descended to the horizontal beam on which Haggerty had been working, while Haggerty climbed to the top of the vertical support. Haggerty secured the top end of the second brace with a bolt, but the brace would not fit at the plaintiff's end. The plaintiff called to the workers on the ground for a C-clamp to attach the brace, and one was brought up to him. As the plaintiff was installing the clamp, the first brace, which had been left unattached on the beam, scissored and struck the plaintiff in the back, knocking him to the ground. He sustained injuries to his right shoulder and wrist.
The plaintiff brought suit in the Circuit Court of Madison County against Granite City, Carborundum and Sheet Metal. The action was based upon alleged violations of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.). Carborundum and Sheet Metal each filed a third-party complaint against Sternberg for indemnity, and Sheet Metal brought a counterclaim for indemnity against Carborundum. All of these actions were submitted to a jury, and judgment was entered on their verdict in all respects. The plaintiff's damages were assessed at $150,000, and, in the plaintiff's original action, judgment was given in favor of the plaintiff against Carborundum and Sheet Metal, but in favor of Granite City against the plaintiff. Sheet Metal was allowed reimbursement from Sternberg, but not from Carborundum. Carborundum was denied reimbursement from Sternberg. The jury found, in answer to a special interrogatory, that Carborundum's conduct constituted major fault which proximately caused the plaintiff's injuries.
From these judgments, the plaintiff, Carborundum, Sheet Metal and Sternberg have appealed. Although the arguments vary from party to party, the assignments of error basically involve the sufficiency of the evidence and the propriety of certain closing arguments. Essentially, this cause presents six separate appeals, which are as follows: (1) The plaintiff appeals from the judgment against him in favor of Granite City. (2) Sheet Metal appeals from the judgment against it in favor of the plaintiff. (3) Carborundum appeals from the judgment against it in favor of the plaintiff. (4) Carborundum appeals from the judgment denying it reimbursement from Sternberg. (5) Sheet Metal appeals from the judgment denying it reimbursement from Carborundum, and (6) Sternberg appeals from the judgment which allowed Sheet Metal reimbursement from it. For convenience we shall discuss each of these appeals separately and in the order established above.
APPEAL OF PLAINTIFF AGAINST GRANITE CITY
In his appeal, the plaintiff argues that the trial court should have entered judgment in his favor and against Granite City, notwithstanding the jury's verdict. He points to several factors which he claims establish Granite City's liability to him under the Structural Work Act.
According to the terms of its contract with Carborundum, Granite City reserved the right to approve Carborundum's superintendent and any subcontractors it engaged. Before it began work, Carborundum was to notify Granite City of its intention to do so, the nature, location and duration of the work, the number of personnel to be employed "and such other information as may be necessary to enable [Carborundum] to be advised of and to comply with all plant protection rules and regulations." At a prejob safety orientation meeting, Granite City employees presented to the contractor and subcontractors Granite City's supervisory safety manual for noncompany construction, which included those rules and regulations with which the contractor and subcontractors were expected to comply. The supervisory safety manual stated that all contractors who sublet their work would be responsible for safety matters involving the subcontractor, and it incorporated by reference the Manual of Accident Prevention in Construction, of the Associated General Contractors of America, Inc. The Manual of Accident Prevention provided in paragraph 2-6 that:
"Safety belts should be worn by employees working at elevated levels which are not protected by handrails or when working from suspended scaffolds. Belts should be secured to a structural members [sic] or to a line independent of the scaffold rigging. The support member should be strong enough to support the weight of the man if he falls."
Alvin Miller, general supervisor for Granite City's construction engineering department, testified that he visited the construction site almost daily, for between 15 minutes and a couple of hours. Granite City's Dick Jung, also of the construction engineering department, was described by another witness as having been on the job "frequently." Miller was not present when the plaintiff was injured, and Jung did not testify at trial.
According to Miller, if he saw a safety violation such as a workman without a hardhat or safety goggles, he would bring this to the attention of John Peluso, who was the project coordinator for Carborundum. In his inspections of the job site, Miller was aware that some of the structural steel was not fitting properly, although he did not testify that he knew that some of the steel was temporarily left in place without being fastened. Miller interpreted the contract between Carborundum and Granite City to allow Granite City to reject any structural steel it found unsuitable. David Partney, Sheet Metal's vice-president, testified that the approval of Carborundum's Peluso, not that of Miller or Jung, was required before the steel could be modified.
The plaintiff and Haggerty recalled that they did not receive any instructions from any of Granite City's personnel. Even if such instructions had been given, the plaintiff said, he would not have accepted them unless those instructions came through his direct superiors at Sternberg. The plaintiff also testified that he was unfamiliar with any Granite City employees on that job.
The plaintiff contends that this degree of involvement by Granite City should establish its liability to him under the Structural Work Act. Certainly, the evidence tends to suggest that Granite City was one of those parties "in charge of" the work for purposes of that Act. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 394 N.E.2d 403; Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 373 N.E.2d 1348.) But, in returning a general verdict in favor of Granite City, the jury could have determined that Granite City was not in charge of the work, or that it had not wilfully violated the Structural Work Act, or that it was neither in charge of the work nor had it wilfully violated the Act. Moulton v. Shell Oil Co. (1976), 38 Ill. App.3d 524, 347 N.E.2d 825.
• 1-3 A wilful violation of the Structural Work Act occurs when one having charge of the work knows that a dangerous condition exists on a scaffold, or, by the exercise of reasonable care could have discovered the existence of the dangerous condition. (Lyle v. Sester (1981), 103 Ill. App.3d 208, 430 N.E.2d 699.) The question of willfulness is primarily for the jury. (Katz v. Shaf Home Builders, Inc. (1981), 94 Ill. App.3d 526, 418 N.E.2d 822.) In the case at bar, the jury could have found that the Act was violated by the failure to secure the cross brace, but that this violation was not wilful on the part of Granite City. Although there is testimony that cross braces had previously been left unfastened on other portions of the structural steel, there is no indication of how often this practice had been followed before the plaintiff was injured. Nor was it shown that Miller or any other Granite City employee knew of this practice. Moreover, Granite City had cautioned Carborundum, in the original contract, to be attentive to job safety problems, including those which occurred in the work of all its subcontractors, and Carborundum had a full-time project coordinator on the job, who, along with the representatives of the subcontractors, had been instructed to comply with Granite City's rules. Given that these personnel were involved with discovering and preventing safety hazards, the jury could have found that it was reasonable for Granite City not to have learned that the Structural Work Act was being violated. Because the evidence introduced at trial presented a jury question, at least concerning the willfulness of Granite City's conduct, the trial court did not err in failing to enter judgment for the plaintiff notwithstanding the verdict.
APPEAL OF SHEET METAL AGAINST PLAINTIFF
Sheet Metal advances two arguments to justify reversal of the judgment in favor of the plaintiff against it. First, Sheet Metal contends that the jury's verdict in favor of the plaintiff was contrary to the evidence at trial. Second, it is argued that plaintiff's rebuttal argument denied Sheet Metal a fair trial.
David Partney, vice-president of Sheet Metal, was the only witness from that company to testify at trial. On the Granite City job, Partney was project manager for Sheet Metal. When the job first started, Partney, the only Sheet Metal employee to visit the site, did so "a couple times a day." Later, he was joined by James Berleman, who was responsible for that part of the work which Sheet Metal did not subcontract to Sternberg, although he did not visit the job site until after the plaintiff's injury.
If a piece of structural steel did not fit properly, Partney testified, Sternberg's men would usually go directly to Peluso, Carborundum's project coordinator, for further instructions. Pieces which were not corrected in the field would be sent to Sheet Metal's shop for more extensive modification. Partney stated that ...