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Chance v. City of Collinsville

OPINION FILED JANUARY 7, 1983.

GEORGE CHANCE, PLAINTIFF-APPELLEE,

v.

THE CITY OF COLLINSVILLE, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT. — (DON GARNER, THIRD-PARTY DEFENDANT-APPELLANT.)



Appeal from the Circuit Court of Madison County; the Hon. Horace L. Calvo, Judge, presiding. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

On March 27, 1979, plaintiff, George Chance, filed a complaint under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69) (hereinafter referred to as the Act) against the city of Collinsville, Illinois (hereinafter referred to as the City). The complaint stated that on January 9, 1979, plaintiff suffered personal injuries while employed as a laborer to assist in excavation work in connection with tapping into the sewer lines of the City and that the City was in charge of this work within the meaning of the Act.

The City denied liability and also filed a third-party complaint seeking indemnification from Don Garner, the contractor who performed the excavation work. Mr. Garner, in his answer to the City's complaint, denied liability.

After a three-day jury trial in November 1981, a verdict was returned against the City in the amount of $100,000. The jury also returned a verdict in favor of the City and against Mr. Garner on the third-party complaint, awarding the City full indemnification.

The City and Mr. Garner both filed post-trial motions which alleged, inter alia, that the trial court erred in failing to grant directed verdicts in their favor. These motions were denied. Both the City and Mr. Garner have appealed; Mr. Garner, in his brief, has elected to adopt the arguments of the City on appeal.

This appeal raises two issues: (1) whether the City was a person "having charge of" the work under section 9 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 69); and (2) whether an excavation is a structure within the provisions of the Act.

Louis Jackstadt, who was the sewer coordinator for the City at the time plaintiff was injured, testified at trial. Through his testimony it was established that on September 23, 1976, the City adopted Ordinance No. 1852 which specified the time and manner in which businesses and homeowners were to tap into a newly constructed sewer system. This ordinance provided that owners adjacent to sewer mains were to be notified that they had 90 days to tap into the system. It was the obligation of the business or homeowner to make arrangements to tap into the main sewer line. Owners were to apply for sewer service through the city clerk's office and were required to obtain a permit to tap into the sewer system and to pay certain enumerated fees. Under Ordinance No. 1852, installations involving excavation of streets or public property required that the contractor who performed the work post a bond to restore the property to the satisfaction of the City. A list of properly bonded contractors was made available by the City but homeowners were not required to use those contractors. Ordinance No. 1852 further required that certain specifications be met regarding pipe size, pipe material and slope of the installed pipe. Connection of individual pipe lines to the sewer main was to be performed under the supervision of a representative of the City, and an inspection of the pipe line by a representative of the City was required before an excavation could be refilled.

Mr. Jackstadt indicated that on January 9, 1979, he was the only inspector employed by the City to inspect connections to the public sewer system and that on the day of plaintiff's injury, he made two or three visits to the excavation site where the injury occurred. He said that a permit for the excavation work had been issued and stated that there was some problem locating the portion of the main sewer where the connection was to be made. He recalled that it was a rather deep excavation with a depth of about 15 feet. Mr. Jackstadt said that he and Mel Heinicke, a building department inspector who shared a car with him, were standing next to the excavation when a side of the excavation suddenly caved in on plaintiff.

Don Garner testified that he contracted with a homeowner to install a sewer line which would connect a home in the 700 block of Staten Street to the city sewer main. Mr. Garner testified that the City had no part in the negotiation of the contract between the homeowner and himself, that he determined the amount he charged for the work, and that he supplied the equipment and materials for the project. Mr. Garner said that he employed plaintiff to assist with the excavation work and that plaintiff's wages and working hours were determined by plaintiff's union.

Mr. Garner stated that the City informed him of the location and depth of the tap-in point on the main sewer line and that he called the City every morning to let the City know he was working so that the City would send an inspector to the location. Mr. Garner's testimony suggested that during working hours, plaintiff was under his physical control and that it was Mr. Garner who directed plaintiff as to when and how to dig in the excavation. Mr. Garner indicated that the City had nothing to do with directing plaintiff during working hours and that the city inspector's responsibility at the excavation site was merely to inspect the placement and type of pipe.

Mr. Garner also testified that the City had prevented him from working on three occasions, once after he had broken a water line and on two other occasions when his work resulted in damage to roads located at the excavation site where he had been working. Mr. Garner said that it was his "feeling" that he worked at the pleasure of the City.

Mr. Garner testified that prior to the cave-in which caused plaintiff's injury, there were two or three cave-ins at the excavation during the course of the day and that this information was never relayed to Mr. Jackstadt or any other city official. Mr. Garner said that just prior to the cave-in which caused plaintiff's injury, Mr. Jackstadt was suggesting places to probe which might result in locating the tap-in site. Mr. Garner testified that the decision as to whether to shore up or use jacks to support the excavation was his and that the City never gave any directions regarding safety procedures.

Plaintiff testified that a city inspector, whose name was Sid Strotheheide, according to the record, showed him how to perform various operations on the job. He stated that the city inspector merely offered suggestions and did not order that the job be performed in a certain manner. Plaintiff said that Mr. Garner, not the City, directed the manner in which the excavation was to be dug and that the city representatives were at the excavation site merely for purposes of inspecting the work. Plaintiff also said that the City did not maintain an office at the jobsite. Plaintiff corroborated Mr. Garner's testimony that Mr. Jackstadt was helping to locate the tap-in point at the time plaintiff was injured.

The City first maintains that it was not a person having charge of the work within the meaning of the Act. It is argued that under the applicable standard set forth in Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504, the trial court should have directed a verdict for the City in the case at bar. Specifically, the City argues that: (1) the fact that the City ordinance provides for specifications for the work to be performed and gives the City the right to inspect the work is insufficient to support a finding that the City was in charge of the work; (2) the evidence does not otherwise establish that the City was in charge of the work; and (3) policy considerations suggest that the City should not be held liable.

Plaintiff replies that whether the City was in charge of the work is primarily a question of fact for the jury and that, under the circumstances presented in this case, the jury's ...


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