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Fearon v. Mobil Joliet Refining Corp.





Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.


Rehearing denied March 21, 1985.

Plaintiff Patrick Fearon brought this Structural Work Act suit in 1973 asking to recover for injuries he sustained following a fall from a scaffold. On May 26, 1977, the trial court granted summary judgment in favor of defendant Mobil Oil Corporation (Mobil). On July 30, 1981, the trial court granted summary judgment in favor of defendant Mobil Joliet Refining Corporation (Mobil Joliet). On August 24, 1982, the trial court denied plaintiff's motions to vacate the summary judgments previously entered. The court also denied plaintiff's motion to vacate the order denying plaintiff's motion for partial summary judgment. Plaintiff appeals.

Plaintiff was an employee of Fluor Corporation, which had contracted with Mobil to construct a refinery in Joliet. Plaintiff was injured on November 29, 1971, at the Joliet site. In his amended complaint, plaintiff named 12 defendants, including Mobil, Mobil Joliet, and Mobil Research and Development Corporation (Mobil Research). Mobil Research, however, was never served with summons.

In Mobil's motion for summary judgment, Mobil filed affidavits stating that it had assigned all of its contract rights under the Fluor contract to Mobil Joliet prior to plaintiff's injury. Mobil attached a copy of the Fluor contract and the assignment contract, and also referred the court to another case involving an injury at the Joliet site in which Mobil had been granted summary judgment. When the trial court granted Mobil's motion for summary judgment, the order provided that it could be vacated upon a showing that Mobil was materially involved.

Thereafter, Mobil Joliet filed its motion for summary judgment. In support of its motion, Mobil Joliet filed an affidavit by its assistant secretary and controller stating that Mobil Joliet consisted of a board of directors and officers but that it had no employees to supervise the Joliet site. The affidavit also stated that Fluor fully supervised the construction of the refinery and that Mobil Joliet was merely the owner of the property.

Prior to any ruling on Mobil Joliet's motion for summary judgment, the case was dismissed for want of prosecution. After plaintiff refiled the action, Mobil Joliet renewed its motion. Plaintiff filed his own affidavit in opposition, stating that he had seen individuals on the job site wearing white hard hats bearing the Mobil insignia. Plaintiff also asked permission to file depositions of Mobil and Mobil Joliet employees taken in an unrelated case. The court would not allow the filing of the depositions and, on July 30, 1981, granted summary judgment in favor of Mobil Joliet. At the same time, the court denied plaintiff's motion for partial summary judgment, refusing to hold as a matter of law that Mobil Joliet was "in charge of" the work at the Joliet refinery.

In 1982, plaintiff filed a motion for rehearing and a motion to vacate the grant of summary judgment in favor of Mobil. In support of these motions, plaintiff filed a 1974 letter from Mobil's defense counsel to Mobil's insurance company. The letter discussed a possible settlement of an accident at the Joliet refinery and noted the potential liability under the same Fluor contract at issue here. The letter also stated that the writer had received information that a team of men from the three Mobil companies were supervising the work at the refinery.

The court refused to consider the letter for lack of foundation under Supreme Court Rule 191(a), and denied plaintiff's motions. The court also denied plaintiff's request for an alias summons against Mobil Research, his motion to vacate the denial of partial summary judgment against Mobil Joliet, and his motion to file the previously refused employee depositions.

• 1-3 We initially consider the grants of summary judgments in favor of Mobil and Mobil Joliet. A motion for summary judgment should be granted where there is no genuine issue of material fact. (Cuthbert v. Stempin (1979), 78 Ill. App.3d 562, 396 N.E.2d 1197.) The pleadings, depositions and affidavits are construed strictly against the movant and liberally in favor of the opponent (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill. App.2d 80, 243 N.E.2d 40), and the right of the movant to summary judgment must be clear and free from doubt. (Cuthbert v. Stempin (1979), 78 Ill. App.3d 562.) However, a trial court's grant of summary judgment will not be reversed absent a showing of abuse of its discretion such that plaintiff's right to fundamental justice is violated. Chandler v. Jet Air Freight, Inc. (1977), 54 Ill. App.3d 1005, 370 N.E.2d 95.

As to Mobil Joliet, plaintiff argues that he, and not Mobil Joliet, is entitled to summary judgment because Mobil Joliet was "in charge of" the work at the Joliet site under the provisions of the Illinois Structural Work Act. Ill. Rev. Stat. 1971, ch. 48, par. 60 et seq.

• 4 In order to impose liability under the Act, an owner must be in charge of the particular operation out of which the injury arose. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 313 N.E.2d 457; Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785.) Mere ownership or the employment of an independent contractor is insufficient. Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247.

• 5 An owner may be in violation of the Act if he fails to provide a safe area within which the work proceeds. (Burke v. Illinois Power Co. (1978), 57 Ill. App.3d 498, 373 N.E.2d 1354.) Similarly, an owner who retains the right to stop work that is not performed in a safe manner may be found in charge of the work. (Kjellesvik v. Commonwealth Edison Co. (1979), 73 Ill. App.3d 773, 392 N.E.2d 116.) The final determination must rest upon an assessment of the totality of the circumstances. Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 394 N.E.2d 403; McGovern v. Standish (1976), 65 Ill.2d 54, 357 N.E.2d 1134.

• 6 Plaintiff maintains that the provisions of the Fluor contract imposed a duty on Mobil Joliet to inspect the work site and stop work performed in an unsafe manner. The Fluor contract, however, merely reserves to the owner a right of access to inspect the work and to reject or condemn any part which Mobil Joliet deems to be of inferior or faulty workmanship or not within the contract specifications. This provision is nothing more than the owner's right to assure itself that it is getting the quality of work for which it bargained. (See Melvin v. Thompson (1963), 39 Ill. App.2d 413, 188 N.E.2d 497.) Under the terms of the contract, the duty and burden of supervising the method of work was placed on Fluor. Moreover, the affidavit of J.D. Chipps states that Mobil Joliet had no employees but only a board of directors with financial duties. Apart from the affidavit of plaintiff stating that he saw unidentified men wearing hard hats with the Mobil ...

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