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Johnson v. Commonwealth Edison Co.

OPINION FILED APRIL 2, 1985.

STANLEY JOHNSON, PLAINTIFF-APPELLEE,

v.

COMMONWEALTH EDISON CO., DEFENDANT-APPELLANT, (A & H ENGINEERING CORP. ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. Irving R. Norman, Judge, presiding.

JUSTICE BILANDIC DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 14, 1985.

In this personal injury action predicated on an alleged violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1975, ch. 48, par. 60 et seq.), defendant, Commonwealth Edison Co. (Edison), contests the propriety of a jury verdict and the judgment entered thereon assessing damages against it and in favor of plaintiff, Stanley Johnson, in the amount of $400,000.

On November 18, 1976, while working in his capacity as a laborer for the Walsh Construction Co. (Walsh), plaintiff sustained injuries when he fell during the removal of shoring towers *fn1 located at Turbine Unit No. 2 of the La Salle County Nuclear Power Plant. Walsh was the prime structural contractor responsible for building the concrete substructure and superstructure of this plant. Edison was the owner of the two-unit power plant, which approved the overall job schedule and saw to it that the several retained contractors, including Walsh, adhered to its directives with respect to such scheduling. Further, the issuance of a permit to Edison from the Federal government was necessary prior to construction of the La Salle power plant; it was Edison's responsibility, therefore, to make sure that all of the plans and specifications were "rigidly adhered to." Edison also had the authority, by virtue of its contract with Walsh, to stop work not being performed in a safe manner.

It was plaintiff's assigned responsibility on November 18, 1976, to assist in the removal of shoring towers located at Turbine Unit No. 2 of the La Salle power plant. Turbine Unit No. 2 held three bays of shoring with approximately 28 towers on each side of each bay. All of the shoring in Turbine Unit No. 1 was previously removed "the normal way," i.e., starting at the top, each section was dismantled from the tower and lowered to the ground individually. Although the same type of shoring was used in Turbine Unit No. 2, a different method of removal was employed when the dismantling of this shoring started in September 1976. A very large crane lowered a line down through the top opening of the turbine unit. After this line was hooked onto the top of a particular shoring tower, the crane pulled the entire tower out through the roof of Turbine Unit No. 2.

On November 18, 1976, it was plaintiff who was responsible for the attachment of the crane line to the top of the shoring towers contained in Turbine Unit No. 2. All of plaintiff's work assignments, including this specific task, were given to him by his foreman, a Walsh employee. The actual decision to employ the modified removal procedure was explained to those involved by Sam Wolinsky and Warren Valley, Edison engineers, and Edward Long, a Walsh superintendent. In essence, "Mr. Wolinsky said that it would be very much quicker to remove the shoring this way." The particular procedure which plaintiff used to connect the crane line involved first hooking a "choker" cable to each tower, and then hooking this cable onto "spreader" cables which were attached to the "large headache ball" of the crane line. The nature of this procedure necessitated that plaintiff stand on a tower in order to connect the crane line.

The accident in question occurred between 9:30 and 10:30 p.m. on November 18, 1976. Plaintiff had just finished attaching the crane line to the top of one of the remaining shoring towers in Turbine Unit No. 2. The condition of this particular tower was "very unstable" and "covered with oil." Plaintiff proceeded to climb down "[t]hree, maybe four" towers over to get some wire in order that he could better secure the back row of towers which were also unstable. At some point soon after he began to descend, the towers, which were interconnected by wood braces, swayed out toward the center of the turbine room and then back toward the wall of the turbine pedestal. Plaintiff thereupon lost his grip, "pushed off as far as [he] could," and fell approximately 40 feet to the ground level. Several of the towers then "crumble[d] like crackers" and fell down into the basement approximately 90 feet below. Plaintiff lost consciousness and his next recollection was waking up in the Community Hospital at Ottawa two days later.

By virtue of his amended complaint at law filed on November 20, 1978, plaintiff sought damages from Edison for an alleged violation of the Illinois Structural Work Act (Act). At trial, Charles Schultz, a construction safety consultant, was permitted to testify as an expert witness that, in his opinion, the method employed to remove the shoring towers from Turbine Unit No. 2 was "a very unsafe practice." The basis for this opinion was two depositions, accident reports, and Schultz' review of other "documents such as the Shoring Institute Standards, the Federal Register and the National Safety Council."

Without presenting a case in chief, defendant rested; thereafter, the trial court granted plaintiff's motion for a directed verdict on the question of whether Edison was in charge of the La Salle power plant construction project. After the issues regarding defendant's purported violation of the Act, causation and damages were submitted to the jury, a verdict was returned in favor of plaintiff. Damages were assessed against defendant in the amount of $400,000. It is the propriety of this verdict and the judgment entered thereon that defendant now contests on appeal.

I

The initial question for resolution is whether the trial court correctly directed a finding in plaintiff's favor on the issue of defendant, "having charge of" the La Salle power plant construction project.

• 1 Civil liability under the Act attaches to those parties "having charge of" the work. (Ill. Rev. Stat. 1975, ch. 48, par. 69.) This statutory language is not confined to the exercise of supervision and control over the work. (Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 321-22, 211 N.E.2d 247.) Rather, it is a generic term, one which Illinois "courts have broadly construed * * * to effectively include two classes of potential defendants: (1) those having the right to supervise or control the actual work from which the injury arises; and (2) those with overall responsibility for the work being performed on the job site." MFA Mutual Insurance Co. v. Crowther, Inc. (1983), 120 Ill. App.3d 387, 391, 458 N.E.2d 71, citing Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 488-89, 394 N.E.2d 403.

• 2 Edison cites McGovern v. Standish (1976), 65 Ill.2d 54, 357 N.E.2d 1134, for the proposition that it cannot be held liable under the Act unless it was "in charge of" the particular activity resulting in plaintiff's injuries. However, in Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 373 N.E.2d 1348, our supreme court reviewed the history of the Act and broadly interpreted the phrase "having charge of" so as to all but overrule McGovern. *fn2 Noting the Act's beneficient purpose of preventing injuries to persons employed in the extrahazardous occupation of structural work, the Emberton court indicated that liability under the Act is not confined merely to those who perform, supervise, or control the actual work which causes the injury, but also extends "`to owners and others who have charge of the erection or alteration of any building or structure.'" (71 Ill.2d 111, 117, quoting Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 321-22.) As a result, it is not necessary that a party be in direct charge of the particular operation from which the injury arose if it is in charge of the overall work for the project under construction. (Crist v. Debron Corp. (1981), 96 Ill. App.3d 668, 672, 421 N.E.2d 997.) One or more parties can have charge of the overall work, and other parties can have charge of the phase of the work in connection with which an injury occurs. In that event, all of them would have charge of the work within the meaning of the Act. Crist v. Debron Corp. (1981), 96 Ill. App.3d 668, 672; Westerfield v. Arjack Co. (1979), 78 Ill. App.3d 137, 141, 397 N.E.2d 451, citing Emberton v. State Farm Mutual Insurance Co. (1978), 71 Ill.2d 111, 123.

• 3 The determination of whether a party is in charge of the work depends upon an evaluation of the totality of the circumstances. (Ilic v. Henry Crown & Co. (1981), 97 Ill. App.3d 231, 234, 422 N.E.2d 892.) In Chance v. City of Collinsville (1983), 112 Ill. App.3d 6, 445 N.E.2d 39, appeal denied (1983), 93 Ill.2d 541, the appellate court enumerated the various factors probative of "having charge of." These include, but are not limited to: (1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; (7) the right to stop work; (8) ownership of the equipment at the jobsite; (9) defendant's familiarity with construction customs and practices; and (10) whether a party was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. Chance v. City of Collinsville (1983), 112 Ill. App.3d 6, 11.

• 4 Regarding the case at bar, the evidence as to the foregoing factors established that defendant was in charge of the work. Without question, Edison's liability was not based merely on its status as owner of the La Salle construction site, which is insufficient in itself to create such liability. (Ilic v. Henry Crown & Co. (1981), 97 Ill. App.3d 231, 235, citing Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481.) Instead, defendant's liability was predicated on the following uncontroverted facts: Leo Burke, Edison's project superintendent at the La Salle construction site, stated that "the NRC [Nuclear Regulatory Commission] deals only with the owner, not with the contractors." Consequently, it is Edison that assumed the "quality control function" of insuring that its La Salle power plant met the intricate governmental regulations for construction of a nuclear facility. Edison's engineers had the authority, by virtue of paragraph 9 of Edison's contract with Walsh, to stop work that was not being performed in a safe manner. Arthur W. Kleinrath, Edison's manager of station construction, even admitted that under the above-mentioned contract, if the shoring tower removal was not being done in a safe and secure manner, then "ultimately its going to be Edison that's going to make a decision about whether that work in that manner is going to continue." (Emphasis added.)

Edison's retention of the right to supervise and control the work is readily discernible from Kleinrath's further concession that he was "in charge of" the construction going on at the various facilities that Edison was building — one of which included the "La Salle County Nuclear Station." Indeed, Leo Burke, Edison's construction superintendent at La Salle, indicated that a major change in the job schedule could only be accomplished with his company's approval. As a last resort, Edison had "the ultimate authority to chase a contractor off the project." And even as a prime contractor, Walsh was no exception to this unequivocal retention of control.

The issuance of a permit to Edison from the Federal government was, of course, a prerequisite to construction of the La Salle nuclear power plant. It was Edison that would issue directives, plans and specifications to each contractor, and it was Edison that was ultimately responsible to make sure that those plans and specifications were "rigidly adhered to" by the contractors it retained to do the actual construction work. If there was "some deviation from the plans and specifications, ultimately it [was] up to Commonwealth Edison to see to it that the work of the contractor complie[d] with those specifications." The supervision and coordination of the contractors were clearly Edison's responsibility; indeed, if a coordination problem between two contractors ever arose, Burke acknowledged that "ultimately" it was Edison that would arbitrate the matter.

As far as Edison's constant participation in the ongoing activities, Burke admitted that "on a day-to-day basis" he knew where the Walsh employees were working at the La Salle construction site, as well as the type of work they were performing. In fact, Edison engineers under Burke "would spend a lot of their time out in the field watching the work being done by Walsh." These engineers were also responsible for "monitoring the work of Walsh" in order to ...


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