Appeal from the Circuit Court of Cook County; the Hon. Warren
Wolfson, Judge, presiding.
JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:
Defendants, Blinderman Construction Company (Blinderman) and the Chicago Transit Authority (CTA), and third-party defendant, Archway Steel Erection Company (Archway), appeal from a judgment of the circuit court of Cook County. A jury found defendants liable to plaintiff, Barnett A. Shaheed, under the Structural Work Act. (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) The jury awarded plaintiff $750,000 in damages, assessing 40% liability to Blinderman, another 40% to the CTA, and 20% to Archway, for injuries plaintiff suffered when he fell from a column supporting a platform at a CTA rapid transit station.
Defendants appeal from the judgment entered on the verdict, contending that (1) plaintiff failed to prove a prima facie case under the Structural Work Act, (2) the jury's verdict was against the manifest weight of the evidence, (3) the trial court should have applied the doctrine of comparative fault, (4) the trial judge improperly limited defendants' cross-examination of plaintiff's witnesses, (5) the jury's award to plaintiff was outrageous and excessive, and (6) the trial judge improperly instructed the jury on the law and that a special interrogatory was appropriate.
Blinderman further appeals from the third-party action against Archway, contending that the trial judge erred in (7) finding as a matter of law that Blinderman was actively negligent, thus, not entitled to indemnity from Archway; (8) dismissing Blinderman's breach of contract action against Archway; and (9) refusing to instruct the jury on the law relating to the third-party claim. Blinderman lastly contends that (10) the jury's assessment of liability between it and Archway was against the manifest weight of the evidence.
The record shows that defendants were operating a platform extension project at the Central Park rapid transit station near 1932 South Drake Avenue, in Chicago. Blinderman hired the third-party defendant, who in turn hired plaintiff, an ironworker with approximately 12 years' experience. Plaintiff testified at trial that on several occasions on April 15, 1980, he climbed a column that supported the station to reach his jobsite. Plaintiff further testified that when he reached the top of the column during his last climb, approximately 20 feet above the ground, he slipped and fell on his right ankle, fracturing it.
On October 6, 1980, plaintiff filed a complaint against defendants, alleging that they were subject to the Structural Work Act, that they were in charge of the construction project, and that he climbed the column to reach his jobsite because defendants failed to supply him with either ladders or scaffolding.
Defendants answered the complaint by denying all material allegations except their contract to build the platform extension. Blinderman then filed a third-party complaint against Archway seeking common law indemnity, alleging that Archway's negligence was active and major, while its negligence, if any, was passive and minor, and also because Archway breached its contractual duty to maintain insurance with a contractual liability clause or a hold-harmless endorsement that named Blinderman as an additional insured. Blinderman also sought contribution from Archway to the extent any liability was established against it.
The trial judge dismissed the contractual indemnity count in Blinderman's third-party complaint, ruling that the indemnity obligations under the contract were void and that any promise to procure insurance for their indemnity obligations also was void. At the close of all the evidence, the trial judge granted Archway's motion for a directed verdict on the common law indemnity count in the third-party complaint, ruling that Blinderman had been actively negligent as a matter of law. The trial judge, therefore, instructed the jury only on the contribution theory. After the jury returned a verdict in favor of plaintiff, the trial judge denied defendants' post-trial motion seeking a judgment notwithstanding the verdict, a new trial, or a remittitur. The trial judge also denied Blinderman's motion seeking reinstatement of its indemnity count and a new trial on the third-party complaint. Defendants appeal.
SHAHEED v. BLINDERMAN & CTA
Defendants first contend that the trial judge erred in denying their motion for a directed verdict or a judgment notwithstanding the verdict because plaintiff failed to prove all of the necessary elements of a Structural Work Act violation.
In an action under the Act, a plaintiff must prove that (1) he was engaged in or was passing under or by a structural activity, (2) the activity was being performed with reference to a structure, (3) a scaffold or other mechanical device was being used, (4) a defect existed in the construction or use of the device, (5) the defect proximately caused his injuries, (6) the defendant had charge of the work, and (7) the defendant wilfully violated the Act's safety standard. (Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App.3d 844, 848, 463 N.E.2d 921, 924.) Defendants argue that plaintiff failed to prove the third, fifth, and seventh elements.
A. Defendants first contend that the column from which plaintiff fell was not scaffolding or a mechanical device. Relying on Swendsen v. Brighton Building & Maintenance Co. (1976), 41 Ill. App.3d 930, 355 N.E.2d 164, defendants argue that plaintiff's election to use a short cut to reach his jobsite, when they provided a safe and permanent means of access, is not a basis for liability under the Act. (41 Ill. App.3d 930, 933.) Plaintiff responds by invoking Louis v. Barenfanger (1968), 39 Ill.2d 445, 236 N.E.2d 724, which held that the failure to provide suitable ladders and scaffolding is a violation of the Act. 39 Ill.2d 445, 449.
• 1 We agree with plaintiff. Defendants dispute that the Act required them to provide scaffolding in addition to an existing means of access. However, the cause of action that our supreme court created in Louis v. Barenfanger nonetheless lies, with the material issue of whether defendants provided plaintiff with a safe means of access being a question for the jury to resolve. We hold that plaintiff met this element of a Structural Work Act violation and that the issue was properly before the jury.
• 2 B. Defendants next contend that plaintiff failed to show that their negligence was a proximate cause of his injuries. They argue that the availability of alternative means of access to plaintiff's jobsite made his act of climbing the column the sole proximate cause of his injuries. Plaintiff responds by contending that the route defendants provided was unsafe; as a result, he and other ironworkers used the columns to reach their jobsites.
The question of proximate cause under the Structural Work Act is ordinarily a question of fact for the jury and becomes a question of law only when facts are undisputed and where there can be no difference in the judgment of reasonable persons on the inferences to be drawn from the facts. (St. John v. City of Naperville (1982), 108 Ill. App.3d 519, 524, 439 N.E.2d 12, 16.) Since the issue of whether defendants provided plaintiff with a safe means of access to his jobsite is disputed, we conclude that plaintiff met this element of a Structural Work Act violation, and that the issue was properly before the jury.
• 3 C. Defendants lastly contend that plaintiff failed to prove that their conduct was wilful within the meaning of the Act. In Isabelli v. Cowles Chemical Co. (1972), 7 Ill. App.3d 888, 289 N.E.2d 12, this court stated:
"Our courts have consistently held that the word `wilful' as used in this context is quite different from the familiar phrase `wilful and wanton.' The essence of the Structural Work Act is not to be found within the concept of knowing or intentional misconduct or even that of reckless disregard. Liability exists where the existence of dangerous conditions could have been ascertained by the exercise of reasonable care." 7 Ill. App.3d 888, 897.
Whether defendants provided plaintiff with a safe means of access to his jobsite and whether plaintiff's use of the column should have been discovered by the exercise of reasonable care were questions of fact for the jury. Since the testimony on the issue was conflicting and since we cannot say that the verdict was against the manifest weight of the evidence, we may not disturb it on appeal. (7 Ill. App.3d 888, 897.) We conclude that plaintiff met this element, as well as the other elements, of a Structural Work Act ...