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Massa v. Helmkamp Excavat. & Truck. Co.

OPINION FILED JULY 8, 1986.

ROBERT MASSA, PLAINTIFF-APPELLEE,

v.

G. HELMKAMP EXCAVATING & TRUCKING COMPANY ET AL., DEFENDANTS-APPELLANTS (G. HELMKAMP EXCAVATING & TRUCKING COMPANY, THIRD-PARTY PLAINTIFF AND COUNTERPLAINTIFF AND APPELLEE; C.D. PETERS CONSTRUCTION COMPANY, THIRD-PARTY DEFENDANT AND APPELLANT; L.B. FOSTER COMPANY, COUNTERDEFENDANT AND APPELLANT).



Appeal from the Circuit Court of Madison County; the Hon. George Moran, Jr., Judge, presiding.

JUSTICE CADAGIN DELIVERED THE OPINION OF THE COURT:

Plaintiff, Robert Massa (Massa), an employee of C.D. Peters Construction Company (Peters), commenced this action in the circuit court of Madison County to recover damages for personal injuries suffered in a fall at a construction site owned by A.O. Smith Corporation (Smith).

Smith acted as its own contractor and hired Peters to drive approximately 80 piles for a building addition. Peters leased a crane from G. Helmkamp Excavating & Trucking Company (Helmkamp) together with an operator, McZura, and an oiler, McZura's son. The crane lease included a becket and wedge assembly. Peters also leased a diesel pile hammer and pile-driver leads from L.B. Foster Company (Foster), which lease included the services of a field specialist, John Brown.

Massa filed a three-count complaint each against Helmkamp and Foster alleging negligence, strict liability in tort and violations of the Structural Work Act (Act) (Ill. Rev. Stat. 1983, ch. 48, par. 69 et seq.). Helmkamp then filed a counterclaim against Foster and a third-party action against Peters seeking indemnity. Following a jury trial, judgment was entered in favor of Massa and against Helmkamp and Foster in the sum of $420,000, and for Helmkamp and against Foster and Peters for indemnity.

The pile-driver leads consist of an elongated frame structure with two parallel steel tracks 52 feet in length. The pile-driver hammer and diesel engine are installed into the leads and, by virtue of V-shaped channels on its sides, fit between the slides on the leads' tracks. Whereas fixed leads are braced rigidly to the crane's boom in a fixed pile-driving position, swinging leads, used, as here, for maneuverability, are held by use of the crane's loft cable. When raised by the crane to the vertical driving position, the leads locate the hammer over the pile and act as a guide during the driving down of the pile.

A crane operating a diesel pile hammer and swinging leads holds up the leads and the hammer from the ends of two separate cables, each running upward from the equipment through the top of the boom and then down to independently operated reel-like drums of the crane. The hammer is started by the crane raising the piston while the hammer rests on the pile, and, when the piston is released, compression should start driving the pile. The starting and smooth operation of the engine is adversely affected by the loosely compacted soil under the pile and by cold weather. During cold weather it is often necessary for a worker to climb the leads to use ether to start the engine.

On December 23, 1976, the leads and diesel pile hammer were attached to the crane. Peters' workers and Biason, their foreman, Helmkamp's cranemen, and Foster's field specialist, Brown, were present when the leads were assembled and rigged to the crane. The crane operator furnished a becket and wedge shackle that was attached to the lifting yoke at the top of the leads to secure the leads assembly to the cable.

The actual assembly was done with Biason in charge. Brown, the field supervisor, instructed the workers as to the proper assembly of the equipment and the operation of the diesel hammer. Massa, the union steward on the site, told Brown to stand back and not touch anything. Biason ordered a test of the equipment by raising the leads and hammer into the air, thereby placing the connection under stress.

The following day, December 24, 1976, after four piles had been driven, Brown left the job site and did not return. Brown advised the workers to keep a visual inspection on all parts. Work continued intermittently because of holidays and bad weather conditions. On the sixth day of work, January 5, 1977, 7 of the last 11 piles had been driven before Massa fell.

A pile had been placed vertically preparatory to driving, and Massa had climbed the ladder rungs on the outside of the leads to position the hammer over the pile. The crane operator lowered the hammer, which action pushed the pile approximately 3 feet into the excavation. The leads were suspended over the excavation, which was about 7 feet deep. As the crane raised the ram or piston, Massa sprayed ether to assist in starting the engine. As the ram dropped, the pile went down faster than normal, the wedge pulled out through the top of the becket on the crane cable supporting the leads, and the leads fell into the excavation, thereby causing Massa's fall and injuries.

Although the becket and wedge were both stamped five-eighth inch, the wedge was, in fact, smaller. The difference in size was not apparent upon a casual inspection, and subjecting the wedge and becket to repeated loading would result in a failure. Seventy-six piles had been driven before the failure occurred.

The complaint against Foster in the strict-liability count was that the leads were too short and that the diesel hammer would not operate properly or run continuously. The Structural-Work-Act count charged that Foster was in charge of the construction, erection and operation of the pile driving with leads and hammer that were too short and with a hammer that was in poor condition. The negligence count alleged inadequate leads, failure of the hammer to operate properly, and the approval of an improper method of driving piles.

Plaintiff's complaint against Helmkamp in all three counts was that the becket and wedge were mismatched, the wedge was incorrectly marked, and the becket and wedge would not hold up to repeated stresses.

Foster's primary contention is that a directed verdict or judgment n.o.v. should have been entered in its favor on both the original complaint and on Helmkamp's counterclaim for indemnity from Foster. Such motions are governed by Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 299 N.E.2d 504.

Foster argues that it did not have charge of the construction but merely leased one part of the equipment used.

• 1 The definition of the phrase "having charge of" has been the subject of many decisions. In Simmons v. Union Electric Co. (1984), 121 Ill. App.3d 743, 460 N.E.2d 28, we recently held that the phrase "having charge of" is a generic term that has been broadly read and requires the consideration of many factors. Among the 10 possible factors listed in Simmons, only two could be present here, the supervision and control of the work (erection and operation of the leads) and the ownership of the equipment used at the site. The presence of these factors is relevant, but their mere presence does not require a finding that a party was in charge of the work.

• 2 The fact of the lease of the equipment is not sufficient to impose liability upon Foster. (Vykruta v. Thomas Hoist Co. (1966), 75 Ill. App.2d 291, 221 N.E.2d 99.) Accordingly, a finding of a violation of the Act by Foster, as supervising the work, must rest on the actions of Brown, the field supervisor for Foster. Brown was present to instruct in the assembly of the Helmkamp crane and the Foster leads and diesel hammer. Brown was instructed by plaintiff to stand back during the assembly work and apparently did not handle any item. Brown was acting more nearly as a consultant since only Biason (Peters' foreman) could actually give orders to the workers involved. The assembly was tested at the direction of Biason and visually inspected by both Biason and Brown. The expert testimony of engineers was that the mismatching of the becket and wedge was not so apparent that it would be visible to the naked eye. Biason testified that he believed the one testing of the assembly was sufficient, and he saw no need to test it again.

The facts here are insufficient in law to impose liability on Foster as having charge of the work, and the trial court should have entered judgment n.o.v. in its favor upon plaintiff's count based upon the Structural Work Act.

• 3 Plaintiff's claim against Foster in negligence and strict liability is essentially that the leads were too short for the piles being driven, the method of driving the piles was ...


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