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Spivey v. Brown

OPINION FILED NOVEMBER 26, 1986.

VERNON SPIVEY ET AL., PLAINTIFFS-APPELLANTS,

v.

JAMES BROWN, D/B/A TRI-STATE STONE & BRICK COMPANY, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Henry County; the Hon. Ronald C. Taber, Judge, presiding.

PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Vernon and Lois Ann Spivey (the Spiveys), brought this action to recover damages for fire loss to their house caused by the negligent installation of a prefabricated fireplace chimney sold by the defendant, James Brown (Brown), and installed by the defendant, Roger Lenz (Lenz). Following a bench trial, Lenz was found liable for the negligent installation of the chimney, and Brown was found not liable for the negligence of Lenz. The Spiveys appeal, contending that Brown is liable for the negligent installation of the chimney by Lenz. We affirm.

In December of 1977, the Spiveys purchased a prefabricated fireplace from Brown. Brown, doing business as Tri-State Stone & Brick Company, was primarily in the business of manufacturing cement-cast, simulated-stone brick-facing materials. In addition, he sold prefabricated fireplaces.

The Spiveys and Brown decided that the fireplace would be installed on the first floor and that the chimney would run inside the house, up through a second-floor closet, into the attic, and out through the roof. As Brown was not in the business of installing these fireplaces, he obtained the services of Lenz, a carpenter with experience in the installation of prefabricated fireplaces, to do the actual installation.

Brown told Lenz where the fireplace and chimney was to be installed. Brown supplied all the building materials needed to install both the fireplace and the chimney. Brown also paid Lenz a gross amount, based on the number of hours Lenz spent on the installation, following completion of the job. However, Brown did not deduct workers' compensation, social security, or State and Federal taxes from Lenz' check.

Except for covering the fireplace with simulated-stone facing, Brown had nothing else to do with the installation of the fireplace. Lenz was in charge of the assembly and installation of the fireplace and chimney. Also, Lenz supplied his own tools for the job.

Following completion of the work, the Spiveys paid Brown for both the cost of the fireplace and for its installation. The Spiveys used the fireplace for three years. Then, on December 19, 1980, after they had a fire in the fireplace, their home caught on fire causing excessive damage. The Spiveys brought the instant negligence action.

The trial court found that the fire was caused by Lenz' negligent installation of the chimney. The trial court further found that Brown was not liable for the negligence of Lenz, as Lenz was not an employee of Brown but rather an independent contractor.

On appeal the Spiveys raised four arguments in support of their contention that Brown is liable for Lenz' negligence. Their first argument is that Brown is liable under a products liability analysis. In essence, the Spiveys argue that the installation of the chimney was a component of an entire product called a "fireplace." According to the Spiveys, since the installation portion of the product was dangerously defective, and since Brown was the retailer who sold the defective product, under products liability Brown is liable for sale of the defective fireplace.

• 1, 2 In Illinois, to recover from a retailer under products liability it must be shown that the retailer sold the product, and that the product was defective when it was sold by the retailer. (Sweeney v. Matthews (1968), 94 Ill. App.2d 6, 236 N.E.2d 439.) Products liability does not concern itself with the conduct of the manufacturer or vendor, but only with the product's lack of fitness. Bollmeier v. Ford Motor Co. (1970), 130 Ill. App.2d 844, 265 N.E.2d 212.

• 3 Here, it is undisputed that Brown sold the fireplace to the Spiveys. The Spiveys, however, have never alleged or presented any evidence that the fireplace or the chimney was defective when it left the retailer, Brown. Here, the installation of the fireplace involved only the conduct of the installing party; it has nothing to do with the character of the product. Therefore, the theory of products liability is inapplicable to this case.

• 4-7 The Spiveys' second argument is that Brown is liable because Lenz was an employee of Brown and not an independent contractor. We disagree.

An employer is generally not liable for the acts of an independent contractor. (J.R. Sinnott Carpentry, Inc. v. Phillips (1982), 110 Ill. App.3d 632, 443 N.E.2d 597.) An independent contractor is one who undertakes to produce a certain result without being in any way controlled as to the method used to achieve that result. (Dumas v. Lloyd (1972), 6 Ill. App.3d 1062, 286 N.E.2d 566.) To determine whether a person is an employee or an independent contractor, the following factors, among others, should be considered: (1) the right to control details and method of the work; (2) the method of payment, including whether deductions are made for taxes, social security, etc.; (3) the skill needed to perform the job, including the furnishing of materials and tools; (4) whether the work contracted for is a part of the employer's regular business or is only incidental to his main business; and (5) the right to discharge. (Manahan v. Daily News-Tribune (1977), 50 Ill. App.3d 9, 365 N.E.2d 1045.) The employer's right to control is of primary importance in determining the nature of that relationship. Dumas v. Lloyd (1972), 6 Ill. App.3d 1026, 286 N.E.2d 566.

• 8 The trial court considered sufficient evidence to properly conclude that Lenz was an independent contractor and that Brown was therefore not liable for Lenz' negligent installation of the chimney. Apart from Brown's designation of the location of the fireplace and chimney, Lenz was not under the supervision of Brown. Lenz was in charge of the details and method of the installation. Lenz furnished his own tools. Brown paid Lenz in one gross amount for the work done without deducting taxes or social security. Lenz, not ...


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