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09/21/87 Henry Puttman, v. May Excavating Company

September 21, 1987

HENRY PUTTMAN, APPELLEE

v.

MAY EXCAVATING COMPANY, APPELLANT



SUPREME COURT OF ILLINOIS

514 N.E.2d 188, 118 Ill. 2d 107, 112 Ill. Dec. 722 1987.IL.1388

Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Jackson County, the Hon. William H. South, Judge, presiding.

APPELLATE Judges:

JUSTICE SIMON delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON

Who was in charge? That is the principal question in this action.

On September 14, 1981, plaintiff Henry Puttman, while employed by S. M. Wilson Construction (Wilson), was injured when some dirt from a ditch he was working in collapsed. He filed suit in the circuit court of Jackson County against May Excavating Company, alleging in one count a violation of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) and common law negligence in a second count. Based on the deposition testimony of several witnesses, the circuit court granted the defendant's motion for summary judgment on both counts. The appellate court, with one Justice Dissenting, reversed in an unpublished order pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23; 145 Ill. App. 3d 1171). We granted the defendant's petition for leave to appeal. 103 Ill. 2d R. 315.

Count I states that the defendant served as a subcontractor to the plaintiff's employer on a construction project in Carbondale. It alleges that the defendant caused the digging of a ditch at the site and was in charge of the phase of the work being performed by the plaintiff. The complaint charges the defendant with violating the Structural Work Act by failing to erect a support to protect the plaintiff, failing to ascertain that the ditch was sufficiently stabilized to withstand collapse, and failing to stabilize the ditch. Count II alleged the defendant's negligent failure to stabilize and negligent failure to warn the plaintiff of the danger of collapse. Two questions are presented: (1) Was summary judgment for the defendant on count I proper because it was not a party "having charge of" the work for purposes of liability under the Structural Work Act? (2) Was summary judgment for the defendant on count II proper because May Excavating had no duty of care with respect to the plaintiff?

The plaintiff's employer, Wilson, was hired to construct a hospital addition. During an earlier phase of the construction, Wilson had entered into a written contract with May Excavating to perform the mass excavation of a basement. That work had been completed prior to the incident at issue here. Plaintiff's injury occurred during the laying of a new sewer line. Two backhoes owned by the defendant were digging and backfilling a ditch, and the plaintiff was a laborer working in the ditch. Wilson employed a "top man," whose sole duty was to watch the bank and warn the laborers in the ditch if collapse was imminent. No shoring was used to support the ditch. During these operations, some dirt collapsed, and the plaintiff was partially covered.

Charles May, the sole owner of May Excavating, and Larry Williams, Wilson's job superintendent, both stated that the defendant's work under the written subcontract was limited to the excavation of the basement, which had already been completed. With respect to the sewer line, May Excavating had simply rented out the backhoe equipment and two operators (along with a truck and driver) on an hourly basis. Williams testified, and Charles May agreed, that Williams had all responsibility for determining what the operators did and how the equipment was used, for directing and supervising the work, and for job safety. May could not issue work orders or stop the work, and May Excavating's "only connection with the job" was that it furnished the equipment and operators. Williams and May both testified as well that Williams had the authority to discharge the operators from the job if he was dissatisfied with their performance.

The backhoe operators, Charles Cagle and Robert Taylor, also expressed their understanding that May "didn't have anything to do with the job. His machinery was rented out by the hour to S.M. Wilson." Both stated that Larry Williams was the boss for the duration of the project and could have discharged them. Neither would have accepted an order from Charles May if he had purported to give one because "it wasn't his job." At no time, however, did May attempt to give orders, direction or supervision to either Cagle or Taylor. The plaintiff also testified that Williams was the "guy" who gave the orders to the workers, including the backhoe operators.

Charles May came by the worksite two or three times a week. May testified, and Cagle agreed, that May's standard practice when he leased equipment was to make sure the equipment was performing adequately and to see if the men needed anything. May also stated that he might have looked at the operators' work and that he "normally would . . . look at some of their work to see if it was good work or bad work"; if they had done something wrong he probably would have told them and Williams. May conversed with Williams, who was a friend of his, on the jobsite. The operators came by May's office at night to turn in their hours and to get paid, and they would discuss any problems at that time. The operators' wages came out of the money paid by Wilson to May Excavating.

May testified that he thought the ditch was too deep not to have proper shoring, although he had not seen the caved-in section prior to its collapse. The operators did not recall it, but May thought he had talked with them about the possible need for shoring and suggested they bring it up to Williams. He did not have any blueprints, nor did he have any responsibility for seeing the ditch was properly constructed. The plaintiff and the two operators recalled that the day after the accident May brought a cage -- a safety device to protect laborers in the ditch -- to the worksite. Cagle believed that Williams had called May and asked him to bring it over. Taylor recalled that the cage was never used because the laborers did not want to use it.

Liability under the Structural Work Act may fall only upon a person or entity "having charge of" the work. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill. 2d 305; Ill. Rev. Stat. 1985, ch. 48, par. 69.) This court has not offered a comprehensive definition of the phrase "having charge of" (see Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316), but it is clear that if the defendant's only connection with the sewer line project was to furnish equipment and operators who were to work under the sole direction of Wilson's job superintendent, it was not in any sense in charge of the work. (See Huckabee v. Bell & Howell, Inc. (1970), 47 Ill. 2d 153 (defendant which supplied possibly defective scaffold not in charge of the work).) The ...


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