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11/30/87 James Brian Dean, v. the Talman Home Federal

November 30, 1987

JAMES BRIAN DEAN, PLAINTIFF-APPELLANT

v.

THE TALMAN HOME FEDERAL SAVINGS AND LOAN ASSOCIATION OF ILLINOIS, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

516 N.E.2d 951, 163 Ill. App. 3d 800, 114 Ill. Dec. 796 1987.IL.1758

Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. BARRY, P.J., concurs in the result. WOMBACHER, J., concurs.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

Plaintiff, James Brian Dean (Dean), a sole proprietor roofing contractor, contracted with the defendant, Talman Home Federal Savings and Loan Association of Illinois (Talman), to repair a roof on a home owned by Talman. While Dean was conducting repairs he attempted to move a tree branch which was hanging over a portion of the roof, the branch snapped back and struck Dean in the eye, resulting in injuries. Dean filed suit against Talman seeking damages for the loss of use of his left eye. Dean's complaint contained two counts. Count I was filed pursuant to the Illinois Structural Work Act (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.); count II contended that Talman was negligent in failing to warn Dean of unsafe conditions at the jobsite. The circuit court of Peoria County granted the defendant's motion for summary judgment as to both counts of Dean's complaint. Dean has appealed.

Dean contends the following on appeal: (1) that as a sole proprietor he is a "protected person" within the meaning of the Illinois Structural Work Act, and (2) Talman, as an owner of the premises and employer of Dean, had a duty to warn Dean of unsafe conditions at the jobsite. We will address the plaintiff's contentions in the order they are presented.

The Illinois Structural Work Act provides in relevant part:

"§ 1. That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.

§ 9. Any owner, contractor, sub-contractor, foreman or other person, having charge of the erection, construction, repairing, alteration, removal or painting of any building . . . or other structure within the provisions of this act, shall comply with all the terms thereof . . ..

For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby . . .." Ill. Rev. Stat. 1983, ch. 48, pars. 60, 69.

In order to hold a party accountable under the Structural Work Act, it must be determined that the party had charge of the work in question. (Simmons v. Union Electric Co. (1984), 104 Ill. 2d 444, 473 N.E.2d 946.) Dean is a self-employed roofing contractor. Dean has had eight years of experience in the roofing business and conducts operations under the name of "Brian Dean Construction," an unincorporated sole proprietorship. Dean was contacted by Walter Rosenthal, Talman's agent. Rosenthal asked Dean to bid on the roofing job. Dean's bid was accepted, and he began working. As an experienced roofing contractor, Dean had apparently had in his inventory of items all the necessary equipment to perform the job in a workmanlike manner. While working on the roof, Dean was using his own equipment. Talman, through agent Rosenthal, controlled when Dean would begin work, the time and manner of Dean's payment, and was to determine if the roof was completed satisfactorily.

One or two days before the accident, Rosenthal visited Dean on the jobsite. Rosenthal stated that he had been at the site for about 10 minutes. During that time Rosenthal observed Dean working and inquired as to how the job was progressing. While on the job the next day, Dean attempted to move a tree branch which was hanging over a portion of the roof, the branch snapped back and struck Dean in the eye, resulting in injuries. Dean contends Talman through agent Rosenthal was in charge of the work performed by Dean, and as such, Talman should be liable for Dean's injuries pursuant to the Structural Work Act.

In Chance v. City of Collinsville (1983), 112 Ill. App. 3d 6, 445 N.E.2d 39, the court set forth a number of factors to consider when determining whether a defendant has ...


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