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07/26/88 Nicholas Egizio, v. Raymond Majetich Et Al.

July 26, 1988

NICHOLAS EGIZIO, PLAINTIFF-APPELLANT

v.

RAYMOND MAJETICH ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

527 N.E.2d 13, 172 Ill. App. 3d 758, 122 Ill. Dec. 641 1988.IL.1150

Appeal from the Circuit Court of Will County; the Hon. Thomas M. Ewert, Judge, presiding.

APPELLATE Judges:

JUSTICE SCOTT delivered the opinion of the court. HEIPLE and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCOTT

The trial court granted summary judgment for the defendants, Raymond and Sue Majetich and Fred and Sandy Majetich Gestel. The plaintiff, Nicholas Egizio, appeals.

The record shows that on May 11, 1984, the plaintiff fell from a ladder, fracturing his right ankle and hurting his right elbow. He subsequently sued the defendants, alleging that they were negligent and that they had violated the Illinois Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.).

The plaintiff testified to the following in his deposition. At the time of the accident, he was working as a part-time handyman, helping the defendants remodel and restore a house for Fred and Sandy, who were soon to be married. Though the plaintiff believed while he was working for the defendants that the house belonged to Sandy's parents, Ray and Sue, in fact it belonged to Fred and Sandy.

Ray and Sue originally hired the plaintiff to work on the house, since he had previously done work on their home. The parties entered into an oral contract, agreeing to pay the plaintiff $10 per hour. The defendants told the plaintiff to keep track of his own time and allowed him to set his own hours. Generally, he worked on weekends and three to four hours each evening. This time was scheduled around his full-time job as an iron worker.

The parties had no agreement as to who would provide the needed tools. Sometimes the plaintiff used the defendants' tools; sometimes he used his own. The defendants always provided the construction materials.

The defendants generally knew what they wanted done in the house, but always left the details of how to accomplish it to the plaintiff. For instance, the defendants would tell the plaintiff that they wanted a certain fixture built into a certain spot in the house. The plaintiff would then either perform the task in the manner he deemed best or would inform the defendants that there would be a problem with the placement of the fixture as they wanted it. In the latter cases, the defendants would then tell the plaintiff to do the job in whatever way he could.

While Ray had some experience as a handyman, the plaintiff opined that he was more knowledgeable about the work than either Ray or Fred. Further, though the plaintiff stated that he thought of the defendants as the general contractors, giving orders and supervising the plaintiff's work, when the defendants helped the plaintiff, they acted more as assistants than supervisors. Thus, when the plaintiff and Ray installed a new furnace, the plaintiff actually hooked it up. Ray merely put on some tape, put in screws and handed items to the plaintiff. Similarly, Fred helped plaster the house, but only after the plaintiff told him how to do it. When Ray told the plaintiff he wanted the project completed more quickly, the plaintiff suggested that Ray hire more help. Ray then added Bill Gilbert to the project.

The record also contains the depositions of Fred and Sandy. Those depositions add nothing significant to the defendants' version of the circumstances surrounding his accident.

Based on the parties' depositions, the defendants moved for summary judgment. In support of their motions, the parties contended in part that the depositions, including the plaintiff's, showed that they were not "in charge of" the work as required by the Structural Work Act. The trial court ...


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