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02/10/89 Bernard Zukauskas, v. Bruning

February 10, 1989

BERNARD ZUKAUSKAS, PLAINTIFF-APPELLANT

v.

BRUNING, A DIVISION OF AM INTERNATIONAL, DEFENDANT-APPELLEE AND THIRD-PARTY PLAINTIFF (HONEYWELL, INC., THIRD-PARTY DEFENDANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

534 N.E.2d 680, 179 Ill. App. 3d 657, 128 Ill. Dec. 498 1989.IL.175

Appeal from the Circuit Court of Du Page County; the Hon. Anthony M. Peccarelli, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. UNVERZAGT, P.J., and INGLIS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Plaintiff, Bernard Zukauskas, filed suit in 1984 against the defendant, Bruning (Bruning), a division of AM International, asserting that defendant was liable to plaintiff under the Structural Work Act (the Act) (Ill. Rev. Stat. 1983, ch. 48, par. 60 et seq.) for failing to provide a safe ladder to plaintiff. The trial court granted summary judgment to the defendant, ruling that defendant was not in charge of the work and therefore could not be liable under the statute. Plaintiff's sole issue on appeal is whether the evidence was sufficient to raise a jury question as to whether defendant was in charge of the work for purposes of liability under the Act.

The evidence submitted through deposition transcripts and an affidavit shows the following. Bruning hired Honeywell, Inc. (Honeywell), to maintain and repair its air conditioning unit on the roof of its building. The plaintiff, Bernard Zukauskas, a Honeywell employee, fell from a ladder on his climb down from Bruning's roof after servicing the air conditioner. The 16-foot aluminum extension ladder was owned by Bruning. Plaintiff testified at his deposition that the ladder was positioned in a small storage room on the second floor so that it extended to a roof hatch leading to the roof. Zukauskas had been to Bruning many times and always found the ladder in the same position, extended to the roof hatch. He stated the ladder was in poor condition; it was not attached to anything, and it did not have skid pads on the bottom. The first time he went to Bruning, he was told how to get to the roof by Stuart Mogren, a Bruning employee in charge of maintenance. Zukauskas said Mogren took him to the storage room and told him the air conditioner was on the roof. Zukauskas complained to Mogren that the ladder was in poor condition but was told by Mogren the company could not afford to fix it. He said that he also told Pete Janda, another maintenance person with Bruning, about the ladder.

Three other Honeywell employees stated in depositions that either Mogren or another Bruning maintenance person showed them how to get to the roof by way of the ladder in the storage room. They also complained to Mogren about the ladder. One Honeywell employee, James Luby, stated he suggested to Mogren attaching the ladder to the floor and roof hatch but was told by Mogren that it would not be necessary. Luby also made this suggestion to his boss at Honeywell, Ron Zigler, and was told it would not be practical. Luby also testified that the ladder could not have been tied down with rope because there was nothing to tie it to. Mogren denied that anyone complained to him about the ladder; if someone had complained, he stated he would have been in charge of repairing the ladder if it were not safe.

Plaintiff and the other Honeywell employees stated that neither Mogren nor anyone else from Bruning told them how to perform their work. Zukauskas stated that he had been to Bruning numerous times to repair the air conditioner, and he did not report to anyone at Bruning before he began his work. On the day plaintiff was injured, he went straight to the storage room and to the roof. Zukauskas stated it would have been possible for him to use the ladder he had on his truck for the job, but he felt it would have been quite difficult to maneuver the ladder through the office to get to the storage room. Honeywell employee Jim Carney stated that a Honeywell ladder on a truck could not be used to get to the roof from outside the building because the ladder was not long enough. Carney said he did not know of any other way to the roof.

Mogren stated in an affidavit that he never told Honeywell employees how to do their work and never inspected their work. He also stated he never told any Honeywell employee that he had to use their ladder. In his deposition, Mogren stated there was also an outside attached ladder that extended to the roof.

Plaintiff contends that evidence showing defendant's ownership and maintenance of the ladder he fell from is sufficient to raise a jury question as to whether defendant was in charge of the work. It is well settled that mere ownership is insufficient to impose liability under the Structural Work Act. Liability 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, 319-20.) Section 9 of the Act provides:

"Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof . . .." (Ill. Rev. Stat. 1983, ch. 48, par. 69.)

The question of whether one was in charge of the work is a question of fact that requires an evaluation of the totality of circumstances. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481.) Ordinarily, this is a decision for the jury, though summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Puttman v. May Excavating Co. (1987), 118 Ill. 2d 107, 112; Ill. Rev. Stat. 1985, ch. 110, par. 2-1005(c).) The court's task on such a motion is not to resolve a disputed factual question, but rather to determine whether one exists. Puttman, 118 Ill. 2d at 112.

Defendant contends it was not in charge of the work because it did not control or direct plaintiff's work in any way. Plaintiff responds that control and supervision are only two of many factors to consider in determining whether defendant was in charge and contends that defendant could be found in charge because it directed plaintiff to use its ladder to get to the roof. Our supreme court has not offered a comprehensive definition of the phrase "in charge of." In Larson v. ...


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