APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
542 N.E.2d 855, 186 Ill. App. 3d 742, 134 Ill. Dec. 509 1989.IL.1141
Appeal from the Circuit Court of Cook County; the Hon. William Kelly, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
This is an appeal from an order granting a motion for summary judgment in favor of defendant and denying plaintiff's motion to reconsider. We reverse and remand for further proceedings.
The plaintiff, Henry C. Dietz, was injured on July 19, 1983, while employed by Outdoor Display Welding & Fabricating as an ironworker. On July 15, 1985, plaintiff filed a first amended complaint against Richmond Development Corporation; Louis Spalla (Spalla), individually and d/b/a S & B Sign Company; Bennett & Pless, Inc.; Ronald A. Richmond; and Harriet W. Bennett. Count I alleged that defendant Spalla was liable for violating the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Count II alleged common law negligence.
On May 1, 1987, defendants Richmond, Spalla and Bennett filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005). The motion was supported by defendant Spalla's deposition testimony, taken January 20, 1987, in which he testified as follows: As of the date of the accident, he was a partner in the S & B Sign Company in addition to working as a real estate agent. Harriet Bennett was his other partner in the sign business. The S & B Sign Company was in the business of leasing advertising space on expressway billboards, and the sign at 172nd Street and Ashland Avenue in East Hazelcrest, Illinois, where this accident occurred, was the third sign he had had built. Spalla stated that S & B has no involvement in the building of the signs but merely manages the sign for the landowners after it is built.
Spalla hired Outdoor Display and Welding to construct the billboard based on a written proposal submitted to him. Spalla testified that he gave Outdoor Display the general specifications for the sign but that Outdoor Display supplied the equipment and tools and supervised the construction. According to Spalla, the position of the sign was noted on the legal survey and he never went to the jobsite where the accident happened and never gave instructions as to how to build the sign. He further testified that he had no construction experience, had no knowledge of whether a particular construction practice was safe or unsafe and had no authority to stop the work.
In opposition to defendant's motion, plaintiff submitted the affidavit of Brent Guptill (Guptill), a co-worker at the construction site. Guptill stated that he had witnessed the accident and that before the accident occurred, he had noticed a tall, thin, gray-haired man about 60 years of age on the jobsite. The man had directed employees in the positioning and placement of anchor bolts so that the sign would face in the right direction. Guptill stated that he was told by the job foreman that the gray-haired man said he was one of the owners. Plaintiff's counsel also submitted an affidavit averring that Louis Spalla generally fit the description given by Guptill and expressing the opinion that Spalla was the man who had been giving directions at the jobsite. The trial court granted defendants' motion for summary judgment on July 23, 1987, ruling that the evidence was too speculative and could not support the inference that the gray-haired man referred to in Guptill's affidavit was defendant Spalla.
On July 28, 1987, plaintiff filed a supplemental request for production requesting any and all photographs taken of Louis Spalla for the purpose of clarifying the identity of the owner alleged to be present on the jobsite. Defendant refused to comply with the request on the grounds that plaintiff's right to discovery ended when summary judgment was entered in his favor.
In the absence of the Judge who heard the motion for summary judgment, an emergency motion was brought on August 14, 1987, before a second Judge, who ordered Spalla to provide plaintiff with a photograph or, in the alternative, present himself at the law offices of plaintiff's counsel for a viewing. Plaintiff also filed a motion for reconsideration and sanctions on August 21, 1987.
At the request of the initial Judge, the Judge who entered the emergency motion reconsidered the issues raised by defense counsel and subsequently vacated the order compelling production. The motion for reconsideration was referred back to the Judge who had heard the motion for summary judgment, who denied both that motion and plaintiff's motion to compel production. Plaintiff now brings this appeal.
Plaintiff's principal contention is that summary judgment was improperly granted as a question of fact exists regarding whether defendant Spalla violated the Structural Work Act. He contends that the affidavits of Brent Guptill and plaintiff's counsel, along with other matters in the record, are sufficient to support the inference that Spalla was present on the jobsite and that he gave directions to ...