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LULICH v. SHERWIN-WILLIAMS CO.

May 11, 1992

DONALD P. LULICH, Plaintiff,
v.
SHERWIN-WILLIAMS COMPANY, a Corporation, Defendant.



The opinion of the court was delivered by: CHARLES R. NORGLE

 Before the court is defendant Sherwin-Williams Company's ("Sherwin-Williams") motion for summary judgment. For the following reasons, the motion is granted.

 FACTS

 The plaintiff, Donald P. Lulich ("Lulich"), was employed by Fred P. Berglund & Sons, Inc. ("Berglund"). *fn1" In May 1987, Sherwin-Williams contracted with Berglund to build a boiler house on Sherwin-Williams's industrial facility. On May 21, 1987, Lulich was injured when a scissors-lift he ascended rolled into a trench and tipped over. Lulich subsequently filed suit to recover for his injuries under the Illinois Structural Work Act, Ill. Rev. Stat. ch. 48, para. 69 (1991) ("the Act"), and for Illinois common law negligence.

 At the time of the incident in question, Sherwin-Williams's industrial facility consisted of approximately twenty acres of land in Chicago, Illinois. Sherwin-Williams drafted the plans for the boiler house project. It also employed a division engineer who represented Sherwin-Williams for the construction project. His duties included oversight of project design, determination of whether construction was carried out according to specifications, verifying the completion of work phases, and for approving interim payments to contractors. Sherwin-Williams also employed a maintenance superintendent who was responsible for disconnecting utilities in anticipation of the performance of work and for approving work involving heat because of the presence of volatile chemicals at the facility. The maintenance superintendent toured the entire industrial facility including the area of the boiler house project.

 Berglund was represented on the boiler house project by a project superintendent and a project manager. Berglund's project superintendent had control over the entire job-site for Berglund. He would also determine whether the Berglund employees were keeping up with the timetable. The project manager was responsible for assuring that the job progressed without problems.

 On February 14, 1992, Sherwin-Williams filed the instant motion for summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure raising two issues. First, the court must determine whether Sherwin-Williams was in charge of the work Berglund performed for purposes of the Illinois Structural Work Act. Second, the court must determine whether the undisputed facts entitle Sherwin-Williams to judgment on Lulich's claim for common law negligence.

 DISCUSSION

 Rule 56(c) provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." A plaintiff cannot rest on mere allegations of a claim. Beard v. Whitley County REMC, 840 F.2d 405, 410 (7th Cir. 1988). A plaintiff must have significant probative evidence supporting his complaint. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Although all reasonable inferences are drawn in favor of the party opposing the motion, Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir. 1991), a scintilla of evidence will not suffice to oppose a motion for summary judgment. Brownell v. Figel, 950 F.2d 1285, 1289 (7th Cir. 1991). Nor will some metaphysical doubt suffice. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Rather, a dispute about a material fact is "genuine" only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Liberty Lobby, 477 U.S. at 248. "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses. . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavits, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Bank Leumi Le- Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

 Sherwin-Williams maintains that it is entitled to summary judgment because the undisputed facts establish that it was not "in charge of" the work for the purposes of the Structural Work Act. See Ill. Rev. Stat. ch. 48, para. 69 (1991). To establish liability under the Structural Work Act, Lulich must prove that (1) a scaffold or other supporting device covered by the Act was involved, (2) the device was used in the construction of a structure, (3) the device was unsafe in design, placement or operation, (4) a defendant (who was "in charge of" the work) willfully violated the Act, and (5) that plaintiff's injury was proximately caused by defendant's violation. Ryan v. E.A.I. Constr. Corp., 158 Ill. App. 3d 449, 457, 511 N.E.2d 1244, 1249 (1st Dist. 1987, 110 Ill. Dec. 924 ); see also Savic v. United States, 918 F.2d 696, 699 (7th Cir. 1990); Fulton v. United States, 772 F. Supp. 1074, 1076 (N.D. Ill. 1991).

 
1. supervision and control of the work;
 
2. retention of the right to supervise and control;
 
3. constant worksite participation in ongoing ...

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