only evidence of Ecker's participation in ongoing activities is the infrequent attendance at jobsite meetings by Howard White, an Ecker employee. (Jones & Brown Stmt. Exh. A.) Ecker's lack of supervision or control, and minimal participation in ongoing activities, closely resembles the roles of the defendants in Buehler and Schroeder. Applying Schroeder to these facts, a finding that Ecker was in charge of the work is permitted if it had certain obligations in its original contract or rights in its subcontract. Applying Buehler, there is a factual issue as to whether Ecker was in charge of the work if it retained certain rights in its subcontract regarding Carpentry's work.
Ecker's obligations in its original contract are of particular interest as they relate to safety, which is the Act's main concern. In Ecker's original contract with Marc there is evidence that it assumed responsibility for work safety by agreeing to obey applicable laws and regulations, comply with safety requirements, and to be responsible for others' compliance.
(Ecker Stmt. Exh. D.) These obligations are similar to Fluor's obligations in Schroeder to obey applicable laws, comply with safety rules, and observe safety precautions.
Concerning Ecker's rights in its subcontract with Carpentry, Ecker contends that it could not stop Carpentry's work, (Zubricki Dep. at 58, 63), and did not have the right to supervise it. (Zubricki Dep. at 60.) However, Jones & Brown points to provisions from the master subcontract between Ecker and Carpentry as evidence that Ecker did retain the right to supervise or control Carpentry's work. (Ecker Stmt. Exh. E.) One such right allowed is that Ecker may require the removal of any Carpentry employee. (Ecker Stmt. Exh. E at Art. 20.) Another grants Ecker authority to inspect or condemn any work it deems "unsound or improper."
(Ecker Stmt. Exh. E at Art. 31.) These rights exceed Fluor's rights in Schroeder to conduct inspections and gain access to the work. Ecker also argues that it never performed safety functions (Zubricki Dep. at 60-61), and it was not involved with safety. (Zubricki Dep. at 63-64.) However, there is evidence that Ecker retained safety and inspection responsibilities, could have instituted additional safety precautions, and required Carpentry to comply with its safety rules.
(Ecker Stmt. Exh. E.)
Because there is evidence in Ecker's original contract of its responsibility for the safety of Carpentry's work, and evidence in its subcontract of the right to supervise or control the work, under Buehler and Schroeder there is a factual question as to whether Ecker had charge of the work.
Illinois courts have considered additional factors present in this case to determine whether a party had charge of work. Westerfield v. Arjack, 78 Ill. App. 3d 137, 33 Ill. Dec. 945, 397 N.E.2d 451 (Ill.App. 1979) (evidence was sufficient to support jury's conclusion that the defendant, a general contractor, was in charge of the work); Emberton, 15 Ill. Dec. at 669 (evidence was sufficient for jury to find that defendant was in charge of the work). In Westerfield, the court took into consideration the defendant's obligation to pay for and provide all materials, labor, tools, and equipment. 33 Ill. Dec. at 950. In this case there is evidence that Ecker agreed to provide labor, materials, licenses, and clean-up (Ecker Stmt. Exh. D), and actually purchased and supplied materials. (Zubricki Dep. at 28.) In Emberton, the court considered the fact that the defendant ordered periodic changes in the work. 15 Ill. Dec. at 668-69. There is evidence in this case that Ecker initiated periodic change orders.
(Jones & Brown Stmt. Exh. C.) The evidence of these factors
further supports this court's conclusion that there is a factual question as to whether Ecker had charge of the work under the Act.
In light of the above conclusions this court is not prepared to decide as a matter of law that any violations of the Act by Ecker were not willful. Therefore, Ecker's motion for summary judgment is denied.
For reasons hereinabove stated, Carpentry's motion for summary judgment is granted as to the third party complaint of Marc and Regency and denied as to Jones & Brown's second amended complaint. Ecker's motion for summary judgment is denied.
JAMES B. MORAN
Chief Judge, U.S. District Court
Sept. 29, 1993.