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CROMER v. JOSEPH BEHR & SONS

February 1, 1994

PAUL M. CROMER, Plaintiff,
v.
JOSEPH BEHR & SONS, INC., Defendant. JOSEPH BEHR & SONS, INC., Third-Party Plaintiff, v. A.P. GREEN INDUSTRIES, INC., A.P. GREEN SERVICES, INC., and CERTIFIED INDUSTRIAL TECHNOLOGIES, INC., Third-Party Defendants.



The opinion of the court was delivered by: PHILIP G. REINHARD

 INTRODUCTION

 Plaintiff Paul M. Cromer filed a two-count complaint against defendant Joseph Behr & Sons, Inc. ("Behr") on July 18, 1990, based upon personal injuries he suffered while relining a furnace owned by Behr. Count I asserts liability under Illinois negligence law, alleging Behr agents breached their duty of care not to create an unsafe worksite. Count II asserts liability under the Illinois Structural Work Act, 740 ILCS 150/1-9 (1993), alleging that as an owner having charge of work on a structure, Behr violated its duty to provide a safe, suitable, and proper ladder or support. Cromer invokes this court's jurisdiction on the basis of diversity of citizenship, under 28 U.S.C. ┬ž 1332, in that he is a citizen of Iowa, residing in Clinton, Iowa and Behr is an Illinois corporation, primarily doing business in Illinois, and in that the amount in controversy exceeds $ 50,000.

 Behr now moves for summary judgment on both counts of the complaint. Certified joins the motion, presenting additional grounds for summary judgment on the Structural Work Act claim. *fn2"

 FACTS

 In ruling on Behr's motion for summary judgment, the court views the facts in the light most favorable to Cromer and makes all reasonable inferences in Cromer's favor. In November of 1988, Behr contracted with Certified to rebuild an aluminum melting furnace on Behr's premises and used by Behr in its business. According to the contract, Certified would "provide all labor with supervision, demolition equipment, steel, refractory, tools and equipment, installed as required to rebuild the furnace." For its part, Behr was to provide, "at no charge to Certified, a fully drained furnace, use of a lift truck, debris disposal, unloading, heated storage for refractory material, compressed air, light, power, and 3 men/shift to work with [the] masonry crews during the installation." Further, the contract committed Certified to "carry insurances such as automobile, public liability, general liability, and workers compensation." Certified in turn subcontracted with Green to install the furnace brick. Cromer was a brick mason working for Green on the furnace relining.

 The laborers Behr provided under the contract performed several tasks at the direction of Green's brick masons. They retrieved brick and other materials from the storage area and brought them to the brick masons, cleared debris from the work area, and mixed fire clay to be used by the brick masons. According to Cromer's deposition testimony, one of the laborers may have served as their foreman. All direction in what work to do and how to do it, however, came from Green's brick masons. The brick masons had to be careful in the directions they gave the laborers, since the laborers did not have any familiarity with bricklaying practices. The laborers would work continuously for the brick masons when the brick masons were present. They would take their breaks slightly ahead of the brick masons, if the brick masons had all the materials they would need. Cromer at one point stated that at times when they were not assisting the brick masons, the laborers would move iron ingots, a task unrelated to their work for Green.

 During the furnace relining, Behr plant manager Jim Butkus would visit the worksite two or three times per day. According to Butkus's affidavit, his only purpose in doing so was to check on the progress of the relining project. Behr had no responsibility for or right to determine Certified's or Green's activities in completing the project. Behr possessed the right to stop work on the project, but never exercised that right. The laborers provided by Behr would work at the direction of Green. According to Butkus, the laborers would work on the relining for the entire shift they were so assigned. Green determined the number of laborers needed on any given shift. When Behr had a concern that the Green brick masons were not putting in sufficient time on the project to complete it on time, this concern was not communicated to the brick masons by Behr. Instead, Behr brought the concern up with Certified's representative, Dave Borow.

 The furnace floor was three feet lower than the entrance to the furnace. Entering and leaving could be accomplished in a variety of ways. Cromer preferred to use a six-foot ladder that sometimes was present but stated the laborers would occasionally take it away to use it to acquire materials for the project. When the ladder was missing, Cromer and the other brick masons "would sometimes holler at [the laborers] to get the ladder. Cromer, who was 5'10" and weighed 170 pounds at the time of the accident, testified in his deposition that without the ladder, the only way he could get out of the furnace was to step on one of the five-gallon buckets that were available in the furnace. According to Cromer, to get out of the furnace using a bucket, he would step on the bucket with one foot and then place the other knee up on the ledge and crawl out.

 On December 26, 1988, while climbing out of the furnace in this manner Cromer slipped and fell. His primary injury was a torn rotator cuff in his left shoulder, although he alleges other injuries occurred as well. He testified in his deposition that the ladder was not available and the laborers were not present to provide the ladder, so he used the bucket.

 Terry Holloway, who worked on the furnace relining and is 6'1" and weighs 270 pounds, testified in his deposition that he would leave the furnace through a different opening than Cromer. In doing so, he would "climb, step up on the skid of bricks, step up on the well, step on another skid of bricks, [and then] on the floor." Thomas Sullivan, a brick mason on the furnace relining who is 6'1" and weighs 200 pounds, testified in his deposition that exiting the furnace was like climbing out of an empty swimming pool. Sullivan's method of climbing out was similar to that used by Cromer; he would step on the bucket and then either step or put a knee up on the ledge. Michael Hopper, a Behr supervisor who, on several days during the project, oversaw a turning dryer near the furnace project site and who is 5'10 1/2", testified in his deposition that there was "no easy access" to the furnace but that there were ways of exiting and entering other than that used by Cromer. It was Hopper's impression that all of the employees working on the furnace relining project were Green's employees and none were Behr's employees.

 Gregory Walters, a foreman for Green on the furnace project, testified in his deposition that there was a ladder present at the furnace worksite of a type provided by Green and that it would have been customary for Green to provide a ladder for the site. Walters also testified that it would have been an unsafe practice for the brick masons or the laborers to use a bucket as a step, that he would have told anyone who did so not to, that repeated use of a bucket as a step could have lead to firing, and that he had not seen anyone use a bucket as a step on the day of Cromer's accident but had seen someone use a bucket as a step previously. Walters, who is 5'10" and weighs 180 pounds, testified in his deposition that his own method for getting down into the furnace was to sit on the ledge and then jump or lower himself down. To climb out, he would boost himself up similar to climbing out of an empty swimming pool.

 Eric Pearson, the highest ranking Green supervisor on the project, testified that he was at the furnace job site twice prior to Cromer's accident. While at the site, Pearson would meet with Behr plant manager Butkus, who visited the site two or three times per day. Pearson and Butkus would share information about the project, but Butkus would neither offer advice nor give instructions concerning the project. While at the site, Pearson would also speak with Dave Borow, Certified's representative. According to Pearson, Green's role on the project was "to provide material, labor and equipment to reline the furnace as shown on drawings provided by Certified."

 Pearson testified that use of a bucket instead of a ladder for entering and exiting the furnace would not have been an acceptable practice and that if a brick mason had done so and been warned against it, he might be fired if he did so again. Pearson also testified that Green held a safety meeting with its employees before the project started. At that meeting, Walters read the company safety pamphlet and emphasized safety. The pamphlet did not mention ...


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