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02/10/94 JAMIE DEON THOMPSON AND LEE ANN THOMPSON

February 10, 1994

JAMIE DEON THOMPSON AND LEE ANN THOMPSON, PLAINTIFFS-APPELLANTS,
v.
MCA DISTRIBUTING, MUSIC CORPORATION OF AMERICA, A CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE, V. BENTON ROOFING COMPANY, INC., THIRD-PARTY DEFENDANT.



Appeal from the Circuit Court of Perry County. No. 90-L-11. Honorable Robert N. Gandy, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Lewis, Chapman, Goldenhersh

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Plaintiffs appeal from a jury verdict in favor of defendant, MCA Distributing, Music Corporation of America (MCA), and from the trial court's denial of their posttrial motion. Plaintiffs sued MCA, alleging a violation of the Structural Work Act (740 ILCS 150/1 et seq. (West 1992)) (the Act) and common law negligence. Plaintiffs also alleged that Lee Ann Thompson, the wife of plaintiff Jamie Deon Thompson (Jamie), had suffered a loss of consortium. MCA filed a third-party complaint against Benton Roofing Company, Inc. (Benton Roofing), Jamie's employer at the time of the accident. The accident that is the subject of this lawsuit occurred while Jamie was employed as a roofer and involved in a roofing job at the MCA plant in Pinckneyville, Illinois. The jury returned a verdict against plaintiffs and, therefore, did not consider MCA's claim for contribution against Benton Roofing. Plaintiffs' first issue on appeal is whether the trial court erred in instructing the jury. We hold that the trial court did commit reversible error by giving the jury a nonpattern instruction tendered by MCA.

The facts of this case as they pertain to the jury instruction issue are as follows: Jamie began working for Benton Roofing on August 15, 1988, at the Pinckneyville MCA plant. On August 16, 1988, Jamie's second day of work at MCA, he fell through the roof onto a piece of machinery in the plant below and sustained injuries. Jamie fell through a hole in the roof that employees of Benton Roofing had made when they removed a skylight in order to reroof that section of the plant. There was conflicting evidence about the amount of supervision, if any, exerted by MCA officials over the work performed by Benton Roofing.

The trial court granted MCA's request to give the following jury instruction:

"Mere ownership of a premises, without more, is insufficient to establish liability under the Structural Work Act. Plaintiffs' attorney objected to this instruction as argumentative, misleading, and not allowed under Illinois Pattern Jury Instructions, Civil, No. 180.16 (3d ed. 1991) (IPI Civil 3d). The trial court allowed the instruction over plaintiffs' objection.

The Act is designed to protect workers employed in the extrahazardous occupation of structural work. ( Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247.) The class of persons who can be held liable under the Act is set forth in section 9:

"Any owner, contractor, subcontractor, 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 * * *." (740 ILCS 150/9 (West 1992).)

The elements a plaintiff must prove in order to prevail in a case under the Act are that (1) plaintiff was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused the plaintiff's injuries; (6) the defendants had charge of the work being performed; and (7) the defendants willfully violated the Act's safety standards. Gill v. Parcable, Inc. (1985), 138 Ill. App. 3d 409, 485 N.E.2d 1215; Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 463 N.E.2d 921.

Our supreme court has determined that the term "having charge of" in section 9 of the Act "is one of common usage and understanding" and stated: "it is our opinion that further attempt at definition can only lead to confusion and error." (Larson, 33 Ill. 2d at , 211 N.E.2d at 252.) As a result, the IPI drafters follow Larson and recommend that no instruction be given which defines the term "having charge of." IPI Civil 3d No. 180.16, Comment, at 180-50.

However, there are several factors that a jury must consider when deciding if the defendant/owner was sufficiently in charge of the work in order to be found liable. These factors are:

"(1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; * * * (7) the right to stop the work[;] [citations] * * * (8) ownership of the equipment used on the jobsite; (9) defendant's familiarity with construction customs and practices; and (10) whether defendant was in a position to assure worker safety ...


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