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02/24/94 THOMAS H. WARTENBERG v. DUBIN

February 24, 1994

THOMAS H. WARTENBERG, PLAINTIFF-APPELLANT,
v.
DUBIN, DUBIN & MOUTOUSSAMY, A CORPORATION OR PARTNERSHIP, DEFENDANT-APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOSEPH N. CASCIATO, PRESIDING.

Released for Publication April 19, 1994.

Johnson, Cahill, Hoffman

The opinion of the court was delivered by: Johnson

JUSTICE JOHNSON delivered the opinion of the court:

Plaintiff, Thomas H. Wartenberg (hereinafter Wartenberg), brought an action under the Structural Work Act (Ill. Rev. Stat. 1991, ch. 48, par 69), in the circuit court of Cook County against defendant, the architectural firm of Dubin, Dubin and Moutoussamy (hereinafter Dubin), to recover damages for injuries he sustained while working on the Merchandise Mart "EL" platform in Chicago.

Dubin filed a motion for summary judgment asserting that it was not in charge of the work and that it did not owe Wartenberg a duty of care. The trial court granted the motion, finding that Dubin was not in charge of the work and that neither a duty nor proximate cause existed.

On appeal, Wartenberg opines that the trial court erroneously granted Dubin's motion for summary judgment.

We affirm.

The record reveals the following pertinent facts. In 1982, construction commenced on a project called the Wells Street Viaduct and CTA Station Improvements (hereinafter the project). The CTA employed Envirodyne Engineers (hereinafter Envirodyne) as a design consultant to provide structural, civil, mechanical and electrical engineering services on the project.

In March 1983, at Envirodyne's request, Dubin submitted a proposal for architectural design services including a preliminary architectural design fee and a construction document consultation fee for "Phase II" of the project. The proposal did not include the preparation of construction documents.

In January 1985, Dubin submitted another proposal for the completion of the "Phase II" architectural services enumerating the maximum architectural cost estimates. In November 1985, Envirodyne authorized Dubin to commence the services required to complete the work.

In 1988, Dubin's field worker and staff architect, Richard Rucks, began visiting the construction site approximately once a week to "see how the work [Dubin] designed was going in place." Rucks made observations and submitted reports of any potential design problems to Envirodyne.

In November 1987, the general contractor employed by the CTA, Cameron-Meccor Joint Venture and/or Cameron Construction Company, subcontracted with Wartenberg's employer, Reliable Welding Company, to perform metal work on the project. In March 1989, Wartenberg injured his back while lifting a steel beam by rope from the street level to the "EL" platform above.

Consequently, Wartenberg filed an action under the Structural Work Act against Dubin and other defendants, alleging that they were "in charge" of the work being performed at the work site and that they had a duty to provide proper equipment. Dubin moved for summary judgment. The trial court granted the motion on both counts, finding that Dubin did not control the work and was not involved in the actual construction of the project. The trial court also found that an architect's presence at a ...


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