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03/10/94 GEORGE V. KING v. MICHAEL OWEN

March 10, 1994

GEORGE V. KING, PLAINTIFF-APPELLANT,
v.
MICHAEL OWEN, D/B/A OWEN CONSTRUCTION, AND MCLEAN COUNTY SERVICE COMPANY, DEFENDANTS-APPELLEES.



Appeal from Circuit Court of McLean County. No. 90L162. Honorable William T. Caisley, Judge Presiding.

As Corrected March 31, 1994. Rehearing Denied and Released for Publication April 28, 1994. Counsel Corrected June 20, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J., Honorable Carl A. Lund, J.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

Plaintiff George V. "Vince" King filed an action in the circuit court of McLean County on May 22, 1990, against defendants Michael Owen, d/b/a Owen Construction (Owen), McLean County Service Company (F.S.), and Modahl & Scott, Inc. (Modahl). Plaintiff sought recovery under the Structural Work Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 60 through 69) for injuries he received when he fell from a roof. The case proceeded to trial against defendants Owen and F.S., and on March 22, 1993, judgment was entered on general jury verdicts in favor of both defendants and against plaintiff.

Plaintiff maintains on appeal: (1) the jury's verdicts were so contrary to the evidence that a judgment in favor of plaintiff must be entered n.o.v., or alternatively, were against the manifest weight of the evidence and a new trial should be granted; and (2) the trial court erred in denying plaintiff's motion for a directed verdict on the question of whether defendant F.S. was "in charge" of the jobsite.

We conclude the verdicts were not against the manifest weight of the evidence. Plaintiff concedes that the argument relating to the question of whether F.S. was "in charge" is relevant only if we find that plaintiff is entitled to a new trial or a judgment n.o.v. Thus, weneed not decide whether the trial court erred in denying plaintiff's motion for a directed verdict on this issue. We affirm.

Plaintiff alleged in his complaint that defendant Owen was a contractor, and defendant F.S. was a general contractor engaged in the repair and replacement of the roof of a building owned by defendant Modahl. He further alleged he was working on the construction and repair of the roof of that building on September 17, 1989, when he was injured as a result of his fall through the roof to a concrete floor, 30 feet below. Plaintiff alleged his injuries were the proximate result of defendants' wilful violations of the Act.

The Act provides as follows:

"All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." (Ill. Rev. Stat. 1989, ch. 48, par. 60.)

The Act further provides:

"Any owner, contractor, sub-contractor, 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 * * *.

For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby * * *." Ill. Rev. Stat. 1989, ch. 48, par. 69.

In order to sustain a cause of action for a violation of the Act against an employer, the plaintiff must establish the following: (1) he was involved in a construction activity protected under the Act; (2) the activity took place on a structure covered by the Act; (3) a scaffold or similar device defined by the Act was being used; (4) the device was unsafe or not safely placed or located; (5) the unsafe condition proximately caused the plaintiff's injury; (6) the defendant employer had charge of the work; and (7) the employer ...


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