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06/14/94 PERRY L. BAKER v. STEVEN D. BOOMGARDEN AND

June 14, 1994

PERRY L. BAKER, PLAINTIFF-APPELLANT,
v.
STEVEN D. BOOMGARDEN AND KATHLEEN M. BOOMGARDEN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Winnebago County. No. 89-L-604. Honorable Ronald L. Pirrello, Judge, Presiding.

Woodward, McLAREN, PECCARELLI

The opinion of the court was delivered by: Woodward

JUSTICE WOODWARD delivered the opinion of the court:

Plaintiff, Perry Baker, filed a two-count complaint against defendants, Steven Boomgarden (Steven) and Kathleen Boomgarden (Kathleen), to recover for injuries that he sustained while reroofing a two-flat building (building) owned by defendants. Count I alleged that defendants violated the Structural Work Act (740 ILCS 150/1 et seq. (West 1992)). Count II alleged that defendants acted negligently in regard to safety on the jobsite. Defendants filed a motion for summary judgment after discovery was closed. The trial court granteddefendants' motion for summary judgment as to both counts. Plaintiff's motion to reconsider the trial order was denied.

Evidence submitted through the pleadings, the parties' depositions, and related documents showed the following. At the time of plaintiff's injury, defendants were owners of a two-flat apartment building at 1648 Sixth Avenue in Rockford, Illinois. Defendants rented the second floor to a tenant and lived on the first floor. A tenant was living in the second-floor apartment on the date of plaintiff's injury.

Steven was employed by Commonwealth Edison at its nuclear power plant in Byron and held a license with the Nuclear Regulatory Commission of the United States of America to run a nuclear reactor. Kathleen was a homemaker.

On or about September 26, 1987, defendants received a bid from Blue Horizon Roofing Company (BHR) to tear off the old shingles and reshingle the roof of the building. Defendants accepted the bid of between $2,600 and $2,900 and entered into a contract with BHR on or about October 5, 1987. Defendants gave BHR's owner, Gary Wilcox (Wilcox), a $1,000 down payment and agreed to pay an additional $850 when BHR started the job. Steven negotiated and signed the contract with Wilcox. On October 7, 1987, Wilcox telephoned defendants and said he would be starting on the roof the next morning. Defendants believed that work would begin immediately and would be completed within three to four days.

Wilcox failed to show up on October 8, 1987, and for the next 3 1/2 weeks, defendants attempted to contact him. Wilcox had no telephone, and his relatives refused to reveal his whereabouts.

On October 30, 1987, Wilcox, plaintiff, and another worker showed up at defendants' apartment building to begin work. Wilcox got the workers started, left the jobsite, and did not return that day. When plaintiff left the jobsite at the end of the day of October 30, 1987, a good portion of the shingles on one end of the apartment building had been torn off but were only partially covered with protective plastic.

Neither Wilcox nor any of his workers showed up again at the jobsite until noon on Monday, November 2, 1987. A few days earlier, Steven ordered Wilcox to put plastic down in order to prevent rainwater from entering his tenant's apartment through the partially exposed roof.

On November 2, 3, and 4 Wilcox and plaintiff arrived at the apartment building to begin work, and on each day Wilcox left the jobsite, leaving plaintiff to do the work alone. On November 2 and 3 Steven worked on the roof, tearing off old shingles with a toolprovided by the plaintiff. Steven did this to move the project along. Mid-morning on Thursday, November 5, 1987, Steven telephoned plaintiff at home. Plaintiff had been waiting for Wilcox to give him a ride to the jobsite. Steven drove to plaintiff's home and brought him to the building. After working on the roof with plaintiff for a few hours, Steven had to go to work. Before leaving for work, Steven told plaintiff not to go back up on the roof by himself. He telephoned Wilcox because he did not want plaintiff on the roof by himself. Steven then left for work, with the understanding that Wilcox would be at the jobsite within 15 minutes.

Plaintiff worked alone on the roof from approximately 1 p.m. to 5:15 p.m. When Kathleen no longer heard plaintiff working on the roof, she went outside to check and found plaintiff lying unconscious on the ground. Plaintiff sustained, among other injuries, permanent brain damage and several fractures. Wilcox never again showed up for work. Defendants had to contract with another roofing company to complete the job.

Steven had no experience as a roofer. Plaintiff had worked on approximately 12 roofs in the three months prior to the accident; he had at least 13 years' experience as a roofer. Also, plaintiff could not explain why, prior to his accident, the work on the roof was going so slowly.

Plaintiff initially argues that the trial court erred in granting defendants' motion for summary judgment as to count I. He contends that the evidence reflected a number of factual issues which should have been resolved by the trier of fact. Specifically, he maintains a question of fact remains as to whether defendants had charge of the roofing job. In response, defendants argue that there is ...


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