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10/20/94 JIM DEMASE v. CHARLES TIERI

October 20, 1994

JIM DEMASE, PLAINTIFF-APPELLANT,
v.
CHARLES TIERI, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois. No. 92-L-5267. Honorable Herman S. Haase, Judge, Presiding

Present - Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court:

Plaintiff was injured while repairing a swimming pool at a private residence and subsequently brought suit against the homeowner, alleging negligence and violations of the Structural Work Act (740 ILCS 150/1 et seq. (West, 1992)). The circuit court granted summary judgment in favor of the defendant on both counts, and plaintiff appealed. We reverse and remand for further proceedings.

I. FACTS

On April 28, 1992, the law firm of Hilliard and Hickey filed a complaint on behalf of plaintiff Jim DeMase against defendant Charles Tieri. The complaint alleged, inter alia, that (a) on June 20, 1990, defendant was the owner of a home in Steger, Illinois, (b) defendant acted as the general contractor for a construction project at the home, (c) defendant was in charge of the construction project, (d) defendant failed to provide plaintiff with a safe and suitable support scaffold or ladder, and (e) as a proximate result, plaintiff was injured. Count I alleged violations of the Structural Work Act (740 ILCS 150/1 et seq. (West, 1992)), while count II alleged negligence.

Defendant filed his answer and, later, was granted leave to file affirmative defenses. These defenses asserted that (a) plaintiff was "a sole proprietor," thereby precluding recovery under the Structural Work Act, (b) plaintiff was "in charge of" the work site at the time of the accident, thereby precluding recovery under the Structural Work Act, (c) plaintiff's own negligence was the sole proximate cause of the accident, and (d) plaintiff was contributorily and/or comparatively negligent.

On August 12, 1993, defendant filed a motion for summary judgment. Attached to the motion were the transcripts of the depositions of plaintiff, defendant, and Arthur Burchette. Viewing this evidence in the light most favorable to the non-moving party ( Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, 665, 128 Ill. Dec. 498, 534 N.E.2d 680), the depositions indicated that defendant told a friend, Art Burchette, that he had a plan to fix his leaking swimming pool by welding sheet metal around the pool and cutting the metal off at a height marked out by a surveyor. Defendant purchased the sheet metal, and the metal was then attached to the pool by Burchette and plaintiff. Prior to the work beginning, defendant placed a pump in the pool to remove water that was seeping into it. On the first day of work, defendant came to inspect the work once or twice. Defendant told the men where to weld the sheet metal. Defendant also told the men to keep the pump plugged in.

On the second day of work, plaintiff and Burchette began the task of cutting the sheet metal. Three ladders of varying heights were utilized. Two of the ladders were supplied by the workers, while the other was provided by the defendant. It was while standing on defendant's ladder that plaintiff slipped, reached out to stop his fall, and cut his hand on the sheet metal.

On September 30, 1993, the trial court granted summary judgment in favor of defendant on both counts. On October 29, 1993, the law firm of Levin, McParland, Phillips, Leydig & Haberkorn filed a notice of appeal on behalf of plaintiff. Nothing in the record indicated that the firm of Hilliard and Hickey sought leave to withdraw its appearance on behalf of plaintiff, or that the Levin firm sought leave to appear as substitute or additional counsel for plaintiff.

II. ANALYSIS

On appeal, plaintiff asserts that summary judgment was improperly granted because (a) a genuine issue of material fact existed as to who was in charge of the work site, (b) the issue of whether the plaintiff was a sole proprietor was a fact issue for the jury, and (c) genuine issues of material fact existed as to defendant's negligence and/or plaintiff's contributory negligence. Each of these contentions will be discussed below. First, however, it is necessary to address an issue raised by appellee that challenges the jurisdiction of this court.

A. Jurisdiction of the Appellate Court

Based upon the fact that the notice of appeal in this case was filed by an attorney who neither served as trial counsel nor sought leave to appear on behalf of plaintiff-appellant, appellee contends that the notice was a "nullity" and therefore this court lacks jurisdiction over this appeal. Appellee cites Chicago Public Stock Exchange v. McClaughry (1893), 50 Ill. App. 358, aff'd. 148 Ill. 372, 36 N.E. 88, for the proposition that a party may not substitute counsel without leave of court; thus, where additional counsel files a pleading without having been granted leave of court, the opposing party may treat the document as never having been filed. In McClaughry, the court held that plaintiff improperly attempted to ...


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