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12/02/94 SAMSON BROWN v. UNICHEMA CHEMICALS

December 2, 1994

SAMSON BROWN, PLAINTIFF-APPELLANT,
v.
UNICHEMA CHEMICALS, INC., UNICHEMA INTERNATIONAL, INC., N/K/A UNICHEMA INTERNATIONAL, AND UNICHEMA NORTH AMERICA, INC., N/K/A UNICHEMA NORTH AMERICA, DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE KATHY FLANAGAN, JUDGE PRESIDING.

Released for Publication January 13, 1995.

Presiding Justice Murray delivered the opinion of the court. Cousins, Jr., and McNULTY, JJ., concur.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Plaintiff, Samson Brown (Brown) filed suit against defendants, Unichema Chemical, Inc., Unichema International, Inc., and Unichema North America, Inc., (for brevity sake we will refer to all three defendants as Unichema) for personal injuries he sustained as a result of a fall from a ladder. Count I alleged violations of the Structural Work Act (Act). (740 ILCS 150/1 et seq. (West 1992).) Count II alleged negligence. Plaintiff appeals the grant of summary judgment on both counts as well as the denial of a motion to reconsider the entry of summary judgment on the Structural Work Act count.

Brown's complaint alleges that he was a 31-year-old commercial window cleaner and that on April 8, 1988, he fell from a wooden ladder while working at the Unichema premises at 4650 South Racine Avenue in Chicago. Brown suffered multiple fractures in both legs. Brown was employed by ABC Window Cleaning Company (ABC). ABC had a contract with Unichema to wash windows inside and outside at the Unichema complex. ABC washed Unichema's windows approximately every 60 days. The exact date was not predetermined. Brown received daily job assignments which consisted of a slip of paper with the company name, the job location and a place for the customer to sign after the work was completed. Brown had to present the job tickets to the Unichema security guard to get into the premises, and then to a Unichema maintenance man when he got to the building.

On September 7, 1985, Unichema issued a purchase order to ABC to clean the windows at its administration building every month. The purchase order did not require compliance with any other contract, safety standards or policy issued by Unichema. Unichema issued safety standards on May 20, 1986, which were in effect until May 1991.

Unichema filed a motion for summary judgment on both counts. Unichema's motion for summary judgment was supported by the complaint; their answers; and the depositions of Brown, Angie Butler (President of ABC) and Joel Spiegel (Vice President - Commercial of Unichema).

Angie Butler testified that ABC had been involved in washing windows at the Unichema complex for as long as she could remember, which was 40 years. Butler made the decision when to send an employee out to Unichema to wash windows. Her window washers used wooden ladders as long as she could remember. She did not know of a time when the wooden ladder was tied off or secured in any manner against the building at Unichema. Butler had no evidence that plaintiff's work was ever monitored, inspected or coordinated by Unichema on the day of the accident.

Plaintiff filed a response and a number of exhibits. Among the exhibits filed were the following: a photograph of the East wall of the Unichema Main Office Building; photographs of ABC's wooden ladders; Unichema Chemicals' "Safety Standards, Instructions for Outside Contractors" dated May 20, 1986; Unichema North America, Inc. Safety Standards, Instructions for Outside Contractors dated July 8, 1989; Unichema's purchase order dated September 7, 1985; 33 ABC Window Cleaning "job tickets"; Unichema Safety Orientation Sheet to All Contractors; Unichema Facility Safety Rules; Unichema Codes of Conduct; Swift Employee Safety Handbook; Unichema General Conditions, May 19, 1991; the depositions of Lance Chambers (Unichema personnel manager) and James Channel (Unichema purchasing manager); and an excerpt of the deposition of Pat Clair (a secretary who saw plaintiff on site before his fall).

The Unichema safety standards dated May 1986 provided, inter alia: Upon receiving a contract or purchase order covering the performance of work on company premises, the contractor shall designate one individual to act as a liaison with the company. Unichema was also to designate an employee to act as a liaison with the contractor. Contractors were required to report to and clock in at the Plant Watch Office. All equipment used on the job site and by the contractor was required to be in compliance with the law. Section 1.2 stated:

"The following instructions include minimum requirements only, and the omission of any specific provisions shall in no way relieve the Contractor of this normal responsibility for the safe conduct of the work of his employees."

On April 6, 1993, the trial court entered summary judgment in favor of defendants of the Structural Work Act count. Thereafter, plaintiff filed a motion to reconsider that order; and, by leave of court, an additional response opposing the defendants' motion on the negligence count. Both the motion to reconsider and the additional response were supported by the affidavit of Professor Ralph L. Barnett, a Professor of Mechanical and Aerospace Engineering at the Illinois Institute of Technology; and by all the previously filed exhibits. Plaintiff also filed the transcript of proceedings from April 6 in support of the motion to reconsider. Professor Barnett's affidavit stated that he had been qualified by the Circuit Court of Cook County and other parts of Illinois as an expert witness in connection with work place safety issues and in particular on issues pertaining to the safe, suitable and proper uses of ladders. He had received, reviewed and was familiar with the exhibits involved in the summary judgment motion. In Professor Barnett's opinion, based upon the materials reviewed and based upon his knowledge training and experience, Unichema was in complete and total control of the premises and all the buildings located there, on and before April 18, 1988. This opinion was based on the following facts in the record: (1) The physical environment at Unichema represented a deliberate effort by Unichema to control its premises and to control and supervise those who came to the premises, (2) testimony of Joel Speigel, Vice President, (3) testimony of Lance Chambers, Personnel Manager, (4) testimony of James Channell, Purchasing Manager, (5) testimony of Samson Brown, and (6) the plain language of the Unichema safety standards. Professor Barnett opined Unichema was in complete control, and had the authority and right to control, supervise and even stop the work done by Brown. Professor Barnett further stated that in his opinion, Unichema had total and complete authority to stop the work being done by plaintiff with the ladder being used on April 18, 1988, at the Unichema premises. Based upon the facts of this case, he felt Unichema was acting as both owner and general contractor as to the work of ABC and that the evidence suggested that no one undertook the liaison role between Unichema and ABC in violation of section 1.1 and 1.4 of Unichema and that the evidence indicated that Unichema made no effort to assure that their "subcontractor" ABC followed the admonitions of section 1.2 of their safety standards, which required the subcontractor to meet the standards of Unichema and the subcontractors responsibility to provide a safe work place for its employees. Specifically Unichema failed to provide the liaison and minimum supervision to assure that 3.1.8 of Unichema safety standards were made. Further Unichema did not assure that ABC complied with section 3.1.10 of the safety standard which require Unichema to assure themselves that ABC instruct its employees to comply with Unichema's rules and regulations with respect to safe work practices and guard working habits.

Professor Barnett further stated that it appeared the subject ladder was too narrow at the top and did not develop sufficient friction as it contacted the smooth glazed brick to stabilize the upper portions of the ladder, the base section of the ladder was not wide enough to overcome the stability shortcomings at the top of the ladder, and no tie-off procedure was utilized at the top of the ladder to circumvent the foregoing shortcomings. Professor Barnett opined Unichema was negligent toward Brown in one or more of the following ways: (1) Unichema failed to shut down the job or see to it that the top of the ladder was secured before plaintiff performed his work; (2) Unichema failed to shut down the job or see to it that plaintiff had a safe suitable and proper ladder to use to do his work; (3) Unichema failed to shut down the job or see to it that a safe elevated work surface was provided for the use of plaintiff; (4) Unichema failed to stop the work of the plaintiff when they knew or should have known that the use of the ladder in question on the building in question was particularly hazardous; (5) Unichema filed to stop the work of the plaintiff when they knew or should have known that the face brick on the building was slick and that such a condition was dangerous for persons using a wooden ladder; (6) Unichema failed to enforce its own safety rules regarding the safe use of ladders ...


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