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May 14, 1996



The Honorable Justice Scariano delivered the opinion of the court: Hartman, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Scariano

The Honorable Justice SCARIANO delivered the opinion of the court:

Heinrich W. Axen ("plaintiff") filed this action against defendants, charging them with negligence and with violations of the Structural Work Act (740 ILCS 150, et. seq. (West 1993)) (the "Act"). Plaintiff claims that defendants caused him to be injured while he was performing his duties "on and about" a beam that was being lifted by a crane which his employer, Decking & Siding, rented from Dick's Crane Rental Service, Inc. ("defendant"). His complaint alleges that all defendants "participated in" coordinating, scheduling, inspecting, and maintaining the work performed at the site, and that all defendants had the authority to "stop the work, refuse the work and materials, and order changes in the work, in the event the work was being performed in a dangerous manner or for any other reason."

Defendant filed a motion for summary judgment (735 ILCS 5/2-1005 (West 1995))) on July 28, 1993, asserting that because it was not "in charge of the work in question", it could not be held liable for a violation of the Act nor could it be held liable for negligence. In support of its motion, defendant relied on the affidavit of Richard D. Hughes, president of defendant, incorporating therein a copy of the rental agreement. In his affidavit, Hughes stated that he leased a twenty-ton crane and crane operator to Decking & Siding on March 13, 1990. Hughes also deposed that contrary to plaintiff's allegations, the "actual practice" pursuant to the rental agreement was that defendant had "no responsibility for taking safety precautions at the job site"; "had no right to stop the work for safety violations"; "was not in a position to insure worker safety and to alleviate deficiencies in equipment or improper work habits"; and that "once the crane operator arrived at the job location, he took all of his supervision and direction from Decking & Siding."

The relevant provisions of the agreement are as follows:

"Lesser [sic] hereby leases the equipment described on the reverse side and furnishes operating personnel to Lessee subject to the following conditions.

1. NO OTHER AGREEMENT: This document is the complete agreement of the parties and supersedes all other agreements written or oral.

2. INDEMNIFICATION: Lessee agrees that the equipment and all operating personnel, including Lesser's [sic] employees, are under Lessee's exclusive jurisdiction, supervision and control and agrees to indemnify and save Lesser [sic], its employees and agents harmless from all claims, alleged or real, for death or injury to persons, including Lessor's employees, and from all loss, damage or injury to property, including the equipment, arising in any manner out of Lessee's operation or control. Lessee's duty to indemnify herein shall include all cost and expense arising out of all claims specified herein, including all court and/or arbitration costs, filing fees, attorney's fees and costs of settlement.

3. COMPETENT OPERATION BY LESSEE: Lessee agrees to provide competent and experienced personnel to direct the operation of the equipment and agrees to use said equipment in accordance with the manufacturer's instructions and agrees not to exceed the manufacturer's rated load capacities for such or similar equipment. Lessee expressly agrees that counterweight in excess of the manufacturer's specifications shall not be used."

In opposing the motion for summary judgment, plaintiff included excerpts from the deposition of Ralph Castle, the crane operator employed by defendant. It was Castle's understanding that when he was on a particular jobsite, he made decisions regarding how the crane was operated on behalf of defendant. Castle stated that just prior to the injury, J.R. Red Vaughn, of Decking & Siding, was giving him hand signals, instructing him to operate the crane to unload beams off a truck onto a ground area. When the beam was raised to a level where Castle could see it, he saw Vaughn instruct plaintiff and another employee to load seventy-five pound bags of bolts onto the beam. When ten of those bags were placed on the beam, the load became "unstable" and began to rotate, which forced the bags to fall off the beam. Plaintiff was injured while trying to stop the bags from rolling off the beam with his hand.

Castle did not believe that it was safe to have so many bags of bolts placed on the beam. He claimed that as a crane operator, he could make only safe lifts. If he received a hand signal from Vaughn to perform an unsafe lift, Castle believed he had the authority not to make the lift until he deemed it safe to do so. He claimed that he had the authority to reject "any hand signals given" to him on the job for lifts he thought were unsafe. He testified that just prior to plaintiff's injury, he could have indicated to Vaughn that the lift was unsafe. He stated that he did not stop the lift despite the fact that he thought it was unsafe because, "if it flipped over, it wouldn't have hurt anybody as long as nobody was in the way." Although Castle asserted that he had the authority to walk off the job if it continued to be unsafe, he admitted that if he refused to perform a lift, it could result in an argument. Castle also averred that defendant gave him the authority not to perform a lift if it would cause damage to the crane equipment. Castle believed that defendant had the authority to take him off the job and remove the crane from the job.

Plaintiff also submitted excerpts from Hughes' deposition, wherein much of his testimony ran contrary to the statements contained in his sworn affidavit accompanying defendant's motion. Hughes testified that if, in the crane operator's opinion, he believes that he is being given unsafe instructions, the operator will not follow such instructions. Hughes' crane operators were instructed to stop using the crane immediately if there was a problem relating to its safe operation. Hughes was asked, "It's correct to say that the crane operator has some responsibility to make sure that the workers that are working with the crane are not injured, correct?"; he answered, "Oh, yes, right." He was also asked, "The crane operator does have some responsibilities, though. If they tell him to do something that's dangerous, he can say no no matter how emphatic they are, right?"; Hughes answered, "Right."

On August 25, 1994, Judge Joseph N. Casciato granted summary judgment in favor of defendant, citing Puttman v. May Excavating Co., 118 Ill. 2d 107, 112, 514 N.E.2d 188, 112 Ill. Dec. 722 (1987), and stating that under the totality of the circumstances, the "naked statement of the employee [Castle]" was not enough to establish a genuine issue of ...

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