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11/27/96 CHICAGO TITLE AND TRUST COMPANY v. THOMAS

November 27, 1996

CHICAGO TITLE AND TRUST COMPANY, AS GUARDIAN OF THE ESTATE OF STEVEN A. SINGLETON, JR., A MINOR, AND ROBERT J. SINGLETON, A MINOR; AND LISA R. WILLIAMS, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF STEVEN A. SINGLETON, DECEASED, PLAINTIFFS-APPELLANTS,
v.
THOMAS J. BRESCIA, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF EMMANOUEL CAPSOPOULOS, DECEASED, DEFENDANT. CHICAGO TITLE AND TRUST COMPANY, AS GUARDIAN OF THE ESTATE OF STEVEN A. SINGLETON, JR., A MINOR, AND ROBERT J. SINGLETON, A MINOR; AND LISA R. WILLIAMS, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF STEVEN A. SINGLETON, DECEASED, PLAINTIFFS-APPELLANTS, V. CITY OF LAKE FOREST, A MUNICIPAL CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. The Honorable John V. Virgilio, Judge Presiding.

Rehearing Denied January 6, 1997. Released for Publication January 15, 1997.

Presiding Justice Zwick delivered the opinion of the court. McNamara, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Plaintiffs' decedent, Steven A. Singleton, was killed on May 11, 1989, when the sewer trench in which he was working collapsed. Plaintiffs sought recovery under the Structural Work Act against the City of Lake Forest and several other defendants involved in the construction project. After trial, the jury returned a verdict in favor of the City of Lake Forest and against plaintiffs, finding that the municipal defendant was not liable because it was not in charge of the construction project which resulted in the death of plaintiffs' decedent.

On appeal, plaintiffs contend that (1) the trial court erred in denying their motion for judgment notwithstanding the verdict, (2) comments made by defense counsel prejudiced plaintiffs and constituted reversible error, (3) the trial court erred in admitting improper evidence of OSHA standards, (4) the trial court erred in allowing defendant's expert witness to testify as to the entity "in charge of" the sewer project, (5) the trial court erred in instructing the jury on Lake Forest's claim that the actions of another entity constituted the sole proximate cause of the accident which resulted in the decedent's death, (6) the trial court erred in dismissing Lisa Williams, the mother of decedent's children, as a plaintiff, (7) improper conduct of defense counsel during trial constituted reversible error, and (8) other trial errors require reversal.

The record reveals that in 1986, Emmanouel Manolopoulos and his wife Irene purchased a vacant parcel of property located at 1325 West Conway Road in the City of Lake Forest, Illinois. They decided to build a house at that location and hired Emmanouel Capsopoulos d/b/a Caps Construction (Capsopoulos) as the general contractor. Construction of the home began in the fall of 1988. The Manolopouloses opted to connect their new home to the existing municipal sewer system, and Capsopoulos hired a subcontractor, Garland Davidson d/b/a Davidson Sewerage & Drainage (Davidson), to do the sewer work. The plaintiffs' decedent, Steven Singleton, was employed by Davidson on the sewer extension project when he was killed.

At trial, the jury heard conflicting testimony about the role played by the City of Lake Forest in this construction project.

Plaintiffs presented the testimony of Samuel Miles, Bobby Joe Aldridge, and Ernest Glen Judd, all of whom were former employees of Davidson who had worked on the sewer extension project. Each of these witnesses testified as to the actions of Leonard Hardy, an inspector employed by the City of Lake Forest.

Samuel Miles, the backhoe operator for Davidson on the sewer extension project, testified that shortly after he had started excavation, Hardy interrupted him and issued directions regarding the placement of barricades and relocation of the excavation near the existing sewer line. Davidson, Miles' employer, instructed him to comply with the wishes of Hardy. Miles testified further that Hardy required the Davidson workers to fashion an auxiliary road to reroute traffic around the construction project. According to Miles, Hardy also directed that shoring be constructed in the hole, that a concrete box be constructed in the trench, and that the surface blacktop be cut around the manhole. In addition, Hardy instructed and assisted the Davidson workers in the formation of an improvised transit device to aid in levelling the pipe. Hardy also instructed the workers to backfill immediately upon laying of the pipe. Miles testified that Hardy was at the construction site at least once every day, typically staying only a few minutes, but sometimes as long as an hour. Hardy was at the site three times on the day of the accident. Just prior to the collapse, Hardy had been in the trench to check the elevation of the pipe and to see whether it was level.

Bobby Joe Aldridge, a former employee of Davidson, who was in the trench and was injured when it collapsed, corroborated the testimony of Miles regarding the conduct of Leonard Hardy. Aldridge stated that Capsopoulos told him to do as Hardy said, and Aldridge believed that Hardy was in a position to instruct the workers.

Ernest Glen Judd, another former employee of Davidson, testified to substantially the same facts as Miles and Aldridge regarding the actions of Leonard Hardy.

Plaintiffs called Claude Hurley and Charles Schultz as expert witnesses.

Claude Hurley testified that the City of Lake Forest was in charge of the work at the construction site. Hurley's opinion was based upon the fact that Lake Forest was the owner of the property, acted as a resident engineer for the project, and was recognized by Davidson and his employees as a superior entity at the work site. In support of this conclusion, Hurley noted that correspondence signed by Ronald Behm, the city engineer, reflected that the city had dictated when and where the work was to be done, what specifications would be applied, and referenced the materials to be used. In addition, Lake Forest conducted a detailed review of the project which had been prepared by George Kougan, the initial engineer who had withdrawn from the project in November 1988. According to Hurley, Lake Forest effectively became the project engineer because no replacement was named after Kougan's resignation. Hurley indicated that this was an unusual situation and that a property owner would normally have a consultant perform in an engineering capacity at a job site.

Hurley testified that one of these letters from Behm stated that if the work was not completed by May 1, 1989, the city would stop all work on the project. Hurley stated further that Lake Forest was involved in the field operations because Leonard Hardy, the city's inspector, was on the site personally each day and actually did some physical work on the site, including alignment of the sewer pipe, positioning stakes, monitoring the work on a daily basis, and instructing the workers as to how things were to be done, how and what changes in operations should be accomplished in order that the sewer be constructed in a workman-like fashion. In Hurley's opinion, Lake Forest had an obligation to see that a safe and correct method was used, and it was obligated to stop the work if it was not being done without danger to the workers.

Hurley testified further that the Structural Work Act had been violated by cutting through the profile soils to the bottom of the trench in an unsafe manner, creating an unstable situation. A simple trench box could have been used to protect the workmen. Additionally, a more permanent excavation support system could have been used, or a less vertical slope would have been an appropriate safety measure to prevent a cave-in. Also, the trench could have been shored to protect the workers.

Charles C. Schultz testified that the custom and practice in the construction industry established a number of methods to protect workers in a trench from the danger of a collapse. These methods included installing vertical trench walls, shoring the trench, having a trench box, and sloping the trench walls. In Schultz's opinion, Lake Forest and Capsopoulos were "in charge of" the sewer extension project and had a responsibility to see that a safe and suitable workplace was provided for the workers in the trench. Schultz based this conclusion upon the facts that Lake Forest owned the property on which the construction took place, issued construction permits, and sent out correspondence regarding the project. Schultz stated that the city's obligations included compliance with the custom and practice of shoring trenches which are over five feet deep. According to Schultz, those entities which were "in charge of" the sewer extension project wilfully violated the Structural Work Act.

Testifying on behalf of the City of Lake Forest were Leonard Hardy, an inspector, and Ronald Behm, the former city engineer.

Leonard Hardy, an engineer's assistant for the City of Lake Forest, testified that his job duties include performance of inspections for construction projects such as water main or sewer replacement. Hardy testified that his inspection of the sewer extension project was designed to verify the appropriateness of the line and grade of the pipe, the type of pipe being installed as well as the type of backfill and bedding material being used. Hardy stated that he made an effort to visit the construction site twice each day, and he stayed approximately 15 minutes. Hardy testified that he checked the piping, the backfill and the bedding material. Hardy denied that he told the workers that they had started excavation at the wrong end of the project. Hardy acknowledged that he suggested to the Davidson workers a technique to alleviate a problem with the pea gravel while they were excavating near an existing manhole. Other than the problem with the pea gravel, Hardy did not notice any problems with the sides of the trench. During his visit to the site on the day of the accident, everything seemed to be going well, and he had never been informed of any cave-ins or problems with the walls. Hardy testified that during his inspections, he monitored the materials being used as well as the performance of workers installing the pipe and the backfill. Hardy did not recall assisting the Davidson workers while they levelled the pipe, but he acknowledged that he had been "partially" in the trench.

Ronald Behm, the former engineer for the City of Lake Forest, testified that the Manolopouloses contacted him in the summer of 1958 because they wanted to connect the existing sewer system to the new home they were building on Conway Road. Behm sent them a letter indicating what was needed and outlining the city's standards for sanitary sewer construction.

Behm testified that the city's standards were designed to inform the project engineer what the sewer was to look like when completed, and the standards included a description of materials, construction standards, and details as to how manholes should be constructed. Behm stated that the city's standards were not specifications, but could be used to create specifications.

Behm admitted that Hardy's setting of the grade stake constituted involvement by an engineer and that the city was concerned about the surrounding ...


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