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03/31/97 LOUIS APOSTAL v. OLIVERI CONSTRUCTION

March 31, 1997

LOUIS APOSTAL, SUPERVISED ADMINISTRATOR OF THE ESTATE OF FLAVIO RAMOS, AND DELPHINA LOPEZ, AS MOTHER AND NEXT FRIEND OF PATRICIA RAMOS AND BRAULIO RAMOS, PLAINTIFFS-APPELLANTS,
v.
OLIVERI CONSTRUCTION COMPANY, DEFENDANT, AND SPIEGEL, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 90-L-16294. Honorable Gary L. Brownfield, Judge Presiding.

Released for Publication May 12, 1997.

The Honorable Justice Theis delivered the opinion of the court. Hoffman and Cahill, JJ., concur.

The opinion of the court was delivered by: Theis

The Honorable Justice THEIS delivered the opinion of the court:

Louis Apostal, the supervised administrator of the estate of Flavio Ramos, and Delphina Lopez, as mother and next friend of Patricia Ramos and Braulio Ramos (Apostal), appeal the trial court's order granting summary judgment in favor of defendant-appellee Spiegel, Inc. (Spiegel). Apostal sued Spiegel, the premises owner, alleging claims under the Illinois Structural Work Act and common law negligence for injuries sustained by plaintiffs' decedent, Flavio Ramos, while Ramos was working on a demolition project. Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq. (Repealed). The trial court granted summary judgment in favor of Spiegel, finding that it was not "in charge" of the worksite. Thus, the court held that Spiegel was not liable under the Structural Work Act and did not owe Ramos a common law duty of care. We affirm the decision of the trial court.

Spiegel owns property located at 1105 West 35th Street in Chicago, Illinois. Spiegel hired Oliveri Construction Company (Oliveri) as general contractor to conduct excavation and demolition work for certain buildings on the property. Oliveri, in turn, hired G.M. Wrecking Company (G.M. Wrecking) to demolish the building in question. On June 12, 1990, two employees of G.M. Wrecking were demolishing the building. David Martin, the crane operator, knocked the building with the wrecking ball. Flavio Ramos hosed down the debris to keep the dust from obscuring the demolition work. Ramos was standing near the crane and within 30 feet of the building. As Martin was "balling" the building, a pipe flew out of the debris and struck Ramos in the chest. Ramos later died from the injury.

Apostal initially filed suit against Oliveri and G.M. Wrecking, alleging violations of the Structural Work Act. Ill. Rev. Stat. 1989, ch. 48, par. 60 et seq. Apostal also claimed that defendants were liable for common law negligence allowing recovery under the Wrongful Death Act (Ill. Rev. Stat. 1989, ch. 70, par. 1 et seq.) and the Survival Act (Ill. Rev. Stat. 1989, ch. 110 1/2, par. 27-6 et seq.). Apostal later added Spiegel as a defendant. Apostal settled with Oliveri and G.M. Wrecking.

Spiegel filed a motion for summary judgment. The trial court granted Spiegel's motion for summary judgment on all counts finding Spiegel was not "in charge of" of the worksite as required under the Structural Work Act. Because Spiegel was not in charge of the worksite, the court further found that Spiegel did not owe Ramos a common law duty of care on which to impose negligence liability. On appeal, Apostal argues that: (1) Spiegel "had charge" of the worksite sufficient to impose liability under the Structural Work Act; and (2) because demolition is an ultrahazardous activity, Spiegel owed a nondelegable duty to the decedent to take special precautions to ensure his safety. For the reasons that follow, we affirm.

We first acknowledge the recent debate as to the viability of Structural Work Act claims brought after February 14, 1995, the effective repeal date of that statute. Until our supreme court resolves the issue, however, we will continue to give effect to the savings clause in the repeal's preamble. Atkins v. Deere Co., 243 Ill. App. 3d 762, 612 N.E.2d 843, 183 Ill. Dec. 916 and Kienitz v. Bradley & Bradley, Inc., slip op., Nos. 82220 and 82221, consolidated appeal granted.

The trial court's grant of summary judgment in favor of Spiegel is reviewed under a de novo standard. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102, 607 N.E.2d 1204, 1209, 180 Ill. Dec. 691 (1992). All reasonable factual inferences will be drawn in Apostal's favor. If the pleadings, depositions, and affidavits fail to raise a genuine issue of material fact, then summary judgment is proper. 735 ILCS 5/2-1005(c) (West 1994); American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 22, 594 N.E.2d 313, 316, 171 Ill. Dec. 461 (1992).

To prevail on a Structural Work Act claim, a plaintiff must prove: (1) he was involved in a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused his injuries; (6) the defendant had charge of the work; and (7) the defendant willfully violated the Act's safety standard. Cockrum v. Kajima International, Inc., 163 Ill. 2d 485, 491, 645 N.E.2d 917, 920, 206 Ill. Dec. 665 (1994). On appeal, the issue is whether Spiegel "had charge" of the work.

Whether a person "had charge" of the work ordinarily is a question of fact unless the evidence presented is insufficient to create a genuine disputable issue. Burger v. Prairie Development, Ltd., 218 Ill. App. 3d 814, 819, 578 N.E.2d 1113, 1115, 161 Ill. Dec. 467 (1991). Whether a person had control or "had charge" is determined from 10 factors first enumerated in Chance v. City of Collinsville. Cockrum v. Kajima International, Inc., 163 Ill. 2d 485, 492-93, 645 N.E.2d 917, 920, 206 Ill. Dec. 665 (1994), citing Chance v. City of Collinsville, 112 Ill. App. 3d 6, 445 N.E.2d 39, 67 Ill. Dec. 747 (1983). Typically, however, the "in charge" analysis focuses on (1) actual or clearly implied control and supervision over the construction; and (2) responsibility for job safety. Burger, 218 Ill. App. 3d at 820, 578 N.E.2d at 1116.

The facts support the trial court's determination that Spiegel did not control or supervise the worksite. G.M. Wrecking used its own equipment and operators. David Martin, the crane operator for G.M. Wrecking, stated that he never asked anyone from Spiegel for direction regarding the work. If Martin had any questions or problems with regard to the demolition work, he would ask his father, Gordon Martin, the owner of G.M. Wrecking. Martin likewise stated that Spiegel's project manager made periodic visits to the site to see how things were going. The visits typically lasted 5 to 10 minutes.

Spiegel's project manager, Dean Shelato, also stated that Spiegel never assumed responsibility for the supervision or control of the project, let alone the safety of the employees of G.M. Wrecking. Shelato said he would make weekly visits to the site to see how things were progressing. Beyond those inspections, Spiegel was not familiar with the work practices of ...


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