Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois No. 94 L 17061 Honorable Lawrence Gray, Presiding Judge
The opinion of the court was delivered by: Justice Koehler
The plaintiff in this action arising under the Structural Work Act (the Act) (740 ILCS 150/9 (West 1992)), James T. Konieczny, appeals the circuit court's denial of his motion for judgment notwithstanding the verdict or a new trial. We must decide the following question: Did the circuit court erroneously deny the defendant a fair trial because: (1) the evidence presented at trial so overwhelmingly proved a wilful violation of the Act that the circuit court should have found the defendant liable as a matter of law and, therefore, granted the plaintiff's motion for directed verdict; and (2) the circuit court allowed the defendant to focus his sole proximate cause defense on the plaintiff's conduct in violation of the Act? Because we conclude that the circuit court did not err, we affirm.
The plaintiff, James Konieczny, an apprentice bricklayer for RKD Masonry, Inc. (RKD), was injured when he fell from a scaffold on which he was working at a construction site. The account of the events surrounding the plaintiff's fall as they were testified to at trial is as follows. RKD subcontracted with the defendant, Kamin Builders, to do masonry work on a house being constructed in Naperville, Illinois. The contract between RKD and Kamin consisted only of a proposal detailing that RKD was to furnish the materials, perform the necessary labor, and that Kamin was to pay RKD a specified amount for its work. The plaintiff and another RKD employee constructed a scaffold five sections high on the side of the house where they were to work. After the scaffold was constructed, RKD president Richard Dusek climbed the scaffold and tied it in, meaning that he attached it to the house with a two-by-four and building iron. Dusek tied in the scaffold on one side only. Subsequently, the plaintiff went up onto the scaffold and, using a pulley system, began placing bricks on the scaffold's various levels. As the plaintiff stacked the bricks, the scaffold fell, throwing the plaintiff to the ground and injuring him. According to the plaintiff, somewhere between 15 to 30 minutes elapsed from the time the scaffold was erected and the time that it collapsed. Dusek thought that the scaffold fell 15 minutes to possibly 45 minutes after it was erected. Dusek believed that, when the scaffold fell, it made a hole in the ground six to eight inches deep where the northwest leg of the scaffold had stood. Joseph Golminas, the defendant's construction superintendent, who was on the site two to three times daily, saw the scaffold but did not inspect it.
The plaintiff filed suit against Kamin Builders. Other parties whom the plaintiff filed against settled or were dismissed from the action. The plaintiff, contending that errors by the circuit court caused jury confusion and denied the plaintiff a fair trial, filed a motion for a judgment notwithstanding the verdict or a new trial, which the circuit court denied. The plaintiff now appeals.
A. Wilful Violation of the Act
Did the evidence presented at trial so overwhelmingly prove that the defendant wilfully violated the safety standards of the Act that the circuit court should have directed a verdict in favor of the plaintiff? A directed verdict or a judgment notwithstanding the verdict should be entered only when all of the evidence, when viewed in the light most favorable to the motion's opponent, so overwhelmingly favors the movant that no contrary verdict based on the evidence could stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504, 514 (1967). Accordingly, to prove a violation under the Structural Work Act (740 ILCS 150/9 (West 1992)), the plaintiff has the burden to prove several elements, including that: (1) the defendant had charge of the work; and (2) the defendant wilfully violated the Act's safety standard. Cockrum v. Kajima International, Inc., 163 Ill. 2d 485, 491, 645 N.E.2d 917, 920 (1994). The Act reads in pertinent part:
"Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this Act, shall comply with all the terms thereof, and any such owner, contractor, sub-contractor, foreman or other person violating any of the provisions of this Act shall be guilty ***.
For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby ***." 740 ILCS 150/9 (West 1992). Whether a defendant is a person having charge of the work is primarily a question of fact. Cockrum, 163 Ill. 2d at 492, 645 N.E.2d at 920. Factors involved in deciding that issue include: (1) supervision and control of the work; (2) retention of the right to supervise and control the work; (3) constant participation in ongoing activities at the construction site; (4) supervision and coordination of subcontractors; (5) responsibility for taking safety precautions at the jobsite; (6) authority to issue change orders; (7) the right to stop work; (8) ownership of the equipment used on the jobsite; (9) the defendant's familiarity with construction customs and practices; and (10) the defendant's ability to assure worker safety or alleviate equipment deficiencies or improper work habits. Cockrum, 163 Ill. 2d at 492-93, 645 N.E.2d at 920. No single factor determines whether the defendant has charge of the work, but rather the totality of the circumstances must be examined. Roedner v. Central Illinois Public Service Co., 117 Ill. App. 3d 81, 84, 452 N.E.2d 842, 844 (1983). A violation is wilful when the defendant knew of the violation or, in the exercise of reasonable care, could have discovered it. These are questions of fact to be resolved by the trier of fact. Smith v. Georgia Pacific Corp., 86 Ill. App. 3d 570, 574, 408 N.E.2d 117, 120 (1980).
At trial, witnesses for both the plaintiff and the defendant testified regarding who was responsible for safety at the site; when, by whom, and under what circumstances work could be stopped; who supervised the work done; and the respective party's understanding of it's responsibilities. One point of contention was the length of time between the building of the scaffold and the accident, and whether enough time had elapsed such that the defendant could reasonably have known of the unsafe condition. We conclude that the nature of the relationship between the defendant and the plaintiff, as well as the time period involved relating to the accident and the ability of the defendant reasonably to have learned of the unsafe condition, are questions of fact for a jury to resolve. In looking at the evidence, we cannot conclude that the evidence in favor of the plaintiff is so overwhelming that a verdict for the defendant could never stand.
Was the plaintiff denied a fair trial because the circuit court allowed the defendant to focus on the plaintiff's conduct as the sole proximate cause of the injury? One of the purposes of the Act is to prevent injuries to persons employed in dangerous and extrahazardous occupations. Simmons v. Union Electric Co., 104 Ill. 2d 444, 459, 473 N.E.2d 946, 953 (1984). In furtherance of that purpose, contributory negligence and comparative negligence are not defenses to claims brought under the Act. Simmons, 104 Ill. 2d at 459, 473 N.E.2d at 953. The sole inquiry under the Act is not the plaintiff's conduct, but whether the defendant is culpable. Simmons, 104 Ill. 2d at 459, 473 N.E.2d at 953. Concurrent fault on the plaintiff's part is not a defense to the Act; however, where there is no violation of the Act and where only the plaintiff's negligence causes the injury, the defendant is not liable under the Act. Smith, 86 Ill. App. 3d at 573, 408 N.E.2d at 119. The plaintiff contends that errors by the circuit court allowed the defendant to argue that the plaintiff's conduct was the sole proximate cause of the injury. First, according to the plaintiff, the circuit court abused its discretion when it denied his motion in limine requesting that the court bar admission of ...