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Cozza v. Culinary Foods

January 14, 2000


Appeal from the Circuit Court of Cook County No. 97 L 13597 Honorable Julia M. Nowicki, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Zwick

Plaintiff, James Cozza, instituted this action, against defendants Culinary Foods, Inc., and American Igloo Builders, Inc., seeking recovery for personal injuries sustained while he was working on a reconstruction project. Plaintiff's complaint asserted claims under common-law negligence and the Illinois Structural Work Act (740 ILCS 150/1 et seq. (West 1994) (repealed by Pub. Act 89-2, effective Feb. 14, 1995)) (the Act). Culinary Foods subsequently filed a counterclaim for contribution against American Igloo. The trial court granted summary judgment in favor of defendant American Igloo, and plaintiff and Culinary Foods have appealed.

The record reveals that on November 19, 1991, plaintiff was employed by Illinois Telephone Service and was assigned to perform certain telecommunications work as part of a renovation project being done at the food processing plant owned and operated by Culinary Foods. Culinary Foods hired several contractors, including American Igloo, to perform work in connection with the plant renovation. The workers on the site included electricians, plumbers, sprinkler workers, bricklayers, cement workers, and telephone repair workers. Culinary Foods acted as the general contractor for the project. Howard Davis, the President of Culinary Foods, and Roger Kirwin, the Production Manager, hired and coordinated the various contractors to perform their work on a "time and materials" basis.

American Igloo was the carpentry contractor hired by Culinary Foods to do a variety of remodeling and reconstruction projects at the plant and had been on the site continuously for 14 months. When American Igloo began its work, Calvin Hartley, the carpentry foreman for American Igloo, informed Davis that some of the existing telephone equipment would have to be removed from the walls. Hartley knew that Culinary Foods had called a telephone service contractor to check the wires in the shipping & receiving area of the plant, but he did not know exactly when that work was to be done.

While working at the plant, American Igloo had erected a scaffold in the shipping & receiving area. A few days before the accident, American Igloo employees had partially disassembled and folded the scaffold and stored it in a corner against a wall, where it was out of the way of the employees of Culinary Foods. According to Hartley, it was possible for a man to stand on the scaffold in its partially folded configuration.

On the date of the accident, plaintiff was at the plant to test voice and data lines in a main distribution frame (MDF). Davis, who was then President of Culinary Foods, asked plaintiff to tag the live telephone lines and to remove the dead ones. Davis directed plaintiff to the MDF, which was mounted on a wall, between five and eight feet above the floor. Directly below the MDF, plaintiff saw the scaffold, which he assumed had been placed there for his use. The scaffolding was approximately 10 feet long, seven feet high, three to five feet wide, and had wooden planks on the top. Davis did not say anything to plaintiff about moving the scaffold out of the way, and they did not discuss how the plaintiff was to accomplish his task or how he was to reach the telephone wires. Plaintiff did not know that the scaffold belonged to American Igloo, and he did not ask permission to use the scaffold.

Plaintiff shook the scaffold, which seemed secure, before he climbed onto it. He then climbed up the side of the scaffold and began work on the MDF. While he was on the scaffold testing the telephone lines, at least one of the wooden planks broke, and plaintiff fell to the floor. Plaintiff had been to the Culinary Foods plant on six prior occasions, but he had not needed to use any scaffold on those occasions.

Plaintiff denied that Illinois Telephone had a standing order prohibiting the use of customers' scaffolds. He further testified that he had never been instructed by his employer not to use scaffolding that was in place on job sites, and he had previously used scaffolding owned by other customers. However, plaintiff's supervisor, Norman Kwak, testified that using the tools or equipment of anyone other than Illinois Telephone was strictly prohibited and against company policy. If additional tools or lifting equipment was required, the employee was expected to call the office and notify the dispatcher.

American Igloo's policy was that no one was permitted to use their scaffolding without obtaining permission from American Igloo's foreman on the job. During the course of the project, Harley did permit the employees of Dual Temp, another contractor on the job, to use American Igloo's scaffolding, but the employees of Dual Temp did not use the same scaffold used by plaintiff at the time of his injury. In addition, American Igloo's employees sometimes used Dual Temp's scaffolding.

The trial court entered summary judgment in favor of American Igloo, finding that liability could not be imposed based upon violation of the Structural Work Act because American Igloo was not "in charge of the work" within the meaning of the statute. The court also found that if liability could not be imposed for violation of the Structural Work Act, American Igloo could not be held liable for common-law negligence. Both plaintiff and Culinary Foods have appealed.

Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1996). Summary judgment is a drastic remedy to be granted only where the movant's right to it is clear and free from doubt. In re Estate of Hoover, 155 Ill. 2d 402, 410, 615 N.E.2d 736 (1993); Colvin v. Hobart Brothers, 156 Ill. 2d 166, 169-70, 620 N.E.2d 375 (1993). In considering whether summary judgment is appropriate, the court must construe the pleadings, depositions, admissions, and affidavits most strictly against the moving party and liberally in favor of the opponent of the motion. In re Estate of Hoover, 155 Ill. 2d at 411; Colvin, 156 Ill. 2d at 170; Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397 (1980). Inferences which may reasonably be drawn from the evidence are to be resolved in favor of the party responding to the motion. Kramer v. Weedhopper of Utah, Inc., 141 Ill. App. 3d 217, 221, 490 N.E.2d 104 (1986). Because the propriety of an order granting summary judgment involves a question of law, a court of review considers the matter de novo. In re Estate of Hoover, 155 Ill. 2d at 411.

The purpose of the Structural Work Act is to protect persons engaged in extrahazardous occupations such as the construction, repair, alteration, or removal of buildings, bridges, viaducts, or other structures. Meyer v. Caterpillar Tractor Co., 135 Ill. 2d 1, 7-8, 552 N.E.2d 719 (1990); Vuletich v. United States Steel Corp., 117 Ill. 2d 417, 421-22, 512 N.E.2d 1223 (1987). The Act should be liberally construed to effectuate this purpose. Meyer, 135 Ill. 2d at 8; Vuletich, 117 Ill. 2d at 422.

Plaintiff and Culinary Foods first argues that the trial court erred in finding that American Igloo was not "in charge of the work."

To maintain a cause of action against a defendant under the Structural Work Act, the plaintiff must establish, among other elements, that defendant "had charge of the work" which proximately caused the injury. Cockrum v. Kajima International, Inc., 163 Ill. 2d 485, 491, 645 N.E.2d 917 (1994). More than one entity may be deemed to be "in charge of" the work within the meaning of the Act. Emberton v. State Farm Mutual Automobile Insurance Co., 71 Ill. 2d 111, 123, 373 N.E.2d 1348 (1978). The determination of whether a defendant is a person "having charge of" the work is primarily a question of fact for the jury, which involves numerous factors, including those enunciated in Chance ...

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