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Connaghan v. Caplice

October 10, 2001

NEIL CONNAGHAN, PLAINTIFF-APPELLANT
v.
JOHN G. CAPLICE, DEFENDANT-APPELLEE



Appeal from the Circuit Court of Du Page County. No. 99-L-1104 Honorable Robert K. Kilander, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

PUBLISHED

Plaintiff, Neil Connaghan, appeals the entry of summary judgment in favor of defendant, John G. Caplice, a homeowner, on plaintiff's negligence claim arising out of plaintiff's injuries caused by his fall while working on defendant's garage. We affirm.

The following facts are taken from the pleadings and attached documents. Plaintiff filed a two-count complaint alleging in count I that defendant breached his duty to plaintiff by failing to provide a suitable and temporary support; a safe, suitable, and proper scaffold; a safe, suitable, and proper guardrail; and proper and necessary equipment. Count I also alleged that these acts or omissions proximately caused the plaintiff's injuries. Count II alleged that defendant breached his duty to plaintiff by failing to reasonably inspect the premises, provide plaintiff with a safe workplace, warn plaintiff of the dangerous condition, provide adequate safeguards, supervise the work, and provide proper and necessary equipment; count II also alleged that defendant improperly managed, maintained, and controlled the premises.

In 1997, defendant hired many different contractors to renovate his house. Among these contractors, defendant hired Patrick Lally and plaintiff to perform rough carpentry on the house and rough framing on the garage. Before work on the garage began, defendant met with plaintiff and Lally to go over the plans an architect had prepared for defendant. Defendant bought materials from a list provided by Lally and plaintiff. Lally stated that plaintiff told defendant how much and what size of lumber to buy. Defendant stated that plaintiff or Lally provided a list of materials that defendant purchased for the job. Lally stated that he and plaintiff did not discuss with defendant who would supply the tools for the job or who would be responsible for safety.

Plaintiff stated that he had worked as a carpenter since 1970. Lally stated that plaintiff knew more about building garages than Lally so plaintiff "laid it out" and then the two worked together. Plaintiff and Lally built the garage walls without defendant's help or direction. Defendant stated that plaintiff and Lally also put up the walls without defendant's help. Plaintiff stated that defendant helped lift the walls into place but did not help build the walls. Plaintiff and Lally then cut the boards, fastened the boards, framed the walls, and placed the joists and rafters without defendant's direction or help. Neither plaintiff nor Lally asked defendant how to perform those tasks.

Before completion of the job, defendant changed the size of the windows because the size required by the plan was not available. Defendant also changed the location of the garage door. Defendant did not tell plaintiff or Lally which tools to use; however, some of defendant's tools were on site. Plaintiff and Lally used defendant's ladders to put up the walls, rafters, and install the joists. However, defendant did not tell plaintiff or Lally where to place the ladders or how to use them. Neither plaintiff nor Lally asked defendant for any equipment, i.e., a scaffold, platform, boarding, or plywood to use as support. Defendant did not notice that they needed any equipment.

Further, Lally stated that he and plaintiff decided on their own work schedule. Defendant did come around and check on the progress of the work, but defendant never criticized the work or told them they were doing something unsafe. Plaintiff stated that he watched out for his own safety.

On the day of the accident, July 11, 1997, plaintiff and Lally were attaching the rafters to the joists. Lally stated that plaintiff placed his ladder and then climbed up to nail the rafters. Lally stated that he went to get something from his truck and when he returned he saw plaintiff falling backwards through and past the ceiling joists onto the floor of the garage. Lally did not recall where the ladder was when plaintiff fell. Plaintiff later told Lally that plaintiff did not know what happened and did not know whether the ladder gave way.

Plaintiff stated that he remembered being on the ladder when he fell but did not remember what caused him to fall. Plaintiff did not remember whether plaintiff or Lally placed the ladder and did not remember how high plaintiff climbed before he fell. Plaintiff had no problems with the ladder before his fall. The first thing plaintiff remembered was waking up in the hospital a day and a half after the fall. Plaintiff did not recall seeing defendant at any time on the day of the fall.

Plaintiff attached the affidavit of Jon VerHalen, a registered professional engineer, who inspected the ladders provided by defendant. VerHalen opined that the ladders were old, in disrepair, and violated safety standards provided by the Occupational Safety and Health Agency (OSHA). VerHalen also stated that OSHA regulations were violated by the failure to provide proper or adequate scaffolding.

The trial court granted defendant's motion for summary judgment, stating that defendant did not retain control over the "incidental" aspects of plaintiff's work and that, therefore, defendant had no duty to plaintiff under section 414 of the Restatement (Second) of Torts (1965) (Restatement). The court also determined that there was no evidence regarding the mechanism of plaintiff's fall and, therefore, a fact finder could only base causation on speculation. Thus, plaintiff could not establish proximate cause. The trial court then granted defendant's motion for summary judgment. Plaintiff filed this timely appeal.

On appeal, plaintiff argues that the trial court erred by granting summary judgment in defendant's favor. Plaintiff asserts that the trial court improperly determined that plaintiff failed to establish that defendant owed plaintiff a duty pursuant to section 414 of the Restatement.

A court should enter summary judgment if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Jones v. Chicago HMO Ltd. of Illinois, 191 Ill. 2d 278, 291 (2000). A triable issue of fact exists where there is a dispute as to a material fact or where, although the facts are not in dispute, reasonable minds might differ in drawing inferences from those facts. Petrovich v. Share Health Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). When evaluating the facts, a court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483 (1998). While a plaintiff need not prove his case during a summary judgment proceeding, he must present some evidentiary facts to support the elements of his cause of action. Krueger v. Oberto, 309 Ill. App. 3d 358, 367 (1999). Thus, summary judgment in favor of a defendant ...


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