Block v. Lohan Associates, Inc.
| Decision Date | 23 June 1993 |
| Docket Number | No. 1-91-2803,1-91-2803 |
| Citation | 645 N.E.2d 207,206 Ill.Dec. 202,269 Ill.App.3d 745 |
| Parties | , 206 Ill.Dec. 202 Patricia BLOCK, Individually and as Guardian of the Person and the Estate of the Disabled Person, Clifford Block, Plaintiff-Appellant, v. LOHAN ASSOCIATES, INC., a corporation; Chris P. Stefanos Associates, Inc., a corporation; Computerized Structural Design, Inc., a corporation; Pepper Construction Company, a corporation; Contemporary Precast Products, Inc., a corporation; and Kamm Leasing Company, a corporation, Defendants-Appellants. |
| Court | United States Appellate Court of Illinois |
William J. Harte, Ltd., Keith L. Davidson, Chicago, for plaintiff-appellant.
Gerald L. Angst, Gloria R. Mitka, Sidley & Austin, Chicago, for Lohan Associates, Inc.
Marc C. Friedlander, Clark M. Stalker, Schiff, Hardin & Waite, Chicago, for Chris P. Stefanos Associates, Inc.
Hinshaw & Culbertson, Chicago (Laurie A. Siwek, Stephen R. Swofford, Thomas C. Hofbauer, of counsel), for Computerized Structural Design, Inc.
Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago (James T. Ferrini, Robert L. Reifenberg, Edward M. Kay, of counsel), for Pepper Constr. Co. Sanchez & Daniels, Chicago (Manuel Sanchez, Daniel A. Celske, of counsel), for Contemporary Precast Products, Inc.
Patricia Block (plaintiff) appeals from a summary judgment in her action to recover damages for personal injury and loss of consortium after her husband, Clifford Block (Block), sustained severe head injuries in a fall at a construction site. Block was employed by Concrete Erectors, a company hired to attach precast concrete cladding to the outside of the finished building and columns.
Lohan Associates, Inc. (Lohan) was engaged by the Owner, Rockwell International Corp. (Rockwell) to perform the architectural and engineering design. Lohan was to furnish all necessary plans, specifications, and calculations for construction and to review and approve the work for conformity to the architectural and engineering design intent. Lohan had the right to inspect the work, have open access to the work, to interpret all contract documents as necessary for the proper execution of the work; and further, the right to recommend to the owner whether to accept the work or to stop the work. Lohan was to visit the site periodically to insure that the work conformed to the contract documents. Plaintiff alleges Lohan violated the Structural Work Act, was guilty of negligence and wilful and wanton conduct against Block.
Chris P. Stefanos, Inc. (Stefanos) was a subcontractor of Lohan engaged to provide architectural engineering services that Lohan had agreed to perform for Rockwell, to review contractor's submittals and to inspect the site to determine if the work conformed to the design concept. Plaintiff alleges Stefanos was guilty of negligence toward Block.
Pepper Construction Company (Pepper) contracted with Rockwell to act as general contractor; Pepper was to supervise and direct the construction and to be responsible for all means and methods of construction and the procedures for coordinating all parts of the work; to initiate, maintain and supervise all safety precautions and programs in connection with the work; to take all reasonable precautions and to provide all reasonable protection for workers; and to comply with all applicable laws, ordinances and rules bearing upon the safety of workers. Pepper had the right to subcontract the work, to supervise and control the work, and to enforce against each subcontractor any and all rights of Rockwell against Pepper, including the right to inspect, stop, and reject the work. Plaintiff alleges Pepper violated the Structural Work Act, was guilty of negligence and wilful and wanton conduct against Block.
Contemporary Precast Products, Inc. (Contemporary) subcontracted with Pepper to perform the cladding design, fabrication and erection. Contemporary was required to: furnish all equipment and material to execute the concrete precast work in strict accordance with the contract documents, including the architectural precast specifications; do the necessary engineering work required to meet the performance requirements in the contract documents, and consider the necessary interface and coordination between the building structure and the architectural precast concrete; provide all engineering and structural calculations to comply with the requirements of the performance specifications; and comply with all safety and OSHA requirements, including Pepper's in-house safety regulations. Plaintiff alleges Contemporary violated the Structural Work Act, was guilty of negligence and wilful and wanton conduct against Block.
Computerized Structural Design, Inc. (CSDI) subcontracted with Contemporary to design the cladding. CSDI's duties included the responsibility for the structural design of the precast panels and their connections to the building frame; and provision of all precast erection, fabrication, layout and other drawings necessary for the complete approval by the architect and structural engineer of the precast architectural panels. Its contract excluded any duty to perform a structural review of structures supporting or bracing the precast panels and all requirements of the precast specifications, except those relating to the structural integrity of the precast panels. Plaintiff alleges that CSDI was guilty of negligence toward Block.
Kamm Leasing, Co. (Kamm) performed the mobile crane hoisting for the cladding erection, although it is unclear who actually engaged this defendant. The same individual, Richard Kammerer, was the president of Contemporary, Kamm, and Concrete Erectors, Block's employer. Plaintiff alleges that Kamm was guilty of negligence towards Block.
The trial court granted summary judgment to all defendants on all counts.
However, for the reasons set forth hereafter, we reverse as to the negligence and Structural Work Act liability of Pepper and Contemporary and as to the negligence of Kamm; we affirm the summary judgment as to Lohan, Stefanos and CSDI, and affirm as to Lohan, Pepper and Contemporary the allegations of wilful and wanton misconduct.
On November 3, 1988, at approximately 7:45 a.m., Clifford Block, a construction foreman for Concrete Erectors, Inc., suffered severe injuries, including a depressed skull fracture, after he fell from a ladder during construction of an office complex in Westmont, Illinois. Plaintiff alleges that Block was on the ladder leaning to his left in an effort to reach for a crane's "whip" line from which a large "headache" ball and hook were being lowered. While no witnesses saw the accident happen, plaintiff alleges that Block was reaching for the line in order to attach a "boatswain's chair" to it so that he or another worker could weld wall connections for panels from outside of the building. Plaintiff alleges that the crane operator lowered the whip line "in the blind" without relying on some method of communication with Block, and the ball and hook either struck Block or somehow caused him to fall from the ladder. When Block fell, he landed partly in an uncovered foundation dugout made of concrete, with the boatswain's chair laying near him, upside down. The dugouts, at least several feet deep, were usually covered with plywood so workers could safely cross over them.
The building designer called for a precast concrete wall system in which panels ("cladding") were to be attached to the outside walls of the building. Due to the design of the building, some parts of the outside building frame were not accessible to workers from inside the building. In that case, a worker would then sit in the boatswain's chair attached to the crane's whip line and weld wall connections to the building frame in order to attach the cladding.
Plaintiff contends on appeal that:
(1) Genuine issues of material fact exist as to the negligence of all defendants and that the conduct of each of the defendants was a proximate cause of plaintiff's injuries;
(2) Genuine issues of material fact exist, under the Structural Work Act, as to whether Lohan, Pepper and Contemporary "had charge of" the work and as to whether they "wilfully" violated the Act; and
(3) Genuine issues of material fact exist as to the wilful and wanton misconduct of Lohan, Pepper and Contemporary.
Plaintiff provided four experts whose opinions included a belief that Contemporary's failure to tender an erection plan to Lohan or Pepper at the planning stages caused or contributed to Block's injuries since it caused the erectors to select an unsafe improvisation to overcome a problem that should have been anticipated during the planning and design stages.
The unsafe improvisation was the placement of a man in a boatswain's chair attached to the crane's whip line while the crane simultaneously supported a load (a panel) with its boom line, thus requiring the worker to traverse across the face of the building like a spider. It was the attempt to achieve the placement of Block in the boatswain's chair that resulted in the accident.
The experts testified that it was a violation of American National Safety Institute (ANSI) standards for the crane operator to attach the boatswain's chair to the whip line as a personnel hoist while simultaneously hoisting a load on the boom line. Rather, an independent hoisting device should have been used to operate the boatswain's chair. One expert believed that the boatswain's chair may not be used at all as a personnel hoist on a crane, pursuant to ANSI standard B30.5, while another thought that a boatswain's chair may be used under the proper conditions, which did not exist in this case. It was stated that ANSI and Occupational Safety and Health Administration (OSHA) standards should apply to this accident since Block was attempting to "rig a...
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