Brazier v. Kontos

• Court: Appellate Court of Illinois
• Writing for the Court: WOMBACHER
• Citation: Brazier v. Kontos, 513 N.E.2d 152, 160 Ill.App.3d 177, 111 Ill.Dec. 906 (Ill. App. 1987)
• Decision Date: 04 September 1987
• Docket Number: No. 3-86-0689,3-86-0689
• Parties: , 111 Ill.Dec. 906 Christine BRAZIER, Administrator of the Estate of Dale W. Brazier, Deceased Plaintiff-Appellee, v. George J. KONTOS and John Kontos, Defendants-Appellants, Third Party Plaintiffs (Beautiful Signs, Inc., Third Party Defendant).

Page 152

513 N.E.2d 152

160 Ill.App.3d 177, 111 Ill.Dec. 906

Christine BRAZIER, Administrator of the Estate of Dale W Brazier, Deceased Plaintiff-Appellee, v. George J. KONTOS and John Kontos, Defendants-Appellants Third Party Plaintiffs (Beautiful Signs, Inc. Third Party Defendant).

No. 3-86-0689.

Appellate Court of Illinois Third District.

Sept. 4, 1987.

William H. Taube (argued), Kankakee, for George J. Kontos, John Kontos.

Joseph E. Duffy (argued), Joliet, for Christine Brazier.

Justice WOMBACHER delivered the opinion of the court:

Plaintiff, Christine Brazier, Administrator of the Estate of Dale W. Brazier, deceased, brought an action against landowner-defendants, George and John Kontos (Kontos), alleging a violation of the Structural Work Act (hereinafter referred to as the Act) (Ill.Rev.Stat.1985, ch. 48, pars. 60-69.) The landowner defendants filed a third party complaint for contribution against Beautiful Signs Inc., the company that was erecting the sign at issue in this case. The jury returned a verdict in favor of the plaintiff and against defendants, finding George Kontos 10% at fault, John Kontos 10% at fault, and Beautiful Signs 80% at fault. The jury assessed damages against the defendants in the amount of $75,000. Defendants appeal.

On or about December 22, 1983, the Kontos contracted with the third party-defendant, Beautiful Signs, for the erection of a sign to identify the Town & Country Plaza which had been built by Kontos on Jefferson Street in Joliet, Illinois. The plaza was built on land owned by Kontos adjacent to and east of the Town & Country Bowling Lanes, also owned by the Kontos.

The Kontos, acting as general contractors, hired and paid numerous subcontractors, including Beautiful Signs, to do the work. The contract for the sign with Beautiful Signs was separate and distinct from the other contracts relating to the construction of the building. Beautiful Signs provided the necessary material, equipment and tools necessary to erect the sign, and provided the labor and supervision.

The Kontos selected the site where the sign was to be placed and approved the plans submitted by Beautiful Signs to the City of Joliet. John Kontos was present at the site when it was initially located, and George Kontos was at the site on an occasion when Beautiful Signs was working on the sign.

The sign was connected to the shopping center by underground electric. The site of the sign was located next to the entrance to the shopping center and some of the tenants were open for business while the sign was being installed. The sign was about 13 1/2 feet from the Commonwealth Edison electrical wires. Timothy Suste, an employee of Beautiful Signs, testified that on one occasion prior to the accident, John Kontos asked the foreman of Beautiful Signs, Terry Taylor, to try not to block the driveway with the truck. Beautiful Signs was using a truck with a hydraulic ladder to erect the sign.

On the day of the accident, Terry Taylor parked the truck with the hydraulic ladder on the west side of the sign location rather than on the east side. Parking the truck on the east side of the sign would have blocked the entrance driveway to the shopping center. Dale Brazier was descending the ladder when he contacted the Edison electrical wire and then fell to his death. The jury answered special interrogatories finding: (1) that the Kontos were in charge of the work; (2) that they violated the Act; and (3) that the violation of the Act was the proximate cause of the death of Dale Brazier.

Defendants raise six issues on appeal: (1) whether the defendants were in charge of the work; (2) whether the defendants were guilty of a willful violation of the Act; (3) whether the plaintiff was engaged in a structural activity within the meaning of the Act; (4) whether the trial court erred in finding that the sign in question was a structure as a matter of law; (5) whether the jury was improperly instructed; and (6) whether the trial court erred in denying defendant's motions for directed verdict and for judgement notwithstanding the verdict.

Defendants first argue that they were not in charge of the work. Defendants contend that although they had the inherent right to observe and to terminate the work, they only exercised that power once each, and on neither occasion did they interfere with the autonomy enjoyed by Beautiful Signs or its employees in managing the erection of the sign. Defendants contend that all of their actions amounted to nothing more than mere ownership of the premises.

In an action brought under the Structural Work Act, a plaintiff must prove the following elements: (1) the plaintiff was engaged in or was passing under or by 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 the plaintiff's injuries; (6) the defendant had charge of the work being performed; and (7) the defendant willfully violated the Act's safety standard. Gill v. ParCable, Inc. (1985), 138 Ill.App.3d 409, 411, 93 Ill.Dec. 5, 6, 485 N.E.2d 1215, 1216.

Mere ownership, without more, is insufficient to place an owner "in charge" under the Act. (See Winter v. Davis (1980), 85 Ill.App.3d 912, 915, 41 Ill.Dec. 198, 201, 407 N.E.2d 696, 699.) It is not necessary for a defendant to be in direct charge of the particular operation from which the injury arose, if it is in charge of the overall work for the project under construction. (Kohutko v. Four Columns. LTD. (1986), 148 Ill.App.3d 181, 101 Ill.Dec. 198, 498 N.E.2d 522.) As long as there is evidence connecting the owner with the work, a jury question is presented. Manisco v. Marseilles Fire Protection District (1985), 132 Ill.App.3d 390, 87 Ill.Dec. 557, 477 N.E.2d 534.

In Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247 the supreme court rejected the requirement that supervision and control of the work was essential to have charge of the work:

"... Thus, while the actual exercise of supervision and control over the work and the persons doing it, or the retention of the right to so supervise and control, may be factors bearing on the ultimate factual question of whether an owner is "in charge," they are not necessary or conclusive factors, nor is either made a sine qua non for liability under the statute. Rather consistent with its beneficent purpose of preventing injury to persons employed in the extrahazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure." 33 Ill.2d 316, 321-322, 211 N.E.2d 247, 251.

A review of the testimony adduced at trial reveals that the defendants were not only owners but were also general contractors in control of the entire shopping construction project. Defendants were actively involved in every phase of the construction project. They hired and paid every trade required to construct the shopping center including an architect, heating and air conditioning contractor, floor covering contractor, electrical contractor, and Beautiful Signs.

Defendants selected the dimensions, coloring, language, and location of the sign. Defendants approved plans submitted to the City. Defendants visited the manufacturing plant of Beautiful Signs to check the progress of the sign they ordered. Defendants were present when the footings for the sign were dug. Timothy Suste who worked for Beautiful Signs on the sign project testified that he heard John Kontos tell Terry Taylor to try not to...