Cockrum v. Kajima Intern., Inc.

• Decision Date: 22 December 1994
• Docket Number: No. 75451,75451
• Parties: , 206 Ill.Dec. 665 Fred COCKRUM, Appellee, v. KAJIMA INTERNATIONAL, INC., Appellant.
• Court: Illinois Supreme Court

Page 917

645 N.E.2d 917

163 Ill.2d 485, 206 Ill.Dec. 665

Fred COCKRUM, Appellee, v. KAJIMA INTERNATIONAL, INC., Appellant.

No. 75451.

Supreme Court of Illinois.

Dec. 22, 1994.

Rehearing Denied Jan. 30, 1995.

Heyl, Royster, Voelker & Allen, Peoria (Karen L. Kendall, Robert V. Dewey, Jr., Stephen J. Heine and Bradley S. McMillan, of counsel), for appellant.

James W. Yoder and J. Stephen Yoder, Bloomington, and Edward J. Kionka, Carbondale, for appellee.

Robert Steere, Springfield, for amicus curiae Illinois State Chamber of Commerce.

John J. Bullaro, Jr., Robert C. Moore and James R. Branit, Bullaro, Carton & Stone, of Chicago, for amici curiae Illinois Construction Industry Committee and Builder's Association of Greater Chicago.

Asher, Gittler, Greenfield, Cohen & D'Alba, and Anesi, Ozmon & Rodin, Ltd., all of Chicago, and Law Offices of Patrick A. Salvi, Waukegan (Joel A. D'Alba, Curt N. Rodin, Richard A. Kimnach and Patrick A. Salvi, of counsel), for amici curiae Illinois State Federation of Labor & Congress of Industrial Organizations et al.

Justice HARRISON delivered the opinion of the court:

In this appeal we are asked to decide whether the Structural Work Act (Ill.Rev.Stat.1987, ch. 48, par. 60 et seq.) applies to plaintiff's claims against defendant. Plaintiff, Fred Cockrum, sought recovery against defendant, Kajima International, Inc. (Kajima), in the circuit court of McLean County for injuries he received while working for Atlas Window Cleaning Company (Atlas) at the Diamond Star Motors automobile plant construction site on November 14, 1987. Kajima had entered into a building construction agreement with Mitsubishi International Corporation (Mitsubishi), naming Kajima the design builder and placing Kajima in charge of the construction of the auto plant.

A glass and glazing company, Swanson Gentleman (Swanson), was one of 35 to 40 prime contractors on the Diamond Star project. Swanson had a contract with Kajima to install aluminum windows, glass, and aluminum doors at the Diamond Star construction site. Part of the contract required Swanson to have the windows cleaned after they were installed. Swanson subcontracted with ABC Window Cleaning to clean all the glass but because ABC was unable to perform the work in a timely manner, Swanson canceled its contract with ABC and hired Atlas. Swanson's contract with Atlas was dated October 26, 1987. This contract required Atlas to use its own manpower and equipment to do the window washing job for Swanson.

Cockrum was sent to the Diamond Star construction site by Mr. Bernstein, the owner of Atlas. Cockrum had worked cleaning glass at the site three or four times during the three to four weeks prior to the accident, sometimes for several hours, sometimes for a longer period. On Saturday, November 14, 1987, Cockrum arrived at the plant at approximately 8 or 9 a.m. and, as required, stopped at the guardhouse and signed in. Cockrum and another Atlas employee, Butch Jackson, were working that day using aluminum extension ladders to clean the 15- to 18-foot exterior windows of the plant. Although Cockrum had previously asked Bernstein to provide a lift, suspended scaffold, or boom to work on, Bernstein had not done so and Cockrum thus performed his work using his own personal 24-foot extension ladder.

By 2 p.m. on the day of the accident, Cockrum had washed approximately 15 to 16 window panes. The work went slowly because there was glue, caulking debris, plaster and dirt on the glass. This debris had to be scratched off with a razor blade and then the windows were washed. Due to the length of the windows, Cockrum had to wash them in two sections, requiring him to descend and then reascend his ladder. When Cockrum was on the ground, his ladder was freestanding and had fallen down on two or three prior occasions that day because of the very windy weather.

At the time of the accident, Cockrum was standing on the ladder and reaching to scrape debris off a window. All at once he felt the wind and the movement of the ladder sliding to his left. Cockrum bent his knees and sprang forward. The ladder fell to the ground and Cockrum landed on his left hip, sustaining injuries. Butch Jackson and a security guard who had witnessed the accident came to Cockrum's assistance. The guard called for a "company nurse" who was working that day and, after examining Cockrum, she called for an ambulance.

According to the building construction agreement between Mitsubishi and Kajima, Kajima was responsible for "initiating, maintaining and providing supervision of safety precautions and programs in connection with the Work." Additionally, the agreement required that Kajima "shall supervise and direct the Work, using [its] best skill and attention. [Kajima] shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Contract." Kajima's safety and jobsite manual for the Diamond Star construction project stated at section 6.2.4: "Portable ladders shall be tied, blocked, or otherwise secured to prevent the ladder from being unintentionally displaced."

Evidence submitted at trial established that the ladder which Cockrum was using at the time of the accident was not long enough to reach the top of the building. As a result, the ladder could not be tied off because there was nothing in the area where Cockrum was working to which the ladder could be secured. Evidence at trial also established that Cockrum and other Atlas employees had been using extension ladders to clean windows on the upper level of the auto plant prior to the day of the accident, and that at least three-fourths of the total job of cleaning the windows had been completed by that day.

Following a jury trial, Kajima's motion for a directed verdict was denied, and a verdict was returned in favor of Cockrum and against Kajima in the amount of $500,000. The jury answered affirmatively the special interrogatory asking whether Kajima had violated the Structural Work Act. The trial court entered judgment on the verdict and denied Kajima's post-trial motion requesting judgment notwithstanding the verdict or, alternatively, a new trial. The appellate court, with one justice dissenting, affirmed the judgment for Cockrum and against Kajima (243 Ill.App.3d 402, 183 Ill.Dec. 129, 610 N.E.2d 1373). We granted Kajima's petition for leave to appeal (145 Ill.2d R. 315).

Section 9 of the Structural Work Act (the Act) provides:

"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 * * *.

* * * * * *

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 * * *." (Ill.Rev.Stat.1987, ch. 48, par. 69.)

To sustain a cause of action for violation of the Act, a plaintiff must establish the following elements: (1) he was involved in 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 his injuries; (6) the defendant had charge of the work; and (7) the defendant willfully violated the Act's safety standard. See Kohutko v. Four Columns, Ltd. (1986), 148 Ill.App.3d 181, 186, 101 Ill.Dec. 198, 498 N.E.2d 522; St. John v. City of Naperville (1982), 108 Ill.App.3d 519, 522-23, 64 Ill.Dec. 83, 439 N.E.2d 12.

In this court, Kajima contends that its liability under the Act was not established because the evidence at trial did not prove the final two elements, that Kajima "had charge of" the work and that Kajima "willfully violated" the Act. However, as this court has repeatedly held, such determinations should not be overturned by entry of a judgment n.o.v., nor should a verdict be directed for the defendant unless all of the evidence, when viewed most favorably to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict based on that evidence could ever stand. (McInerney v. Hasbrook Construction Co. (1975), 62 Ill.2d 93, 101-02, 338 N.E.2d 868, citing Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504; see also Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 486, 31 Ill.Dec. 201, 394 N.E.2d 403.) Application of the Pedrick test to the case sub judice supports the appellate court's finding that the trial court properly denied Kajima's motions for a directed verdict and judgment n.o.v.

Kajima argues that it did not "have charge of" the work being performed by Cockrum because: (1) Kajima did not know that its subcontractor, Swanson, had employed Cockrum's company, Atlas, to perform work at the Diamond Star construction site, although prior written approval was required; (2) Kajima was not informed that any workers would be present on the nonscheduled workday, Saturday, on which the accident occurred, although notice was required to insure safety personnel could be on hand; (3) Kajima did not know Cockrum or any other Atlas employees would be working on the nonscheduled workday; (4) Cockrum was injured while using his own equipment; and (5) Atlas determined what equipment and method would be used to perform the work.

Whether a defendant is a person "having charge of" the work under the Act is primarily a factual inquiry which involves numerous factors, including those enunciated in Chance v. City of Collinsville (1983), 112 Ill.App.3d 6, 11, 67 Ill.Dec. 747, 445 N.E.2d 39. (Simmons v. Union Electric Co. (1984), 104 Ill.2d 444, 452, 85 Ill.Dec. 347, 473 N.E.2d 946.) As set forth in Chance, those factors...