Eiben v. E.J. Cattani & Sons, Inc.

• Citation: 577 N.E.2d 882,217 Ill.App.3d 609
• Decision Date: 23 August 1991
• Docket Number: 3-91-0094,Nos. 3-90-0686,s. 3-90-0686
• Parties: , 160 Ill.Dec. 557 Charles EIBEN and Karen Eiben, Plaintiffs-Appellants, v. E.J. CATTANI & SONS, INC., an Illinois Corporation, and Bureau County, Defendants-Appellees (David Sullivan, Bureau County Superintendent of Highways, Defendants).
• Court: United States Appellate Court of Illinois

Page 882

577 N.E.2d 882

217 Ill.App.3d 609, 160 Ill.Dec. 557

Charles EIBEN and Karen Eiben, Plaintiffs-Appellants, v. E.J. CATTANI & SONS, INC., an Illinois Corporation, and Bureau County, Defendants-Appellees (David Sullivan, Bureau County Superintendent of Highways, Defendants).

Nos. 3-90-0686, 3-91-0094.

Appellate Court of Illinois,

Third District.

Aug. 23, 1991.

Mark A. Schindler (argued), Peter F. Ferracuti, Law Offices of Peter F. Ferracuti, P.C., Ottawa, for Charles and Karen Eiben.

Bradley W. Dunham, Karen C. Eiten, Quinn, Johnston, Henderson & Pretorius, Chartered, Peoria, for E.J. Cattani & Sons, Inc.

T. Donald Henson, Herbolsheimer, Lannon, Henson, Duncan & Reagan PC., LaSalle, Karen C. Eiten Herbolsheimer, Lannon, Henson, Duncan & Reagan, Ottawa, for Bureau County.

Marc Bernabei, State's Atty., Princeton, for David Sullivan.

Justice GORMAN delivered the opinion of the court:

Plaintiffs appeal from two separate orders entered by the circuit court in regard to their personal injury action. In appeal 3-90-0686, plaintiffs Charles and Karen Eiben appeal from dismissal of the second count of their second amended complaint. That count was directed against defendant Bureau County and was dismissed on the basis that the county was immune from the liability alleged in that count. In appeal 3-91-0094, plaintiffs appeal from summary judgment entered in favor of defendant E.J. Cattani & Sons, Inc. (Cattani) on all counts of the third amended complaint which were directed against Cattani. We affirm both orders entered by the circuit court.

The facts of the incident that gave rise to the instant lawsuit are as follows. On November 12, 1987, Charles Eiben, a carpenter employed by Garland Construction Company (Garland), was working on a bridge construction project in Bureau County. Part of the bridge construction project involved pile driving. Garland owned the pile driver hammer and supporting tower that were being used. The pile driver and tower were attached to and were supported by a crane. Garland had leased the crane and two crane operators from Cattani.

Plaintiff climbed the tower and started the pile driver hammer. The hammer descended and began striking the sheet piling. The sheet piling then suddenly shifted on one side as a result of striking an underground object, later determined to be a tree root. Once the sheet piling and tower shifted, the hammer slid off, falling to the ground. When the hammer hit the ground it shook the tower and Charles fell off the tower to the ground.

Charles and his wife, Karen, brought suit against Cattani, Bureau County and the Bureau County Highway Department. In count II of the second amended complaint plaintiffs alleged that certain defendants, including Bureau County, were in charge of and responsible for the erection of the bridge. The fourth paragraph of this count stated as follows:

"4. Defendants BUREAU COUNTY, BUREAU COUNTY SUPERINTENDENT OF HIGHWAYS, DAVID SULLIVAN and their agents and employees solicited and approved plans, methods, techniques, and procedures which conformed to their specifications, made on site inspections of work in progress, and otherwise maintained supervision and control of the work in progress then being executed by the general contractor, Garland Construction Company." (Emphasis added.)

Next were pleaded certain provisions of the Structural Work Act (Ill.Rev.Stat.1989, ch. 48, par. 60 et seq.) requiring that cranes and other mechanical contrivances used in the erection of bridges be themselves erected or constructed as to give adequate protection for persons employed or engaged thereon.

The manner in which Bureau County was allegedly at fault was stated in the seventh paragraph of this count:

"7. The Defendant, Bureau County, by its agents and employees, was in charge of the pile driving operation and was aware that the Plaintiff would be required to climb the pile driver leads from time to time to perform various tasks including those herein above alleged and, despite such knowledge and with conscience [sic ] indifference to the surrounding circumstances willfully and wantonly failed to assure that the pile driving hammer and leads were erected, constructed, placed and operated in a safe, suitable and proper manner as contemplated by the provisions of the Structural Work Act in the following respects:

(a) Failed to properly and adequately anchor the bottom of the leads into the ground before permitting the hammer to be started;

(b) Failed to inspect the ground underneath the leads and the piling for the presence of foreign objects which might obstruct the piling when the driving operation started;

(c) Failed to require persons working on or about the leads of the pile driver to wear a safety belt while aloft;

(d) Failed to maintain sufficient cable tension upon the pile driver so as to prevent it from tilting when the piling twisted;

(e) Operated the pile driver when it was not adequately equipped for the driving of sheet piling."

Plaintiffs alleged that this conduct violated the...