Emberton v. State Farm Mut. Auto. Ins. Co., 49342

• Court: Illinois Supreme Court
• Writing for the Court: GOLDENHERSH; DOOLEY
• Citation: Emberton v. State Farm Mut. Auto. Ins. Co., 71 Ill.2d 111, 373 N.E.2d 1348, 15 Ill.Dec. 664 (Ill. 1978)
• Decision Date: 27 January 1978
• Docket Number: No. 49342,49342
• Parties: , 15 Ill.Dec. 664 Wiley EMBERTON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.

Page 1348

373 N.E.2d 1348

71 Ill.2d 111, 15 Ill.Dec. 664

Wiley EMBERTON, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al., Appellees.

No. 49342.

Supreme Court of Illinois.

Jan. 27, 1978.

As Modified On Denial of Rehearing March 30, 1978.

James Walker, Ltd., Bloomington, for appellant.

Costigan, Wollrab, Fraker, Wochner & Neirynck, Bloomington, for appellees.

GOLDENHERSH, Justice:

Defendants, State Farm Mutual Automobile Insurance Company and Ellerbe Associates, Inc., appealed from the judgment of the circuit court of Peoria County entered in favor of plaintiff, Wiley Emberton, on a jury verdict in the amount of $36,500. The appellate court reversed (44 Ill.App.3d 839, 3 Ill.Dec. 569, 358 N.E.2d 1254), and we allowed plaintiff's petition for leave to appeal. Defendant State Farm is the owner of certain premises in Bloomington, upon which was being constructed its "corporate headquarters" building. Defendant Ellerbe had entered into a contract with defendant State Farm to provide architectural services for the design and construction of the building. Plaintiff was on the premises as an employee of Utley-James, Inc., the general contractor, and, while engaged in the moving of a portable scaffold, suffered injuries. Charging violations of the Structural Work Act (Ill.Rev.Stat.1971, ch. 48, pars. 60-69) plaintiff brought suit against both State Farm and Ellerbe to recover damages for the personal injuries suffered. Relying on McGovern v. Standish, 65 Ill.2d 54, 2 Ill.Dec. 691, 357 N.E.2d 1134, the appellate court held that as a matter of law the defendants were not persons "having charge of" the construction of the building and that the circuit court had erred in denying defendants' post-trial motion for judgment notwithstanding the verdict.

Section 9 of the Structural Work Act in pertinent part provides:

"Any owner, contractor, sub-contractor, foreman or other person having charge of the erection (or) construction * * * of any building * * * 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, * * * a right of action shall accrue to the party injured, for any direct damages sustained thereby; * * * ." Ill.Rev.Stat.1975, ch. 48, par. 69.

This court has several times considered the question of what evidence is required to prove that a person is one "having charge of" work within the contemplation of the Act. In Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785, the freight dock on the defendant railroad's premises was being rebuilt. The engineering and architectural plans for the work were prepared by the office of its chief architect, who was also charged with inspecting the work to see that it was constructed according to specifications. Under a contract with the defendant railroad, all of the construction work was being performed by E. H. Marhoefer and Company. The evidence showed that the bricklaying, assembling and construction of scaffolds, and the placement of ladders, were all performed by Marhoefer's employees and under their supervision. There was testimony that the chief architect for the defendant railroad and other personnel made frequent inspections of the construction project, sometimes spending as much as five hours a day on the premises, but it is not clear from the evidence as to how detailed those inspections were. There was no proof that they exercised control over the manner in which the work was being done or that they inspected the scaffolds, ladders or other appliances. The court held that under the circumstances shown it was a disputed question of fact "whether the owner could be deemed to be in charge of the construction within the meaning of the act, and it would be the province of the jury, under proper instructions, to make that determination." 22 Ill.2d 305, 323, 175 N.E.2d 785, 794.

In Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247, defendant Commonwealth Edison was engaged in remodeling an electric generating plant which consisted of several buildings occupying an area of three city blocks. It entered into 70 to 80 contracts with numerous contractors. The defendant, Sargent & Lundy, a firm of consulting engineers, prepared the contracts, the work plans, structural designs and specifications used in the construction work. Plaintiff Larson's employer (Paschen) had a contract for work in unit 7 of the project.

The contract provided that Paschen was to perform addition work as directed by Edison. Edison issued a "purchase order" to Paschen for the erection of a barricade between two units of the project which required Paschen to furnish certain labor, materials, tools and equipment "as directed by the Station Construction Department, and in accordance with drawings to be issued by Sargent & Lundy." (33 Ill.2d 316, 319, 211 N.E.2d 247, 250.) While the work authorized by the purchase order was in progress, plaintiff Larson was injured.

Sargent & Lundy had no personnel working at the construction site, but six employees of Edison's station construction department were on the job at all times. They exercised no control over the work "but merely inspected to see that the terms and specifications of the contracts were complied with." (33 Ill.2d 316, 319, 211 N.E.2d 247, 250.) Their inspection did not extend to the kind or safety of the scaffold, their only interest being to determine whether Edison "got the type of barricade specified." (33 Ill.2d 316, 319, 211 N.E.2d 247, 250.) In reversing the judgments entered in favor of both defendants and remanding the cause for a new trial the court said: "While it may be conceded that some of the decisions in this jurisdiction involving the Scaffold Act appear to have equated 'having charge' with 'supervision and control' in varying degrees, it is our opinion the language of the statute, and the legislative intent it reflects, do not permit the conclusion that the terms are the inflexible and unbending legal equivalent of the other. The term 'having charge of' is a generic term of broad import, and although it may include supervision and control, it is not confined to it. As was said of the word 'charge' in People v. Gould, 345 Ill. 288, 323, 178 N.E. 133, 148: 'The word does not necessarily include custody, control or restraint, and its meaning must be determined by the associations and circumstances surrounding its use. " To have charge of" does not necessarily imply more than to care for or to have the care of.' 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 extra-hazardous 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 of structure." (33 Ill.2d 316, 321-22, 211 N.E.2d 247, 251.) Referring to Gannon the court said: "Nothing in Gannon suggests or holds that either the exercise of supervision and control, or the retention of the right to do so, are essential ingredients for having charge. And manifestly, the plain language of the statute does not limit duty and liability to owners retaining control and supervision of the work * * * ." 33 Ill.2d 316, 322, 211 N.E.2d 247, 251.

In McGovern v. Standish, 65 Ill.2d 54, 2 Ill.Dec. 691, 357 N.E.2d 1134, upon which the appellate court relied, the majority held that the defendant architect was not liable under the Structural Work Act because "the evidence does not establish that the defendant had any right to control or direct the manner or methods by which the construction would be accomplished. Moreover, the undisputed testimony at trial was to the effect that the defendant had never attempted to exercise any control over the work by issuing orders or directives to those associated with the construction. Indeed, all of the evidence adduced at trial is consistent with the view that the defendant's function was limited to generally overseeing the work in an effort to ensure that the completed project conformed with the plans and specifications.

"It is true that the contract between the Sisters and Wilson recognized in the defendant a right to supervise the work. But, as a general rule, even the 'duty to "supervise the work" merely creates a duty to see that the building when constructed meets the plans and specifications contracted for.' (Miller v. DeWitt, 37 Ill.2d 273, 284, 226 N.E.2d 630.) The right to inspect the work, also given the defendant, is but ancillary to the defendant's right to supervise. These rights, as afforded the defendant in this case, cannot alone form a basis for a finding of coverage under the Act." (65 Ill.2d 54, 69, 2 Ill.Dec. 691, 357 N.E.2d 1134, 1142.) This holding rests upon a misreading of Larson. In Larson, discussing an instruction given in the case, the court quoted from Gannon to the effect that " 'before civil liability may be imposed upon the defendant owner under section 9 of the act, it must appear that he had charge of the construction operations involving the violation.' " (33 Ill.2d 316, 323, 211 N.E.2d 247, 252.) It went on, however, to point out that in that case there were some 75 to 80 contracts involving a large number of contractors, that the alteration work was going on in several buildings and that Edison could be liable "only if the...