Fedt v. Oak Lawn Lodge, Inc.

Decision Date23 April 1985
Docket NumberNo. 84-664,84-664
Citation132 Ill.App.3d 1061,478 N.E.2d 469,88 Ill.Dec. 154
Parties, 88 Ill.Dec. 154 Brian J. FEDT, and Ethel A. Clay, Administratrix of the Estate of Marc D. Clay, Deceased, Plaintiffs-Appellees, v. OAK LAWN LODGE, INC., d/b/a Holiday Inn, Defendant-Third Party Plaintiff- Appellant, v. AAA SERVICES, INC., Third Party Defendant-Appellee.
CourtUnited States Appellate Court of Illinois

Ruff, Weidenaar & Reidy, Ltd., Chicago (John J. Reidy and Richard A. Jacobson, Chicago, of counsel), for defendant-third party plaintiff-appellant.

Arnold and Kadjan, Chicago (Daniel N. Kadjan, Chicago, of counsel), for plaintiff-appellee Brian J. Fedt.

John G. Phillips, Ltd., Gerald M. Sachs & Associates, Ltd. and John Marszalek, Chicago, for plaintiff-appellee Ethel A. Clay, Administratrix, etc. (Gregory R. Sun, Chicago, of counsel).

HARTMAN, Justice:

Defendant Oak Lawn Lodge, Inc. ("Oak Lawn Lodge") appeals from a jury verdict finding it liable under the Structural Work Act ("Act") (Ill.Rev.Stat.1983, ch. 48, pars. 60-69) for plaintiff Brian J. Fedt's injuries and plaintiff's decedent Marc D. Clay's death, resulting from a scaffold collapse on Oak Lawn Lodge's property. Oak Lawn Lodge sought third-party indemnification from plaintiffs' employer, AAA Services, Inc. ("AAA"), in which the jury found in favor of AAA. Oak Lawn Lodge appeals from the judgment entered on these verdicts, presenting as issues whether: (1) Oak Lawn Lodge's motions for a directed verdict and for judgment notwithstanding the verdict were erroneously denied; (2) the doctrine of comparative negligence applies to this case; (3) the third party action was erroneously severed from the principal action at the conclusion of plaintiffs' case-in-chief; (4) certain rulings deprived Oak Lawn Lodge of a fair and impartial trial; and (5) the damages awarded were excessive.

On June 13, 1977, while Fedt, Clay and co-worker Jeffrey Carpenter were washing windows at the Oak Lawn Lodge, their scaffold collapsed and the men fell to the ground. Fedt and Carpenter were seriously injured and Clay was killed. Plaintiffs' separate actions against Oak Lawn Lodge were ultimately consolidated and Oak Lawn Lodge's third party action against AAA was consolidated with plaintiffs' actions for trial.

Before the jury began its deliberations, Carpenter and Oak Lawn Lodge settled his claim for $350,000. The jury returned verdicts against Oak Lawn Lodge and in favor of Clay for $1,000,000, and in favor of Fedt for $1,032,000. The jury answered "yes" to a special interrogatory which inquired, "[w]as the Oak Lawn Lodge * * *. guilty of major fault which was a proximate cause of plaintiffs' injuries and damages?" The jury found that Oak Lawn Lodge was not entitled to reimbursement from AAA.

After the court denied Oak Lawn Lodge's timely post-trial motions, this appeal followed.

I.

Oak Lawn Lodge contends that the circuit court erred by denying its motions for a directed verdict and for judgment notwithstanding the verdict, arguing that under the "having charge of" and "wilful" language of section 9 of the Act (Ill.Rev.Stat.1983, ch. 48, par. 69), the evidence failed to support the verdict. Plaintiffs correctly observe that Oak Lawn Lodge waived its objections to any alleged error by failing to specify in its post-trial motion the reasons why judgment n.o.v. should be granted, citing section 2-1202(b) of the Code of Civil Procedure. (Ill.Rev.Stat.1983, ch. 110, par. 2-1202(b).) Such a motion must contain succinct statements of the factual basis for the requested relief; general conclusions are unacceptable. (Wilson v. Clark (1981), 84 Ill.2d 186, 189-90, 49 Ill.Dec. 308, 417 N.E.2d 1322, cert. denied (1981), 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117.) Oak Lawn Lodge's general allegations that "the verdict of the jury is against the law" and "against the manifest weight of the evidence" were insufficient to preserve its objections to these errors. Moreover, Oak Lawn Lodge's contention, that a wilful violation had not been established, in its memorandum in support of its post-trial motion, fails to preserve this issue. (Graves v. North Shore Gas Co. (1981), 98 Ill.App.3d 964, 969, 54 Ill.Dec. 376, 424 N.E.2d 1279.) Assuming arguendo that it had not waived its objections, Oak Lawn Lodge's arguments must be rejected nevertheless.

The term "having charge of" is one of common usage and understanding, and is given its conventional meaning in the context of the Act. (Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 323, 211 N.E.2d 247; Lyle v. Sester (1981), 103 Ill.App.3d 208, 217, 58 Ill.Dec. 667, 430 N.E.2d 699.) It is a generic term of broad import, and may include, but is not limited to, supervision and control. (Larson v. Commonwealth Edison Co., 33 Ill.2d at 321, 211 N.E.2d 247.) Whether a defendant had "charge of" the work at issue is generally a question of fact (McInerney v. Hasbrook Construction Co. (1975), 62 Ill.2d 93, 101, 338 N.E.2d 868), but where the evidence is insufficient to raise a fact question, the issue may be decided as a matter of law (Norton v. Wilbur Waggoner Equipment Rental and Excavating Co. (1979), 76 Ill.2d 481, 486, 31 Ill.Dec. 201, 394 N.E.2d 403). Resolution of the question involves an assessment of the totality of the circumstances (Norton v. Wilbur Waggoner Equipment Rental and Excavating Co., 76 Ill.2d at 490, 31 Ill.Dec. 201, 394 N.E.2d 403), under factors identified in Chance v. City of Collinsville (1983), 112 Ill.App.3d 6, 11, 67 Ill.Dec. 747, 445 N.E.2d 39 and Lyle v. Sester, 103 Ill.App.3d at 218, 58 Ill.Dec. 667, 430 N.E.2d 699. Those factors, when considered in context with the instant case, demonstrate that sufficient evidence was presented here to raise a factual question for the jury's resolution.

Plaintiff Fedt testified that the window washers reported to Howard Sawyer, Oak Lawn Lodge's maintenance supervisor, who told them where they were to begin their work. He later also told them to: clean the white columns of the building; and change exterior light bulbs. He instructed them further not to tie their safety lines to anything on the roof, and later repeated his admonition; and he suggested that they elevate the scaffold outriggers by means of wood beams which had been lying on the roof and were not provided by the window washers.

Sawyer testified that it was his duty to: check and approve the window washer's work; insure that the property was not damaged; and assure the safety of the hotel's patrons. He never discussed with his superiors his authority with regard to worker safety, but he "assumed" that, because he was in charge of building maintenance, he had authority to stop the work if it was unsafe. He never told the workers they could not tie their safety lines to the roof; however, this statement was contradicted by both Fedt's testimony and other evidence suggesting Sawyer had made earlier inconsistent statements.

Finally, the general manager of Oak Lawn Lodge, Joseph English, testified that Sawyer had to approve the window washers' work before they would be paid and to see that their work was done properly and to safeguard the premises. Sawyer had authority to engage extra work if he deemed it necessary and to add orally to the contract. English testified that Sawyer was not in charge of the washers' safety procedures and did not have the authority to stop them if their work was being performed in an unsafe manner; nevertheless, he conceded that his deposition testimony was to the contrary.

The foregoing evidence, when viewed in its aspect most favorable to plaintiffs, does not so overwhelmingly favor Oak Lawn Lodge that no contrary verdict based on the evidence could ever stand; therefore, the circuit court did not err by submitting to the jury the question of whether Oak Lawn Lodge was in "charge of" the work. See Pedrick v. Peoria and Eastern R.R. Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504; McInerney v. Hasbrook Construction Co., 62 Ill.2d at 101-02, 338 N.E.2d 868.

Oak Lawn Lodge maintains that Sawyer's actions were no more than those of an owner assuring contract compliance. (See, e.g., Melvin v. Thompson (1963), 39 Ill.App.2d 413, 188 N.E.2d 497; Derrico v. Clark Equipment Co. (1980), 91 Ill.App.3d 4, 46 Ill.Dec. 232, 413 N.E.2d 1345.) To the contrary, by instructing the window washers not to tie off to the roof and to use the wood beams combined with his authority to issue change orders and to stop unsafe work, the jury could have believed that Sawyer's position with respect to plaintiffs transcended that of an owner simply monitoring contract compliance. See Ewert v. Wieboldt Stores, Inc. (1980), 84 Ill.App.3d 1008, 1016, 40 Ill.Dec. 191, 405 N.E.2d 1283.

As to whether Oak Lawn Lodge "wilfully" violated the Act, such a violation occurs when defendant knows that a dangerous condition exists or, by the exercise of reasonable caution, could have discovered the condition. Simmons v. Union Electric Co. (1984), 104 Ill.2d 444, 453, 85 Ill.Dec. 347, 473 N.E.2d 946; Ewert v. Wieboldt Stores, Inc., 84 Ill.App.3d at 1015, 40 Ill.Dec. 191, 405 N.E.2d 1283. In the case at bar, the jury had the right to consider evidence showing that Sawyer instructed the window washers not to tie their safety lines to anything on the roof; and when he later saw that they had not complied, he reiterated his instruction, which the washers followed. Although Oak Lawn Lodge notes that Sawyer was ignorant of window washing practices and procedures, his instructions, if believed, nonetheless constitute wilful violations of the Act, in that Sawyer, had he exercised reasonable caution, would have realized the danger in which his instructions placed the window washers. Oak Lawn Lodge's wilful violation of the Act is further buttressed by the testimony of English, its general manager, that the roof had nothing permanent to which the workers could anchor their scaffolding, and that Sawyer had the duty to...

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