Guglielmucci v. Marc Development Corp.

• Court: U.S. District Court — Northern District of Illinois
• Citation: Guglielmucci v. Marc Development Corp., 843 F.Supp. 367 (N.D. Ill. 1993)
• Decision Date: 30 September 1993
• Docket Number: No. 90 C 5951.,90 C 5951.
• Parties: Louis GUGLIELMUCCI and Kathy Guglielmucci, Plaintiff, v. MARC DEVELOPMENT CORPORATION, et al., Defendants. MARC DEVELOPMENT CORPORATION and Regency Plaza Partnership, Ltd., Third party plaintiffs, v. M. ECKER & COMPANY, Carpentry Collaborative, Inc., Near North Insurance Agency, Inc., and New Hampshire Insurance Company, Third party defendants. JONES & BROWN COMPANY, INC., Third party plaintiff, v. M. ECKER & COMPANY and Carpentry Collaborative, Inc., Third party defendants.

843 F. Supp. 367

Louis GUGLIELMUCCI and Kathy Guglielmucci, Plaintiff, v. MARC DEVELOPMENT CORPORATION, et al., Defendants.

MARC DEVELOPMENT CORPORATION and Regency Plaza Partnership, Ltd., Third party plaintiffs, v. M. ECKER & COMPANY, Carpentry Collaborative, Inc., Near North Insurance Agency, Inc., and New Hampshire Insurance Company, Third party defendants.

JONES & BROWN COMPANY, INC., Third party plaintiff, v. M. ECKER & COMPANY and Carpentry Collaborative, Inc., Third party defendants.

No. 90 C 5951.

United States District Court, N.D. Illinois, E.D.

September 30, 1993.

Daniel Herbert Streckert, Louis C. Cairo, Goldberg, Weisman and Cairo, Ltd., Chicago, IL, for plaintiff Louis Guglielmucci.

Tony G. Westin, Jerome G. McSherry & Associates, Chicago, IL, for defendants Marc Development Corp., Regency Plaza Partnership.

Larry Selander, John Allison Jeffries, Dennis J. Powers, Keck, Mahin & Cate, Chicago, IL, for defendants Jones and Brown Co., Inc.

Robert Marc Chemers, Robert J. Franco, II, Donald J. Kindwald, Pretzel & Stouffer, Chtd., Chicago, IL, for defendants M Ecker & Co., Near North Ins. Agency Inc., New Hampshire Ins. Co.

Alfred M. Swanson, Jr., Mitchell Ware, Gerald David Zansitis, Jones, Ware & Grenard, Chicago, IL, for Carpentry Collaborative, Inc., third-party defendant.

MEMORANDUM AND ORDER

MORAN, Chief Judge.

Plaintiffs Louis and Kathy Guglielmucci brought this action pursuant to the Illinois Structural Work Act (Act) as a result of injuries Louis suffered while working on the Regency Plaza Project (project). The Guglielmuccis named as defendants the project's owner, Regency Plaza Partnership (Regency), the project's general contractor, Marc Development Corporation (Marc), and Jones & Brown Company (Jones & Brown). Marc and Regency filed a third party complaint against M. Ecker & Company (Ecker) and Carpentry Collaborative, Inc. (Carpentry), among others. Marc and Regency argue that if found in violation of the Act they would be entitled to contribution from Ecker and Carpentry. Jones & Brown subsequently filed a second amended third party complaint against Ecker and Carpentry. Jones & Brown also argues that if found in violation of the Act it would be entitled to contribution from Ecker and Carpentry. Third party defendant Carpentry now moves for summary judgment in the complaint of Marc and Regency, and in Jones & Brown's second amended complaint. Third party defendant Ecker moves for summary judgment in Jones & Brown's second amended complaint. For the reasons stated below, Carpentry's motion is granted in part¹ and denied in part, and Ecker's motion is denied.

FACTS

In the Guglielmuccis' complaint of October 12, 1990, they allege that Louis suffered injuries in an accident on September 25, 1990, when he fell through an opening in the metal decking upon which he was working. Gil Connelly (Connelly), Marc's project manager, had directed the creation and covering of the opening. As general contractor for the project, Marc had contracted with Ecker for the carpentry work. Ecker subsequently subcontracted the carpentry work to Carpentry — Mr. Guglielmucci was working for Carpentry at the time of his injury.

The motions for summary judgment by third party defendants Ecker and Carpentry concern two particular elements of the Act: first, that the Act applies to "any owner, contractor ... or sub-contractor ... having charge of the ... construction ... of any building" included in its provisions; and second, that the Act creates a right of action for injuries resulting from "any wilful violations ... or wilful failure to comply with any of its provisions." 740 ILCS 150/9 (Michie 1993).

DISCUSSION

1. Carpentry's Motion Against Marc, Regency, and Jones & Brown

Carpentry contends that it cannot be liable under the Act because any violations on its part lacked the necessary element of willfulness. A willful violation of the Act occurs when one having charge of work either knows that a dangerous condition exists or could have discovered it by exercising reasonable care. Simmons v. Union Elec. Co., 121 Ill.App.3d 743, 77 Ill.Dec. 169, 460 N.E.2d 28 (1984), aff'd, Simmons v. Union Elec. Co., 104 Ill.2d 444, 85 Ill.Dec. 347, 473 N.E.2d 946. Willfulness is primarily a factual question for the jury to decide. Brazier v. Kontos, 160 Ill.App.3d 177, 111 Ill.Dec. 906, 513 N.E.2d 152 (1987); Isabelli v. Cowles Chemical Co., 7 Ill.App.3d 888, 289 N.E.2d 12, 18 (1972).

In Carpentry's original motion it states that it was not involved with placing the metal decking on the roof or creating the opening through which Mr. Guglielmucci fell. (Turcotte Dep. at 93.) Wayne Turcotte, Carpentry's jobsite foreman, denies that he knew about the opening before the accident. However, Connelly testifies in his deposition that on three separate occasions he informed Turcotte about the opening. (Connelly Dep. at 89-93.) Therefore, Jones & Brown argues, any Carpentry violation of the Act was willful.

In a motion for summary judgment facts are construed in favor of the non-moving party, here Jones & Brown. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Karazanos v. Navistar Int'l Transp. Corp., 948 F.2d 332, 335 (7th Cir.1991). Carpentry apparently concedes this when it states that for purposes of its motion this court should assume that Turcotte "was advised of the hole in the roof by Mr. Connelly." (Reply Mem. at 2.) It argues, however, that this court should still enter summary judgment in its favor because even if Turcotte knew about the opening he did not know it represented a dangerous condition. Moreover, Ecker contends, Turcotte conducted a reasonable inspection of the deck without discovering the condition, which shows it could not have been discovered through the exercise of reasonable care.

Carpentry attempts to distinguish between knowledge of the opening and knowledge that it represented a dangerous condition. In Connelly's deposition, though, he explains that the reason he informed Turcotte of the opening was because of "possible hazards." (Connelly Dep. at 93.) Unlike Carpentry, Connelly does not distinguish between the existence of the opening and the existence of a dangerous condition. Moreover, Carpentry does not cite any cases that distinguish between knowledge of an injury-causing condition and knowledge that the condition was dangerous. See, e.g., Brazier, 111 Ill.Dec. at 910, 513 N.E.2d at 156 (defendants could have discovered electrical wires); Simmons, 77 Ill.Dec. at 177, 460 N.E.2d at 36 (defendant had opportunity to learn about oily conditions caused by floods). This court is not prepared to decide, as a matter of law, that knowledge of an opening in a metal deck upon which men are working is distinguishable from knowledge of a dangerous condition. Turcotte's alleged knowledge of the opening could constitute knowledge of a dangerous condition under the Act.

Carpentry further contends that even if the opening was a dangerous condition, it could not have discovered the condition by exercising reasonable care. As proof of its contention, Carpentry presents Turcotte's testimony of his inspection of the deck. (Turcotte Dep. at 61-65.) However, based upon Turcotte's description of his inspection, this court is not prepared to decide as a matter of law that it was reasonable.

In Simmons, the court held that the defendant could have learned of the slippery conditions left by flooding because it was a periodic occurrence, rather than a momentary problem. 77 Ill.Dec. at 177, 460 N.E.2d at 36. Here there is evidence that the opening was in existence for at least 14 days. (Connelly Dep. at 74-75.) Therefore, the opening was not momentary and occurred more often than periodically — it was an ongoing condition. In Brazier, the court held that since the defendants were on the jobsite every day, and on the location of the accident at least twice, they could have discovered the electrical wires that injured the plaintiff. 111 Ill. Dec. at 910, 513 N.E.2d at 156. Here there is evidence that Turcotte was on the jobsite throughout Carpentry's work and was on the location of the accident at least once. Any differences between those cases and this case are not so great as to permit summary judgment in favor of Carpentry on the issue of willfulness. Therefore, Carpentry's motion as to Jones & Brown's second amended complaint is denied.

2. Ecker's Motion Against Jones & Brown

Ecker first argues that the Act does not apply to it because it was not a subcontractor "having charge of' the construction that was the site of Mr. Guglielmucci's injuries. Illinois courts generally consider the following factors in determining whether an entity is one "having charge of" a project: (1) actual supervision or control of the work or coordination of subcontractors; (2) constant participation in ongoing activities at the construction site; (3) ownership of the equipment used on the jobsite; (4) retention of the right to supervise, control, or stop the work; (5) authority to issue change orders; (6) responsibility for taking safety precautions at the jobsite; (7) opportunity to assure worker safety or to alleviate equipment deficiencies or improper work habits; and (8) familiarity with construction customs and practices. Zukauskas v. Bruning, 179 Ill.App.3d 657, 128 Ill.Dec. 498, 534 N.E.2d 680 (1989); Simmons, 77 Ill.Dec. at 175-76, 460 N.E.2d at 34-35. This determination is ordinarily for the jury, but summary judgment is appropriate when the evidence fails to present a factual question. Zukauskas, 128 Ill.Dec. at 500-501, 534 N.E.2d at 682-83; Crist v. Debron Corp., 96 Ill.App.3d 668, 52 Ill.Dec. 134, 137, 421 N.E.2d 997, 1000 (1981).

Illinois courts have held that a party may be in charge of work under the Act if it either exercises control or retains the right to supervise or control the work, regardless of whether that right was actually exercised. Emberton v. State Farm Mut....