Jackson v. Back of Yards Neighborhood Council, 1-90-1744

• Court: Appellate Court of Illinois
• Writing for the Court: RIZZI
• Citation: Jackson v. Back of Yards Neighborhood Council, 608 N.E.2d 124, 240 Ill.App.3d 128, 181 Ill.Dec. 51 (Ill. App. 1992)
• Decision Date: 09 December 1992
• Docket Number: No. 1-90-1744,1-90-1744
• Parties: , 181 Ill.Dec. 51 Jimmy JACKSON, Plaintiff-Appellant, v. BACK OF THE YARDS NEIGHBORHOOD COUNCIL; Astro Amusement Company; and Allstar Amusement Company, Inc., Defendants-Appellees.

Page 124

608 N.E.2d 124

240 Ill.App.3d 128, 181 Ill.Dec. 51

Jimmy JACKSON, Plaintiff-Appellant, v. BACK OF THE YARDS NEIGHBORHOOD COUNCIL; Astro Amusement Company; and Allstar Amusement Company, Inc. Defendants-Appellees.

No. 1-90-1744.

Appellate Court of Illinois First District, Third Division.

Dec. 9, 1992.

Harold A. Katz, David E. Rapoport, David J. Kupets, Chicago, for plaintiff-appellant.

Michael Resis of Querrey & Harrow, Ltd., Chicago, for defendant-appellee Allstar Amusement Co.

John M. Barnes, Chicago, for defendant-appellee Astro Amusement Co.

Justice RIZZI delivered the opinion of the court:

Plaintiff, Jimmy Jackson, filed an action under the Structural Work Act (Ill.Rev.Stat.1983, ch. 48, par. 60 et seq.), to recover damages from defendants, Back of the Yards Neighborhood Council (Council), Astro Amusement Company (Astro) and Allstar Amusement Company, Inc. (Allstar), for personal injuries sustained in a fall. Allstar and Astro filed motions for summary judgment which were granted. Plaintiff appeals. We reverse.

The issues before this court are: (1) whether the trial court erred when it ruled that plaintiff's claim under the Structural Work Act (Ill.Rev.Stat.1983, ch. 48, par. 60 et seq.), was barred by employer's immunity under the Workers' Compensation Act (Ill.Rev.Stat.1983, ch. 48, par. 138.5(a), 138.11); (2) whether the trial court erred in granting summary judgment on the basis that there was a genuine issue of material fact as to whether defendants were "in charge" of plaintiff's work; and (3) in the event the trial court's grant of summary judgment is reversed, whether defendant Allstar is entitled to summary judgment on count I on the basis that the roller coaster from which plaintiff fell was not an "other structure" within the meaning of the Structural Work Act. Ill.Rev.Stat.1983, ch. 48, par. 60 et seq.

On March 27, 1984, the Council entered into an agreement with Carol Stream Amusements, Allstar and Astro, a group of amusement ride operators for the purpose of producing the Back of the Yards Fair. Carol Stream Amusements, Allstar and Astro were referred to as "the company" in the agreement. Under the agreement, the company was required to furnish a sufficient number of rides, games, security, and sanitation; to obtain public liability insurance; and to pay a flat fee to the Council. In return for these services, the company was to receive the exclusive right to parking fees, gate charges, beer sales, tent rentals and the proceeds from other fair related business activities; all money paid for admissions to rides and to concessions; and the right of first refusal for a period of 5 years to continue to provide these services annually. The agreement was signed by a representative of the Council, and the presidents of Carol Stream Amusements, Allstar and Astro.

In furtherance of the above agreement, the Council and the company formed Spectacular Midways, Inc., and entered into an equipment lease agreement. The presidents of Allstar, Astro and Carol Stream Amusements served as the officers of Spectacular Midways, Inc. The equipment lease agreement makes the following relevant provisions:

WHEREAS, the PARTIES hereto as LESSOR and LESSEE respectively desire to enter into an agreement for the purpose of leasing carnival equipment and/or personnel, to be used by the LESSOR in furtherance of its contract with the Back of the Yards Council.

THEN, THEREFORE, in consideration of the premises and of the sum of One ($1.00) Dollar and other good and valuable consideration the sufficiency of which is deemed adequate, the PARTIES agree as follows:

1. EQUIPMENT LEASED: Attached to this Agreement is a schedule known as Schedule "A" which sets forth on it the equipment which originally forms the terms of this Lease. The LESSEES of said equipment may from time to time append or alter the schedules as may be agreed between the individual LESSEE and the LESSOR. In addition thereto, such personnel as may be needed to operate the equipment from time to time may be leased or loaned under the terms of this Agreement.

* * * * * *

5. INDEMNIFICATION AND HOLD HARMLESS: The LESSOR agrees to hold harmless and indemnify the LESSEES from any and all claims, causes of action, demands or suits that may arise out of the LESSOR'S operation of the equipment leased an supervision of the personnel loaned. This indemnity extends to all actions in contract, tort and any other cause of action brought by any party in that regard. The LESSOR agrees that there shall be in force at all times appropriate amounts of insurance. This indemnification shall extend to attorneys' fees, court costs and other costs in connection with the defense of any case.

The equipment lease agreement was signed by the same persons who signed the first agreement.

Under the terms of both agreements, Shirl T. Magid, president of Carol Stream Amusements, Jeffrey Blomsness, president of Allstar, and Steven Thebault, president of Astro were to oversee the entire fair.

On August 14, 1984, Jimmy Jackson, an employee of Carol Stream Amusements, was seriously injured when he fell from the "Zyclon 36" roller coaster which he was erecting. Jackson was pushed off the structure when a section of the roller coaster being raised by a crane struck another worker who in turn struck Jackson. Jackson fell approximately 25 feet to the ground. There were no safety belts or harnesses on the work site.

Jackson subsequently brought an action to recover damages for personal injuries sustained in the fall. Count I of Jackson's second amended complaint alleged that the Council, Allstar and Astro committed willful violations of the Structural Work Act by failing to provide a scaffold upon which he could work, failing to direct and supervise the work, failing to provide safe working conditions and failing to provide protective equipment. Ill.Rev.Stat.1983, ch. 48, par. 60 et seq. Count II was substantially similar to count I, however count II was based on common law negligence.

Allstar and Astro filed answers denying all material allegations of wrongdoing. Allstar and Astro thereafter filed third-party complaints seeking contribution from Carol Stream Amusements. Carol Stream Amusements filed answers denying all material allegations.

Allstar and Astro then moved for summary judgment. Allstar and Astro argued that they were entitled to summary judgment because they were not "in charge" of the work performed by Jackson within the meaning of the Structural Work Act, and because they owed no duty to Jackson since he was an employee of Carol Stream Amusements.

The trial court found that a joint venture existed between Carol Stream Amusements, Allstar and Astro. The court then held that Jackson was an employee of the joint venture as a matter of law. The trial court also raised employers' immunity under the Workers' Compensation Act, sua sponte, stating that all claims against Allstar, Astro and Carol Stream Amusements were barred by the Structural Work Act. Ill.Rev.Stat.1983, ch. 48, par. 60 et seq.; Ill.Rev.Stat.1983, ch. 48, par. 138.5(a), 138.11. The court then granted Allstar and Astro's motion for summary judgment. This appeal followed. Plaintiff and Allstar filed briefs before this court.

Plaintiff contends that the trial court erred when it invoked the employer's immunity doctrine under the Workers' Compensation Act on behalf of defendants and ruled that each member of the joint venture was entitled to employers' immunity as a matter of law. Ill.Rev.Stat.1983, ch. 48, par. 138.5(a), 138.11. We agree.

Although the Workers' Compensation Act provides that employers have an immunity defense against any tort action asserted against them by an employee for injuries sustained in the course of employment (Ill.Rev.Stat.1983, ch. 48, par. 138.5(a), 138.11; see also Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 322, 175 N.E.2d 785, 794), the immunity is an affirmative defense which the employer must plead and prove. Doyle v. Rhodes (1984), 101 Ill.2d 1, 10, 77 Ill.Dec. 759, 763-64, 461 N.E.2d 382, 386-87; Hindle v. Dillbeck (1977), 68 Ill.2d 309, 317-18, 12 Ill.Dec. 542, 545, 370 N.E.2d 165, 168. If the defense is not raised by the employer-party before the trial court, it is waived. Doyle, 101 Ill.2d at 10, 77 Ill.Dec. at 763-64, 461 N.E.2d at 386-87; Meador v. City of Salem (1972), 51 Ill.2d 572, 578, 284 N.E.2d 266, 270; Victor v. Dehmlow (1950), 405 Ill. 249, 252-53, 90 N.E.2d 724, 726-27. On the basis of the aforementioned case law, a trial court cannot invoke employers' immunity sua sponte on behalf of an employer and then hold that the defense applies to said employer as a matter of law. None of the defendants in the present case plead or raised the affirmative defense of employers' immunity. Accordingly, the trial court erred when it invoked employers' immunity sua sponte on behalf of defendants and ruled that the company was immune from suit under the Structural Work Act pursuant to the Worker's Compensation Act as a matter of law. See Smith v. Metropolitan Sanitary District (1979), 77 Ill.2d 313, 319-21, 33 Ill.Dec. 135, 138-39, 396 N.E.2d 524, 527-28.

Next, plaintiff contends that the trial court erred in granting summary judgment on the basis that there was a genuine issue of material fact as to the question of whether defendants were "in charge" of his work. We agree.

The trial court's grant of summary judgment conflicts with the standards established by the Illinois Supreme Court and this court for determining when a defendant was "in charge" of a plaintiff's work. The Illinois Supreme Court has treated the issue of whether a defendant was "in charge" of an injured plaintiff's work as a question of fact, not a question of law. Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 123-24, 15 Ill.Dec. 664, 669, 373 N.E.2d 1348, 1353; McNellis v. Combustion Engineering, Inc. (1974), ...