Long v. Duggan-Karasik Const. Co.

• Decision Date: 21 October 1974
• Docket Number: No. 58018,DUGGAN-KARASIK,58018
• Citation: 23 Ill.App.3d 812,320 N.E.2d 553
• Parties: Richard Alan LONG, Plaintiff-Appellee, v.CONSTRUCTION COMPANY, Defendant-Appellant, and CECO Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 553

320 N.E.2d 553

23 Ill.App.3d 812

Richard Alan LONG, Plaintiff-Appellee, v. DUGGAN-KARASIK CONSTRUCTION COMPANY, Defendant-Appellant and CECO Corporation, Defendant-Appellee.

No. 58018.

Appellate Court of Illinois, First District, First Division.

Oct. 21, 1974.

Rehearing Denied Nov. 26, 1974.

Nolan, O'Malley & Dunne, Chicago (Patrick W. Dunne, Chicago, of counsel), for defendant-appellant.

Horwitz, Anesi, Ozmon & Associates, Ltd., Chicago (Nat P. Ozmon and Dario A. Garibaldi, Chicago, of counsel), for plaintiff-appellee.

McKenna, Storer, Rowe, White & Haskell, Chicago (John C. Bartler and Robert S. Soderstrom, Chicago, of counsel), for defendant-appellee.

BURKE, Justice:

This is an action seeking damages because of personal injuries suffered by Richard Alan Long against Duggan-Karasik Construction Company (hereinafter 'Duggan-Karasik') under the Structural Work Act (Ill.Rev.Stat.1971, ch. 48, par. 60 et seq.) and against Ceco Corporation (hereinafter 'Ceco') on the theory of products liability. Prior to the trial, the court struck a counterclaim of Duggan-Karasik against Ceco based upon the theory of active-passive negligence. The case proceeded to trial and at the close of all the evidence, the court directed the jury to find that Duggan-Karasik was 'in charge of' the work and that the device upon which plaintiff was working at the time he was injured was a scaffold. The court also instructed the jury that plaintiff was entitled to recover damages as a matter of law against one or both of the defendants. The jury returned a verdict in the amount of $175,000 in favor of plaintiff and against Duggan-Karasik. The jury also returned a verdict of not guilty in favor of Ceco. Duggan-Karasik appeals.

On May 13, 1965, plaintiff was injured while engaged as an employee in the construction of an addition to the West Chicago High School. He was standing on a longspan bar joist which fell. This longspan bar joist was designed and installed to support the roof of the gymnasium addition to the school. At the time of the occurrence, the plaintiff was employed by Commercial Steel Supply Company (hereinafter 'Commercial'). Plaintiff filed a complaint against the Board of Education (hereinafter the 'Board'), the owner of the property; Duggan-Karasik, the general contractor; Bergen, Kelly, Unteed and Associates (hereinafter 'Bergen'), the architects; and Ceco, the manufacturer and supplier of the longspan bar joist. Plaintiff's complaint insofar as defendants, the Board, Duggan-Karasik and Bergen, was for injuries to the plaintiff because of alleged violations of the Structural Work Act of the State of Illinois. Plaintiff's complaint against Ceco alleged that this defendant had manufactured and supplied a defective product.

Thereafter, the Board and Duggan-Karasik filed a third-party complaint against Commercial, plaintiff's employer. This Third-party complaint contended that Commercial by contract indemnified the Board and Duggan-Karasik for all injuries arising out of the execution of its work. third-party complaint contended that Comgan-Karasik, thereafter made a motion for judgment on the pleadings against Commercial insofar as the third-party actions were concerned and on December 17, 1969, the court entered an order granting the motions for judgment on the pleadings against Commercial. On October 8, 1971, a motion was made to substitute attorneys for Duggan-Karasik and the Board and to dismiss the third-party complaints of the Board and Duggan-Karasik against Commercial, and the court entered an order accordingly. Thereupon Duggan-Karasik and the Board filed a counterclaim against Ceco alleging that the Board and Duggan-Karasik, if liable at all in this cause, could only be passively liable and that Ceco was actively liable.

On January 6, 1972, Ceco filed a motion to dismiss the counterclaim against it of Duggan-Karasik and the Board. The primary basis for this motion was the contention that Commercial had taken over the defense of Duggan-Karasik and the Board, and under such circumstances section 22(3) of chapter 110 (Ill.Rev.Stat.1973, ch. 110, par. 22(3)) required that any complaint brought by Duggan-Karasik and the Board against Ceco show on its face that he complaint was for the benefit of Commercial. Thereafter, Ceco filed a counterclaim against Ceco show on its face that the Ceco's motion to dismiss, holding that any complaint of Duggan-Karasik must show on its face that it was for the use and benefit of Commercial. Duggan-Karasik was given the opportunity to file an amended counterclaim against Ceco provided that the amended counterclaim reflect on its face that it was for the use and benefit of Commercial. Duggan-Karasik refused to take this action. Thereupon a motion was filed in behalf of Commercial to strike the counterclaim of Ceco, which the court denied. At this juncture the court granted the motion of Duggan-Karasik to sever all third-party actions.

Prior to the trial plaintiff dismissed Bergen and the Board from the case.

Donald Lee Hurst, an iron worker employee of Commercial, was called as a witness in plaintiff's behalf. Mr. Hurst had been a certified welder for seven years and had worked on the West Chicago High School gymnasium addition for Commercial. He testified that the general contractor on this job was Duggan-Karasik and that Duggan-Karasik was represented on the job by a general superintendent named Ken Munson. In April of 1965, Mr. Hurst as foreman, with other employees of Commercial, began to install the supports for the roof area of the gymnasium. These supports consisted of longspan bar joists, which were approximately 115 to 120 feet in length and each weighed about 8000 lbs. At the time of installation Ken Munson, the general superintendent of Duggan-Karasik, was on the job daily and coordinated variations of work.

When the longspan bar joists were brought to the construction site, the truck driver would go through the Duggan-Karasik work area. Mr. Hurst testified that the longspan would be laid down at 'proper spacing' and that the setting would be checked or inspected by Ken Munson, the general superintendent of Duggan-Karasik.

Mr. Hurst testified that all of the longspans had been permanently installed in April 1965. He further testified that there was an architectural representative on the job named Fritcher or Jim Bell, who inspected the erection of the steel joists.

Mr. Hurst further testified that the iron workers walker across the top of the longspan bar joist at the time they were doing their work and that this was the method utilized to get from one place to another. He testified that the joists were used for support.

Mr. Hurst categorized the function of Ken Munson, Duggan-Karasik's superintendent, as that of 'watching what was going on' while the longspan bar joists workers walked across the top of the long-span was installed, guy wires were attached. In the installation of the first or southernmost longspan bar joist, initially it was installed one foot off on one side. When this error was discovered, the welds on the one side were burnt off and a longspan joist was moved one foot and rewelded.

The installation of the longspan bar joists was completed in April 1965 and the entire Commercial crew left the job for two or three weeks. This crew returned to the job on May 13, 1965, the day of the occurrence. The Commercial crew on the day of this occurrence was composed of Mr. Hurst who was the foreman, the plaintiff Long and another iron worker named Clifford Landry. Mr. Hurst testified that upon returning to the scene of the occurrence on May 13, 1965, at about 2 P.M., there was a conversation with Ken Munson, the superintendent of Duggan-Karasik, and Bill Holman, the foreman of the Commercial crew, about moving the southernmost longspan bar joist to the north. This conversation took place at the Duggan-Karasik shack on the job site where the architectural prints were kept. Mr. Hurst further testified that he was present at another conversation between Ken Munson of Duggan-Karasik, Bob Lewis and Dale Washburn, at which they discussed another method of getting the short bar joists out of the gymnasium. This conversation took place about the middle of April and concerned the use of a cinder athletic track for Commercial's vehicles. Mr. Munson refused to permit the Commercial crew to use the athletic track.

After the conversation with Mr. Munson on May 13, 1965, Mr. Hurst and the plaintiff received orders from Bill Holman, the Commercial foreman, to start preparing the southernmost longspan bar joist for moving. Mr. Hurst and the plaintiff went up the east wall of the gymnasium and got up on the longspan bar joist. Mr. Hurst testified that thereupon he and plaintiff removed the bridging between the southernmost bar joist and the number two bar joist. Mr. Hurst then removed or loosened one of the guy wires in preparation for moving the longspan. Thereafter, Mr. Hurst moved off of the longspan and down the wall in order to obtain a welding torch which was on the ground level. Mr. Hurst testified that at this time Commercial had a crane in the gymnasium but that the crane was not being utilized at this point. Mr. Hurst testified that he next recalled hearing a loud crack and seeing the southernmost longspan bar joist on the ground below. He did not see the longspan bar joist fall down but he did see the plaintiff in the air. The witness further testified that Bill Holman, the Commercial foreman, immediately upon seeing what had happened, hollered and Ken Munson of Duggan-Karasik, who was in the door of the job shack, called an ambulance. Mr. Hurst saw Mr. munson there immediately after this occurrence took place. Mr. Hurst further testified that he took his orders from Bill Holman, the Commercial foreman.

Mr. Hurst further testified that when his crew left the site in April, they had four cables attached to the truss. At the time of the...