Madden v. Paschen

• Decision Date: 30 September 2009
• Docket Number: No. 1-07-1811.,1-07-1811.
• Citation: 334 Ill.Dec. 315,916 N.E.2d 1203
• Parties: Michael MADDEN and Jean Madden, Plaintiffs-Appellants, v. F.H. PASCHEN, S.N. Nielson, Inc., Jacobs Facilities, Inc., and Schuler and Shook, Inc., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

916 N.E.2d 1203

334 Ill.Dec. 315

Michael MADDEN and Jean Madden, Plaintiffs-Appellants, v. F.H. PASCHEN, S.N. Nielson, Inc., Jacobs Facilities, Inc., and Schuler and Shook, Inc., Defendants-Appellees.

No. 1-07-1811.

Appellate Court of Illinois, First District, Sixth Division.

September 30, 2009.

Collison & O'Connor, Ltd., Chicago, IL, for Appellant.

Hinshaw & Culbertson LLP, Chicago, IL, for Jacobs Facilities.

Janet R. Davis and Andrew M. Hutchison, Meckler, Bulger & Tilson LLP, Chicago, IL, for Schuler & Shook.

Justice JOSEPH GORDON delivered the opinion of the court:

Plaintiff Michael Madden, a maintenance worker employed at Amos Alonzo Stagg High School (Stagg High School), was setting up a projection screen on the stage of the school's theater when he stepped backwards and accidentally fell into the theater's uncovered orchestra pit. He alleged that the resulting nine-foot drop caused him severe injuries that left him permanently disabled.

For the previous four years, the Stagg High School theater had been under construction. Although, at the time of Madden's accident, the school had been issued a temporary occupancy permit for use of the premises, work on the theater had not yet been fully completed. Madden brought a negligence action against general contractor F.H. Paschen/S.N. Nielson, Inc. (Paschen), construction manager Jacobs Facilities, Inc. (Jacobs), architect VOA & Associates (VOA), and the design consultant retained by VOA for that project, Schuler & Shook (Schuler), seeking damages for his injuries. Correspondingly, Madden's wife sought recovery for loss of consortium.

All four defendants moved for summary judgment. The trial court granted summary judgment in favor of defendants Paschen, Schuler, and Jacobs, but denied VOA's motion; the case proceeded to trial against VOA, resulting in a judgment for $1,606,415 in favor of Madden. Meanwhile, Madden dismissed his case against Paschen. He now appeals the trial court's grant of summary judgment in favor of Schuler and Jacobs, and it is only their motions that are now reviewed. For the reasons that follow, we affirm.

I. BACKGROUND

Madden and his wife, Jean Madden, alleged the following relevant facts in their fourth amended complaint, which now frames the issues before us.

On August 19, 2002, Madden was an employee of Stagg High School, which was a part of Consolidated High School District 230 (District 230). He was engaged in the performance of his duties at the school when he allegedly fell into the orchestra pit in the floor of the school's theater stage, sustaining permanent injuries. At the time, defendants Paschen and Jacobs had contracts with District 230 in connection with the construction of the Stagg High School theater: Paschen as general contractor, and Jacobs as construction manager. In addition, defendant Schuler had a contract with VOA, the architect that District 230 had retained for the theater project, as design consultant in connection with the theater. Madden alleged that all of the defendants retained the right to supervise and control the work, as well as authority to order changes in the work if it was being performed in a dangerous manner and responsibility for on-site safety procedures. Madden further alleged that they were negligent in failing to cover the pit or erect warning signs or barricades around the pit to prevent injury. He therefore sought monetary damages to compensate him for his injury and his wife for her loss of consortium.

In its motion for summary judgment, Schuler argued that it owed no duty to Madden as a matter of law, because its contractual duties were limited to design consulting, it did not have any responsibility for construction, safety, or other on-site activities, and it did not have any control over the activities of District 230 employees such as Madden. Schuler additionally argued that it could not be found liable on a premises liability theory, because the theater had been turned over to and was being used by District 230 as of the date of Madden's injury.

In support of its motion, Schuler attached a copy of the contract between Schuler and VOA, the architect of the theater project. In the contract, dated July 27, 1999, Schuler agrees to provide consultation services in connection with the construction of a new theater at Stagg High School. With regard to the scope of Schuler's duties, the contract states:

"2.6.4. The Consultant [Schuler] shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work for This Part of the Project, since these are solely the Contractor's responsibility under the Contract for Construction."

The contract also incorporates by reference the terms contained in a professional services proposal sent by Schuler to VOA, which is also attached. That proposal provides that Schuler's design drawings "will be submitted as advisory. These drawings may be used in the final contract drawings only after required engineering, review, and coordination by the project architects and engineers." It further provides:

"This proposal assumes that VOA Associates and other of its sub-contractors will be responsible for the administration, architectural coordination, and electrical, mechanical, and structural engineering for the project. It is understood that as theatre consultants we are not licensed as architects or engineers. We shall endeavor to comply with local codes and requirements in association with the project architects and engineers, but said compliance shall be the responsibility of the project architects and engineers."

Also attached is an additional proposal sent by Schuler to VOA nearly three years later, dated April 15, 2002, in which Schuler proposes to perform additional theater consulting services in connection with an orchestra pit cover for the Stagg High School theater. Schuler's duties are described in the proposal as being limited to preparing contract drawings and specifications, reviewing contractor submittals, and inspecting the installation of the pit cover. In addition, the proposal states, "All conditions of our existing contract remain in effect and govern this work." (Bill Baike, the Stagg High School building manager, testified in his deposition that this pit cover was not actually installed until at least November 2002, sometime after Madden's accident.)

Schuler also attached the affidavit of Paul Hansen, who identifies himself as the principal in charge of the Higher Education Group at VOA. Hansen states that his duties were to oversee and manage VOA's work for District 230. Hansen stated that in 1999, VOA, working together with Schuler, designed and submitted proposals for a cover to be placed over the orchestra pit when it was not in use. VOA and Jacobs also submitted a cost estimate to District 230 that included the cost of a pit cover for the orchestra pit. However, Hansen said, District 230 rejected VOA and Schuler's pit cover proposals in December 1999 due to cost.

In support of its argument that it had no liability under a premises liability theory, Schuler attached a certificate of substantial completion for the Stagg High School theater project issued by VOA on May 21, 2002, nearly three months before Madden's fall. The certificate states, "Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so the Owner can occupy or utilize the Work for its intended use." The certificate is signed by Al Migon, a VOA project architect; Kenneth Rokos, the construction manager for Jacobs; and representatives from both Paschen and District 230. Schuler further attached a temporary occupancy permit for the theater issued by the Suburban Cook County Regional Office of Education. The permit, dated August 5, 2002, states that the building construction is not complete, but that temporary occupancy will be granted until October 15, 2002.

Jacobs, in its memorandum in support of its motion for summary judgment, argued that it also owed no duty to Madden, as it had no control over the premises, was not in charge of safety on the project, and did not retain control over the means and methods of any project work or any work done by Madden. Jacobs also argued that it owed no duty under a premises liability theory under section 343 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 343 (1965)), because, as shall be more fully discussed below, it contended that it was not the possessor of the land. Rather, it alleged that sole possession of the theater area had been handed over to District 230 pursuant to the temporary occupancy permit issued two weeks before Madden's accident occurred.

Jacobs attaches a copy of its written agreement with District 230. This agreement is modified by a "rider," also attached, which states: "The Construction Manager shall allocate responsibility for safety programs among the Contractors without assuming any of the Contractor's duties and responsibilities in that regard."

In addition to the foregoing documents, Jacobs also attaches the deposition testimony of Madden, District 230 director of facilities Robert Hughes, VOA architect Al Migon, and Jacobs superintendent Gerry Meyers.

In his deposition, Madden testified that he worked at Stagg High School as a maintenance man from around 1992 to 2002. He regularly reported to Baike, the Stagg High School building manager, as well as Jerry Framiski, a building supervisor. On the day of the accident, Framiski gave Madden instructions to set up a projection screen on the theater stage in preparation for an Institute Day event that was to take place that evening. When assembled, the screen would be about 12 feet by 20 feet, and images would be projected onto it from the back of the theater. Madden...