Manisco v. Marseilles Fire Protection Dist.

• Court: Appellate Court of Illinois
• Writing for the Court: WOMBACHER; HEIPLE, P.J., and SCOTT
• Citation: Manisco v. Marseilles Fire Protection Dist., 477 N.E.2d 534, 132 Ill.App.3d 390, 87 Ill.Dec. 557 (Ill. App. 1985)
• Decision Date: 22 April 1985
• Docket Number: No. 3-84-0377,3-84-0377
• Parties: , 87 Ill.Dec. 557 Susan MANISCO, Plaintiff-Appellant, v. THE MARSEILLES FIRE PROTECTION DISTRICT, a Municipal Corporation, Defendant- Appellee.

Page 534

477 N.E.2d 534

132 Ill.App.3d 390, 87 Ill.Dec. 557

Susan MANISCO, Plaintiff-Appellant, v. THE MARSEILLES FIRE PROTECTION DISTRICT, a Municipal Corporation, Defendant- Appellee.

No. 3-84-0377

Appellate Court of Illinois Third District.

April 22, 1985.

Kenneth R. Nix, John F. Klebba, John G. Phillips, Ltd., Chicago, Anthony C. Raccuglia and Cynthia Raccuglia, Anthony C. Raccuglia & Associates, Peru, for plaintiff-appellant.

Daniel K. Russell, Johnson, Martin & Russell, P.C., Princeton, for defendant-appellee.

WOMBACHER, Justice:

This case comes on appeal from orders dismissing plaintiff-appellant's second amended complaint. We affirm.

In August, 1980, the Marseilles Fire Protection District (hereinafter "District") entered into an agreement with plaintiff's decedent, Bernard Underhill (hereinafter "Underhill"). Underhill, a sole proprietor, was to install electrical fixtures in the District's new fire station that was under construction. On September 3, Underhill apparently fell from a scaffold he was using, suffering fatal injuries. There were no eyewitnesses.

Underhill's activity was the only construction in the new fire house on that date. All work being done by Underhill was in furtherance of the contract. All scaffolding used by Underhill was his own responsibility. The scaffold was borrowed from a hardware store in Marseilles. Underhill was the only one who placed and used the scaffold. No other people were involved with any decisions regarding the use of the scaffold.

Underhill's spouse filed this action based on the Structural Work Act. [Ill.Rev.Stat. (1979), ch. 48, pars. 60, et seq.] While this action was pending, decedent's spouse suffered a stroke and died. Underhill's daughter, Susan Manisco (hereinafter "Manisco") filed the second amended complaint as plaintiff. On the District's motion to dismiss, submission of briefs and affidavits, and oral arguments, the trial court dismissed the action. Manisco takes this timely appeal.

The issue to be decided is whether the District, as owner of the premises, can be liable under the Act. Case law is consistent in holding that an owner may be held liable. The Structural Work Act places a duty, among others, upon an owner having charge of such construction of a building. [Kobus v. Formfit Co. (1966), 35 Ill.2d 533, 221 N.E.2d 633.] The courts have uniformly held that as long as there is evidence connecting the owner with the work, a jury question is presented. Carlson v. Metropolitan Sanitary District (1st Dist.1965), 64 Ill.App.2d 331, 213 N.E.2d 129.

The District's motion to dismiss was successful. A motion to dismiss admits all well pleaded facts and reasonable inferences. The grounds for a motion to dismiss, if not on the face of the complaint, must be raised in a supporting affidavit. [Hayes v. Louisiana Dock Co. (5 Dist.1983), 117 Ill.App.3d 512, 72 Ill.Dec. 687, 452 N.E.2d 1383.] A reviewing court examines the facts in a light most favorable to the non-movant. [Hayna v. Arby's, Inc. (1st Dist.1981), 99 Ill.App.3d 700, 55 Ill.Dec. 1, 425 N.E.2d 1174.] Plaintiff, in her brief, makes note of several "admissions" by the fire chief in his affidavit that was submitted by the District. She claims that these indicate control by the District.

These factors include: The District owned the real estate; the structure was purchased by the District; the District paid the plaintiff; the District contracted with Underhill; the District could order the work changed if it did not conform to the contract; the District had authority to approve the plans; and the District could discharge Underhill for failing to comply with the contract. More factors were listed, however, we deem them to be frivolous (e.g., the District trustees discussed work in progress at board meetings). We find that construing these factors in a light most favorable to the plaintiff, the District did not "have charge" of the installation of the electrical fixtures. These factors were merely the District's rights under the contract with Underhill.

We recognize that it has been held that whether certain connections constitute "having charge" is a jury question. [Beebe v. Commonwealth Edison (3d Dist.1977), 45 Ill.App.3d 43, 3 Ill.Dec. 658, 358 N.E.2d 1343.] However, the issue of control is for the jury when reasonable minds could differ. We...