Norton v. Wilbur Waggoner Equipment Rental & Excavating Co.

• Decision Date: 31 August 1977
• Docket Number: M,No. 10,No. 75-293,10,75-293
• Citation: 10 Ill.Dec. 128,52 Ill.App.3d 442,367 N.E.2d 516
• Court: United States Appellate Court of Illinois
• Parties: , 10 Ill.Dec. 128 Irvin L. NORTON, Plaintiff-Appellee, v. WILBUR WAGGONER EQUIPMENT RENTAL & EXCAVATING CO., a corporation, Collinsville Community Unit Districtadison and St. Clair Counties, Illinois, a Quasi-Municipal Corporation, and Architectural Associates, Incorporated, a corporation, Defendants, Appeal of COLLINSVILLE COMMUNITY UNIT DISTRICT NO. 10, MADISON AND ST. CLAIR COUNTIES, Illinois, a Quasi-Municipal Corporation, Defendants.

Page 516

367 N.E.2d 516

52 Ill.App.3d 442, 10 Ill.Dec. 128

Irvin L. NORTON, Plaintiff-Appellee, v. WILBUR WAGGONER EQUIPMENT RENTAL & EXCAVATING CO., a corporation, Collinsville Community Unit District No. 10 Madison and St. Clair Counties, Illinois, a Quasi-Municipal Corporation, and Architectural Associates, Incorporated, a corporation, Defendants Appeal of COLLINSVILLE COMMUNITY UNIT DISTRICT NO. 10 MADISON AND ST. CLAIR COUNTIES, Illinois, a Quasi-Municipal Corporation, Defendants.

No. 75-293.

Appellate Court of Illinois, Fifth District.

Aug. 31, 1977.

Burroughs, Simpson, Wilson, Hepler & Broom, Edwardsville, for defendant-appellant.

Earl L. Vuagniaux, Edwardsville, for plaintiff-appellee.

JONES, Justice:

Defendant, Collinsville Community Unit District No. 10, (hereinafter, the School District) appeals from a judgment entered in favor of plaintiff, Irvin L. Norton, after a jury trial in the circuit court of Madison County. The jury's verdict and award of $175,000 was predicated upon the alleged liability of the School District under the Structural Work Act (Ill.Rev. Stat.1971, ch. 48, par. 60 et seq.) for injuries of the plaintiff sustained while working at a construction site on premises owned by the School District.

Defendant School District's post-trial motion for judgment notwithstanding the verdict or, in the alternative, a new trial, was denied, as were two motions for directed verdict made during trial.

Prior to verdict, two other defendants were dismissed without prejudice upon motion of the plaintiff. Wilbur Waggoner Equipment Rental and Excavating Company, a subcontractor that supplied a crane and operator to the construction site, entered into a loan receipt agreement with Mr. Norton and was dismissed out of the case prior to trial. Architectural Associates, Incorporated, the architectural firm that drew up the plans and specifications for the project, was dismissed during trial.

In June of 1971 construction was underway on a new high school in Collinsville, Illinois. Included in this project was the erection of a vocational building, referred to at trial as "E Building." Mr. Norton's employer, R and R Construction Company, was the general contractor for the project pursuant to a contract between it and the School District.

On June 25, 1971, Mr. Norton was engaged in "spotting" bundles of roofing material across the bar joists of the unfinished roof of E Building. He had performed the same task the day before. A crane was used to lift the bundles to the top of the building. Two straps, one at each end of the bundle in order to balance the load, were looped onto an eight to ten inch hook located on the crane's cable immediately beneath a steal "headache ball," 10 to 12 inches in diameter, weighing between 80 and 100 pounds. Since the crane operator's view of Mr. Norton was obstructed by a wall of the building, Mr. Norton's instructions for placement of the bundles were relayed to the operator by a signalman who was perched upon the wall.

Once a bundle was set upon the bar joists, Mr. Norton's job was to disconnect the straps, remove them from the load and toss them to the ground, some 23 feet below. The only surface plaintiff had to stand upon while completing this operation was supplied by the bar joists themselves. Each joist provided a flat steel surface approximately four and one-half inches in width. These joists were spaced approximately three and one-half to four feet apart and ran the length of the building. Around 9:30 a. m. Mr. Norton crawled into a bundle to shove off a strap on the far end of a load. According to eyewitnesses, while he was so positioned the headache ball was lowered onto his back.

Examination of his back immediately revealed a red mark, and in less than half an hour he was in great pain and was rushed to a doctor's office. On July 4, 1971, he was hospitalized and subsequently underwent a serious operation upon his spine called a laminectomy. He was readmitted to the hospital on two occasions in 1972 when his back condition was aggravated by mishaps at work.

The plaintiff's primary theory at trial was that the School District violated the Structural Work Act by failing to provide a scaffold, support or planking when under the circumstances one or another was required to protect the plaintiff from injury. The implication from the evidence being that if a supporting device had been provided, the plaintiff would not have had to climb onto the load to remove the strap and accordingly would not have exposed himself to the risk of injury from the crane's ball.

Section 1 of the Structural Work Act (Ill.Rev.Stat.1971, ch. 48, par. 60) requires, among other things, that "all scaffolds, * * * ladders, supports or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in erection, * * * of any * * * buildings, * * * shall be erected and constructed, in a safe, suitable and proper manner, * * * (so) as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon * * *." Section 9 of the Act (Ill.Rev.Stat.1971, ch. 48, par. 69) provides that "Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act, shall comply with all the terms thereof * * *." (Emphasis added.) It further provides that "For any injury to person or property, occasioned by any wilful violations of this act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, * * *."

It is of no moment that the alleged violation of the Act in the instant case stems from a failure to provide a scaffold or planking since it has long been recognized that the failure to provide scaffolding can be the basis of a cause of action under the Structural Work Act. Louis v. Barenfanger (1968), 39 Ill.2d 445, 449, 236 N.E.2d 724, cert. denied, 393 U.S. 935, 89 S.Ct. 296, 21 L.Ed.2d 271.

The defendant School District contends that there was insufficient evidence adduced at trial to support a jury verdict necessarily based upon a finding that it "had charge of" the construction work within the meaning of the Structural Work Act and that therefore the trial court should have entered judgment notwithstanding the verdict. The School District also maintains that a judgment n. o. v. was required since the plaintiff failed to prove that the defendant had actual or constructive knowledge of the alleged violation so as to make its failure to act a "wilful" violation of the statute.

We believe the paramount question for resolution is whether the School District, owner of the premises, was an owner having charge of the work within the meaning of the Structural Work Act.

Our supreme court in its recent opinion, McGovern v. Standish (1976), 65 Ill.2d 54, 2 Ill.Dec. 691, 357 N.E.2d 1134, enunciated essential rules applicable to a determination of whether a defendant was in charge of the work in a scaffolding case. Although McGovern was concerned with whether an architect was in charge of the work, its pronouncements apply as well to an owner-defendant since the threshold issue, no matter who the defendant is, is whether that party was in charge of the work. (McGovern v. Standish; Gannon v. Chicago, Milwaukee, St. Paul and Pacific Ry. Co., 22 Ill.2d 305, 175 N.E.2d 785.) Architects and owners are in particularly similar positions in this respect since neither one usually is involved in directing the day to day method or means of performing the construction work. As the court stated in McGovern:

"(B)efore a defendant may be found to be in charge of the work, there must be a showing that he had some direct connection with the construction operations. (Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 324, 211 N.E.2d 247.) In addition, the defendant must have been in charge of the particular operations which involved the violation from which the alleged injury arose. Warren v. Meeker, 55 Ill.2d 108, 111, 302 N.E.2d 54; Carruthers v. B. C. Christopher & Co., 57 Ill.2d 376, 378, 313 N.E.2d 457." (65 Ill.2d 54, 67, 2 Ill.Dec. 691, 698, 357 N.E.2d 1134, 1141.)

The McGovern court reversed a judgment entered on a jury verdict in favor of plaintiff and against the defendant architect, finding that all the evidence considered in the light most favorable to the plaintiff so overwhelming favored the defendant that it was error for the trial court to deny defendant's motion for judgment notwithstanding the verdict.

The evidence in McGovern revealed that the defendant architect never directed the manner or method by which the construction of the hospital addition involved was accomplished. Under contracts between the owner and architect and the owner and contractor, the defendant architect was directed to supervise the construction and was given the power to inspect all material and workmanship in order to fulfill his obligation to endeavor to guard the owner against defects and deficiencies in the work. Provisions of the contract with the contractor provided that all safety provisions of applicable laws were to be observed and that in the event an emergency threatening the safety of life presented itself, the contractor should act in whatever manner he felt appropriate. By this same contract, if the contractor was guilty of a substantial violation of any provision of the contract (presumably including provisions for adherence to safety laws), the owner, upon the certificate of the architect that sufficient cause existed to justify such action, could by ten days notice terminate the employment of the contractor and his right to proceed on all or any part of the work.

The supreme court there held that Miller v. DeWitt, 37 Ill.2d 273, 226 N.E.2d 630, did not stand for the proposition that the...