Robinson v. Greeley and Hansen
| Decision Date | 20 May 1980 |
| Docket Number | No. 78-491,78-491 |
| Citation | 408 N.E.2d 723,42 Ill.Dec. 145,86 Ill.App.3d 1082 |
| Court | United States Appellate Court of Illinois |
| Parties | , 42 Ill.Dec. 145 David R. ROBINSON, Plaintiff-Appellee, v. GREELEY AND HANSEN, Defendant, Counter-Plaintiff-Appellant, v. E & D ROBINSON CONSTRUCTION, INC., a corporation, Counter-Defendant-Appellee. |
Snyder, Clarke, Dalziel, Holmquist & Johnson, Julian Johnson, Waukegan, for Greeley and Hansen.
Morrison & Nemanich, Donald T. Morrison, Paul S. Chervin, Waukegan, for E & D Robinson Const. Co.
The plaintiff, David R. Robinson, brought this action under the Structural Work Act (Ill.Rev.Stat.1971, ch. 48, pars. 60 through 69) against defendants, Greeley and Hansen, a partnership, to recover damages for injuries sustained by plaintiff on March 30, 1973, when he fell from an iron ladder affixed to the wall of a concrete sewer lift station being constructed for the North Shore Sanitary District. Defendants, who were the engineers employed by the sanitary district to design the system and supervise its construction, brought a third-party action for indemnity against plaintiff's employer, E & D Robinson Construction, Inc., the general contractor for this project. After trial by jury judgment was entered in the principle action on the general verdict returned in favor of plaintiff and against defendants in the sum of $325,000. In the third-party action the jury found in favor of third-party defendant, E & D Robinson Construction, Inc., as to Greeley and Hansen's claim for indemnity and they appeal from both judgments.
In the case in chief the primary question is whether an action will lie under the Structural Work Act against engineer-draftsmen without pleading and proving they were "in charge" of the work.
The complaint as amended was in two counts in each of which plaintiff sought recovery against Greeley and Hansen for alleged violations of the Structural Work Act; a negligence count contained in the initial complaint was withdrawn by plaintiff before trial. Count II of the complaint under which the case was tried was in the traditional form required in an action under this Act and, essentially, alleged that defendants were "in charge" of the construction of the lift station and its ladder and wilfully failed to erect and construct a safe and suitable ladder so as to give adequate protection to the persons employed thereon as is required by section 1 of the Act (Ill.Rev.Stat.1971, ch. 48, par. 60). Count II further alleged plaintiff was injured as a proximate result of defendant's wilful failure to comply with the Act and that a right of action accrued for his damages pursuant to section 9 thereof (Ill.Rev.Stat.1971, ch. 48, par. 69).
In Count I, however, plaintiff did not allege that Greeley and Hansen were in charge of the construction or work in question but only that they had prepared the plans, specifications and drawings used in the construction and had failed to do so in a safe, suitable and proper manner to protect the safety of persons employed on the structure in violation of sections 1 and 8 of the Act (Ill.Rev.Stat.1971, ch. 48, pars. 60 and 68), thereby subjecting the defendants to this action under the Act.
In submitting Count I to the jury the trial court, over defendants' objection, gave a burden of proof instruction offered by plaintiff (based upon Illinois Pattern Jury Instructions, Civil, No. 180.09 (2d ed. 1971)) which provided as follows:
"The plaintiff has the burden of proving each of the following propositions in Count I of his complaint:
First, that the defendant, Greeley & Hansen, prepared the plans and specifications for the lift station in question.
Second, that the defendant, Greeley & Hansen, failed to prepare such plans and specifications in a safe manner as claimed by the plaintiff as stated to you in these instructions and that in so acting or failing to act the defendant violated the Structural Work Act.
Third, that the plaintiff was injured and sustained damages.
Fourth, that a violation of the Structural Work Act by the defendant was a proximate cause of the injury and damage to the plaintiff.
If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the plaintiff. If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant."
The applicable provisions of the Structural Work Act which we consider in resolving the issue before us are as follows:
"Section 1. That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, 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 * * * engaged thereon, or passing under or by the same * * *.
Section 8. It shall be the duty of all architects or draftsmen engaged in preparing plans, specifications or drawings to be used in the erection, repairing, altering or removing of any building or structure within the terms and provisions of this act to provide in such plans, specifications and drawings for all the permanent structural features or requirements specified in this act; and any failure on the part of any such architect or draftsmen to perform such duty, (shall be a petty offense.)
Section 9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any * * * structure within the provisions of this act, shall comply with all the terms thereof * * *.
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, for any direct damages sustained thereby * * *. " (Ill.Rev.Stat.1971, ch. 48, pars. 60, 68, and 69, as amended.)
It is plaintiff's contention that as in Count I of the complaint defendants are charged with failing to draw "safe" plans as they are required to do under section 8 of the Act, defendants need not be "in charge" of the work in order for liability to be imposed upon them under that section. Plaintiff notes also that as defendants admit they prepared the plans and specifications there was no necessity to plead or prove they were in charge of such plan preparation. Essentially, it appears to be plaintiff's theory that a civil action arises under section 9 of the Act for injuries caused by the unsafe design of a scaffold although the preparing architect or engineer had nothing to do with the actual construction of the structure where the injury occurred and was not in charge of the work.
As plaintiff correctly concedes, since Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785, it has been uniformly held that section 9 of the Structural Work Act (Ill.Rev.Stat.1971, ch. 48, par. 69) imposes civil liability for wilful violations of the Act, or failure to comply with its provisions, upon persons "having charge of" the work (see McGovern v. Standish (1976), 65 Ill.2d 54, 66, 2 Ill.Dec. 691, 698, 357 N.E.2d 1134, 1141), and that recovery under the Act has been limited in all cases to those found to be so in charge. Application of the "in charge" requirement has often been made to architect-engineers and we are unaware of any reported case in which a contrary view has been advanced. See e. g., Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 31 Ill.Dec. 201, 394 N.E.2d 403; Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 15 Ill.Dec. 664, 373 N.E.2d 1348; Voss v. Kingdon & Naven, Inc. (1975), 60 Ill.2d 520, 328 N.E.2d 297; Miller v. DeWitt (1967), 37 Ill.2d 273, 226 N.E.2d 630; Larson v. Commonwealth Edison Co. (1965), 33 Ill.2d 316, 211 N.E.2d 247; Kirk v. Walter E. Deuchler Associates, Inc. (1979), 79 Ill.App.3d 416, 34 Ill.Dec. 780, 398 N.E.2d 603; and Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill.App.3d 1050, 1057, 34 Ill.Dec. 385, 388, 398 N.E.2d 60, 63.
In urging that we depart from the standard adhered to in these cases plaintiff relies solely upon Holt v. A. L. Salzman & Sons (1967), 88 Ill.App.2d 306, 232 N.E.2d 537. There, the plaintiff sought recovery in Count I of the complaint against the defendant-architect on a common law negligence theory and in Count II sought recovery under section 8 of the Structural Work Act. The court in Holt, however, declined to consider whether civil liability based upon an alleged violation of section 8 of the Act required proof a defendant was "in charge" of the work as that issue was raised for the first time on appeal. We find no support for plaintiff's argument in Holt.
All efforts to extend the liability imposed by the Structural Work Act to parties who were not "in charge" of the work have been rejected by our reviewing courts. In Powers v. National Mirror Works (1977), 52 Ill.App.3d 592, 10 Ill.Dec. 310, 367 N.E.2d 763, an employee of a lathing subcontractor was injured while using a ladder owned by another subcontractor on the job. This court noted the Act does not impose liability upon one who merely furnishes defective equipment which causes injury and absent evidence defendant could be found in charge of the work, no action would lie. Similarly, in Huckabee v. Bell & Howell, Inc. (1970), 47 Ill.2d 153, 158, 265 N.E.2d 134, 137, the court reiterated the rule that "before civil liability will attach, whether the defendant is an owner, contractor, subcontractor, foreman or other person, under the Act, the defendant must have...
To continue reading
Request your trial
-
Robinson v. Greeley and Hansen
...defendant was "in charge of the work," as required by the Act. (Ill.Rev.Stat.1973, ch. 48, par. 69; Robinson v. Greeley & Hansen (1980), 86 Ill.App.3d 1082, 42 Ill.Dec. 145, 408 N.E.2d 723.) This defect was cured upon remand and, after a new trial by jury, judgment was again entered in favo......
-
Cardozo Revisited: Liability to Third Parties; a Real Property Perspective
...Liabilities and His Remedies When a Worker Is Injured, 64 Nw. U.L. Rev. 535 (1969). 140. See, e.g., Robinson v. Greeley and Hanson, 86 Ill. App. 3d 1082, 408 N.E.2d 723 141. 3 N.Y.2d 137, 143 N.E.2d 895 (1957). 142. 217 N.Y. 382, 111 N.E. 1050 (1916). 143. 79 N.M. 123, 440 P.2d 798 (1968). ......