Simmons v. Union Elec. Co.

• Decision Date: 30 November 1984
• Docket Number: No. 59879,59879
• Citation: 104 Ill.2d 444,85 Ill.Dec. 347,473 N.E.2d 946
• Parties: , 85 Ill.Dec. 347 Edward SIMMONS, Appellee, v. UNION ELECTRIC COMPANY, Appellee (Sachs Electric Company, Appellant).
• Court: Illinois Supreme Court

Page 946

473 N.E.2d 946

104 Ill.2d 444, 85 Ill.Dec. 347

Edward SIMMONS, Appellee, v. UNION ELECTRIC COMPANY, Appellee (Sachs Electric Company, Appellant).

No. 59879.

Supreme Court of Illinois.

Nov. 30, 1984.

Bruegge & Becker, Breese, for appellant, Sachs Elec. co.

Amiel Cueto, Cueto & Moore, Ltd., Belleville, for appellee, Edward Simmons.

SIMON, Justice:

We are called upon in this appeal to decide (1) whether the Structural Work Act (Ill.Rev.Stat.1981, ch. 48, par. 60 et seq.) applies to the plaintiff's claims against the defendant, (2) whether the principles of comparative fault are applicable to the plaintiff, a workman who brought a claim under the Structural Work Act (the Act), in view of this court's decision in Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 73 Ill.Dec. 337, 454 N.E.2d 197, a question left unresolved by our decision in Doyle v. Rhodes (1984), 101 Ill.2d 1, 17, 77 Ill.Dec. 759, 461 N.E.2d 382, and (3) whether the defendant is entitled to indemnity from a third-party defendant.

The plaintiff, Edward Simmons, sought recovery against the defendant, Union Electric Company (Union Electric), in the circuit court of St. Clair County for injuries he received while working as an electrical repairman for Sachs Electric Company (Sachs) at Union Electric's power plant in Cahokia, Illinois, a plant which had been shut down. Union Electric had no personnel in this plant except for employees who inspected the property from time to time. Sachs had entered into contracts with Union Electric to install and maintain electrical power to the Cahokia plant. Simmons and another Sachs' employee (since deceased) were sent to the Cahokia plant by Sachs, at the request of Union Electric, because of flooded conditions at the plant. After arriving at the plant, they discovered that a sump pump had become inoperative, resulting in flood waters remaining in an ash pit in which the pump was housed. Simmons, while descending into the ash pit on a permanently affixed ladder which had become covered with oil from the flood waters, slipped, fell into the ash pit, and sustained injuries.

Oil on the ladder was apparently not unusual at the Cahokia plant. Previous flooding at the plant had left a similar residue which had, at least on one occasion, required Union Electric to hire an outside contractor to clean the oily surfaces. Evidence submitted at trial also establishes that Sachs had knowledge of the oily conditions in the plant after previous flooding had occurred. According to the terms of its contract with Union Electric, Sachs was responsible for "all appropriate safety precautions necessary or advisable for the prevention of accidents" when Sachs' employees were working at the Cahokia site.

Union Electric filed a third-party complaint against Sachs seeking either contractual or common law indemnity. In the alternative, Union Electric sought contribution from Sachs, which in turn filed a counterclaim against Simmons seeking indemnity or contribution, other than the contribution provided for by section 5(b) of the Workers' Compensation Act (Ill.Rev.Stat.1981, ch. 48, par. 138.5(b)).

After a bench trial, the circuit judge, without explanation, entered judgments under the Structural Work Act for plaintiff in the amount of $219,000 against Union Electric and in favor of Sachs on Union Electric's third-party complaint. The appellate court affirmed plaintiff's judgment against Union Electric, but it reversed the judgment in favor of Sachs on Union Electric's complaint for indemnity and entered judgment in favor of Union Electric (121 Ill.App.3d 743, 77 Ill.Dec. 169, 460 N.E.2d 28). The appellate court also held for Simmons on Sachs' counterclaim for contribution or indemnity. We granted Sachs' petition for leave to appeal (87 Ill.2d R. 315(a)) and resolve questions not originally contained in that petition, but briefed and argued by another party, pursuant to our power to resolve issues warranted by the record (87 Ill.2d R. 318(a)).

I. APPLICATION OF THE STRUCTURAL WORK ACT TO UNION ELECTRIC

Union Electric first argues that the Act was improperly invoked. Section 9 of the Act provides:

"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 * * *.

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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 * * *." (Ill.Rev.Stat.1981, ch. 48, par. 69.)

Union Electric contends that it did not "have charge of" the plaintiff's work, the work performed was not on a "structure" and no "wilful" violation occurred, and therefore both the circuit and appellate courts erred when they held that Union Electric had violated the Act.

To hold a party accountable under the Act, the court must find that the party had charge of the work in question. Union Electric contends that it had no direct connection with the repair operations and, relying on McGovern v. Standish (1976), 65 Ill.2d 54, 2 Ill.Dec. 691, 357 N.E.2d 1134, it argues that the totality of circumstances in this case is insufficient to find that it had control of the plaintiff's work.

The term "having charge of" "is primarily a factual question." (McGovern v. Standish (1976), 65 Ill.2d 54, 66, 2 Ill.Dec. 691, 357 N.E.2d 1134; see also Voss v. Kingdon & Naven, Inc. (1975), 60 Ill.2d 520, 525, 328 N.E.2d 297.) The factual inquiry involves numerous factors, including those enunciated in Chance v. City of Collinsville (1983), 112 Ill.App.3d 6, 11, 67 Ill.Dec. 747, 445 N.E.2d 39. The fact that all work performed by Sachs was "subject to inspection and final acceptance" by Union Electric, that Union Electric employees visited the plant regularly while the plant was closed, and that Sachs' employees only entered the Cahokia plant at the request of Union Electric supports the determinations of the circuit and appellate courts that, for the purposes of the Act, Union Electric was one of the parties in charge of the work at the time of the accident. Norton v. Wilbur Waggoner Equipment Rental and Excavating Co. (1979), 76 Ill.2d 481, 490-91, 31 Ill.Dec. 201, 394 N.E.2d 403.

Union Electric next argues that the plaintiff was not injured while working on a "structure." It emphasizes that at the time he was injured Simmons was attempting to reach a temporary sump pump. Union Electric concludes that a "structure" was not under repair and that the Act therefore did not apply.

The circuit and appellate courts correctly determined that Simmons was working on a "structure" at the time of the injury. Navlyt v. Kalinich (1972), 53 Ill.2d 137, 290 N.E.2d 219, suggests the flexibility of the term "structure" as used in the Act. In that case, a trench was held to be a structure within the meaning of the Act. That trench was used to install sewer tiles for townhouses. In this case, the structure was the ash pit which housed the sump pumps Simmons was instructed to repair. In order to reach the pumps, Simmons descended on the ladder which, for the purposes of the Act, was a scaffold. Following this court's test in Navlyt, the ash pit where Simmons was injured was a " 'structure' under the Act, either considered by itself or as an integral part" of the repairs at the Cahokia plant. Navlyt v. Kalinich (1972), 53 Ill.2d 137, 138-39, 290 N.E.2d 219.

Finally, Union Electric contends that any violation of the Act was not wilful. The appellate court correctly followed the applicable standard that a "wilful violation of the Act occurs when one having charge of the work knows that a dangerous condition exists on a support device or, by the exercise of reasonable care, could have discovered the existence of the condition. [Citation.]" (121 Ill.App.3d 743, 754, 77 Ill.Dec. 169, 460 N.E.2d 28; see also Davis v. Commonwealth Edison Co. (1975), 61 Ill.2d 494, 501-02, 336 N.E.2d 881.) The conclusion that Union Electric knew or should have known that the ladder on which Simmons slipped was unsafe at the time of his injury because it was covered with an oily substance was not against the manifest weight of the evidence. The evidence that Union Electric knew that the waters which flooded the Cahokia plant were oily, and could leave an oily substance on the ladder leading to the ash pit, was sufficient to justify the conclusion that Union Electric wilfully violated the statute.

II. APPLICATION OF THE ACTIVE INDEMNITY THEORY TO SACHS

The circuit and appellate courts having correctly determined that Simmons' injuries resulted from a violation of the Act by Union Electric, the next inquiry is whether, as the appellate court in reversing the circuit court held, Sachs was required to indemnify Union Electric on the theory that Sachs was actively negligent. Whether the Contribution Act (Ill.Rev.Stat.1981, ch. 70, par. 301 et seq.) has rendered obsolete the common law doctrine of active-passive indemnification has been posed by this court and suggested by learned commentators. (See Heinrich v. Peabody International Corp. (1984), 99 Ill.2d 344, 350, 76 Ill.Dec. 800, 459 N.E.2d 935; Morizzo v. Laverdure (1984), 127 Ill.App.3d 767, 83 Ill.Dec. 46, 469 N.E.2d 653.) However, neither Union Electric nor Sachs has shown a willingness to raise and brief this question, and we therefore, as the appellate court did, apply the common law indemnity doctrine which requires a determination of which tortfeasor was actively negligent and which one was passively negligent.

This inquiry is not incompatible with our approval of the decision of the circuit court judge implicit in his entry of judgment against Union Electric--that Union Electric was in charge of the work for purposes of the Structural Work Act. Emberton v. State Farm Mutual...