Stewart v. Jones

• Decision Date: 12 January 2001
• Docket Number: No. 2-00-0110.,2-00-0110.
• Citation: 318 Ill.App.3d 552,742 N.E.2d 896,252 Ill.Dec. 358
• Parties: Robert STEWART, Plaintiff-Appellant, v. Robert JONES, Indiv. and d/b/a Cropmate; Conagra, Inc.; Conagra Fertilizer Company; Cropmate Company; and Betty L. Jones, Indiv. and d/b/a Cropmate, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

742 N.E.2d 896

318 Ill.App.3d 552

252 Ill.Dec. 358

Robert STEWART, Plaintiff-Appellant, v. Robert JONES, Indiv. and d/b/a Cropmate; Conagra, Inc.; Conagra Fertilizer Company; Cropmate Company; and Betty L. Jones, Indiv. and d/b/a Cropmate, Defendants-Appellees.

No. 2-00-0110.

Appellate Court of Illinois, Second District.

January 12, 2001.

Rehearing Denied February 15, 2001.

R. Andrew Hahn, Eric D. Field, Troy A. Lundquist, Mangan, Langhenry, Gillen & Lundquist, Chicago, for Robert Stewart.

Thomas L. Sanders, Ward, Murray, Pace & Johnson, P.C., Sterling, for Conagra Fertilizer Co., Conagra, Inc., Cropmate Co., Betty L. Jones, Robert Jones.

Justice BOWMAN delivered the opinion of the court:

Plaintiff, Robert Stewart, was seriously injured when he fell from the top of a 29-foot storage tank at the Cropmate Company facility in Sublette. Following the accident, plaintiff filed suit against Conagra, Inc. (Conagra), Conagra Fertilizer Company (Conagra Fertilizer), Cropmate Company (Cropmate), and Robert and Betty Jones, individually and doing business as Cropmate (Joneses), alleging violations of the Structural Work Act (Act) (740 ILCS 150/0.01 et seq. (West 1992)), negligence, and premises liability. Plaintiff also sought punitive damages from all defendants based on allegations that they acted in reckless disregard for plaintiff's safety.

The trial court granted summary judgment in favor of defendants on all counts of plaintiff's "Third Amended Complaint." Plaintiff appeals from this judgment and argues that (1) the trial court erred in finding that Conagra and Conagra Fertilizer were not "in charge of the work" under the Structural Work Act; (2) a material issue of fact existed as to whether Cropmate was plaintiff's employer; (3) the Joneses and Cropmate abandoned and therefore waived their affirmative defenses of immunity under the Workers' Compensation Act (820 ILCS 305/5(a) (West 1992));(4) Cropmate and the Joneses waived their immunity defenses through the terms of their lease agreement; and (5) Cropmate and the Joneses were subject to liability under the dual-capacity doctrine.

The Sublette facility where plaintiff was injured was in the business of selling and applying fertilizers and herbicides. The business was owned by Cropmate but was known as "Bob Jones Cropmate." Robert Jones was the manager of the facility. His wife, Betty, also worked there as a secretary. The Joneses owned the land upon which the facility was located and leased it back to Cropmate.

Cropmate was a wholly owned subsidiary of Conagra Fertilizer. Conagra Fertilizer was a wholly owned subsidiary of Conagra. The president of Cropmate, Rick Frison, was also a vice-president of Conagra Fertilizer. The parties dispute whether Jack Quinn, Cropmate's division manager for the Sublette facility, also held a position with Conagra Fertilizer.

Prior to plaintiff's accident, Robert Jones decided to replace one of the fertilizer storage tanks. Jones called his immediate supervisor at Cropmate, Dan DuPage, and asked whether he should buy a new storage tank. DuPage advised him that another Cropmate facility in Indiana had a storage tank that was not in use. DuPage arranged to transfer the tank from the Indiana Cropmate facility to the Sublette facility.

Plaintiff was a temporary worker at the Sublette facility. He started working there the day before his accident. On the day of the accident, Robert Jones had given some instructions to the full-time and temporary employees regarding installing the tank. The full-time employees testified that they knew what had to be done. No employees of Conagra or Conagra Fertilizer were present at any time during the tank's installation, nor did they give any instructions to Jones or any of the Sublette employees. When the accident occurred, plaintiff was attempting to remove a pipe from the top of the new storage tank. One of his coworkers observed him wrenching the pipe with great force. Apparently, the pipe broke loose, causing plaintiff to lose his balance and fall from the tank.

Defendants moved for summary judgment on plaintiff's third amended complaint. Conagra and Conagra Fertilizer argued that they could not be held liable under the Structural Work Act because they did not have charge of the work related to installing the storage tank. They further argued that they owed no duty to plaintiff under common law and therefore could not be held liable for negligence. Cropmate and the Joneses argued that, as plaintiff's employer and co-employees, respectively, they were immune from suit under the Workers' Compensation Act.

On December 28, 1999, the trial court entered an order granting defendants' motions for summary judgment. The court set forth the following reasons for its decision:

"1. Robert Stewart, Robert Jones, and Betty Jones were all employees of Cropmate Company when plaintiff was injured.

2. Robert Jones was not an independent contractor.

3. By entering into a written lease neither Robert nor Betty Jones waived any immunities under the Workers Compensation Act nor did they accept any liability under the Structural Work Act.

4. Robert Jones and Cropmate Company were `in charge of the work' under the Structural Work Act. This operation was entirely a Cropmate Company activity. Neither Conagra Fertilizer nor Conagra, Inc. was `in charge of the work.'

5. Neither Conagra Fertilizer nor Conagra, Inc. owed a common law duty of care to the plaintiff."

Plaintiff filed a timely notice of appeal.

Before we reach the merits of plaintiff's arguments, we note that both parties have made our review of this matter more laborious by failing to comply with Supreme Court Rule 341(e)(7)(177 Ill.2d R. 341(e)(7)), which requires litigants to include references to the record in the argument section of their briefs. The failure to comply with the supreme court rules governing appellate briefs may operate as a waiver or may warrant the dismissal of the appeal. Scoggin v. Rochelle Community Hospital, 176 Ill.App.3d 648, 650, 126 Ill.Dec. 98, 531 N.E.2d 393 (1988). We choose not to find waiver or dismiss the appeal in this case, but we admonish counsel for both parties to strictly adhere to Rule 341(e)(7) in the future.

STANDARD OF REVIEW

Pursuant to section 2-1005(c) of the Code of Civil Procedure (735 ILCS 5/2-1005(c) (West 1998)), a court should enter summary judgment if the pleadings, depositions, admissions, and affidavits show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. A reviewing court should reverse an order granting summary judgment if the evidence shows that a genuine issue of material fact exists or if the judgment is incorrect as a matter of law.

American Family Mutual Insurance Co. v. Hinde, 302 Ill.App.3d 227, 231, 235 Ill.Dec. 773, 705 N.E.2d 956 (1999). We apply a de novo standard of review to the trial court's decision to grant summary judgment. Hinde, 302 Ill. App.3d at 231, 235 Ill.Dec. 773, 705 N.E.2d 956. When evaluating the facts, we construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Logan v. Old Enterprise Farms, Ltd., 139 Ill.2d 229, 234, 151 Ill. Dec. 323, 564 N.E.2d 778 (1990).

HAVING CHARGE OF WORK UNDER THE STRUCTURAL WORK ACT

Plaintiff's first contention on appeal is that a genuine issue of material fact existed as to whether Conagra and Conagra Fertilizer "had charge of" the work on the storage tank under the Act. The trial court ruled that the installation of the storage tank was "entirely a Cropmate activity" and that neither Conagra Fertilizer nor Conagra had charge of the work.

Section 9 of the Act provides, in relevant part:

"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 * * *." 740 ILCS 150/9 (West 1992).

Our supreme court has held that "having charge of" is a term of common usage and understanding. Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 323, 211 N.E.2d 247 (1965). The supreme court has not defined the term because "further attempt at definition can only lead to confusion and error." Larson, 33 Ill.2d at 323, 211 N.E.2d 247. However, the supreme court has cited with approval 10 factors for courts to consider when deciding this question. Those factors include whether the defendant (1) supervised and controlled the work; (2) retained the right to supervise and control the work; (3) constantly participated in the ongoing activities at the construction site; (4) supervised and coordinated the subcontractors; (5) took responsibility for safety precautions at the jobsite; (6) had the authority to issue change orders; (7) had the right to stop the work; (8) owned equipment at the jobsite; (9) was familiar with construction customs and practices; and (10) was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. Simmons v. Union Electric Co., 104 Ill.2d 444, 452, 85 Ill.Dec. 347, 473 N.E.2d 946 (1984), citing Chance v. City of Collinsville, 112 Ill.App.3d 6, 11, 67 Ill. Dec. 747, 445 N.E.2d 39 (1983).

Courts should evaluate the totality of the circumstances when determining whether a defendant had charge of the work, although in some cases courts have held that the retained authority to stop the work is sufficient to constitute "having charge." See Axen v. Ockerlund Construction Co., 281 Ill.App.3d 224, 229-30, 217 Ill.Dec. 24, 666 N.E.2d 693 (1996) (and cases cited therein). Generally, the question of whether a defendant had charge of work is one of fact, but summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Zukauskas v. Bruning, 179 Ill.App.3d 657, 661, 128 Ill.Dec. 498, 534 N.E.2d...