*1 (No. 50066. NORTON, v. WILBUR WAGGONER
IRVIN L. Appellant, RENTAL AND EXCAVATING CO. et EQUIPMENT al. Unit District No. Community (Collinsville Appellee). denied
Opinion July Rehearing filed 1979. September 1979.
RYAN, J., dissenting. Edwardsville, and William
Earl L. of Vaugniaux, J. Harte, Ltd., of for Chicago, appellant. Melin, Ross T. Wilson, and
Robert W. R. Frederick Wilson, Broom Anderson, of Hepler, Burroughs, Simpson, Edwardsville, for of & McCarthy, appellee. Anesi, Ozmon, Horwitz, Ozmon & Associ- P. of
Nat Novak, Ltd., and ates, P. Ozmon Mark of of (Nat Chicago curiae Association of for amicus International counsel), Iron Workers and Local Structural Ornamental Bridge, Union No. 1. of
MR. CLARK delivered opinion JUSTICE court: Norton, Irvin L. filed an action against plaintiff, defendants, District No. Collinsville Unit Community Associates, Architectural the school
10 (hereafter district), Wilbur Inc. Equip (hereafter architect), Waggoner Co., under the Structural ment Rental Excavating 1971, ch. par. Act Rev. Stat. etseq.), Work (Ill. for he County the circuit court Madison injuries of a the construction new sustained while on working the architect were dismissed school building. Waggoner Norton con trial. without by plaintiff prejudice during owner, district, as was tended that the defendant school under Act as a liable charge” “having ch. Rev. Stat. par. erection the building (Ill. $175,000. A returned a for for verdict plaintiff jury 69). issue alone with one court reversed on The appellate and we 3d 442), granted justice dissenting (52 App. leave to appeal. plaintiff
At Norton was employed by time injury, R contractor R & Construction Company, general of one In order to complete project. crane used lift bundles large (E), buildings where material they top building, roofing feet above the the bar located were on deposited joists hook, 8 to attached to floor level. were straps Hoisting *4 a steel beneath immediately inches which was 10 long, ball,” in diameter and to inches “headache 10 weighing 12
485 Once of the crane’s cable. at the end 80 to 100 pounds, which had across bar were joists, these bundles placed or them, walk crawl Norton would no beneath scaffolding itself, disconnect the bundle out on the bar or on joists 25, On them to straps, drop ground. hoisting June of material 1971, onto a bundle Norton crawled roofing crane The operator, disconnect straps. acting hoisting lowered the “headache on inadvertently relayed signals, he Within a short time and hook onto his back. ball” taken to a doctor’s office. severe and was pain experienced the defendant school on is whether The issue appeal so as to of the erection district was an owner having charge Act; Work for violations of the Structural render liable is, or for for failure to “provide planking scaffolding” 1971, 48, on. Ill. Rev. ch. stand Stat. plaintiff (See Section 9 of the Act par. provides: 60.) owner, sub-contractor, contractor, or
“Any foreman erection, person other having charge construc- [or] *** *** any provisions building, tion within this act, comply with thereof ***. shall all terms wilful violations For any injury person act, [*] [*] or wilful failure to [*] *** occasioned by any comply any provisions, its of action shall accrue party injured, any damages direct sustained 48, thereby (Ill. par. 69.) ***.” Rev. Stat. ch.
A in the is each class of statute duty persons placed has if such work. only persons charge Milwaukee, v. Paul & Co. St. Ry. Chicago, (Gannon Pacific 305, 323, Ill. v. Shell Kennedy 2d (1961), overruling Oil of who has Co. 2d (1958), question 431.) of fact for the is question Milwaukee, v. Paul & St. jury. (Gannon Chicago, Pacific 323; Co. Ill. Crothers La Salle Ry. 2d Moreover, this court Institute of” has determined term should “having charge “one of not be defined for the because it is common jury *5 486 *** and and further at
usage understanding, attempt definition can lead to confusion and error.” only (Larson v. 316, Commonwealth Edison Co. 33 Ill. 2d Hence Illinois Pattern Civil, Instructions Jury section 180.16 ed. for no such (2d provides instruction. It 1971), is true there be insufficient evidence to may create factual of whether a defendant has question A work. trial court’s decision on a motion for judgment verdict, verdict or for a directed notwithstanding evidence, a review of the show as much. necessitating may However, reversal of a verdict favor of the jury plaintiff evidence, which, must be when viewed supported by most to the favorably nevertheless so plaintiff, overwhelmingly favored the school district that no verdict could contrary stand. & Eastern R.R. Peoria Co. (Pedrick 494, of the Pedrick test 510.) Application supports trial court’s denial of the school district’s motions for a verdict, n.o.v., directed and dictates reversal of judgment court. appellate William was the school Delaney district employed by as “Clerk of the Works for the construction” involved here as the of maintenance or of (and supervisor buildings for the school at the time of the grounds generally district) accident. Under section 60 of the Civil Practice Act (Ill. 1971, Rev. Stat. ch. he testified that his par. 60), duties were to construction, record the progress construction, serve as liaison inspect between contractor, architect “a and take head count” of the He was workers. “to contractor honest” expected keep met, certain all were he said. specifications making also testified he had an office at the site Delaney but no staff, was there five a week but not for the days whole architect, and had with the contrac day, weekly meetings tor and subcontractors but was never An discussed. himself, contractor he stated experienced Delaney site, familiar with the bar at the been on them joists having on which times, on the bar and had been joists to 40 He said no safety times himself. a few was injured plaintiff no safety meetings was appointed, superintendent he felt He also said any were ever held. changes discussions in order to the architect had necessary reported effect them. architect, Olsen, testified with the E. associated Jack Rev. Act Civil Practice section 60 of the (Ill. under
(also the school board had ch. Stat. par. 60)) construction, for safety, including to inspect clerk, Works,” Delaney. a “Clerk of and employed *6 for construction stated, Olsen “supervised architect, to the school owners”; with jointly reported, on at its board district progress meetings construction; certain that contractual made specifications met; construction methods. and was familiar with were clerk the first to know of any Olsen said the would be He also them to the architect. deviations and would report could terminate school board testified it had to the contractor contract between and although on behalf 10 notice to contractor. provide days’ Acting testified, board, architect, Olsen further school “the final could the works and was judge inspect of the work.” and suitability quality had others shows Delaney Testimony by significant construction, such as into the supervisory input having redone at his direction. work district and contrac-
The contract between the school it, tor, and the documents provided constituting on the con- contractor would be responsible struction site and for safety superintendent. appointing also the owner had The contract provided given from the contractor such and records of work reports the owner had prior as the owner requested; give work; the owner could for all written approval changes could the owner extra work or make order changes; 488
determine whether the date of should be completion extended; the owner had to have access to the work at all times; and the owner and the architect could establish limits on the operations workmen. district, McGovern v. Standish school citing 54, 65 Ill. 2d Emberton v. and
(1976), acknowledging State Farm Mutual Auto Insurance Co.(1978), 2d cases, other contends that its association among construction on its was that of mere property more. It ownership its contention nothing supports by it could not work on the noting construction “stop” other than 10 contractor, notice to the days’ giving it had no direct connection with the arguing was not operations, the particular operations which involved the violation in the resulting injury, lacked “the ability measures in force.” put safety
While it is true that mere more, without is ownership, insufficient to establish under the Structural Work Milwaukee, v. Act (Gannon St. Paul & Chicago, Ry. Pacific Co. 319-20; Kiszkan Ill. Texas Co. 2d (1961), 326, 329; Warren v. Meeker 2d Ill. Ill the owners-lessors were (where found not to be liable for under the Structural injuries Work Act because did not they commission work and repair were not accordingly retention of charge)), supervision *7 and control of the work the owner is not essential to in Larson v. Commonwealth establish This court liability. 316, 321-22, stated: Edison Co. 33 Ill. 2d conceded that some of the “While it may the Scaf- decisions in this jurisdiction involving fold Act to have equated ‘having charge’ appear control’ and ‘supervision degrees, varying statute, the and it our the is opinion language reflects, do not intent it permit legislative and the terms are inflexible conclusion term of the other. The equivalent unbending legal is a term broad charge ‘having generic of’ and include import, although may supervision control, and it is not to it. As was said confined of the word v. Gould 345 Ill. People ‘charge’ ‘The word does include necessarily 323: restraint, control or and its custody, meaning must be determined the associations and circumstances its use. “To have surrounding of” does not more than necessarily charge imply to care for or have the care of.’ ***. onsistent with its pre [C] beneficent extra- venting injury persons employed work, hazardous structural occupation of thrust the statute is not to those who confined control, or or who perform, supervise, retain control, and right actual work supervise arises, but, which the to insure injury from maximum is made to protection, extend to owners and others who have charge of erection or alteration or struc any building ture.” (Emphasis added.)
The court added that “the of the statute plain language does not limit to owners duty retaining control of the work.” 33 Ill. supervision 2d 322. McGovern,
In filed suit plaintiff against architect fór fall sustained in a from a injuries scaffold which, used in construction the architect plaintiff alleged, was in of under the Structural Work Act. This court charge held that a defendant have “must been in which involved the violation from particular operations which the arose” alleged injury 2d (65 67), found for the architect on the basis of at least three First, factors. the architect have evidentiary did not work, stop Miller v. contemplated by 273, 284, 286, DeWitt because stoppage Second, could occur only notice. days’ *8 architect’s the supervise, right ancillary together a was to see that contractual right inspect, simply duty Third, were met. the architect’s specifications authority in Voss v. & was not broad or Kingdon sweeping (as Naven, Inc. the where defendant 2d had workers and authority suspend discharge work). Emberton First, Several observations are necessary. State Farm Mutual Automobile Insurance Co. clarified McGovern’s 111, 119, Ill. rule 2d a regarding defendant’s control of “the above: particular operations,” in McGovern was “If the in the majority opinion language it be shown that a may intended to mean that was person ‘in which involved particular charge operations violation which from arose’ Ill. injury alleged (65 2d control, either that he exercised or that by proof 67) existed, to control the work whether exercised right not, it states law.” correctly (Emphasis added.) as McGovern court Second, noted, stop work is not “conclusive question resolving whether has the work within charge Rather, of the Act. such a determina meaning [Citations.] an assessment tion must rest totality circumstances.” (Emphasis added.) (65 Third, us, in the case before the school district could do more than see that contractual and merely plans specifica tions were met. It could order had to changes; approve ordered, certain work had changes; Delaney, through redone; liaison, to be served as between Delaney, through architect; the contractor and had an office at the site there, Fourth, was five a week. Delaney, days through school district’s have authority may been Voss, above, as in but much was more so than expansive McGovern, this court found in where evidence showed the defendant never control exercised over the work. Emberton,
In an contractor employee general while injured scaffold. This court portable moving Farm, found the architect defendant State owner site, of the construction: all employees *9 construction; State Farm made frequent inspections control, State Farm denied its assistant although having visited vice-president frequently building design site; construction and State Farm ordered periodic Here, the contractor all the construc- changes. performed tion work but made for the Delaney daily inspections and, school district had work testimony, according too, redone at his direction. Here the school district had the contractual to order and had to competence changes approve changes.
Our review of the evidence demonstrates retention of supervision control of the construction the school by district. Even so, if that were not assessment of the totality of the circumstances shows school district was suffi in ciently construction to charge justify finding liability. made Delaney daily and had work inspections redone. He was familiar with generally construction methods familiar with the specifically bar joists; hence, he was in a peculiarly to be the appropriate position “first one to know if there is some deviation” and have alleviated, either at his direction or the architect. through Although inability work or “stop” terminate contract before the of 10 lapse days decisive in might case, another it is not here. We find from the evidence this is not a case in which “the manner of the work was doing left to the Carruthers v. B. C. up” contractor. entirely & Co. 376, Christopher 378.
Given the evidence and above, the law we applying that, cannot Pedrick test, under say the evidence so favored the school district as to overwhelmingly justify reversal of the verdicts Furthermore, and trial court. jury evidence was such that reasonable could people about whether the school district was disagree v. La Salle Institute the work (Crothers 68 Ill. 2d reasons, For reverse the these we 406-07). judgment remand the cause to it for court and appellate consideration of other issues raised in that court but not decided it. remanded,
Reversed and with directions. RYAN, MR. dissenting: JUSTICE dissent was incorporated of this A substantial part However, this court. adopted opinion originally has now allowed, the opinion being rehearing I must was adopted. opinion been filed as majority I believe because from that dissent opinion Act Work on the Structural (Ill. it has placed tend to 60 et does not ch. seq.) Rev. Stat. par. fact, stated defeat but may, promote, results as will some very lead to inequitable Act and may *10 that what this dissent. So later in be more fully developed must be Act that the construction I consider to be be fully its stated may to achieve adopted I that which much of in this dissent I restate presented, in this case. filed in the had opinion incorporated original has this court opinion, As noted in majority of a term of” was that stated heretofore “having charge need not be and common and understanding usage Edison Co. Commonwealth defined. (Larson was this court That statement made, has there because, it was since erroneous obviously of concerning amount been a substantial litigation awas “having a defendant of whether question A cursory the Act. of within meaning charge” in the opinion, the cases cited majority examination list exhaustive no means an in this dissent those cited (by reveals this issue was in which involved), of all the cases on on this been asked question this court has pass numerous occasions. in Larson did state “having this court
Although and needed of common understanding a term was charge” has decided this court cases that definition, the many no carved well nonetheless fairly have that question involving for the of that term or an a definition understanding out herein. court, later discussed as guidance of the term now abandons understanding majority contact with project, of a minimal finds that evidence an owner. a verdict will support against whatever purpose, I am not complete agreement Because to the facts which conclusion majority opinion’s herein, I in the establishes, as did I incorporate evidence the facts as are they my understanding opinion, original in the record. contained William as clerk district Delaney
The school employed The contract for the of the works project. building not state what does and the architect the school between or whether was perform, duties the clerk works as to or recommendations he to make any inspections Also, which constitute the documents safety procedures. and the between the school district the contract general duties or the authority do not contractor specify between the school the works. The contract the clerk of shall that the architect district and the architect provides on all claims of owner make decisions (school district) the contractor and on all matters relating work, or the interpreta- execution and the progress It further provides tion of the contract documents. observe shall procedure the owner (school district) architect, orders to contractors only through issuing of, observes, or becomes aware any and that if the owner *11 notice written he shall prompt defect in project, give to the architect. thereof trial, he been at had testimony to Delaney’s
According life, of his and at for most in the trades employed building the clerk of as both accident was the time of the employed the works on this and as building project superintendent maintenance for the school district. In his generally works, as clerk of the he was at the construction capacity site on an of five a week and attended days average weekly contractors, with the architect and progress meetings acted as a liaison between the architect and the generally contractor. testified that he felt it his Delaney job the contractors honest” the work to “keep by inspecting ensure contract as insofar compliance specifications work were concerned. He also stated that his progess interest was to have the primary as job properly completed as in accordance with the quickly possible specifications. testified that he had never read the Delaney complete contract documents and that he was unaware if they referred to codes if the had the or owner contrac- safety tual to terminate the He contract. never inspected held never never safety, discussed safety safety, meetings, no and had He knowledge scaffolding regulations. admitted that he had been the bar and knew joists the men had to work on them without the benefit of or scaffolds. made his flooring, planking, Delaney reports to the architect. If he directly found a nonconformity work, architect, with the he it to the problem reported architect would out to the point problem contractor. architect had the duty ensuring contract the contractors. Work compliance changes occasion, were made the architects on and cost changes that, were It school board. on approved by at appears occasion, least one himself that some Delaney required sub work be redone. grade architects,
A Olsen, member firm of E. Jack also testified at trial. He testified that his firm made and that to the school board weekly inspections reports were He described usually prepared jointly Delaney. materials were Delaney’s job proper ensuring used conformed to the and that contract. *12 final of and architect was the quality The judge methods of construction. of the work and Any suitability the architect to the contractors were by directions given He made of the school district. also testified that on behalf to terminate the school district had the the defendant district and between the school contract general notice, failed to contractor, if the contractor after 10 days’ to both Delaney specifications. According comply Olsen, to the and would first Delaney any problem bring attention. If the architect determined architect’s existed, he would then inform the contract violation correct it. If the was not corrected contractor problem within 10 the owner could terminate contract. days, which constituted the contract be- documents tween the school district and the contractor general ordinances, laws, all relevant and incorporate regulations construction, the contractor and specifically concerning manual, with the standard safety agreed comply Construction,” “Manual of Accident Prevention pub- America, lished the Associated General of Contractors Inc. in the Several contract read as specific provisions follows: responsible safety, alone for the
“The Contractor shall be efficiency, adequacy plant, appliances, and of his and methods, may any damage and for which result from their maintenance, improper failure or their operation.” employ “The Contractor of construction or shall methods
erection, hoists, forms, rigging, scaffolding, cribbing, and structures, etc., tools, temporary at site the work satisfy requirements or exceed the American which Safety Building pub- for Construction Standard Code local, safety and lished the USASI and State Federal laws, codes, to the building including and but limited ‘Structural Work Act’ Illinois Revised Statutes Chapter through Sections 60 69.” responsible representa- designate “The Contractor shall job Safety Superintendent tive at the site as a who shall responsible promotion safety prevention accidents, laws, and shall enforce applicable all ordinances, codes, rules, regulations per- standards taining prevention Safety accidents. The Superintendent bi-weekly shall hold meetings with the representatives of the employed various trades job at the site in order to insure that employees all understand and laws, comply etc., with the regulations, hereinbefore set forth.”
The contract also reserved to the owner specifically *13 to access and of the work. All inspection changes in work covered the contract also had to be by in approved the owner. The contract by further writing provided: “In the any event provisions that of this *** Contractor, Contract are by the violated the Owner may serve written notice upon the Contractor and the Surety of Contract, its intention to terminate the such notices to contain the reasons for such intention to Contract, terminate the and unless (10) days within ten after the serving Contractor, such upon notice such violation or delay shall satisfactory cease and arrangement made, of correction be the Contract upon shall expiration of said ten (10) days, cease and terminate.” contends, Plaintiff and the holds, majority opinion the clerk of the works was the representative school district on the construction and that his project activities constituted sufficient in the con- participation struction of the the school district within building bring of a meaning as that term is “having charge,” used in the Structural Work Act. Plaintiff also contends the contractual of the school authority district terminate the contract for contractual violations it gave to enforce power work by regulations stopping Plaintiff nonperformance. of an argues power owner work has been held stop this court be an indicia of important whether the owner is a person “having within the of the Act. charge“ meaning In v. Shell Oil Kennedy Co. 13 Ill. 2d Work Act as court construed the Structural this imposing a named in Act nondele- the owners others upon each is and held that the duty duty compliance, gable that neither can his of the other and escape independent to the other’s breach of statutory liability by pointing duty. Milwaukee, & St. Paul
In Gannon Chicago, Pacific 305, this court considered Co. Ry. again the Structural Work nature of the duty imposed decision in Act and noted that since the Kennedy absolute courts had construed the Act as imposing named in the civil cases each Act upon persons and had held that control of the activities involved was not However, a relevant factor. history reviewing court, Gannon, Act and its considering language, concluded that the Act did not place duty nondelegable each class of named in the Act compliance upon persons but such could who be only duty imposed persons said to be those of the work. The court “having charge” then stated: efore civil liability may imposed upon
“[B] act, defendant owner under 9 of the section must that he had of the construc appear *14 tion the violation.” Ill. operations 22 2d involving 305, 323. last from Gannon was carried language quoted in v.
forward and Larson Commonwealth Edison applied 316, 323, 33 Ill. v. Co. Carruthers B. C. 2d (1965), 378, 376, & Ill. Co. 57 Warren v. 2d Chdstopher (1974), 108, Meeker 55 Ill. and McGovern v. Standish 2d (1973), 54, 65 Ill. 67. Owners 2d (1976), projects under section 9 whom are against damages sought regularly a narrow of this interpretation argue language urge under the Act unless that it absolves them from liability of the of the are in phase operation they particular charge However, arose. in which the from activity injury 498
Emberton v. State Farm Mutual Automobile Insurance Co. 71 Ill. this court held that 2d such a (1978), narrow of this of Gannon is interpretation not language accept Also, able. should be noted such a narrow of the is not interpretation consistent with language of Illinois Instructions, Civil, Pattern No. language Jury ed. which 180.02 informs (2d it is 1971), jury for more than one possible to “have of” the charge work. One or more can have of the overall persons charge work and others can have of the of the work phase charge in connection with which the occurs. This instruc injury tion conforms of this court in Miller v. holdings DeWitt 37 Ill. Li Petri v. Turner (1967), 2d Construction Co. Ill. 36 and Larson v. (1967), 2d Commonwealth Edison Co. 33 Ill. 316. 2d (1965),
Thus, held Gannon under although liability Act cannot be an owner virtue of imposed upon solely by nonetheless, the term ownership property, “having of” cannot be such a narrow as to charge given meaning the owner to have control or require or to be supervision, particular from charge phase operation which the arose. The injury involvement degree owner under the Act lies in required support between these two range poles. court, Gannon,
In Larson this on noted that relying whether connections of an activities particular owner case were such that the owner could be given deemed to have of the work was a of fact question for the to determine. This court has been jury consistent its to that effect. v. Co. holdings (Kobus (1966), Formfit 533; Naven, Ill. Voss v. & Inc. 2d Kingdon (1975), 520; Ill. 2d Hasbrook Construction Co. McInerney 93; v. La Institute Crothers Salle 2d mean, however, This does that in every case the issue must be submitted to a its jury determination or nature of the quantum regardless
499 issue, A review the evidence on this evidence. court must fact, as on issue of on a motion for any passing n.o.v. or for a new trial. This court has on judgment numerous occasions held that the or the evidence pleadings disclosed no facts from could find that a which jury defendant of the work. In person charge having 326, Kiszkan v. Texas Co. Ill. an 2d opinion (1961), Gannon, filed the same as the this court day opinion held that in favor of the defendant summary judgment owner was since the and affidavits proper pleadings disclosed “not a scintilla of evidence that the defendant 326, Ill. owner had of the construction.” 2d charge (22 Howell, In Huckabee Bell & Inc. 47 Ill. 2d (1970), 153, this court held that a directed verdict for the defendant should have been entered. The defendant was scaffold; however, the owner and this court supplier held that he was not in work and that a charge verdict for the under the Structural Work Act was plaintiff reversed court. In Warren v. properly appellate Meeker 55 Ill. court affirmed the (1973), 2d dismissal of a since the did not complaint show allegations that the defendant was a operation charge which involved violation from which the arose. injury In Carruthers v. B. C. & Co. 57 Ill. Christopher 2d (1974), 376, this court held that in favor of summary judgment the defendant was where affidavits filed in proper of defendant’s motion showed that the defendant support was not in of the work in In McGovern v. charge question. Standish this court 2d affirmed the court’s reversal of a verdict in favor of the appellate evidence, because the plaintiff Pedrick judged standard v. Peoria & Eastern R.R. Co. (Pedrick did not show that the defendant was in 510), of the work.
Gannon, while recognizing Structural Work Act was to reduce the hazards of hazardous work to the extent, fullest
particularly possible *16 refused to an absolute on the place class duty nondelegable of named to persons that end. The accomplish court held that it could words of the ignore unambiguous statute civil on those placing responsibility only having Thus, of the work. since charge nondelegable-duty construction of the Act Kennerly announced in was Gannon, in court, reversed decisions, this its has through favored of the term of” logical meaning “having charge which, below, as noted can be best understood by relating to the meaning accomplishment purpose Act. The in this case now majority retreats from opinion that definition to a logical close to the position perilously Kennerly. of construction nondelegable-duty This court has on occasions referred to many case of Schultz beneficent of the Act. In the purpose early Ericsson Co. Henry 156, 164, this court stated that to be attained object this statute was to to in prevent injury this persons employed dangerous In Larson this extrahazardous occupation. court stated that of the Act purpose to prevent injury persons in the extrahazardous employed of occupation work, and, structural consistent with this purpose, thrust of the statute is not confined to those who control the actual work from which the but, arose injury insure maximum extends protection, owners and others who have of the erection In Kobus v. of the structure. charge Co., the court out pointed again purpose Formfit of the Act is to protect in persons extrahazardous engaged work and therefore the burden those places “having of” the McNellis v. Combus Also, construction. charge tion Inc. Engineering, 146, court stated again of the Act is to purpose protect persons in extrahazardous of engaged occupations working in and about the construction of title buildings. very of the Act specifically states the Act is “for and about persons protection *** *** and to for the provide buildings, enforcement thereof.” Rev. Stat. ch. (Ill. par. Thus the Act must be such a act).) applied (title manner as to effectuate its Since its title also purpose. states that it for the enforcement its provides purpose, the civil of section 9 must be provision damages applied that end.
The brief filed International Association of Structural Ornamental Iron Workers Local Bridge, curiae, Union No. as amicus that this court urges apply However, the Act to effectuate its stated purpose. amicus that the owners are much in very argues all construction and therefore the projects Act could accomplished by civil broadly imposing *17 9 under section the liability owners. I upon Although agree that the Act should be to its applied accomplish purpose, of an responsibility owner cannot be on predicated alone. This has been the ownership interpretation Gannon, Act since this decision in court’s and the plain of the Act civil those language liability upon imposing of” the work must be In “having charge given meaning. York, New that State’s of our Work equivalent Structural Act that for an required owner or a contractor to general to liable it had exercise some of control or degree However, of the work. in 1969 the Act supervision amended the by legislature, duty placing nondelegable owners and upon contractors and abso- general imposing lute them for a of breach these liability upon duties of their control or regardless Cloutier supervision. (Allen 290, Construction 44 376 Corp. N.Y.2d N.E.2d 1276, 405 If the of our act N.Y.S.2d can be 630.) purpose more effectively promoted by placing nondelegable duty owner, an as the amicus upon the of urges, plain language our act must be action changed by as it was in legislative New York.
In to the of those for whose order promote safety Act it is the was adopted, necessary protection to of in some relate way safety term charge” “having arose. If the out of which purpose operation injury construc- of the Act is to protect persons engaged under section 9 should be imposed tion industry, are those who in a improve upon position the operation. in Gannon
Since this court rejected nondelegable- 9, it is in this sense section duty only concept, be used to enforcement can provision, accomplish Liability Act. Law purpose Employers’ Oregon’s sec. duty Rev. Stat. 654.305 (1977)) places (Ore. device, for the use care and protection “every precaution” owners, or subcon- “all contractors employees other tractors persons of,” responsi- charge having for, a risk or work bility any danger involving Wilson v. In Portland employees. added.) (Emphasis 562, Ore. General Electric Co. P.2d of” had been noted that the term the court “having of a to involve control construed retained project owner. The court stated that Oregon act is to maximum for workmen provide protection “Therefore, before the in hazardous occupations. engaged an rise should retained control owner give right some of control should bear retained liability, of a to workmen to the creation risk relation danger Ore. conditions.” from (252 working dangerous resulting court 395-96, 448 also Oregon P.2d *18 of retained control noted that there were various aspects and that an owner in a an owner construction project not be a certain and still exercise control for may purposes the of” the work “in within meaning charge Gannon to the observation in statute. This is comparable a construc- in that are various of Larson there phases be in different may charge tion over which persons project Larson, concerned, as the is and as noted in the insofar Act of the work involved in a owner must have charge out the contract of arose. In which particular injury Gannon this court noted the that Act civil imposed for “wilful violation” and stated that wilful liability only violation concluded means violation and that this knowing could be connected directly perpetrated only by persons hold, the I Ill. would as operation. 2d (22 321.) Court, that, did in order to Supreme provide Oregon the maximum in the for workmen hazardous protection work, of structural civil occupation imposition under our act should bear some relation to the liability of the stated of the Act. accomplishment this have decisions court been previous consistent with the of this This end. court accomplishment has held that and control of work or supervision so, to do or conclusive right necessary although statute, factors are, nonetheless, under factors on ultimate whether an owner bearing question v. Co. is in Commonwealth Edison charge. (Larson (1965), Thus, cases 2d where the owner has 322.) contractor, acted general coordinating directing the work of subcontractors, the various has court held was evidence sufficient support finding the owner v. work. (McInerney Hasbrook Construction Co. 93; Ill. see also 2d Larson, Kobus Co. In Formfit addition to a in the contract the' work was provision be done under and to the supervision general satisfaction the owner’s station construction depart ment, were held the owner regular meetings coordinate the work and owner’s representatives safety visited the department site regularly and could make In these cases suggestions. owners, and control of the or their to do supervision so, were considered relevant factors. *19 Emberton, Larson, inas
In as well large Gannon the involved and owners were were projects the of departments companies special charge large of and construction Regular inspec buildings. planning owners, a maintained tions made the they were by of in various staff of who phases participated employees contract. virtue of and execution of the By the planning cases, these the of the owners in activities they ongoing of various enhance the the safety were in a to position that their work, the and thus this court held of phases as to the of fact whether created a question participation The constant a owner was “having charge.” of the construc in the activities” participation “ongoing of an evidence whether tion has been considered project this the work. In Warren Meeker owner is in of the court, cases cited by plaintiff in distinguishing owner, that, noted claim an of its support against “[i]n each, asserted whom was the party against in an to some extent activity pro participated ongoing tected the Act.” Ill. 112. 2d the has considered authority This court generally that the the evidence owner to work stop important course, so, to do owner was in The authority charge. the owner is in a to demonstrates position promote work, when workers by safety stopping observed, of those is for the protection violation In the violation continues. if who injured may Emberton, extensive participation in addition above, out that on several noted we owner pointed the architect to issue had directed occasions the owner Kobus, In this work orders stop 121). (71 was court factor case felt significant if of the architect work necessary authority stop In Miller v. ensure execution the contract. proper court of the archi authority DeWitt emphasized if he tect or even to work to interfere with stop in an unsafe In manner. performed thought being Voss it was out that the defendant could pointed again the work and remove the from In workers suspend job. McNellis, in addition to other extensive over the authority work, this court also stated that the performance had owner if work it was not stop being *20 done safely.
Thus, in the cases in which this court has held that whether the defendant was a awas person “having charge” fact, there of the was evidence defendant’s question involvement the in ato project degree enabled it to the of the workers. promote safety Imposing civil the in defendants those cases liability upon was therefore in furtherance of the of the Act and purpose Also, aided in its enforcement. in the in cases which this court has held that no of fact were questions presented, the defendants were not to effectuate the positions of the Act. found to were not They persons and were held not to be liable for civil “having charge” Howell, 9. under section & Bell Inc. (Huckabee 153; Warren v. (1970), 2d Meeker 55 Ill. 2d (1973), 108; v. B. Carruthers C. & Co. Ill. Christopher 376; McGovern v. 2d Standish In the case I find insufficient involvement the present school district to create a of fact as to whether it question inwas of the the work from which arose. injury
Plaintiff that this court has acknowledges consistently viewed the to work as He therefore right stop significant. the school district in this case had argues the to the work. is no There such authority stop authority either the owner’s contract with the architect or in the owner’s contract with the contractor that the owner gives or the architect the to the work. The authority stop the owner’s plaintiff stated in equates the authority contract to terminate the for contract violations of its terms with to This work. authority stop provision of no have been help
contract would protecting (cid:127) which brought from practices dangerous plaintiff owner, his Under the contract through about injury. works, to had inspect the clerk of the clerk of duty construction. was Assuming cites to violations majority works safety (the inspect when of the owner this fact as evidence “having charge”), he what the clerk of the works observed thought violation, he communi- the contract required the architect. was then within the discretion cate this to It make architect a determination as to whether there violation contract. If the architect was a violation, a contract decided that there was in fact contract that a notice the violation be 10-day required contractor, have 10 to the then would days who given it. is not of retained within which to correct This type have which an owner authority prevent injury must from construc- workers or them hazardous protect tion To the workers from practices. protect injury, at owner must have to act once authority *21 this of a If observation violation. safety delayed type sufficient, to make an is involvement owner procedure Act, under the it would the responsible permit imposition of civil an who had no to owner authority liability upon the A vast number practices. safety prevent dangerous case, violations In this the are short duration. hoisting a few of the material to the bar lasted only joists roofing If correct the were to days a contractor days. given for. that all same could continue the. period, practice, workers, if a worker á .to the time danger constituting held the owner were within would injured period not for a he could prevent. responsible practice Imposing a will not on the owner such situation civil in McGovern court Act.. In this further of the difference work discussed the stop right between held factor to be the cases have which important contract, to terminate the as we have in delayed right this case. This court there held that the delayed right terminate the contract was not to the comparable work if it is in a manner. stop performed being dangerous
Also, district, case the in this school clerk through architect, of the works and did not involve itself in the manner. safety No aspect any for were made. No violations inspections safety safety were attended clerk of the works meetings any owner, representative no were safety suggestions contractor, made to the no discussion concerning with the had contractor. clerk of works to see that the materials were used inspected only proper and that their installation to the conformed specifications in the contract. The that the facts in plaintiff argues case are similar to those in Emberton. The very majority seems to I not opinion this contention. do accept agree. There is no between involvement of simply comparison district, a school which has its designated superintendent works, maintenance clerk with the involvement of State Farm Mutual Automobile Insurance in Emberton. The insurance was a Company company which maintained large organization separate department to deal with the and construction of design buildings This had company. It did department 24 employees. for the construction of preliminary layout the building Emberton, involved in and various employees time, from time to One company, inspected building. hundred orders were issued at the twenty-seven change direction of the and at various times it directed company, the architect to issue work orders. v. State stop (Emberton Farm Mutual Automobile Insurance Co. 71 Ill. In this case is there absent the only 120-21.) Emberton, work that but authority stop was present *22 also there is the no involvement of owner to the extent that it could influence the of the contrac- safety practices
tor; to do nor was there the owner so. As by any attempt Emberton, in owner’s involvements case noted in the contrast, Gannon. By in in as extensive as were were they a clerk of the case the owner was this represented by ensure that the who the to solely works inspected premises installed in the manner materials were specified proper stated, to As clerk he was the contract. “keep see that the owner received the contractor honest” of material it was for. In quantity paying quality held none of the where this court has cases evidence created a of fact as whether question of the work has there been little owner was activities defend- the construction by participation we the school district in this case. To ant owner as have by extend to the owner here does not further of the Act. purposes for the fact that an owner-builder with
Except holding does further little involvement so responsible Act, I am not too worried about of the Act imposed interpretation responsibility involved, when a he owner-builder is because sophisticated is himself able from usually protect consequences or such an insurance interpretation through v. W. E. O’Neil Construction bonds. Capua indemnity (See However, same Co. 2d interpreta a Act when owner is small tion must be to the given businessman, farmer, who a a or a homeowner engages roof, shed, build a contractor paint repair who are house. These are not builders sophisticated people bonds. indemnity insurance or construction protected have standards and know probably They nothing Work It does not never heard the Structural Act. just of the Act that they to be within the contemplation seem of” the work be held should persons “having charge contractor, out to a because may point they simply one of the on the house that painters example, spot *23 failed paint. that, of recent am concerned because statutory
I
also
court,
the
the effect of
enactments and decisions of
ultimate
for
be to
the
burden
may
place
majority opinion
an owner who has
the
of the contractor upon
wrongdoing
In
construction. Miller
minimal contact with the
only
273, this court
out that
DeWitt
37 Ill.
pointed
2d
(1967),
Act
Rev. Stat.
under the Workmen’s Compensation
(Ill.
ch.
the
who
par.
employer
pays
138.5(b))
when the
em
be reimbursed
may
injured
compensation
In
case this
recovers from another.
our
would
ployee
had undertaken
enable
who
com
employer-contractor
standards
plete responsibility
complying
and the Structural Work Act to recover compensation
from
made
out
recovery
payments
plaintiff
plaintiff’s
However,
the school district.
in Miller v. DeWitt this court
also
held
because of
Structur
person responsible
al Work Act could maintain
action for indem
a third-party
on the
nity against
employer
active-passive
wrongdoing
Otherwise,
held,
the Miller court
if the
theory.
negligence
third
who
has
been
active
party,
guilty
negligence,
cannot succeed in an action
an
who has
employer
against
been
of active
the third
will be
guilty
party
negligence,
made to bear the ultimate
burden
loss which should fall
v. DeWitt
employer.
(Miller
Thus,
case,
in our
would
indemnity theory
district-owner,
allow the school
which is held
presumably
Act,
under
Work
responsible
Structural
to seek
from the
on the active-
indemnity
contractor-employer
At the same time the
passive
theory.
negligence
employer
could seek reimbursement under
the Workmen’s Com
Act for
pensation
This circular
compensation payments.
approach
the re
plus indemnity placed
—reimbursement
—
whose conduct caused the
sponsibility upon
party
As
circle remains intact the
injury.
burden of
long
would
injury
whose conduct
placed upon
party
However,
I
it.
am fearful
caused
indemnity
weakened,
if not broken.
of the circle has been
segment
existed,
In
such a
indemnity
holding
right
v. DeWitt relied on an earlier
decision of this court
Miller
& Son
v. National
Co.
Co.
Fireproofing
John Griffiths
an
Subsequent the General enacted “An Act in relation Assembly 23, in effective certain contracts” indemnity September Rev. Stat. ch. 1971. Section 1 of this act (Ill. that, to contracts or with par. 61) provides respect *** construction, “every agreements dealing agree *** ment another for that indemnify person person’s ***.” own is void as public policy against negligence In Davis v. Edison Co. Commonwealth (Emphasis added.) this statute this court held an a rendered void and unenforceable undertaking an architect for claims contractor to indemnify general of the Structural out of the architect’s violation arising in Work Act. This court held that the word “negligence” Work the statute violation of Structural encompasses that, held that such Act and also noted although Griffiths would not violate public policy, indemnity agreements enactment declared- and policy public changed legislative It must be noted that on this subject. legislature another for his to indemnify declared every agreement not limit the It did Own violated public policy. negligence cases indem- of the statute only involving application This who has been actively nification of negligent. Davis, in court, policy expressed applied public architect, who the statute without to whether regard under the actively indemnity agreement, sought passively negligent. case
If a passively negligent person shift his to an cannot actively responsibility negligent then use of an what is indemnity person by agreement, on effect of this expression public policy shifting same under responsibility active-passive negligence court, In Davis this theory? expressed justifying in construction public policy indemnity against agreements contracts, stated that the have considered may legislature that the use of such remove or reduce the may agreements incentive to workers from That case further protect injury. noted that a and thus work person having charge Act, liable for violation of the Work Structural having the avoidance of the no burden would liability, arranged have the same motivation to lessen extent of longer v. Commonwealth Edison Co. danger. (Davis *25 course, of assumes that the 499.) (This, of” is in a to lessen the extent of “having position which, earlier, as noted I contend should be dangers, the construction the Structural Work placed upon Act.) The same would is to one who able to apply reasoning shift the burden for his violation of the responsibility Structural Work Act to another virtue active- by He, too, would be motivated passive indemnity theory. to lessen the extent of the danger. some view the may active-passive theory
Although as still viable Trends In indemnity Guy, Third-Party (see Practices, 448, 449 this court has not (1977)), B.J. had the occasion consider In the question. past court has not between the contract theory distinguished based on the tort indemnity indemnity theory (see Miller if would seem to that Griffiths). Logic require of a is to shift burden Structural public policy against Work Act violation an it must also by express agreement, to do so virtue of public policy active-passive against It would be anomalous to hold that an owner negligence. of construction in one count of a “having charge” could not maintain an action for indemnity complaint a contractor based on an expressed against agreement because that violates indemnify policy, agreement public could, count of the but the same owner another seek the same results based on active- exactly complaint, passive negligence.
It thus liberal appears extremely interpreta- of” tion placed upon phrase “having charge interaction Structural majority opinion, Work Act with enactments and decisions other statutory court, of this have the effect of ultimate may placing for the of a responsibility contractor-employer wrongdoing an owner who could be said to be only “passively would thus suffer no negligent.” contractor-employer methods but penalty dangerous using would, effect, relieved of the additional benefit by being This result would costs standards. conforming seem to me to the use of hazardous construc- encourage tion thus the stated practices, defeating Structural Work Act. result, is,
To in order to avoid such a reestablish circle, this court will have to indemnity segment devise, decisions, fiction which will hold future a new to the an owner cannot shift his responsibility under an be- indemnity employer expressed agreement somehow, can nonethe- cause it violates but public policy, *26 under the active-passive same result less, accomplish has in itself been fiction latter fiction. The negligence as muddle” having “the active/passive described (Guy, and semantically unintelligible.” become “logically Practices, In Third-Party Trends B.J. liberal majority opinion’s I am afraid
(1977).) the interaction “having charge,” other statutory provisions construction with court, undermine seriously decisions of this previous Act was the Structural Work adopted, for which purpose worker was not injured (this which compensate of the Workmen’s Compensation Act), being but to safety. promote of law the school district
I hold that as matter would within is not a meaning “person having charge” Work Act. Structural
(No. 51059. ILLINOIS, OF THE STATE OF THE PEOPLE Appellant, MALLOY, THOMAS G. Appellee. 6, 1979. Opinion September filed