Carruthers v. B. C. Christopher & Co.

Mr. PRESIDING JUSTICE EBERSPACHER

dissenting:

The issue on appeal here is whether or not the trial court was correct in granting the motion for summary judgment. The motion was supported by the affidavit of the defendant John Shanks and the depositions of Shanks, Compton and plaintiff. No counter-affidavit was filed by plaintiff. The effect of the failure to file a counter-affidavit was to admit the facts as presented by the affidavit and depositions. In Walsh v. Monumental Life Insurance Co., 46 Ill.App.2d 431, 435, 197 N.E.2d 124, 126, the court pointed out:

“It is true, as contended by defendants, that where facts in support of a motion for summary judgment are set forth in an affidavit presented by the movant, the opposing party cannot rely solely on his complaint to rebut it, even though the complaint and answer taken alone do present a genuine issue of material facts.”

The same court in reaching a similar conclusion in Kapka v. Urbaszewski, 47 Ill.App.2d 321, 326, 198 N.E.2d 569, 572 said, “Raising an issue in the pleadings does not preclude summary judgment”.

I see no significance in the conversation between Compton and Shanks which is quoted at length in the opinion, nor the quoted testimony of Shanks. Those conversations did not result in a contract under which the work was done nor do they reflect any control of the work which was done by plaintiff as an employee of Okaw Valley Construction Company, with whom the contract to do the work was ultimately made. Despite the conversation between Compton and Shanks, and that on occasion Compton was employed by defendant to do similar- work, the work being done at the time plaintiff was injured was being done by plaintiff and Compton as employees of Okaw.

The matters before the court negate tire theory that defendant was in charge of the work, and consist of an affirmative showing of a total absence of intervention, control or supervision as demonstrated by the deposition of Compton^ the foreman of plaintiff:

“Q. Nobody with Christopher told you or Carruthers how to do tins work you were doing?
A. No. As far as I know, it was entirely up to us to do it the way we felt it should be done. The only thing was we was to turn the pipe.”

Further the deposition of plaintiff also expressly shows that defendants were not in charge of the work which plaintiff was doing.

“Q. Did John Shanks or anybody with B. C. Christopher and Company give you any directions on how to do this work?
A. No.”

This evidence is controverted only by the unverified general allegation of the complaint. No facts are shown in either the complaint, depositions or affidavit indicating any charge or control of this particular operation by the defendant. See Van Dekerhov v. City of Herrin, 51 Ill.2d 374, 282 N.E.2d 723. In Kaminski v. Missionary Sisters of the Sacred Heart, 62 Ill.App.2d 216, 210 N.E.2d 794, the court considered a complaint which alleged that the defendant “was in charge of the work” and examined the pleadings, depositions and affidavits in determining the propriety of a summary judgment. It said at page 796 of 210 N.E.2d:

“The naked charge that Corbetta was ‘in charge of the work’ and that the scaffold was inadequate without any facts to support it, is, in our opinion, a conclusion of the pleader, which must be disregarded in considering the motion for summary judgment. See Supreme Court Rule 15 (Illinois Revised Statute 1963, Chapter 110, Section 101.15) which provides that affidavits in support of or in opposition to a motion for summary judgment ‘shall not consist of conclusions but of facts admissible in evidence.’”

A summary judgment was also sustained in Melvin v. Thompson, 39 Ill. App.2d 413, 188 N.E.2d 497, where the mere allegation that defendants were in charge of the work was likewise unsupported by any facts.

The majority, without citing any authority concludes that the jury could have found that “defendants are persons in charge because they had a right to stop the work if it were being done in a dangerous manner”. There is nothing in the record to indicate that defendant retained that right. But, even assuming that an owner was humane enough to' stop the work if he determined the manner in which it was being done placed those doing it in a needless jeopardy, or practical enough to stop the work in the manner in which it was being done because it created an unnecessary hazard to property, such acts would not be the exercise of such control as would place him in charge of the work under the statute under the holdings in Melvin v. Thompson, supra, and Loveless v. American Telephone and Telegraph Co., 40 Ill.App.2d 347, 189 N.E.2d 679.

In the former case the defendant contracted with the plaintiff’s employer for the repainting of certain signs on a building owned by defendant. Plaintiff was sent by his employer to perform such work and was injured when he fell off a scaffold. There was evidence from the pleadings, depositions and affidavits, that the defendant had instructed plaintiff that he was dissatisfied with a prior painting job and intended to “watch this job extra carefully” (188 N.E.2d at page 499). Further there was evidence that defendant had instructed plaintiff that he would stop the work as it progressed and would make no payment unless done to. his satisfaction. Defendant instructed plaintiff, in great detail, as to the type of paint to be used, the time work was to be commenced and furnished the plaintiff with a ladder to gain access to the scaffolding. It also appeared that the defendant had inspected the paint which was used and had inspected the scaffolding rope itself, and had stated that it looked all right. The defendant had examined the work in progress and pointed to deficiencies. Still, when the plaintiff sought to impose liability on the owner contracting party, on the basis of the Structural Work Act, a summary judgment in favor of the defendant was entered and affirmed on appeal. The court said at page 500 of 188 N.E.2d:

“At most the activities of defendant Thompson can be considered as an effort to require compliance with the contract and to insure that the quality of work done was as agreed; he inspected the painting as it progressed and threatened to terminate the work if the job was not being done satisfactorily. In doing so he could not be considered by reasonable men to have been ‘in charge’ of the work, as required for owner-liability under the terms of the Scaffold Act. We, therefore, conclude that, taken in the aspect most favorable to the plaintiff, the pleadings, depositions, and counter-affidavit do not raise a genuine factual issue with respect to control by defendants of the painting operations. It follows that summary judgment for defendants was proper.”

In Loveless v. American Telephone and Telegraph Co., 40 Ill.App.2d 347, 189 N.E.2d 679, there was also an attempt to impose liability under the Act on the owner of the building on the theory that he was in charge of the work. There was evidence that the defendant’s inspector or engineer could, if he observed a violation of statutory requirements, have terminated the job until such statutory requirements were complied with. Also it appeared that the owner’s representative had authority to discuss any violation with the superintendent of the contractor. The court held at page 681 of 189 N.E.2d that the defendant was not “in charge” of the work.

“In this case there is no evidence of any kind that the American Telephone and Telegraph Company at any time had charge of the construction involving the violation of the Scaffold Act. The mere fact that the defendant might, through notice or otherwise, call attention to and correct a violation of the law, does not of itself, involve any degree of control or supervision. Considering the evidence in its most favorable light, giving the plaintiff the benefit of its most reasonable intendments, there is a total lack of evidence that the defendant owner had charge or supervision of the work involving violation of the Act.”

The court thereafter affirmed a judgment notwithstanding the verdict in favor of the defendant.

The majority also concludes without citing authority that “since the jury could find that it was within the contemplation of the parties that permanent parts of the structure were to be used as supports or scaffolds in doing the work and that the defendants were to furnish them it could have found that the defendants had sufficient connection with the operation to be in charge within the meaning of the Structural Work Act”. The record does not show what defendants contemplated with reference to the manner in which Okaw’s employees would do the work or what precautionary measures would be taken by either the workmen or their employer. But even assuming that defendants contemplated that plaintiff would stand upon the structure to do the work, ownership of the scaffold itself and being in charge of it is insufficient in law to constitute “having charge of the work so as to impose liability on the owner under the statute. In Kobus v. Formfit Co., 35 Ill.2d 533, 537, 221 N.E.2d 633, 635, the court said:

“The Scaffold Act is a statutory enactment to protect those engaged in extra hazardous work, and recognizes a duty upon certain categories of individuals to use certain specified safeguards and standards of safety in the erection of structures where such work employs the use of scaffolds. It does not place a duty, and therefore a corresponding liability for its violation, merely upon the ownership of the premises upon which such construction is being undertaken. It places that duty among others upon an owner, ‘having charge of such construction of a building * * We did not there define what specific acts or factors would satisfy this statutory requirement, but we did hold that the mere fact of ownership of the premises was insufficient for liability.”

The involved principal is more clearly stated in Bruen v. Burton Auto Spring Corp., 130 Ill.App.2d 477, 481, 266 N.E.2d 177, 178:

“It is now settled that liability under the Structural Work Act cannot rest alone on the erection, control, or ownership of what causes the injury. See Gannon v. Chicago, M. St. P. & P. Ry. Co., supra; Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247; Reed v. Johnson, 55 Ill.App.2d 67, 74, 204 N.E.2d 136. For example, without proof that the person sought to be held liable was in charge of the work, ownership of planks that go to make a scaffold does not determine HabEity under the Act. Schaffer v. Veach, 61 Ill.App.2d 168, 209 N.E.2d 373.
Our study of the cases, particularly those cited by plaintiff leads us to conclude that in determining defendant’s liabffity, it is irrelevant who had charge of the scaffold, unless this fact is related to having charge of the work. In Vykruta v. Thomas Hoist Co., Inc., 75 Ill.App.2d 291, 221 N.E.2d 99, we held that one who furnishes equipment is not put in charge of the construction or of that part of the construction in which the equipment is used. ‘[M]ere renting of the equipment and the repositioning and repairing of equipment which has ceased functioning are not enough. In both instances there must be something more; the owner or the supplier must be directly connected with the operation.’ 75 Ill.App.2d 291 at 303, 221 N.E.2d 99 at 105.”

The principal is recognized in Isabella v. Cowles Chemical Co., which the majority cites, wherein the court quoted the language of Bruen at 289 N.E.2d 17, “* * * liabffity under the Structural Work Act cannot rest alone on the erection, control or ownership of what causes the injury”. Furthermore, the fact that the defendants herein contracted for the performance of the work is not only not controlling, but not in the least respect influential, since in every case involving the Structural Work Act, someone has contracted for the performance of the services. This fact alone is not persuasive in determining if the contracting party “has charge of” the work. It is required that the contracting party and the owner of the premises have a direct connection with the repair operations themselves. As stated by the Illinois Supreme Court in Larson v. Commonwealth Edison Co., 33 IE.2d 316, 211 N.E.2d 247, at page 252:

“It may be conceded that Sargent, like an owner, must have some direct connection with the construction and alteration operations before it can be deemed to be in charge of the work, and thus subject to duty and liability under the Act.”

Since the facts shown in defendant’s affidavit are admitted, since no genuine issue of fact was shown in the depositions and since the complaint is insufficient in itself to raise such an issue in a summary judgment proceeding, the trial court was correct in entering a summary judgment, and I would affirm.