dissenting:
Under the rationale of Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 211 N.E.2d 247, the question of whether the defendant was in charge of the work in question was a question of fact for the jury. In Larson members of the defendant’s construction crew were on the job at all times. They did not exercise any control over the work but merely inspected to see that the terms and specifications of the contract were carried out.
Under these facts the supreme court held that whether the defendant was in charge of the work involved was a question of fact for the jury to determine. In Larson the supreme court said:
“In the Gannon case, (22 Ill. 2d 305,) where it was expressly noted that the owner involved had ‘exercised no control over the manner in which the work was being done,’ (p. 307) we held that an owner must have some direct connection with the operations, over and above mere ownership or the employment of an independent contractor, and indicated that the question whether the particular connections and activities in a given case were such that an owner could be deemed to have charge was a question of fact for the jury to determine. Nothing in Gannon suggests or holds that either the exercise of supervision and control, or the retention of the right to do so, are essential ingredients for having charge. And manifestly, the plain language of the statute does not limit duty and liability to owners retaining control and supervision of the work as the instruction suggests. The inclusion of the words ‘by retaining supervision and control of the work’ placed a greater burden on plaintiff than the law required and was improper.” (33 Ill. 2d 316, 322-23.)
I take this statement to mean that if the owner has any substantial direct connection with the work in addition to ownership, the question of whether he is in charge is one for the jury. Beebe v. Commonwealth Edison Co., 45 Ill. App. 3d 43, 358 N.E.2d 1343; Carlson v. Metropolitan Sanitary District, 64 Ill. App. 2d 331, 213 N.E.2d 129; McInerney v. Hasbrook Construction Co., 62 Ill. 2d 93, 338 N.E.2d 868.
The evidence discloses that the degree of participation in the work by the defendant in this case was more than sufficient to satisfy the Larson test.
William Delaney was employed by the defendant as a clerk of the works for construction of the new high school and also as supervisor of construction for the Collinsville School District. He testified under cross-examination by plaintiff’s attorney that he served as liaison between the architect and the contractor. He kept track of the number of employees on the job, checked on the quality of the work and generally saw to it that the work was done in accordance with the plans and specifications. He maintained an office adjacent to that of the general contractor and kept a complete set of plans and specifications in his possession at all times.
He was on the job every day and spent one-half to two hours inspecting the work. If he found anything wrong with the work, he would report to the architect and then he and the architect would have a conference as to whether the work was to be accepted or rejected. There were many meetings between him, the architect, the general contractor and the subcontractors. He testified that there were regular meetings for clarification of work on the job and also to ascertain the amount of draw that could be made by the contractor for a particular month.
Jack E. Olsen testified that he was vice president of the Architectural Associates, Inc., who were the architects for the building of the vocational education building for the Collinsville School District. He identified the contractor documents and stated that the agreement between the owner and the contractor pertained to the specifications and plans for the area vocational school. His firm would inspect the premises approximately one day a week. He and Delaney would prepare reports regularly on the progress of the job and report to the school board at their regular meetings.
“Q. And who was in charge of the work for the school district?
A. The Clerk of the Works.
Q. And that is Mr. Jack Delaney?
A. Mr. Bill Delaney.”
He defined the duties of the clerk of the works in the following language:
“The Clerk of the Works, basically, I’ll go back to the contract between the owner and the architect, depending on the size of the project, whether it’s in say millions of dollars or what have you, and the complexity of it, the owner has the right to actually have a representative at the job site during construction, essentially to protect his interest. And the job of the Clerk of the Works, essentially is to assure that the contract documents, the materials that are used, the method of detailing, the number of reinforcing bars, the strength of the concrete and so forth, is placed in accordance with the plans and specifications as prepared by the architect. And this essentially is his job, to really check the quantities and uh, number of bars and so forth, type of construction. # # #
Q. I say Mr. Delaney’s definition of what a Clerk of the Works duties are would be as good as your definition, wouldn’t it, sir?
A. I don’t think so, since actually the duties were discussed at each interview.
Q. Those duties we’re talking about, Mr. Delaney indicated he was asked to make a head count, report temperature and report those materials or that matter into the architect, did you hear him say that?
A. That’s correct.
Q. Was that correct as to what his duties were?
A. I don’t think it was complete in that he gave a report as to what transpired during the day, work in place, what was worked on and what part of the building and so forth. And also he documented any problems that arose on the job.
# # #
Q. And normally somebody supervises construction for the owner?
A. It depends on the job.
Q. And in this job, who supervised the construction for the owners?
A. The Clerk of the Works, Mr. Delaney.
Q. And the school had the right to inspect for safety, did it not?
A. Yes sir.”
Orville Meadows, a labor steward on the job, testified that Delaney was overseer for the Collinsville Unit School District on the job and that he would be there daily.
Ellsworth Heilman testified that he was a laborer on the job and employed by the general contractor. His duties were to get the subgrade ready for a concrete pour. He testified that there were some subgrades that had to be redone because of a high water table on the project and that this was done at the direction of Delaney.
The owner in this case was also given a great deal of control over the work by certain provisions in the contract, such as:
“14. REPORTS, RECORDS AND DATA
a. The Contractor shall submit to the Owner such schedule of quantities and costs, progress schedules, payrolls, reports, estimates, records and other data as the Owner may request concerning work performed or to be performed under this Contract.
15. SUPERINTENDENCE BY CONTRACTOR
a. At the site of the work, the Contractor shall employ a construction superintendent or foreman who shall have full authority to act for the Contractor. It is understood that such representative shall be acceptable to the Architect and shall be one who can be continued in that capacity for the particular job involved unless he ceases to be on the Contractor’s payroll.
16. CHANGES IN WORK
a. No changes in the work covered by the approved Contract Documents shall be made without having prior written approval of the Owner. a a a
19. CORRECTION OF WORK
a. All work, all materials, whether incorporated in the work or not, all processes of manufacture, and all methods of construction shall be at all times and places subject to observation of the Architect who shall be the final judge of the quality and suitability of the work, materials, process of manufacture, and methods of construction for the purposes for which they are used. Should they fail to meet his approval they shall be forthwith reconstructed, made good, replaced and/or corrected, as the case may be, by the Contractor at his own expense. # # #
24. PAYMENTS TO CONTRACTOR
d. The architect may withhold or, on account of subsequently discovered evidence, nullify the whole or a part of any certificate to such extent as the Architect may deem to be necessary to protect the Owner from loss on account of: # # #
33. SUBCONTRACTING
b. The Contractor shall not award any work to any subcontractor without prior written approval of the Owner, which approval will not be given until the Contractor submits to the Owner a written statement concerning the proposed award to the subcontractor, which statement shall contain such information as the Owner may require.
34. SUBCONTRACTS
a. The bidder is specifically advised that any person, firm or the party to whom it is proposed to award a subcontract under this Contract must be acceptable to the Owner and Architect. a e «
e. The Owner and the Architect shall at all times have access to the work wherever it is in preparation. The Contractor shall provide proper and safe facilities for such access and for inspection. # » #
F. Use of Site and Site Practices: The work must be scheduled to afford a minimum of inconvenience to or interference with, the normal and continuous use by the Owner of the existing facilities, services and utilities, and the areas adjacent thereto in which the work is to be performed. Interruption of utilities and services shall be performed in accordance with the schedule approved by the Owner and Architect.
3. Rubbish shall be removed from the site in a manner approved by the Architect and Owner, in accordance with this Article and at such times that a nuisance will not be created. # # #
5. The Contractor shall confine his construction equipment, the storage of materials and the operations of workmen to the limits indicated by laws, ordinances, permits and as may be established by the Architect and Owner, and shall not unreasonably encumber the premises with construction equipment or materials.
6. The Contractor shall enforce the Architect’s and Owner’s instructions regarding sign, advertisements, fires and smoking. e # #
I. Emergencies: In an emergency affecting the safety of fife, the work, or adjoining property; the Contractor, without special instructions or authorization from the Architect or Owner, is permitted to act at his discretion. # # #
15B-03 SUPERVISION AND COOPERATION:
(a) All work must be done to the complete approval of the Architect, and there shall be no deviation from these plans or specifications without his written approval. « # #
16A-02 SCOPE OF WORK:
(i) The Electrical Contractor shall not scale the plans but shall check all measurements at the building and adjust his work to fit the space allotted for same. Close cooperation between all trades will be required. Any work done by this Contractor without regard for the work of other crafts shall be moved, at the option of the Owner, as part of the electrical work, without extra charge to permit the proper installation of other work.
(j) The Owner shall have the right to relocate, within a ten foot radius without additional cost to the Owner. * « «
16A-05 DEFINITIONS:
(a) Whenever in these contract documents the words ‘as ordered’, ‘as directed’, ‘as required’, ‘as allowed’, or words or phrases of like importance are used, it shall be understood that the order, direction, requirement, permission, or allowance of the Owner is intended.”
The power given to the owner and its architect agent under this contract was broad and sweeping. That power was fully exercised by the owner while the work was being performed. The owner through its construction superintendent was on top of the job at all times. He regularly consulted with the architect about work problems and both of them met regularly with the general contractor. Delaney also reported regularly to the defendant about the progress of the work. In my opinion, the question of whether the defendant was in charge of the work was for the jury.