dissenting:
I am persuaded that a question of fact exists as to whether defendants were in charge of the work within the meaning of the Illinois Structural Work Act at the time plaintiff was injured and that the trial court erred in entering summary judgment in favor of the defendants. Therefore, I dissent.
Judge Ivan Yontz denied defendants’ motion for summary judgment on March 14, 1985, and set the cause for a jury trial. It appears that Judge Yontz then retired. On February 7, 1986, defendants filed a motion to reconsider the denial of the motion for summary judgment before Judge Donald Courson, who granted the motion to reconsider on May 6, 1986, and entered summary judgment on behalf of defendants. In his judgment order, Judge Courson included the following paragraph in his findings:
“2) In Winter vs. Davis 85 Ill. App. 3rd 912, a trial court ruling on a directed verdict for homeowner defendant was sustained on appeal. In Di Prima vs. Edwards 55 Ill. App. 3rd 633, a granting of defendant’s.homeowner motion for summary judgment was sustained on appeal. In each of those cases the homeowners participation in the particular activity that led to injury was greater than in the instant case.” (Emphasis added.)
Obviously the trial court gave primary consideration to defendants’ supervision or control of the particular work being done by plaintiff at the time of the accident.
In McGovern v. Standish (1976), 65 Ill. 2d 54, 357 N.E.2d 1134, the Illinois Supreme Court did indicate that the architect-defendant could not be held liable under the Illinois Structural Work Act unless he was in charge of the particular activity resulting in the plaintiff’s injuries. However, in Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348, this court’s reliance on that holding in McGovern proved to be misplaced when the supreme court ruled that liability under the Act is not confined to those who perform, supervise, or control the actual work which causes the injury but also extends to owners and others who have charge of the erection or alteration of any building. The Emberton decision followed closely the leading case of Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247, where the court said:
“[Cjonsistent with its beneficent purpose of preventing injury to persons employed in the extra-hazardous occupation of structural work, the thrust of the statute is not confined to those who perform, or supervise, or control, or who retain the right to supervise and control, the actual work from which the injury arises, but, to insure maximum protection, is made to extend to owners and others who have charge of the erection or alteration of any building or structure.” (33 Ill. 2d 316, 322, 211 N.E.2d 247, 251.)
This same point was emphasized in Johnson v. Commonwealth Edison Co. (1985), 133 Ill. App. 3d 472, 478 N.E.2d 1057, where the owner of a power plant under construction at the time of plaintiff’s injury appealed from a jury verdict in favor of the plaintiff. The reviewing court affirmed and in its decision discussed McGovern, Emberton, and Larson, with the following observations:
“As a result, is is not necessary that a party be in direct charge of the particular operation from which the injury arose if it is in charge of the overall work for the project under construction. [Citation.] One or more parties can have charge of the phase of the work in connection with which an injury occurs. In that event, all of them would have charge of the work within the meaning of the Act.” 133 Ill. App. 3d 472, 478, 478 N.E.2d 1057.
It is clear from the record that defendants scheduled and coordinated all the various activities at the construction site. It is not disputed that Mr. Gurganus ordered supplies and materials, hired the various subcontractors to do individual phases of the construction work, made day-to-day decisions concerning the scheduling of the work, was physically present at the site on a regular basis, and did a great deal of the work himself. Among other things, defendant dug and poured the foundation footings, laid the cinder block foundation, put in floor joists and subflooring, installed ductwork and piping for the air conditioning system, installed the drywall (with the help of some friends), and also installed the electrical wiring, tile and terrazzo, and bathroom fixtures.
Unlike the majority, I consider Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 415 N.E.2d 599, to be controlling because of the close factual similarities. The court in Bishop based its ruling not only on the owner’s knowledge of the construction industry but also on the fact that he “interjected himself into the progress and completion of the work. In short, defendant was not liable because of mere ownership, but because of his supervision and control of the work.” (92 Ill. App. 3d 1, 11, 415 N.E.2d 599, 607.) In Bishop, as here, the owner coordinated the various contractors and functioned as the general contractor for the entire project. It is the role the owner assumes that is the determinative factor as to whether the owner had charge. (Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App. 3d 1050, 398 N.E.2d 60.) In Simmons v. Union Electric Co. (1984), 121 Ill. App. 3d 743, 460 N.E.2d 28, affirmed (1984), 104 Ill. 2d 444, 473 N.E.2d 946, both the appellate court and the supreme court affirmed the trial court’s determination that the owner was in charge of the work where employees of the owner regularly inspected the plant, determined when and to what extent maintenance work was needed on the electrical system installed by the plaintiff’s employer, and summoned the plaintiff’s employer when services were required. Again, it was the role of the owner in the overall project that was found to be controlling.
The two cases relied upon by Judge Courson in his order are distinguishable on their facts from the case at bar. Winter v. Davis (1980), 85 Ill. App. 3d 912, 407 N.E.2d 696, involved an injury to a painter who fell from a ladder while painting the home of the defendant. The facts indicated that the owner was not in charge of the project but rather that he had contracted with three teachers to do the painting and that he was rarely present during the work. Although he supplied some equipment, the ladder involved in the injury did not belong to the defendant. The court concluded that the defendant’s “nexus to the work was that of a mere owner who had contracted for a paint job.” (85 Ill. App. 3d 912, 918, 407 N.E.2d 696, 701.) Di Prima v. Edwards (1977), 55 Ill. App. 3d 633, 371 N.E.2d 252, involved some repair work on the windows of defendant’s building. The court upheld a summary judgment in favor of defendant owner and relied primarily upon the McGovern v. Standish decision for the view that the owner was not in charge if he had no direct connection with the construction operation and no contractual duty to supervise the work. This case preceded the modification of McGovern v. Standish by Emberton v. State Farm Mutual Automobile Insurance Co., as discussed above. Neither Winter v. Davis nor Di Prima v. Edwards involved a multiphased construction project such as the one before us.
As previously indicated, the question here is whether defendants were in charge of the erection of their house. I believe that question presents a factual issue for a jury to decide. The trial court erred in entering summary judgment, and I would reverse and remand for a jury trial.