dissenting:
This appeal is taken by the defendant, the Victory Baptist Church of Sunnyland, Illinois, following a jury trial wherein the plaintiffs, Randall and Julie Price, were granted a $287,500 verdict on a Structural Work Act claim (hereinafter Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60). Randall, a 27-year-old member of the church, was injured when he fell off a ladder while working in a voluntary capacity on church remodeling activities. While I agree with the majority that a ladder is included within the purview of the Act and that a volunteer might be covered under the Act if someone is directing his work, I find that no one was in charge of Randall’s work. Accordingly, a Structural Work Act claim does not apply under the facts of this case and I dissent.
In the winter of 1985, Victory Baptist Church was converting an old grocery store into its church facilities. The remodeling work was done by church members on a volunteer basis with the exception of electrical work, which was contracted out. The plaintiff had regularly assisted in the remodeling project, and on December 6, 1985, the plaintiff went to the church in order to install speakers in the building. According to Pastor Buddy Glass, Randy volunteered for the project because he had experience in installing sound systems. Pastor Glass stated that he only told the plaintiff where to hang the speakers on the wall but that “I did not tell him *** how to go about doing it” because “I was leaving it up to him” since it “was his responsibility.” With regard to safety precautions, Pastor Glass testified that “we just left it up to the discretion and to the responsibility of that worker to take all safety precautions” because it was volunteer work.
At the time of the accident, the plaintiff and his wife were working alone in the back section of the building. To install the speakers on the wall, the plaintiff was using the bottom part of an extension ladder independently because the top and bottom parts would not fit together. The ladder had been loaned by Robert Frye, a member of the church who had been appointed supervisor of the remodeling project by Pastor Glass. Mr. Frye was not at the site when the plaintiff was injured and had not been there for two or three weeks. In attempting to thread the speaker wire, the plaintiff climbed the ladder and tried to step across an air duct when the ladder slipped from beneath him. The plaintiff fell approximately 12 feet to the concrete floor and injured his left leg.
The Structural Work Act imposes a duty of care on an “owner, contractor, sub-contractor, foreman or other person having charge of the *** construction *** of any building *** within the provisions of this act.” (Ill. Rev. Stat. 1987, ch. 48, par. 69.) While the determination of whether a defendant had charge of the work has generally been held to be for the trier of fact, this issue may be determined as a matter of law where the evidence presented is insufficient to create a factual question. (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481.) The majority, citing to Zukauskas v. Bruning (1989), 179 Ill. App. 3d 657, delineated the following factors to be considered in deciding the “in charge” question:
“Did the defendant ***
(1) supervise and control work?
(2) retain the right to supervise and control?
(3) consistently participate in the work?
(4) supervise and coordinate subcontractors?
(5) take responsibility for safety at the site?
(6) have authority to change orders?
(7) have the right to stop work?
(8) own equipment at the site?
(9) have knowledge of construction customs and practices?
(10) have ability to assure worker safety or alleviate equipment deficiencies or improper work habits?” (205 111. App. 3d at 608.)
The majority finds that based on these factors, there was sufficient evidence to conclude that Victory Baptist Church was “in charge” of the work when Randall was injured. I disagree.
Pastor Glass testified that no one was directing Randall’s installation of the speakers and that it was Randall’s responsibility to determine how the job was to be completed. When the plaintiff was injured, no other person was supervising this work. Additionally, the ladder the plaintiff fell from was not owned by the church. Moreover, the renovating work was being done by volunteers who were responsible for taking their own work and safety precautions. Based on these facts, it is clear that the church was not “in charge” of the work within the meaning of the Structural Work Act. Rather, by analogy, the facts of this case compare with a homeowner who merely schedules the work to be done and purchases the supplies, but does not exercise control over those who perform the work. In such situations, the homeowner is not a party “in charge” and the Structural Work Act does not apply. (Angus v. Doss (1987), 157 Ill. App. 3d 300.) Similar reasoning should be applied to the facts of the case at bar.
Therefore, I dissent.