Angus v. Doss , 157 Ill. App. 3d 300 ( 1987 )

JUSTICE STOUDER

delivered the opinion of the court:

Plaintiff-appellant, Alton Angus, and his wife, Bernadette Angus, filed a multicount complaint against the defendants-appellees, Barry Gurganus and Patty Gurganus, and certain other defendants not parties to this appeal. Count 9 of the complaint was brought by Alton to recover damages caused by an alleged violation of the Illinois Structural Work Act (Act) (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.). The circuit court of Tazewell County granted summary judgment in favor of the defendants-appellees and against Alton as to the Structural Work Act count, ruling that there was no question of fact that the defendants did not have charge of the work. All other counts of the complaint had previously been dismissed on motion. This appeal follows.

The facts disclose the defendants purchased property sometime around 1971 or 1972. In 1974 they hired an individual to put in a gravel driveway and later, in 1979, they hired an individual to do the excavation work necessary to construct a basement. Once the excavation was completed, the defendants dug and poured the footings and laid the concrete blocks used for the basement walls. Thereafter, they put in the subfloor. Subsequently, in 1981, the defendants entered into a contract, entitled “Contract for Construction of Residence,” with Alton’s employer, Ron Doss Construction Company, Inc., wherein the contractor was employed to construct the interior walls, the stairwell downstairs, and the stairwell in the garage; to install the interior wooden trim; to hang doors; to hang the exterior siding; and to put on the roof. The contract identified the defendants as “Buyers” and the construction company as “Seller.” The contract contained the following provision:

“6. In connection with this contract, it is specifically agreed and understood by the parties that the operation, control and supervision of the construction to be done by Seller shall be bourne entirely by Seller, and Buyers shall have no right to control and direct any employee, contractor, subcontractor or employee of any subcontractor while working on the premises.”

At the time of his injury, November 27, 1981, Alton was standing on a stud wall while installing roof trusses. Installation of the stud wall and the roof trusses was a part of the Doss contract with the defendants. No equipment, materials, tools, scaffolding, ladders, or similar equipment was supplied by the defendants. Alton suffered personal injuries and property damage as a result of a fall from the top of the stud wall. Thereafter, this cause of action was filed.

The paramount issue we are asked to determine on appeal is whether the trial court erred in ruling that as a matter of law the defendants were not in charge of the work being performed which resulted in injury to the plaintiff.

Alton argues that the defendants were in charge of the work because, unlike the average homeowner, they performed much of the construction work themselves. They personally (1) hired people to perform various work; (2) priced materials and supplies; (3) purchased a large amount of the materials and supplies; and (4) scheduled and coordinated much of the work. Alton, in his deposition, stated that from his experience, observations, and conversations with his employer-contractor, he believed the defendants were acting as the general contractor for the construction of their house.

On the other hand, defendants contend they established, as a matter of law, that they did not have charge of any aspect of the work. which involved the alleged violation of the Act or which created Alton’s injury. They argue they did not supervise, direct, or control the work of Alton’s employer-contractor in any fashion. Nor did they furnish any materials, tools, equipment, scaffolding, or the like for use by any of the workmen, including Alton.

Section 9 of the Illinois Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 69) imposes civil liability for wilful violations of the Act upon “[a]ny owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this act.” To establish liability under the- Act, an owner must have been in charge of the operation which involved the violation from which the injury arises. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific R.R. Co. (1961), 22 Ill. 2d 305, 323, 175 N.E.2d 785, 794.) Mere ownership of the premises is not sufficient to establish liability under the Act. (22 Ill. 2d 305, 319-20, 175 N.E.2d 785.) The trial court did not commit error in granting summary judgment in favor of the defendants if the pleadings, deposition of plaintiff, affidavits, and counteraffidavits show that no genuine issue was raised as to the material fact that the defendant owners were not in charge of the work during the performance of which plaintiff was injured. (Di Prima v. Edwards (1977), 55 Ill. App. 3d 633, 371 N.E.2d 252.) We are of the opinion that the trial court did not err in granting summary judgment in favor of the defendants under the circumstances of the instant case.

While it. is true that the defendants in this case are more knowledgeable and are seemingly well versed in the construction industry, they do not rise to the same level as the defendant in the principal case relied upon by Alton. (See Bishop v. Crowther (1980), 92 Ill. App. 3d 1, 415 N.E.2d 599.) In that case the defendant admitted, among other things, that he worked in the construction industry all his life and was familiar with construction customs and practices. He was well versed in roofing work. He also admitted he had greater knowledge of construction industry and safety aspects of the industry than did the average homeowner. He was also part owner of a construction company. Such factors are not present here.

We also note that other factors probative of having charge are not present in this case, such as (1) ownership of equipment used at the jobsite (Winter v. Davis (1980), 85 Ill. App. 3d 912, 407 N.E.2d 696); (2) the right to stop work or terminate employment (Fruzyna v. Walter C. Carlson Associates, Inc. (1979), 78 Ill. App. 3d 1050, 398 N.E.2d 60); (3) supervision or control of the work or retention of the right to do so (Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 211 N.E.2d 247); (4) responsibility for employee safety (Pantaleo v. Gamm (1969), 106 Ill. App. 2d 116, 245 N.E.2d 618); and (5) inspections and other activities at the jobsite (Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill. 2d 111, 373 N.E.2d 1348). We believe the several factors which would tend to favor the plaintiff, such as (1) familiarity with construction methods (Norton v. Wilber Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill. 2d 481, 394 N.E.2d 403), and (2) participation in ongoing activities at the work site (Warren v. Meeker (1973), 55 Ill. 2d 108, 302 N.E.2d 54), do not outweigh the factors mentioned previously. Accordingly, we will not disturb the court’s findings.

For the foregoing reasons, the judgment of the circuit court of Tazewell County is affirmed.

Affirmed.

WOMBACHER, J., concurs.