CourtListener is a project of Free Law Projecta federally-recognized c 3 non-profit. We rely on donations for our financial security. Donate Now. Sign In Register. Filed: October 21st, Precedential Status: Precedential. Citations: N. Docket Number: Judges: Burke. Dunne, of counselfor appellant. Ozmon and Dario A. Garibaldi, of counselfor plaintiff-appellee.
Bartler and Zenith Aran Oil Company S.
Soderstrom, of counselfor defendant-appellee. Prior to the trial, the court struck a counterclaim of Duggan-Karasik against Ceco based upon the theory of active-passive negligence. The case proceeded to trial and at the close of all the evidence, the court directed the jury to find that Duggan-Karasik was "in charge of" the work and that the device upon which plaintiff was working at the time he was injured was a scaffold.
The court also instructed the jury that plaintiff was entitled to recover damages as a matter of law against one or both of the defendants. The jury also returned a verdict of not guilty in favor of Ceco. Duggan-Karasik appeals. On May 13,plaintiff was injured while engaged as an employee in the construction of an addition to the West Chicago High School. He was standing on a longspan bar joist which fell.
This Que Es Trading Company bar joist was designed and installed to support the roof of the gymnasium addition to Karasik Construction Company school. At the time of the occurrence, the plaintiff was employed by Commercial Steel Supply Company hereinafter "Commercial". Plaintiff filed a complaint against the Board of Education hereinafter the "Board"the owner of the property; Duggan-Karasik, the general contractor; Bergen, Kelly, Unteed and Associates hereinafter "Bergen"the architects; and Ceco, the manufacturer and supplier of the longspan bar joist.
Plaintiff's complaint insofar as defendants, the Board, Duggan-Karasik and Bergen, was for injuries to the plaintiff because of alleged violations of the Structural Work Act of the State of Illinois. Plaintiff's complaint against Ceco alleged that this defendant had manufactured and supplied a defective product.
Thereafter, the Board and Duggan-Karasik filed a third-party complaint against Commercial, plaintiff's employer. Third-party plaintiffs, the Board and Duggan-Karasik, thereafter made a motion for judgment on the pleadings against Commercial insofar as the third-party actions were concerned and on December Karasik Construction Company,the court entered an order granting the motions for judgment on the pleadings against Commercial. On October 8,a motion was made to substitute attorneys for Duggan-Karasik and the Board and to dismiss the third-party complaints of the Board and Duggan-Karasik against Commercial, and the court entered an order accordingly.
Thereupon Duggan-Karasik and the Board filed a counterclaim against Ceco alleging that the Board and Duggan-Karasik, if liable at all in this cause, could only be passively liable and that Ceco was actively liable.
On January 6,Ceco filed a motion to dismiss the counterclaim against it of Duggan-Karasik and the Board. The primary basis for this motion was the contention that Commercial had taken over the defense of Duggan-Karasik and the Board, and under such circumstances section 22 3 of the Civil Practice Act Ill.
Thereafter, Ceco filed a counterclaim against Commercial. The court granted Ceco's motion to dismiss, holding that any complaint of Duggan-Karasik must show on its face that it was for the use and benefit of Commercial.
Duggan-Karasik was given the opportunity to file an amended counterclaim against Ceco provided that the amended counterclaim reflect on its face that it was for the use and benefit of Commercial. Duggan-Karasik refused to take this action. Thereupon a motion was filed in behalf of Commercial to strike the counterclaim of Ceco, which the court denied. At this juncture the court granted the motion of Duggan-Karasik to sever all third-party actions.
Donald Lee Hurst, an iron-worker employee of Commercial, was called as a witness in plaintiff's behalf. Hurst had been a certified welder for 7 years and had worked on the West Chicago High School gymnasium addition for Commercial. He testified that the general contractor on this job was Duggan-Karasik and that Duggan-Karasik was represented on the job by a general superintendent named Ken Munson. In April ofMr.
Hurst as foreman, with other employees of Commercial, began to install the supports for the roof area of the gymnasium. At the time of installation Ken Munson, the general superintendent of Duggan-Karasik, was on the job daily and coordinated variations of work. When the longspan bar joists were brought to the construction site, the truck driver would go through the Duggan-Karasik work area.
Hurst testified that the longspan would be laid down at "proper spacing" and that the setting Key West Sandal Company be checked or inspected by Ken Munson, the Karasik Construction Company superintendent of Duggan-Karasik.
Hurst testified that all of the longspans had been Karasik Construction Company installed in April He further testified that there was an architectural representative on the job named Fritcher or Jim Bell, who inspected the erection of the steel joists.
Hurst further testified that the iron workers walked across the top of the longspan bar joist at the time they were doing their work and that this was the method utilized to get from one place to another. He testified that the joists were used for support.
Hurst categorized the function of Ken Munson, Duggan-Karasik's superintendent, as that of "watching what was going on" while the longspan bar joists were being set. After the first bar joist was installed, guy wires were attached. When this error was discovered, the welds on the one side were burnt off and a longspan joist was moved 1 foot and rewelded. The installation of the longspan bar joists was completed in April and the entire Commercial crew left the job for 2 or 3 weeks.
This crew returned to the job on May 13,the day of the occurrence. The Commercial crew on the day of this occurrence was composed of Mr. Hurst who was the foreman, the plaintiff Long and another iron worker named Clifford Landry. Hurst testified that upon returning to the scene of the occurrence on May 13,at about 2 P. This conversation took place at the Duggan-Karasik shack on the job site where the architectural prints were kept. Hurst further testified that he was present at another conversation between Ken Munson of Duggan-Karasik, Bob Lewis and Dale Washburn, at which they discussed another method of getting the short Jr Shipping Company joists out of the gymnasium.
This conversation took place about the middle of April and concerned the use of a cinder athletic track for Commercial's vehicles. Munson refused to permit the Commercial crew to use the athletic track. After the conversation with Mr. Munson on May 13,Mr.
Hurst and the plaintiff went Karasik Construction Company the east wall of the gymnasium and got up on the longspan bar joist. Hurst then removed or loosened one of the guy wires in preparation for moving the longspan. Thereafter, Mr. Hurst moved off of the longspan and down the wall in order to obtain a welding torch which was on the ground level.
Hurst testified that at this time Commercial had a crane in the gymnasium but that the crane was not being utilized at this point. He did not see Karasik Construction Company Shakespeare Company Com bar joist fall down but he did see the plaintiff in the air. The witness further testified that Bill Holman, the Commercial foreman, immediately upon seeing what had happened, hollered and Ken Munson of Duggan-Karasik, who was in the door of the job shack, called an ambulance.
Hurst saw Mr. Munson there immediately after this occurrence took place. Hurst further testified that he took his orders from Bill Holman, the Commercial foreman. Hurst further testified that when his crew left the site in April, they had four cables attached to the truss. At the time of the occurrence, the cable about 20 feet from the west end had been removed. There was a cable about 20 feet from the east end and two in the center. The middle cable running to the south had been loosened from its taut position.
Hurst testified that neither he nor anyone in his iron working crew had loosened that cable; that the Commercial crew found the cable loose when they came back and were out on the job site. Hurst further testified that it was the responsibility of Ken Munson, the general job superintendent, for the prevention of accidents. He testified that during the discussion that was held in the trailer immediately prior to moving the beam, it was Ken Munson's decision to move the beams over the wall.
Hurst testified that there were alternate methods of moving the longspan beams and that one of the methods involved the use of the athletic track. The witness further testified that Mr. Holman, the Commercial foreman, preferred to use the planking method used on the athletic track in order to move the longspan joists.
Hurst further testified that Mr. Munson of Duggan-Karasik preferred Rio Tinto Iron Ore Company the longspan joist and directed that the project be done in this manner. William H. Holman was called as a witness and testified on plaintiff's behalf. On the day of the occurrence Mr.
Holman was the foreman of the Commercial crew. He had four iron workers in his crew, plus one crane operator. He testified that when he arrived on the construction site on the date of the accident, he had a conversation with Ken Munson, the general superintendent National Loop Company Duggan-Karasik. Holman testified that Ken Munson "jumped me when we first got on the job about being late and wanted us to get going and get the trusses moved so we can get our bar joists up in place.
Holman proceeded to start to work. He had his crew go up and start disconnecting the bridging. As the work began Mr. Holman observed that the four guy wires were attached to the longspan joist but that one of them had been loosened.
As foreman, Mr. Holman did not request that the crane be hooked up to the joist at any time before the occurrence.
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DUGGAN-KARASIK CONSTRUCTION COMPANY, 320 N.E.2d 553, 23 Ill. App. 3d 812 — Brought to you by Free Law Project, a non-profit dedicated to creating high quality open legal information.…
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