{ "id": 3124186, "name": "TED KATZ, Plaintiff-Appellee, v. SHAF HOME BUILDERS, INC., Defendant-Appellant", "name_abbreviation": "Katz v. Shaf Home Builders, Inc.", "decision_date": "1981-03-11", "docket_number": "No. 79-1299", "first_page": "526", "last_page": "531", "citations": [ { "type": "official", "cite": "94 Ill. App. 3d 526" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "370 N.E.2d 1131", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. App. 3d 440", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3407086 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0440-01" ] }, { "cite": "158 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "16 Ill. 2d 442", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2762188 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-2d/16/0442-01" ] }, { "cite": "226 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2865152 ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0273-01" ] }, { "cite": "286 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466155 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0714-01" ] }, { "cite": "303 N.E.2d 382", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "55 Ill. 2d 356", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2939210 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/55/0356-01" ] }, { "cite": "305 N.E.2d 571", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 63", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2521209 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0063-01" ] }, { "cite": "245 N.E.2d 618", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "351 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. App. 3d 1029", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5382308 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/39/1029-01" ] }, { "cite": "405 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 1008", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3205638 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/1008-01" ] }, { "cite": "380 N.E.2d 1063", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3332148 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0391-01" ] } ], "analysis": { "cardinality": 596, "char_count": 10968, "ocr_confidence": 0.907, "pagerank": { "raw": 1.30932611777401e-07, "percentile": 0.6240278873401499 }, "sha256": "d83205120b6da1c7fd75747be3b5363d38f1bde7593b032fabae5b08ee7f8bc2", "simhash": "1:a9a198323ecc8fe5", "word_count": 1797 }, "last_updated": "2023-07-14T16:56:05.907180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TED KATZ, Plaintiff-Appellee, v. SHAF HOME BUILDERS, INC., Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE McNAMARA\ndelivered the opinion of the court:\nPlaintiff, Ted Katz, brought this action pursuant to the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, pars. 60, 69) to recover damages arising from an incident which occurred while plaintiff was using a scaffold. Defendant, Shaf Home Builders, Inc., was the general contractor for the construction of a home, and it joined Sims Construction Company, a subcontractor and plaintiff\u2019s employer, as a third-party defendant seeking indemnity for Sims\u2019 alleged active negligence. Prior to trial, the trial court granted the motions of plaintiff and Sims to sever the third-party action. The jury returned a verdict in favor of plaintiff and against defendant in the amount of $260,000. The trial court entered judgment on the verdict and denied defendant\u2019s post-trial motion. On appeal defendant contends that the judgment is contrary to the manifest weight of the evidence, and that the trial court abused its discretion in severing defendant\u2019s third-party action against Sims. Plaintiff has filed a conditional cross-appeal, urging that the trial court erred in refusing to direct a verdict in his favor.\nIn June 1973, defendant was general contractor for the construction of a number of homes in the Skokie area while Sims was a subcontractor. Plaintiff was employed by Sims as a carpenter and had worked on 10 to 12 homes in which defendant was the general contractor. On June 13, 1973, he was installing siding on a home under construction. Plaintiff testified that while he was on the scaffold, lifting a piece of siding and readying it to be nailed into the wall, the scaffold shifted to the left and pulled away from the wall. As a result, he fell seven feet and fractured his leg.\nThe scaffold in question was a single pole scaffold and consists of braces, ledges, brackets, a platform and a putlog. The latter is the part placed against the structure. The scaffold was built by Sims employees and was erected by plaintiff and another employee.\nThe Structural Work Act imposes liability on owners \u201cin charge\u201d of the construction who \u201cwilfully\u201d violate the provisions of the Act. Defendant apparently agrees that it was a factual question for the jury to determine whether defendant was in charge of the construction for the purposes of the Act. Defendant maintains, however, that the jury\u2019s determination that it \u201cwilfully\u201d violated the Act is against the manifest weight of the evidence.\nFor the purposes of the Act, a wilful violation is committed when one knows of or when, in the exercise of reasonable care, one could have discovered the dangerous condition. (Moore v. Clearing Industrial District, Inc. (1978), 64 Ill. App. 3d 391, 380 N.E.2d 1063.) The question of wilfulness is primarily a factual one for the jury to decide. (Ewert v. Wieboldt Stores, Inc. (1980), 84 Ill. App. 3d 1008, 405 N.E.2d 1283.) When there is conflicting evidence presented on a factual issue, the reviewing court may not reweigh the evidence or assess the credibility of the testimony. Warren v. Johnson & Johnson (1976), 39 Ill. App. 3d 1029, 351 N.E.2d 415.\nThe record discloses that there was sufficient evidence presented for the jury to conclude that a dangerous condition existed as to the scaffold, and that defendant either knew or should have known of that condition. Plaintiff presented expert testimony that a single pole scaffold with an unsecured putlog, and with a platform unsecured to that putlog, and without a platform under the A-frame, such as the scaffold upon which plaintiff worked, was unsafe. There was further expert testimony that there was insufficient diagonal bracing to prevent shifting, and that upon general inspection, these defects should have been apparent.\nVance Shaf testified for defendant that either he or another superintendent for defendant visited the construction site once or twice a day. Ronald LeCompte, also a superintendent for defendant, testified that he was present on the morning of the incident. Plaintiff testified that one of defendant\u2019s inspectors or superintendents visited the work site twice on the morning of the day of plaintiff\u2019s accident. During the second visit, defendant\u2019s employee stood two feet from the scaffold and touched it. As he touched the scaffold, it shook. Shortly after the second visit by defendant\u2019s representative, plaintiff removed the legs from the scaffold and moved the scaffold to the rear of the building. There, plaintiff reassembled the structure in a manner identical to the erection of the scaffold that morning and all during the construction. According to plaintiff, no representative of defendant visited the site between the time plaintiff moved the scaffold to the rear of the home under construction and plaintiff\u2019s injury which occurred a few hours later. Under all the evidence, the jury could have concluded that defendant as general contractor, despite its daily inspection, abandoned its duty to discover and correct defects in the scaffold which were readily apparent. Moreover, we reject the notion that the dismantling and re-erecting of the defective scaffold at the rear of the home negated any knowledge of its defects which was or should have been discovered by defendant\u2019s representative during his inspection on the morning of the accident. The jury reasonably could have concluded that an inspector who views a dangerous condition in the morning should know that the dangerous condition will persist. An owner who is in charge of construction may not escape liability by closing its eyes to the defect at the moment of the accident, if the evidence shows that ordinary care in inspection would have uncovered the defect. (Pantaleo v. Gamm (1969), 106 \u2022\u2022. App. 2d 116, 245 N.E.2d 618.) There was sufficient evidence adduced to support the jury\u2019s determination that defendant\u2019s violation of the Act was wilful.\nDefendant next contends that the trial court abused its discretion and prejudiced defendant by granting a severance of the third-party indemnity action over against Sims. Defendant cites the following as examples of the resultant prejudice to it: (1) plaintiff\u2019s counsel elicited on cross-examination of a Sims employee that a third-party action was pending; (2) the jury was instructed that contributory negligence is not a defense to liability under the Act; (3) the jury was instructed that defendant may be liable under the Act if it contributed in part to the injury; and (4) the trial court refused to give to the jury a special interrogatory tendered by defendant. Initially we fail to see how some of these occurrences resulted from the severance and ultimately, how any such results prejudiced defendant so as to deny it a fair trial.\nSection 51 of the Civil Practice Act (III. Rev. Stat. 1973, ch. 110, par. 51) authorizes the granting of a motion for severance and provides in part: \u201cAn action may be severed, * * 0 as an aid to convenience, whenever it can be done without prejudice to a substantial right.\u201d The granting of a motion for severance is within the broad discretion of the trial court, and this court will not reverse unless such discretion has been manifestly abused. (Rogala v. Silva (1973), 16 Ill. App. 3d 63, 305 N.E.2d 571.) It is significant that defendant did not defend solely on the ground of Sims\u2019 liability over it. Instead, defendant also maintained that it was wholly free from liability under the Act. Thus, in the event that the jury decided in favor of defendant on this issue, any third-party action would have been rendered moot. Consequently, the trial court\u2019s grant of the severance could have saved a substantial amount of time and expense for all parties.\nNor was defendant prejudiced by severance of the actions. When Sims\u2019 representative took the stand in defendant\u2019s behalf, it was proper for plaintiff\u2019s counsel on cross-examination to elicit the existence of the third-party action to show interest or bias. (Reese v. Chicago, Burlington & Quincy R.R. Co. (1973), 55 Ill. 2d 356, 303 N.E.2d 382; Gatto v. Curtis (1972), 6 Ill. App. 3d 714, 286 N.E.2d 541.) Moreover, any prejudicial effect of such impeachment could have been obviated by a request for a limiting instruction to the jury at the time. (Reese v. Chicago, Burlington & Quincy R.R.) Having failed to request such an instruction, the issue is waived on review.\nThe trial court correctly stated the law under the Act when he instructed the jury that contributory negligence is no defense. (Ewert v. Wieboldt Stores, Inc.) Defendant was not prejudiced by the giving of this instruction.\nNor was defendant prejudiced by the giving of the following instruction to the jury:\n\u201cMore than one person may be to blame for causing an injury. If you decide that the plaintiff has proved all the propositions of his case, then it is not a defense to plaintiff\u2019s claim that plaintiff\u2019s employer may also have been to blame.\u201d\nThis instruction merely states the law that there may be more than one proximate cause of an injury, and that liability attaches under the Act even if defendant contributed only in part to the injury (Ewert v. Wieboldt Stores, Inc.), as well as the law that more than one person may be deemed liable under the Act. (Miller v. DeWitt (1967), 37 Ill. 2d 273, 226 N.E.2d 630.) The instruction was proper whether or not severance had been granted.\nDefendant finally contends that the severance prejudiced it by causing the trial court to refuse to submit the following special interrogatory to the jury:\n\u201cWas the sole proximate cause of the occurrence in question and the injury to the plaintiff something other than a violation of the Structural Work Act by the defendant?\u201d\nWe note that defendant has not raised the propriety of the trial court\u2019s refusal as an independent assignment of error. Instead, it is cited as an example of how defendant was prejudiced by the severance. We are unable to see how the trial court\u2019s refusal to give this interrogatory can be connected to its decision to grant the severance. In any event, the trial court properly refused to give the special interrogatory to the jury because its language, particularly the use of the phrase \u201csomething other,\u201d could have only been confusing to the jury. Lau v. West Towns Bus Co. (1959), 16 Ill. 2d 442, 158 N.E.2d 63; Saldana v. Wirtz Cartage Co. (1977), 55 Ill. App. 3d 440, 370 N.E.2d 1131.\nIn view of our holding, it is unnecessary to consider plaintiff\u2019s cross-appeal.\nFor the reasons stated, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nMcGILLICUDDY and WHITE, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE McNAMARA" } ], "attorneys": [ "Pretzel, Stouffer, Nolan & Rooney, Chartered, of Chicago (Robert Marc Chemers and Joseph B. Lederleitner, of counsel), for appellant.", "Davis S. Pochis, Ltd., of Chicago (Alan D. Katz and David S. Pochis, of counsel), for appellee." ], "corrections": "", "head_matter": "TED KATZ, Plaintiff-Appellee, v. SHAF HOME BUILDERS, INC., Defendant-Appellant.\nFirst District (3rd Division)\nNo. 79-1299\nOpinion filed March 11, 1981.\nPretzel, Stouffer, Nolan & Rooney, Chartered, of Chicago (Robert Marc Chemers and Joseph B. Lederleitner, of counsel), for appellant.\nDavis S. Pochis, Ltd., of Chicago (Alan D. Katz and David S. Pochis, of counsel), for appellee." }, "file_name": "0526-01", "first_page_order": 548, "last_page_order": 553 }