O'BRIEN v. Rogers

555 N.E.2d 1005, 198 Ill. App. 3d 341, 144 Ill. Dec. 486, 1990 Ill. App. LEXIS 666
CourtAppellate Court of Illinois
DecidedMay 8, 1990
Docket5-89-0317
StatusPublished
Cited by14 cases

This text of 555 N.E.2d 1005 (O'BRIEN v. Rogers) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'BRIEN v. Rogers, 555 N.E.2d 1005, 198 Ill. App. 3d 341, 144 Ill. Dec. 486, 1990 Ill. App. LEXIS 666 (Ill. Ct. App. 1990).

Opinion

JUSTICE HARRISON

delivered the opinion of the court:

Plaintiff, Richard O’Brien, brought an action in the circuit court of Saline County to recover damages for personal injuries he sustained while helping defendant, Michael Rogers, rebuild the roof on defendant’s garage. Plaintiff’s complaint contained two counts. Count I sought to impose liability on defendant under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.). Count II alleged common-law negligence. Following discovery, defendant moved for summary judgment pursuant to section 2—1005 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2—1005) as to both counts. Defendant’s motion was granted, and plaintiff now appeals. For the reasons which follow, we reverse and remand for further proceedings.

The standards governing an award of summary judgment are well established. The purpose of summary judgment is not to try an issue of fact, but to determine whether a triable issue of fact exists. Although summary judgment is recognized as a salutary procedure in the administration of justice, it should be granted with caution so that the right to trial of conflicting facts and inferences is not usurped. Only when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law should summary judgment be awarded. Haberer v. Village of Sauget (1987), 158 Ill. App. 3d 313, 316-17, 511 N.E.2d 805, 807.

Because of the extreme nature of summary judgment, a court must exercise extraordinary diligence in its review of the record so as not to preempt a party’s right to trial by jury or its right to fully present the factual basis for its claim. (Wysocki v. Bedrosian (1984), 124 Ill. App. 3d 158, 164, 463 N.E.2d 1339, 1344.) The court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. (124 Ill. App. 3d at 164, 463 N.E.2d at 1344.) If any material facts upon which reasonable persons may disagree are identified, or if inferences which may be drawn from those facts lead to different conclusions, the court must deny the motion and direct that resolution of those facts and inferences be made at trial. Certified Mechanical Contractors, Inc. v. Wight & Co. (1987), 162 Ill. App. 3d 391, 400, 515 N.E.2d 1047, 1053.

The record before us in this case includes the depositions of plaintiff, plaintiff’s wife, plaintiff’s mother-in-law, defendant, and one of defendant’s friends, Mike May. Also included is a brief affidavit submitted by defendant. Those materials show that the accident which gave rise to this litigation took place in June of 1986. At that time, defendant was rebuilding the roof on his garage. Defendant was a self-employed general contractor and was handling the work himself. To assist him on the project, defendant enlisted the help of Mike May and plaintiff. May had never done carpentry work for a living, but was a friend of defendant’s and had helped defendant do work on his house before. Plaintiff himself was a general contractor and was in the contracting business with defendant.

The record shows that defendant had previously helped plaintiff put a new shingle roof on plaintiff’s house, and there was evidence to suggest that plaintiff was helping defendant rebuild his roof in order to reciprocate. This point was disputed, however. In his affidavit, defendant acknowledged that he had helped work on plaintiff’s roof, but he stated that “[he] did not expect [plaintiff] to pay [him], compensate [him] in any way, or help on any future projects [he] might have.” Defendant further indicated that at the time of plaintiff’s accident, “[he] did not have any specific agreements with [plaintiff] to ‘barter’ or exchange services.” Plaintiff, on the other hand, testified at his deposition that there was a barter agreement between the two men under which they agreed to trade their labor with one another. The existence of such an agreement to exchange labor was corroborated by plaintiff’s wife, and was not actually denied by defendant during his deposition. At that deposition, defendant testified that “[a]t the time I did his roof, I had no idea that we was [sic] going to be doing mine. It wasn’t arranged ahead of time that way.” Nevertheless, when asked whether the arrangement had not, in fact, “worked out to be a trade type relationship,” defendant answered in the affirmative.

Defendant had completely removed the old garage roof “all the way down to the ceiling joists.” The joists were spaced at irregular intervals and were not covered by any sheathing material. The first step in defendant’s plan for rebuilding the roof called for the laying of a sheathing material called Aspenite across the exposed joists. According to defendant, the Aspenite sheathing was to be laid “so we would have a place to stand while we put up the rafters.” On the day of the accident, the sheets of Aspenite had already been purchased and were stacked in a pile inside the garage. Mike May came over to defendant’s house, and at about one o’clock in the afternoon, the two began work.

The installation of the Aspenite proceeded as follows. May would lift the sheets up to defendant, who would then nail them in place on top of the ceiling joists. Once the first few sheets were thus secured, a number of additional sheets were brought up and laid out across the ceiling joists by defendant. Defendant was in the process of nailing down these additional sheets when plaintiff arrived at the jobsite to begin work at approximately three o’clock.

Upon his arrival, plaintiff climbed a ladder to join defendant on the Aspenite platform which was being erected on top of the joists. Defendant testified at his deposition that he was aware that it was not safe to walk across the sheets which had not yet been secured to the joists. He stated that he would not have walked on those sheets himself, because the irregular spacing of the joists meant that too much of the sheets would be “hanging unsupported.” Nevertheless, he admitted that he did not tell plaintiff that some of the sheets of Aspenite had not yet been nailed down, nor did he give plaintiff any warnings.

Mike May testified at his deposition that plaintiff was aware that not all of the boards were nailed down, because nailing down boards was the very thing plaintiff had climbed up the ladder to do. Defendant’s deposition testimony was not so clear on this point. In any case, there is no real dispute as to what happened next. As he was standing on the platform of Aspenite sheets, plaintiff stepped on a sheet which had not yet been nailed down. The sheet gave way, and plaintiff fell to the floor below, sustaining serious and permanent injuries.

Following this accident, plaintiff brought an action in the circuit court of Saline County to recover damages from defendant for the injuries he sustained. As we noted at the outset of this opinion, plaintiff’s complaint was in two counts. Count I sought to impose liability on defendant pursuant to the Structural Work Act (Ill. Rev. Stat. 1987, ch.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re Marriage of Stevens
Appellate Court of Illinois, 1997
Burgess v. Pocrnich
672 N.E.2d 1334 (Appellate Court of Illinois, 1996)
Wotiz v. Gruny
667 N.E.2d 102 (Appellate Court of Illinois, 1996)
Baldwin v. Twin Rivers Club
636 N.E.2d 1024 (Appellate Court of Illinois, 1994)
Fearheiley v. Summers
614 N.E.2d 1377 (Appellate Court of Illinois, 1993)
Humbert v. PALUMBO EXCAVATING CO., INC.
625 N.E.2d 21 (Appellate Court of Illinois, 1993)
Ahmad v. Norfolk & Western Railway Co.
778 F. Supp. 956 (N.D. Illinois, 1991)
Henderson v. Beckman Texaco
573 N.E.2d 369 (Appellate Court of Illinois, 1991)
Sullivan's Wholesale Drug Co. v. Faryl's Pharmacy, Inc.
573 N.E.2d 1370 (Appellate Court of Illinois, 1991)
Coates v. W.W. Babcock Co.
560 N.E.2d 1099 (Appellate Court of Illinois, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
555 N.E.2d 1005, 198 Ill. App. 3d 341, 144 Ill. Dec. 486, 1990 Ill. App. LEXIS 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obrien-v-rogers-illappct-1990.