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Bieruta v. Klein Creek Corp.

Case Date: 05/20/2002
Court: 1st District Appellate
Docket No: 1-01-1361 Rel

FIRST DIVISION
May 20, 2002



No. 1-01-1361


JOHN BIERUTA,

          Plaintiff-Appellant,

          v.

KLEIN CREEK CORPORATION,

          Defendant-Appellee.

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) 		Appeal from the
Circuit Court
of Cook County

No. 98 L 00733

The Honorable
Sophia H. Hall,
Judge Presiding.


JUSTICE COUSINS delivered the opinion of the court:

The plaintiff, John Bieruta, was injured at work on May 29,1996, when he fell into an open trench. He filed a complaint atlaw on January 21, 1998, against R.A. Faganel Builders, Inc.,Savoy-Faganel, Inc., and R. Russell Builders, Inc. On March 23,1998, Bieruta amended his complaint to add Klein CreekCorporation (Klein Creek) as a party defendant. Savoy-Faganel,Inc., was voluntarily dismissed on August 19, 1998, and R.A.Faganel and R. Russell Builders, Inc., were voluntarily dismissedon November 17, 1999. Klein Creek is the sole defendantremaining in this action. On March 7, 2001, Judge Sophia Hallgranted Klein Creek's motion for summary judgment. Bierutaappeals.BACKGROUND

On the morning of Wednesday May 29, 1996, John Bierutasuffered a back injury as a result of falling into a constructiontrench at building 22 of the Klein Creek townhouse developmentproject. Klein Creek was the owner of the site and the generalcontractor for the development. Klein Creek, through its agents,hired all the subcontractors, including DuPage Topsoil (DuPage),the employer of the plaintiff, for whom Bieruta operated abackhoe.

DuPage was directed by Klein Creek to excavate a trench forpurposes of connecting water and sewer lines at building 22 ofthe Klein Creek townhouses. The trench was excavated on May 25,1996, and was left open from that time to the date of Bieruta'saccident on May 29, 1996. During that time, it had rained andwork was suspended on May 28, 1996. Also, May 27, 1996, wasMemorial Day and no work was done. Bieruta testified that whenhe went back to work on May 29, 1996, he had to "dewater" thetrench before he could begin work. He observed a clump of claynear the sewer hookup, went down into the trench and removed theclay and exited the trench. As he was exiting, a coworker calledhis name from behind him. As Bieruta turned to look over hisshoulder in the direction of the coworker, a portion of the edgegave way and he fell into the trench. Bieruta claims that he wastwo feet from the edge of the trench when the ledge gave way, butall those present at the site did not recall seeing anyindication that the trench gave way in any manner. Estimates ofthe trench range from 6 to 10 feet in depth at its deepest part.

One of the agents for Klein Creek was Michael Beaulieu. Beaulieu was hired in February 1993 to oversee the Klein Creekdevelopment, consisting of 245 acres of land, 308 single-familyhomes, 108 townhouses and a golf course. Beaulieu was acting asan owner's representative and he was present at the site on adaily basis. Beaulieu would advise the subcontractors, includingDuPage, as to what work Klein Creek desired. He would also givechange orders to the subcontractors in the event that a homeownerrequested a change in the specifications of his unit.

DuPage employed Milton Dostal as a foreman who was presentat the Klein Creek development during the time of the incident. DuPage also employed Michael Wojciechowski as superintendent atthe Klein Creek development. Dostal testified that he spoke toBieruta minutes before the accident. He stated that Bieruta wasstanding on the tracks of his backhoe when he saw him. Dostaltold him to "get back in his machine before [he] he slipped orhad an accident" and that "there was enough help so that [he] didnot have to get out of [his] machine." Wojciechowski testifiedthat he was also present at the site on the day of the accident. He stated that he was called after the accident occurred. Hetestified that he told the employees of DuPage what their dutieswere going to be on a daily basis. He also testified that hewould receive orders from Klein Creek and Beaulieu regarding theexcavating to be done.

Louis Huggins and Paul Bentley, employees of DuPage, werealso present at the site on the day of the accident. Hugginstestified that he found Bieruta curled up at the bottom of thetrench. He did not, however, see Bieruta fall into the trench. Huggins also testified that he received his orders from DuPagealone. Bentley testified that he was present but did not seeBieruta fall into the trench. He also stated that his orderscame from DuPage and no other.

Joe Kleim is an owner of DuPage. He testified in adeposition that DuPage made the decisions regarding whether reinforcements were to be used in the excavating process,including trench boxes or shoring. Kleim also stated that DuPagewas responsible for the means, methods and safety of the DuPageemployees. He further testified that an independent safetycoordinator was hired through his insurance company to inspectand train DuPage employees on issues regarding safety. AllDuPage employees, including Bieruta, testified that DuPagecontrolled the means, methods and techniques of the excavatingand that the general contractor had no part of the excavatingprocess.

ANALYSIS

I

Bieruta claims that Klein Creek had a duty to exercisereasonable care under the circumstances for his safety because itowned the premises. Plaintiff relies on section 343 theRestatement (Second) of Torts (Restatement (Second) of Torts