Mere ownership of the property, however, does not trigger liability. ( Fitzpatrick v. Perry Drugs Co. (1991), 213 Ill. App.3d 529, 532.) Rather, the Act imposes liability upon an owner who is in charge of the work.
This scoring of factors seems to be in tension with Illinois cases looking at these factors under the totality of the circumstances. See, e.g., Fitzpatrick v. Perry Drugs Co., 213 Ill.App.3d 529, 534, 572 N.E.2d 1103, 1107 (1st Dist. 1991) (noting that presence of only three factors, including the power to stop work, presented a factual question whether defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits). Our language also seems to imply that only one defendant — either Kovilic or the government — was in charge of the work site.
so held, despite defendant's contentions that the plaintiff was injured on a nonscheduled workday, the defendant was not informed the plaintiff would be working on a nonscheduled workday, he fell from his own ladder, and the plaintiff's employer determined what equipment and method would be used to clean the windows, required all persons entering the worksite to report who they worked for and from what company their employer had subcontracted the work they were performing, since the record showed that the defendant retained the authority to stop any contractor's or subcontractor's work which was being performed in an unsafe manner, the defendant's manager testified that he would have stopped the plaintiff if he had been aware the windows were being washed with a portable ladder, and the security firm hired by the defendant required all persons entering the worksite to report who they worked for and from what company their employer had subcontracted the work they were performing. In Fitzpatrick v. Perry Drugs Co. (1991), 213 Ill. App.3d 529, the court found three principal factors present: the power to stop the work, the power to make change orders and the presence on the jobsite of an employee of the owner who was experienced in building construction. During oral argument, defendant's counsel indicated that the sole issue was whether the defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits. The court agreed and concluded that a factual question existed as to whether defendant was in a position to assure worker safety or alleviate equipment deficiencies or improper work habits.
Carrillo v. Pepper Construction Co. (1990), 201 Ill. App.3d 647, 648-50, 559 N.E.2d 191 (placement of an instrumentality may be a proximate cause of a worker being injured). Whether a defendant such as Pepper is in charge of the work in contemplation of the Act depends upon the totality of the circumstances, and one or more parties may be in charge of the work and be subject to liability under the Act for the same injury. ( Emberton v. State Farm Mutual Automobile Insurance Co. (1978), 71 Ill.2d 111, 123, 373 N.E.2d 1348; Fitzpatrick v. Perry Drugs Co. (1991), 213 Ill. App.3d 529, 532, 572 N.E.2d 1103.) It is unnecessary that a defendant be in direct charge of the particular operation from which the injury arose if it was in charge of the overall work for the project. Sasser v. Alfred Benesch Co. (1991), 216 Ill. App.3d 445, 450, 576 N.E.2d 303; Kohutko v. Four Columns, Ltd. (1986), 148 Ill. App.3d 181, 186, 498 N.E.2d 522.
(1) supervised and controlled the work; (2) retained the right to supervise and control the work; (3) constantly participated in the ongoing activities at the construction site; (4) supervised and coordinated the subcontractors; (5) took responsibility for safety precautions at the job site; (6) had the authority to issue change orders; (7) had the right to stop the work; (8) owned the equipment at the work site; (9) was familiar with the construction customs and practices; and (10) was in a position to insure worker safety or alleviate equipment deficiencies or improper work habits.Damnjanovic, 9 F.3d at 1273; Lulich, 992 F.2d at 721 (quoting Fitzpatric v. Perry Drugs Co., 213 Ill.App.3d 529, 532, 157 Ill. Dec. 639, 641, 572 N.E.2d 1103, 1105 (1st Dist. 1991)); Chance v. City of Collinsville, 112 Ill.App.3d 6, 11, 67 Ill.Dec. 747, 750, 445 N.E.2d 39, 42 (1983); Burger, 218 Ill.App.3d at 820, 161 Ill.Dec. at 470, 578 N.E.2d at 1116. The above "control factors" all focus on the "two hallmarks of being `in charge': (1) actual or clearly implied control and supervision over the construction; and (2) responsibility for job safety."
Illinois courts balance multiple factors when deciding whether a defendant "had charge" of work or a worksite. Fitzpatrick v. Perry Drugs Co., 213 Ill.App.3d 529, 157 Ill.Dec. 639, 572 N.E.2d 1103, 1105 (1st Dist. 1991). These factors include, but are not limited to, whether the owner:
Illinois courts have held precisely the opposite. See Damnjanovic, 9 F.3d at 1276 (citing Fitz patrick v. Perty Drugs Co., 213 Ill. App.3d 529, 157 Ill. Dec. 639, 643, 572 N.E.2d 1103, 1107 (1st Dist. 1991)). Instead, the court is simply illustrating Behr's lack of responsibility for safety precautions by reference to Green's active assumption of that responsibility.
Spiegel was not in a position to assure worker safety or to alleviate equipment deficiencies or improper work habits. Fitzpatrick v. Perry Drugs Co., 213 Ill. App.3d 529, 535, 572 N.E.2d 1103, 1107 (1991). Apostal also argues that Spiegel's issuance of safety rules gave Spiegel contractual authority to control the work for safety reasons.
The question of whether a party has charge of the work for the purposes of subjecting it to liability under the Structural Work Act is generally a question of fact for the jury to decide from a consideration of all of the circumstances in any given case. ( Fitzpatrick v. Perry Drugs Co. (1991), 213 Ill. App.3d 529, 572 N.E.2d 1103.) It is only in those cases where the evidence is insufficient to create a genuine factual question that the issue is capable of being decided as a matter of law in a summary judgment proceeding. Diomar, 81 Ill. App.3d 1135, 401 N.E.2d 1287; see Norton, 76 Ill.2d 481, 394 N.E.2d 403.