Masonry Magazine February 1961 Page. 28
Hold Harmless
Agreements
And The
Illinois
Scaffold Act
By Walter Derk
Fred S. James & Co.
Chicago, Illinois
Mr. Derk presented the following material at the Illinois MCAA Chapter Meeting held on January 28. The Hold Harmless discussion is of interest to all contractors, while the Scaffold Act provisions are of concern to all contractors doing work in Illinois.
No other phase of Casualty Insurance business has been given more consideration-nor been cause of more concern, recently, than the Hold-Harmless Agreements. This is particularly true in Illinois, where the Structural Work or Scaffold Act has led to a rash of a third party liability claims totaling millions of dollars. I'm certain that many contractors within the association represented here are among those defendants.
Let's begin with that Act. When originally passed into law by the legislature in 1907, the Scaffold Act satisfied a need; there was then no Workmen's Compensation remedy available to an injured employee, and it was entirely proper that he have the right to recover from someone at common law. That need was eliminated six years later when the Illinois Workmen's Compensation Act was passed; yet the Scaffold Act was re-enacted as recently as 1951.
Briefly, the statute says:
"That all scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivance, erected or constructed by any person, firm or corporation in the State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct or other structure, shall be erected and constructed in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon."
It is broad enough, therefore, to take in most any contrivance used by contractors and has been held to include the placing of planks on saw horses (Rimmke v. Gierich).
The penalties named for failure to comply are twofold:
(1) "Any owner, contractor, subcontractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this Act, shall comply with all the terms thereof, and any such person violating any of the provisions of this Act shall upon conviction thereof be fined not less than $25, nor more than $500 or imprisoned for not less than three months nor more than two years or both fined and imprisoned..."
(2) "For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the part injured for any direct damages sustained thereby," including widows and dependents of any person killed within its provisions."
At first glance, this statute doesn't look like much to worry about. It seems to concern only those owners or contractors who are "in charge of" the work involved and they always did have common law liability arising from negligent acts or omissions. Then, Paragraph 2 refers to "wilful violation" or "wilful failure to comply" with the safe erection provisions of the Act; and we may think that anyone who wantonly erects an unsafe scaffold, knowing that it is unsafe, deserves to be sued. It is in interpretation of these qualifying phrases by the courts that present day problems have arisen.
It has been consistently ruled, first of all, that the property owner or general contractor remains subject to the Act and legally "in charge of the work even when it is performed under contract by another contractor or subcontractor. "It has been regarded from the outset as intended to fix an independent, non-delegable duty of compliance upon the owner of the Property and upon each contractor and subcontractor engaged in the work," the Illinois Supreme Court has said. (Kennerly v. Shell Oil Company)
Therefore, one would not have to be directly involved in the construction at all to be held liable. In a more recent case this spring (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Railway Co.) the Appellate Court attempted to re-establish the principal that a property owner must be "in Charge of" the work before he can be held liable for injury to a workman. The case was remanded for another new trial in its already eventful history; and that is where it stands now.
Next, the courts have taken both "wilful violation" and "wilful failure" to be synonymous with "knowingly." Reckless disregard of the Act has thus far been unnecessary and "knowing or should have known, under the circumstances" is the normal test applied to determine violation of the statute.
You can see, then, that we no longer are talking about a simple and relatively harmless statute. From our mutual standpoint, this legislative mistake has served to make business more complicated and more costly. Those preparing specifications have seized upon the opportunity to pass this liability on to the next one in line by means of Indemnifying or Hold-Harmless Agreements. I don't mean to imply that the Scaffold Act is responsible for those agreements, because they are encountered in almost every phase of business throughout the country; but it has tended to dra-