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May 2011 Construction Law Newsletter

May 2011, vol. 1, no. 1

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Now every article is the start of a discussion. If you're a member of the Construction Law Section, you can comment on any of the articles that appear below.

In This Issue…

Upcoming CLE

“Bonding Over” – Understanding Recent Changes to the Illinois Mechanics Lien Act
March 9 - Online Course

Full CLE Calendar…

Related Court Cases

OSHA
Stark Excavating, Inc. v. Perez

Record contained sufficient evidence to support Commission’s finding that employer committed “willful,” as opposed to “serious,” cave-in excavation violation of OSHA regulations at worksite in which employer was attempting to replace fire hydrant waterline. Applicable regulations called for employer to slope sides of excavation at no steeper than 45 degrees, and slopes at instant worksite were between 60 and 80 degrees. Moreover, instant violation qualified as “willful” violation that carried larger penalty because record showed that: (1) foreman at worksite was aware of slope requirement and yet failed to take any action to meet guideline requirement; and (2) foreman indicated that he sacrificed instant safety compliance in order to save time on job. Ct. rejected employer’s argument that Commission had failed to give proper deference to ALJ’s credibility determinations, which led to ALJ finding that violation was only “serious,” where Ct. observed that ALJ held erroneous belief that employer took reasonable steps to slope excavation site.

Municipal Law
Great American Insurance Co. v. Heneghan Wrecking & Excavating Co.

Five-alarm fire destroyed 100-year-old, 6-story building which had fallen into disrepair. Fire was caused by unlicensed contractor who Estate had hired to complete work in basement, and he never obtained permit for work. Sparks from torches being used then started fire. Public policy did not support imposition of strict liability upon wrecking company and construction company for damages resulting from demolition of building.  Section 1-4-7 of Municipal Code does not impose strict liability on a municipality; negligence is required for statute to apply. Court properly denied Estate's motion for judgment notwithstanding the jury's verdict or, in the alternative, its motion for a new trial. Jury heard conflicting evidence that Estate was negligent in hiring unqualified person to make repairs to building, and evidence that wrecking company was negligent in demolishing building which caused damage to adjacent building and led to its demolition.  General verdict creates presumption that jury found in favor of Defendant on each defense, where no special interrogatories were requested by the moving party. Evidence was sufficient for jury to conclude that Estate was more than 50% negligent, thus barring recovery by Estate. (REYES, concurring; GORDON, specially concurring.)

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