In the
United States Court of Appeals
For the Seventh Circuit

No. 99-3013

ROBERT NOBLE and ANDRENE NOBLE,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern
Division.
No. 94 C 1165--John F. Grady, Judge.


Argued September 6, 2000--Decided November 1,
2000



  Before CUDAHY, COFFEY and RIPPLE, Circuit
Judges.

  COFFEY, Circuit Judge. In the Fall of
1991, the United States hired Paris
Contracting Company to do extensive work
at the Postal Service’s Chicago,
Illinois, main vehicle maintenance
facility. While the work at the post
office facility was in progress, Robert
Noble, an employee of Paris was injured
when he fell off an unsafe scaffold he
was using to perform repair work on the
concrete ceiling./1 Based on the
injuries he sustained, Noble filed suit
in the Northern District of Illinois
claiming that the United States was
liable under the Federal Tort Claims Act
(FTCA) and the Illinois Structural Work
Act for his injuries./2 The district
court, after conducting a four-day bench
trail on the issue of liability,
concluded that the United States was not
liable for Noble’s injuries because the
Postal Service was neither "in charge" of
the overall project nor of the specific
work Noble was performing at the time he
was injured. The experienced trial judge
also found that even if the Postal
Service was in charge of the construction
site, it did not wilfully violate the
Illinois Structural Work Act and,
therefore, could not be held liable under
Illinois law. We affirm.

I.   BACKGROUND

  As stated heretofore, the United States
Postal Service hired Paris to renovate
the main vehicle maintenance facility in
Chicago; the contract was to be completed
within six months at a cost of
approximately $500,000. As is the case
with most contracts (and particularly
those involving the United States), the
written document in this case details
many of the rights and responsibilities
of the respective parties to the
contract.


A.   The Contract

  The contract between Paris and the
United States specifically requires the
contractor, Paris, to comply with all
applicable Occupational Safety and Health
Standards as well as any other Federal,
State, or local regulations governing
workplace safety. In that regard, and
before Paris was awarded the contract,
the construction company was required to
submit a safety program for Postal
Service approval. However, according to
Paul Steiner’s (the Postal Service’s
contracting officer) testimony, the
Postal Service, because of its limited
personnel and budget, relied upon the
contractor to: 1) ensure the safety of
the postal employees within the
construction area; 2) ensure the safety
of the contractor’s employees; and 3)
protect the work and property of others.

  Thomas Syrigas, a Paris employee who was
designated as the contractor’s job
superintendent with respect to safety,
testified that his responsibilities
included that he "supervise the job, make
sure everyone was on the job site, see if
everything was done right, [and] talk to
the men about safety." In addition to
being "the first one on the site and the
last one to leave," Syrigas was
responsible for conducting weekly safety
meetings and to ensure that the site was
"a safe place for people to work in."

  With regard to the Postal Service, the
procurement manual (part of the contract)
made clear that "the objective of any
purchase action is performance of the
contract objectives, not control of the
contractor’s businesses." According to
the manual, Postal Service personnel were
to devote their efforts to "quality
assurance, cost monitoring, and other
activities intended to ensure compliance
with contract terms." Furthermore, the
manual explicitly prohibited Postal
Service personnel, except in cases where
the contract specifically required it,
from "direct[ing] the contractor’s
management activities or interven[ing] to
supervise, train, or discipline
contractor personnel." According to
Steiner, it was neither the duty,
obligation, nor the practice of the
Postal Service to run the contractor’s
business or to tell the contracting
company how to do its work. Rather, the
Postal Service allowed the contractor to
carry-on his or her business as the
contractor saw fit as long as the Postal
Service received the quality of work it
had contracted for in a timely fashion.

  According to Steiner, his
representative, Ray Leon Tritt, was
responsible for the oversight of the
"day-to-day" operations at the
construction site. However, Tritt had
"very limited contracting authority" and
could not make any changes in the terms
of the contract. Furthermore, Tritt
testified that he had no authority to
order or direct any of Paris’s employees
to perform their work in a particular
manner. Rather, according to Steiner’s
testimony, Tritt’s responsibilities
included going to the site, meeting with
the architectural engineering firm and
the contractor, checking on the progress,
and evaluating and preparing the progress
payment paperwork. Tritt was also
responsible for ensuring that the
contractor was paying his employees the
proper wages, verifying that the
contractor had a certain percentage of
minorities working on the project, and
reviewing and approving the contractor’s
safety plan. However, Tritt did have the
authority to issue a correction
letter,/3 through Steiner, if the
contractor failed to correct any
deficiency previously noted by Tritt.
According to Tritt, if he discovered
obvious, emergency safety hazards on the
project he was to point them out to the
contractor, but that the only safety
concern he ever raised to the contractor
concerned postal employees’ complaints
about dust and the failure to erect dust
partitions. All this being said, Tritt
was acting as the Postal Service’s
representative for approximately 15-20
other projects during this same time
frame, and visited the Paris construction
site on an average of only two times a
month.

  Under the terms of the contract, the
Postal Service retained the right to
terminate the work, in whole or in part,
if it was determined to be in the Postal
Service’s best interest. The Postal
Service also retained the right to cancel
the contract if the contractor was
requiring its workers to perform tasks in
unsafe conditions. In total, Steiner
could stop the work if the contractor was
not doing sufficient work, if the work
was not done in a timely manner, if the
work was done poorly, or if there was a
violation of safety standards.

B.   The Injury

  As part of the contract between Paris
and the Postal Service, Paris had Noble
perform the overhead patchwork. In order
to work on the ceiling, Noble was
required to stand on a scaffold, and,
with the permission of Syrigas and Paris,
Noble worked without supervision during
the day.
  On the date of the accident, Noble was
working on a scaffold that: 1) was
without guardrails; and 2) which was
missing one of the three "pics" (the
wooden or metal planks at the base of the
platform used as the walking and standing
area of the scaffold). Furthermore, the
two remaining "pics" on the scaffold
floor were uneven. Noble testified that
he tripped over one of the uneven pics,
and fell off the scaffolding because he
was unable to regain his balance due to
the missing plank and the fact that the
scaffold was without the required
guardrails./4

  Based on the injuries Noble sustained
from his fall off the scaffold, Noble
brought suit against the United
Statesunder the Federal Tort Claims Act
and the Illinois Structural Work Act.
After a four-day bench trial, the trial
judgeconcluded, as a matter of law, that
the United States was not liable for
Noble’s injuries because the Postal
Service was not "in charge of" the
worksite. After reviewing the testimony,
the judge also concluded that because the
Postal Service had no legal duty to
assign more than one inspector to the
project much less any legal duty to
inspect the project more frequently than
it did, the Postal Service had not
committed a "wilful violation" of the
Illinois Structural Work Act in failing
to discover the contractor’s use of the
damaged and unsafe scaffold. Finally, the
judge determined that the Postal Service
did not "proximately cause" Noble’s
injuries. Noble appeals.

II.    ISSUES

  On appeal, Noble argues that: 1) the
district court erroneously concluded that
the Postal Service was not "in charge of"
the worksite; and 2) the judge’s
conclusion that the Postal Service did
not commit a "wilful violation" was
therefore also erroneous.

A.    Standard of Review

  Initially, the parties disagree as to
the appropriate standard of review to be
applied. The plaintiffs-appellants, rely
ing on the concurrence in United States
v. Frederick, 182 F.3d 496, 504 (7th Cir.
1999), argue that the proper standard of
review is de novo because they are not
disputing the facts, as determined by the
district court, but are merely making
arguments as to the application of the
law to those facts. However, Noble
ignores the clearly established circuit
law mandating that this court apply the
clearly erroneous standard of review. In
Savic v. United States, 918 F.2d 696, 700
(7th Cir. 1990), this court clearly
stated that:

Findings of fact pursuant to FTCA and the
Illinois Structural Work Act must be
affirmed unless they are clearly
erroneous. Phillips v. United States, 792
F.2d 639, 644 (7th Cir. 1986). A finding
is clearly erroneous when, although there
may be some evidence to support it, "the
reviewing court on the entire evidence is
left with the definite and firm
conviction that a mistake has been
committed." Anderson v. City of Bessemer
City, 470 U.S. 564, 573, 105 S. Ct. 1504,
1511, 84 L. Ed.2d 518 (1985) (quoting
United States v. United States Gypsum
Co., 333 U.S. 364, 395, 68 S. Ct. 525,
542, 92 L. Ed. 746 (1948)). "We may have
such a conviction if the trial judge’s
interpretation of the facts is
implausible, illogical, internally
inconsistent or contradicted by
documentary or other extrinsic evidence."
E.E.O.C. v. Sears Roebuck & Co., 839 F.2d
302, 309 (7th Cir. 1988) (citations
omitted).

See also Damnjanovic v. United States, 9
F.3d 1270, 1273 (7th Cir. 1993) (The
determination as to whether a party is in
charge of the work is a factual
question.) (citing Isabelli v. Cowles
Chem. Co., 289 N.E.2d 12, 18 (Ill. App.
Ct. 1972)). Furthermore, even the
majority in Frederick, the case relied
upon by the appellants, applied the
clearly erroneous standard. Frederick,
182 F.3d at 499. We thus decline the
plaintiffs-appellants’ invitation to
change the standard of review to be
applied in this type of case and continue
to apply the clearly erroneous standard
of review./5

B.   The Illinois Structural Work Act

  This case arises under the Federal Tort
Claims Act, 28 U.S.C. sec.sec. 2671-2680,
and therefore this court must apply "the
law of the place where the act or
omission occurred," 28 U.S.C. sec. 1346.
Because Noble was injured in Illinois, we
apply the relevant Illinois statute, the
Structural Work Act. In order to prevail
under the Structural Work Act, Noble must
prove that:

(1) plaintiff was engaged in or was
passing under or by a structural
activity; (2) the activity was being
performed with reference to a structure;
(3) a scaffold or other mechanical device
was being used; (4) a defect existed in
the construction or use of the device;
(5) the defect proximately caused the
plaintiff’s injuries; (6) the defendants
had charge of the work being performed;
and (7) the defendants willfully violated
the Act’s safety standards.

Thompson v. MCA Distrib., Music Corp. of
America, 629 N.E.2d 206, 208 (Ill. App.
Ct. 1994). For the purposes of this
appeal, the appellants challenge the
trial court’s determination under prongs
six and seven of the above described
test; that is, his finding that the
United States was not in charge of the
worksite (prong six) and that the United
States did not willfully violate the
Illinois Structural Work Act (prong
seven).

C.   In Charge of the Worksite

  The question of whether the United
States Postal Service or the general
contractor was in charge of the worksite
is considered under the totality of the
circumstances test. Savic, 918 F.2d at
700 (citing Gentile v. Kehe, 520 N.E.2d
827, 829 (Ill. App. Ct. 1987)). According
to the Illinois Supreme Court, ten
factors are to be weighed when
determining whether a particular
defendant is "in charge of" a project
under the Structural Work Act:

(1) supervision and control of the work;
(2) retention of the right to supervise
and control the work; (3) constant
participation in ongoing activities at
the construction site; (4) supervision
and coordination of subcontractors; (5)
responsibility for taking safety
precautions at the jobsite; (6) authority
to issue change orders; (7) the right to
stop the work; (8) ownership of the
equipment used on the jobsite; (9)
defendant’s familiarity with construction
customs and practices; and (10)
defendant’s ability to assure worker
safety or alleviate equipment
deficiencies or improper work habits.

Cockrum v. Kajima Int’l, Inc., 645 N.E.2d
917, 920 (Ill. 1995) (citing Chance v.
City of Collinsville, 445 N.E.2d 39, 42
(Ill. 1983)). Additionally, the Illinois
Supreme Court has held that the term
"having charge of" in the Structural Work
Act "is one of common usage and
understanding." Larson v. Commonwealth
Edison Co., 211 N.E.2d 247, 252 (Ill.
1965). In this case, the trial judge
thoroughly analyzed each of the ten
factors with respect to the question of
whether the United States was in charge
of the worksite.

  With respect to the first factor, who
was responsible for the supervision and
control of the work, it is important to
note that the contract did not require
Tritt to make a particular number of
visits to the jobsite, and, as the trial
judge concluded, Tritt only made an
average of two visits per month to the
worksite. The district court also
concluded that Steiner’s one visit during
the entire duration of the contract, even
when combined with Tritt’s two-visit-a-
month average, was insufficient to
establish that the Postal Service had the
required supervision or control of the
jobsite. According to the judge,

[n]o one else with any contractual
responsibilities visited the worksite,
and it seems to me that it would be
distorting the meaning of the word
"control" to say that the postal service
had control of the work in this case or
that it supervised the work in this case.

According to the procurement manual,
Tritt’s and Steiner’s visits to the
worksite were to ensure "contract
objectives, not control of the
contractor’s business." And, as we stated
in Savic, "the government should not be
held liable for merely requiring
compliance with the contract and insuring
the quality of the work." 918 F.2d at 700
(emphasis added) (internal quotations and
citations omitted). Thus, the facts set
forth in this record weigh against a
finding that the Postal Service exercised
control over the worksite.

  With regard to the second factor, the
retention of the right to supervise or
control the work, the district court
judge concluded that it was unclear from
the contract whether the Postal Service
did, in fact, retain such a right, and
left it as an open question. On the one
hand, the United States clearly had the
authority to issue a change order which
could affect the method and manner in
which the work was performed. However,
the testimony of Tritt and Steiner
established that the Postal Service’s
main concern was that the government
received what it contracted for in a
timely fashion and, furthermore, that the
government was not in the business of
controlling the day-to-day operations of
the contractor. However, paragraph
G.21(a) of the contract between Paris and
the Postal Service states that:

  a. The contract officer may at any
time, without notice to any sureties, by
written order designated or indicated to
be a change order, make changes in the
work within the general scope of the
contract, including changes--

  1. In the specifications (including
drawings and designs);
  2. In the method or manner of
performance of the work;

  3. In the Postal Service-furnished
facilities, equipment, materials,
services, or site; or

  4. Directing acceleration in the
performance of the work.

Paragraph G.21 gives the Postal Service
rather extensive authority to alter the
project by issuing a change order in a
variety of circumstances. Given that the
second factor only requires the retention
of the right to supervise or control, we
are of the opinion that factor number two
weighs in favor of the United States
being deemed in control of the site
because "[r]etention of this right
[control] is . . . significant, even if
it is not exercised." Savic, 918 F.2d at
701.

  The third factor, whether the United
States constantly participated in the
ongoing activities at the construction
site, clearly, as the trial judge
concluded, did not occur in this case
because Tritt only visited the site twice
a month and was the Postal Service’s
representative for approximately 15-20
other projects in progress at the same
time, and furthermore, Steiner only
visited the job site on one occasion
during the entire period of the contract.
We hasten to point out that none of the
parties dispute this finding. It is also
clear that the fourth factor, whether the
Postal Service had supervision and
coordination of the subcontractors,
weighs against finding that the Postal
Service was in control of the worksite.
Because no privity of contract existed
between the government and the
subcontractors which would allow the
Postal Service to exert any authority
over the subcontractors (none of the
parties assert that the United States had
any control over subcontractors), the
judge correctly concluded that the fourth
factor weighed against a finding that the
government had control of the jobsite.
  According to the Illinois Supreme Court,
the fifth factor to be considered is the
responsibility for taking safety
precautions at the jobsite. Like factor
number two, the district court judge did
not specifically conclude whether or not
this factor weighed in favor or against
finding that the government exercised
control of the worksite. However,
thecontract did specifically state that
the contractor must comply with all OSHA,
federal, state, and local safety
regulations. Furthermore, we note that
Paris was required to designate an
employee (Syrigas) to be responsible for
the safety concerns on the project.
Although the Postal Service approved the
contractor’s final safety plan as
presented, Steiner testified that it was
the contractor’s responsibility to ensure
that the safety plan was followed.
Additionally, as noted in Savic, 918 F.2d
at 701, the fact the Postal Service was
not involved in the day-to-day operations
establishes that it was not responsible
for safety precautions. Given the
language of the contract, the
understanding of the parties, and the
fact that Tritt was at the project site
only, on average, twice a month, and
Steiner was there but once, we are of the
opinion that factor number five
(responsibility for safety precautions)
weighs against finding that the
government had control of the worksite.

  Factors six and seven, the authority to
issue change orders and the right to stop
work, when considered in isolation, weigh
in favor of finding that the United
States had control of the worksite
because, as the interested parties agree,
the Postal Service had the authority to
do both. But, factor number eight,
ownership of the equipment used on the
project, weighs against finding the
government had control because, as the
trial judge determined, all of the equip
ment used at the construction site,
including the defective scaffold involved
in Noble’s accident, were the property of
and under the control of the contractor,
Paris.

  The trial judge concluded that factor
nine, the defendant’s familiarity with
the construction, customs, and practice,
when viewed in insularity, weighed in
favor of a finding that the United States
was in control of the jobsite because the
government representatives were very
familiar with the construction business
in general and with government
construction contracts in particular.
According to Tritt’s testimony, he was
the government’s representative for over
15 similar construction sites and had
"been involved in the construction
industry for all of his adult life."
Further, Steiner served as the
government’s contracting officer for
approximately 200 Postal Service
contracts per year in Illinois, Indiana,
and Michigan. Given these facts, we agree
with the trial judge that the
government’s representatives were
familiar with the custom and practice of
the construction business. Savic, 918
F.2d at 701.

  Finally, factor ten, whether the United
States was in a position to assure worker
safety or alleviate equipment
deficiencies, or improper work habits,
clearly weighs against finding that the
Postal Service had control of the
worksite. As the district court observed,
Tritt was at the worksite only twice a
month and Steiner visited the
construction site only once during the
duration of the contract. In Savic, 918
F.2d at 701, this court stated that:

it is at best highly questionable and
nigh unto impossible for the government
to be in a position to assure worker
safety or alleviate equipment
deficiencies or improper work habits (the
tenth element), given that the government
inspectors visited the construction site
only once or twice during an ordinary
work day.

If the government was not in a position
to satisfy the tenth factor when it
visited the construction site only once
or twice a day as we observed in Savic,
obviously factor ten weighs against
finding the United States was in control
of the worksite when Tritt, the Postal
Service representative, only visited the
site twice a month, and Steiner visited
the site only on one occasion during the
entire period of the contract.

  In Damnjanovic, 9 F.3d at 1276, this
court cautioned against merely totaling
up the ten factors and seeing which party
had more factors in its favor. Rather,
courts must engage in a totality of the
circumstances approach in each case and,
as we stated in Damnjanovic, whether a
party has charge of the worksite "depends
upon the surrounding circumstances and
the role the party assumed on the
worksite." 9 F. 3d at 1275 (citing Burger
v. Prairie Dev., Ltd., 578 N.E.2d 1113,
1119 (Ill. App. Ct. 1991)).

  We are in agreement with the trial judge
and conclude that, under the totality of
the circumstances test, the government
should not be considered in charge of the
construction site in this case for the
following reasons. Initially, while we do
not just add up the factors to determine
which parties have control of the
worksite, we can certainly use the
factors as part of our analysis, Savic,
918 F.2d at 704, and only four (factors
two, six, seven, and nine) of the ten
factors weigh in favor of the finding
that the United States was in control of
the worksite. Additionally, we have
stated that of the ten factors
"particular emphasis is placed on those
related to job safety," and all the
factors even arguably related to job
safety (factors three, five, eight, and
ten) weigh against finding that the
Postal Service was in control of the
worksite. Also, both Steiner and Tritt
testified that, while they had the
authority to stop work at the
construction site, the very limited
purpose of that aspect of their authority
and the contract was to ensure that the
Postal Service got what it paid for
within the time frame of the contractual
document. With regard to the Postal
Service, the procurement manual made
clear that "the objective of any purchase
action is performance of the contract
objectives, not control of the
contractor’s businesses." According to
the manual, Postal Service personnel were
to devote their efforts only to "quality
assurance, cost monitoring, and other
activities intended to ensure compliance
with contract terms." (Emphasis added).
Furthermore, the manual explicitly
prohibited Postal Service personnel,
except in cases where the contract
specifically required it, from
"direct[ing] the contractor’s management
activities or interven[ing] to supervise,
train, or discipline contractor
personnel." (Emphasis added). According
to Steiner, it was not for the Postal
Service to run the contractor’s business
or tell it how to do its work. Rather,
according to the procurement manual and
Steiner’s testimony, the Postal Service
allowed Paris to conduct business at the
construction site as it saw fit so long
as Paris performed the work in a timely
manner and the government received the
work it had contracted for. And, as this
court and Illinois courts have said, "the
government should not be held liable for
merely requiring compliance with the
contract and insuring the quality of the
work." Savic, 918 F.2d at 700 (internal
quotations and citations omitted); see
also Gentile, 520 N.E.2d at 830.

  Based on the totality of the
circumstances, we agree with the decision
of the trial court that the United States
was not in charge of the worksite./6
Consequently, the decision of the
district court is

AFFIRMED.



/1 According to Noble’s complaint and appellate
brief, he fell 10-15 feet to the ground and
sustained "severe and permanent injuries, both
internally and externally." The appellants’
counsel advised this court at oral argument that
Noble is receiving Worker’s Compensation for his
injuries.

/2 Although the Structural Work Act, 740 Ill. Comp.
Stat. 150/1-150/9 (West 1992), was repealed by
the Illinois legislature in 1995, it was in
effect at the time of Noble’s accident, and we
therefore apply it in this case. Atkins v. Deere
& Co., 685 N.E.2d 342, 348 (Ill. 1997).

/3 As the name implies, a correction letter is a
letter issued by the Postal Service (through
Steiner in this case) that informs the contractor
of what corrections at the job site need to be
made. According to Steiner’s testimony, he would
typically issue correction letters if work was
being performed in an unsafe manner.

/4 It is important to note that the contractor
supplied and maintained all of the equipment used
at the site, including the unsafe scaffold in-
volved in Noble’s accident.

/5
It is important to note that, at oral argument,
the appellants conceded that this case was "moot"
if the clearly erroneous standard was applied.
Despite the appellants’ concession, we believe
that further discussion is warranted.

/6 As we noted in Savic, the fact that the govern-
ment is not in control of the construction site
in this case is sufficient to affirm the trial
judge’s decision. Savic, 918 F.3d at 704, 706
n.12. Given that the appellants conceded at oral
argument that this case was "moot" if the clearly
erroneous standard was to be applied, and our
conclusion that the judge correctly determined
that the United States was not in control of the
worksite, we do not address the alternative
findings of the district court that the Postal
Service did not willfully violate the Illinois
Structural Work Act and that the Postal Service
did not "proximately cause" Noble’s injuries.
