231 F.3d 352 (7th Cir. 2000)
ROBERT NOBLE and ANDRENE NOBLE, Plaintiffs-Appellants,v.UNITED STATES OF AMERICA, Defendant-Appellee.
No. 99-3013
In the  United States Court of Appeals  For the Seventh Circuit
Argued September 6, 2000Decided November 1,  2000

Appeal from the United States District Court  for the Northern District of Illinois, Eastern  Division.  No. 94 C 1165--John F. Grady, Judge.
Before CUDAHY, COFFEY and RIPPLE, Circuit  Judges.
COFFEY, Circuit Judge.


1
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

2
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

3
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.


4
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."


5
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.


6
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.


7
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

8
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.


9
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


10
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

11
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

12
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


13
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).


14
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

15
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


16
(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.


17
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

18
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


19
(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.


20
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.


21
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,


22
[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.


23
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.


24
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


25
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--


26
1.  In the specifications (including  drawings and designs);


27
2.  In the method or manner of  performance of the work;


28
3.  In the Postal Service-furnished  facilities, equipment, materials,  services, or site; or


29
4.  Directing acceleration in the  performance of the work.


30
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.


31
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.


32
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.


33
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.


34
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.


35
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


36
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.


37
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.


38
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)).


39
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.


40
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


41
AFFIRMED.



Notes:


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.


