THIRD DIVISION

									December 26, 2001

No. 1-00-3161

KENNETH FRANK,						)   Appeal from the

								)   Circuit Court of

	Plaintiff-Appellant,			)   Cook County.

								)

		v.						)  

								)	

EDWARD HINES LUMBER COMPANY,			)   Honorable	

								)   Thomas E. Flanagan,

	Defendant-Appellee.				)   Judge Presiding.

     JUSTICE WOLFSON delivered the opinion of the court:

     Plaintiff Kenneth Frank (Frank) filed this products

liability suit after a wood roof truss system manufactured by

defendant Edward Hines Lumber Company (Hines) collapsed during

installation.  Plaintiff was one of three carpenters who were

installing the roof when it collapsed.1  A jury found in favor of defendant and against all three carpenters.  

     Plaintiff appeals, contending: (1) the trial court erred in

denying a jury instruction tendered by plaintiff; (2) the trial

court erred in excluding one of plaintiff's exhibits; (3) the

trial court erred in allowing two of defendant's exhibits to go

to the jury and denying plaintiff's "countervailing exhibits" to

go to the jury; (4) the trial court erred in allowing the issue of assumption of risk to be submitted to the jury; (5) the trial

court erred in directing the verdict for defendant on the breach

of warranty count; (6) the trial court erred in granting

defendant's summary judgment motion on the Structural Work Act

(740 ILCS 150/1 et seq. (West 1998)) count.

     We affirm.

FACTS

     On June 24, 1991, three carpenters installing a wood roof

truss system at the Evergreen Plaza Shopping Center in Vernon

Hills were injured when several trusses collapsed.  Hines

designed, built, and furnished the truss system to comply with

the architect's plans. 

     Frank filed a products liability suit against Hines. In his

complaint, Frank included a count alleging violation of the

Structural Work Act.  The trial court summarily dismissed this

count, finding plaintiff could not show Hines was in charge of

the work within the meaning of the Act.  

     The Sixth Amended Complaint, filed after the court granted

summary judgment in defendant's favor on the Structural Work Act

count, alleged the roof truss system was defective in its design

and engineering.  Plaintiff also alleged the truss was improperly

packaged, stacked, and delivered and was given to Frank in a

deformed, bowed and unsafe condition.  The complaint alleged

Hines failed to give Frank adequate instructions for erecting the

roof and that Hines did not provide adequate warnings of the dangers posed by the product.  Plaintiff also included counts

alleging breach of UCC warranties.

     At trial, the evidence established that Antonio Fanizza was

the architect and general contractor for the Evergreen Plaza

project.  Fanizza created Artech, Inc. and hired subcontractors

through Artech.  Artech employed Louis Garcia (Garcia) as a

laborer.  It did not have any other employees.  

     Fanizza's building plans called for prefabricated roof

trusses.  Fanizza accepted a bid from Hines for a wood roof truss

system.  According to the terms of their contract, Hines was to

manufacture, design, build, deliver, and provide instructions for

the erection of the trusses.  Hines included lumber to be used as

temporary bracing with the package.

     After Hines designed and manufactured the trusses, they were

delivered on a flatbed truck.  Hines provided instructions for

erecting the trusses, referred to during trial as the "Green

Sheet."  Hines also provided structural drawings bearing a

structural engineer seal.  Both the Green Sheet and the

structural drawings were admitted as exhibits at trial.  

     Artech hired C. Bentley Construction (Bentley) to install

the trusses.  Frank was employed by Bentley.  Frank testified

that on the day of the accident, the last thing he remembered was

telling another worker to get some bracing.  Frank said they had

problems installing the trusses because they were bowed or bent. 

Frank testified they were delivered bowed and the bowing remained after they were removed from the truck.  Frank said he applied

lateral bracing to straighten out the bowing, but did not apply

cross-bracing.  Frank said nobody told him the bracing was

inadequate during the installation of the trusses.  Frank said he

looked at the Green Sheet briefly, but did not have a copy of it. 

     Plaintiff used several exhibits as feasible alternative

warnings.  Frank's witnesses noted the differences between these

exhibits and the Green Sheet and concluded the information and

warnings in these exhibits were more complete than the Green

Sheet.  Several witnesses testified that flourescent stickers

showing where to use temporary bracing were sometimes affixed to

trusses.  However, Hines did not use stickers of this type at the

time that the accident occurred.  

     Plaintiff's witnesses testified the trusses were bowed upon

delivery.  Fanizza testified he contacted Hines about the bowing

and was told it was not a problem.  Plaintiff's witnesses said 

the bowing made installation difficult.

     Plaintiff's expert witnesses testified the Green Sheet did

not provide adequate instructions and warnings and that the

trusses were shipped in a manner that allowed them to bend

excessively.  The experts opined the bowing and the inadequate

instructions regarding temporary bracing caused the collapse. 

They testified there were better instructions and warnings

available at the time of the accident.  They agreed that

flourescent warning tags placed on the trusses would have helped warn and instruct plaintiffs as to proper bracing and

installation.

     Hines' defense centered around its claim that the truss

system was not defective and provided adequate instructions and

warnings to Frank.  Hines claimed the accident occurred because

the contractors did not read the instructions and warnings before

attempting to assemble the roof truss system.

     Hines' witnesses testified the builder was responsible for

erection and bracing of the trusses.  The bracing materials were

provided to the builder along with the trusses.

     Arthur Gurevich, the building commissioner for the Village

of Vernon Hills, testified he went to the job site before the

accident occurred.  He said he was concerned about the way the

trusses were stored.  Once the building crew began to erect the

trusses, Gurevich became concerned that they were not adequately

braced.  He told a worker named "Kenny" that the crew needed to

install cross-bracing.

     Hines' experts testified the Green Sheet adequately

instructed and warned plaintiff about proper temporary bracing

and installation of the truss system.  They said if the erection

crew had properly braced the trusses, they would not have

collapsed.  They said the trusses collapsed because the erection

crew failed to use the temporary bracing specified in the Green

Sheet.  They did not believe the bowing in the trusses caused the

collapse.        

     Defendant filed a motion for a directed verdict on the

breach of warranty counts of the complaint.  The trial court

granted defendant's motion, finding Frank was not an employee of

Artech or Fanizza, and was not covered by the UCC warranties that

extended only to the buyer and its employees.

     The jury ruled in defendant's favor on the remaining counts.

DECISION

Failure to Give IPI Civil No. 400.10

     Frank contends the trial court erred in refusing to give Illinois Pattern Jury Instruction, Civil, No. 400.10 (2000

ed.)(hereinafter IPI Civil No. 400.10).   

     The decision to give or deny a jury instruction is within

the trial court's discretion and a new trial should not be

granted unless a party's right to a fair trial has been seriously

prejudiced.  Carey v. Lazzara, Inc., 277 Ill. App. 3d 902, 906, 661 N.E.2d 413 (1996).  "The standard for determining whether a

trial court abused its discretion in giving or refusing a jury

instruction is whether, taken as a whole, the instructions fully,

fairly and comprehensively informed the jury of the relevant

legal principles."  Carey, 277 Ill. App. 3d at 906.

     IPI Civil No. 400.10:

	"400.10 Strict Product Liability - Due Care Not a

Defense - Personal Injury - One Plaintiff and One

Defendant.

	     If you decide that the plaintiff has proved all the propositions of his case, then it is not a defense

[that the condition of the product could not have been

discovered by the defendant][or][that care was used in

the manufacture of the product]."  IPI Civil No.

400.10.

     The notes on use that follow the instruction indicate it is

to be given only "if the jury heard from suggestion, evidence, or

argument that the defendant exercised care in the manufacturing

process or could not discover the condition of the product."  IPI

Civil No. 400.10, Notes on Use.

     Defendant never argued it should not be held liable because

the roof trusses were manufactured with due care.  Instead, Hines

argued the trusses were not unreasonably dangerous and based its

defense on its claim that the warnings and instructions that were

provided were adequate and that the accident occurred because

those in charge of the construction failed to read the

instructions and warnings.  Defense counsel did not raise the

issue of due care in opening or closing argument, and evidence

that defendant used due care in manufacturing the trusses was not

produced during trial.

     Plaintiff argues "the core" of Hines' defense was "that it

manufactured a truss which itself contained no defects and ***

provided [warnings and instructions] which told the installer all

he needed to know ***."  This defense, plaintiff says, "embraced

the concept that [Hines] 'exercised due care.'"  Plaintiff misconstrues the type of argument that a defendant must advance

before the trial court is required to give IPI Civil No. 400.10.

     In Renfro v. Allied Indus. Equipment Corp., 155 Ill. App. 3d 140, 507 N.E.2d 1213 (1987), a case cited by plaintiff, the court

said:

	     "Plaintiff's Instruction No. 13 is a version of

IPI, Civil, No. 400.10 ***.  Here, the jury did hear

evidence that when the [product] left the Crown factory

it was in compliance with standards promulgated by the

American National Standards Institute, and that Crown's

vehicle was the 'Cadillac' of [these products].  The

jury also saw literature from both Crown and Logisticon

touting the safety, quality and durability of their

respective products.  In our view, these matters raised

an inference of the exercise of care in the manufacture

of the products sufficient to justify use of the

instruction."  Renfro, 155 Ill. App. 3d at 166.

     The instruction is not to be given when a defendant merely

argues its product was not unreasonably dangerous.  Otherwise,

the instruction would have to be given in virtually all products

liability suits.  It is to be given when the defendant counters

the plaintiff's claims by arguing it wasn't negligent or a lack

of due care did not occur in its manufacture of the product.  The

danger is that when a defendant advances this due care in the

manufacture argument, the jury's focus will shift from the inherent dangers posed by the product itself to the defendant's

actions in creating the product.  

     In a strict liability suit, as contrasted with a negligence

claims, a plaintiff is not required to prove the defendant

breached a duty of due care.  Cunningham v. MacNeal Memorial Hospital, 47 Ill. 2d 443, 454, 266 N.E.2d 897 (1970).  The plaintiff is required to prove only that the product was

"unreasonably dangerous."  Cunningham, 47 Ill. 2d at 454.  Where a product is unreasonably dangerous, its manufacturer may be held

liable even if it used due care in manufacturing the product.  In

a trial in which a defendant suggests due care in the manufacture

as a defense, IPI Civil No. 400.10 is meant to instruct the jury

that, if a product is unreasonably dangerous, whether the

manufacturer used "due care" in creating it is irrelevant.  

     Hines did not advance due care niin the manufacture as a

defense to Frank's allegations.  The trial court did not abuse

its discretion in refusing to give IPI Civil No. 400.10.  See

Davis v. International Harvester Co., 167 Ill. App. 3d 814, 828- 29, 521 N.E.2d 1282 (1988)(instruction properly refused where

defendant did not produce evidence of due care but instead

claimed product was not unreasonably dangerous and had not caused

plaintiff's injuries).

Frank's Exhibit 224 - The Warning Poster

     Plaintiff contends the trial court erred in excluding

Frank's exhibit 224.  Exhibit 224 is a warning poster that enlarges upon the information included in the Green Sheet.  The

poster was produced by the Wood Truss Council of America and

published in 1992.

     The trial court's determination of admissibility of evidence

lies within its sound discretion.  First Midwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 426, 701 N.E.2d 1107 (1998).  A reviewing court will not reverse the trial court's decision

absent an abuse of that discretion.  First Midwest, 296 Ill. App. 3d at 426.

     The jury saw examples of two feasible alternative warnings. 

Several witnesses discussed these alternative warnings at length. 

Admitting the warning poster would have been cumulative.  See

Aguinaga v. City of Chicago, 243 Ill. App. 3d 552, 572, 611 N.E.2d 1296 (1993)(admissibility of cumulative evidence within

discretion of trial court).  Moreover, because the poster was not

published until 1992, it is not clear this version of the poster

was available before the accident occurred in June of 1991.  We

find the trial court's refusal to admit the poster was not an

abuse of discretion.

Warning Stickers

     During its deliberations, the jury sent out a note

requesting to see the sales contract between Hines and Fanizza,

the layout plan, and structural drawings of the trusses (referred

to as the "Hugh Cahill" drawings).  Plaintiff objected and asked

the court to refuse the jury's request.  

     Alternatively, plaintiff asked that in addition to the three

requested exhibits, the jury be sent plaintiff's exhibits 509A

and 509B, two flourescent warning stickers.  Plaintiff had

earlier asked the trial court to send these exhibits to the jury

when it retired to deliberate, but the trial court had denied

plaintiff's request after finding the stickers had been used only

for "demonstrative purposes" during trial.

     The trial court denied the jury's request to see the sales

contract, but allowed the layout plan and the structural drawings

to be sent back to the jury room.  The court again refused to

send the flourescent warning stickers to the jury.

     "The trial court has considerable discretion in determining

whether an exhibit may be taken into the jury room."  Becht v. Palac, 317 Ill. App. 3d 1026, 1039, 740 N.E.2d 1131 (2000).  The trial court's decision will not be disturbed on review absent an

abuse of that discretion.  Becht, 317 Ill. App. 3d at 1040.

     Plaintiff claims "the request from the jury demonstrated its

concentration on a particular phase of the dispute which ***

should have been equalized by the showing of Frank's

countervailing evidence," and cites Becht.

     In Becht, the plaintiff filed a medical malpractice suit against two doctors whom he alleged negligently prescribed a

medication which caused him to develop a bone disease.  During

its deliberations, the jury sent out a note requesting that it be

allowed to see several demonstrative exhibits used by one of the defendants during trial.  The codefendant's counsel objected,

arguing all of the evidence should go back or none at all.  The

trial court said it would send the exhibits back to the jury only

if all of the attorneys could agree.  When the attorneys could

not agree, the trial court refused the request.

    We affirmed the trial court, finding, "More than likely, the

attorneys were concerned that sending only [the doctor's]

exhibits back would unduly emphasize her evidence."  Becht, 317 Ill. App. 3d at 1040.  

      Here, the jury was given several of plaintiff's and

defendant's exhibits when it retired to deliberate.  There was no

danger that two more exhibits, which it requested, would in any

way unduly emphasize defendant's evidence.  

     The flourescent warning stickers were used as exhibits

during trial and testified to by several witnesses.  The jury had

already seen them and did not ask to see them again.  The

stickers were in no way directly related to the exhibits the jury

did ask to see, though plaintiff claims they were

"countervailing."  

     We find the trial court did not abuse its discretion in

denying plaintiff's request to send his exhibits back to the

jury.

Assumption of Risk

     Frank contendsargues the trial court erred in submitting an

assumption of risk instruction to the jury.  According to Frank, none of the evidence at trial supported issuing this instruction.

     "[I]n Illinois, 'all that is required to justify the giving

of an instruction is that there be some evidence in the record to

justify the theory of the instruction.'" Boland v. Kawasaki Motors Manufacturing Corp.,309 Ill. App. 3d 645, 653, 722 N.E.2d 1234 (2000), quoting Leonardi v. Loyola University, 168 Ill. 2d 83, 101, 658 N.E.2d 450 (1995).

     The instructions issued to the jury in this case included

the following:

	     "With respect to the claim of Kenneth Frank only,

defendant *** claims that the plaintiff Kenneth Frank

assumed the risk of injury in the following respect:

			     (a) He was aware that the roof trusses could fall

if they were not braced during erection to

withstand lateral movement;

	     The defendant also claims that the foregoing was a

proximate cause of Kenneth Frank's injury.

	     Plaintiff Kenneth Frank denies that he assumed the

risk of injury and also denies that any assumption of

the risk on his part was a proximate cause of his

injuries."   

     Frank testified he knew the trusses required temporary

bracing.  He testified he saw the Green Sheet.  He said he did

not cross-brace the trusses, but used only lateral bracing in an

attempt to correct for the bowing of the trusses. 

     Gurevich testified he visited the site while the trusses

were being installed.  While he was there, he spoke to "Kenny." 

Gurevich said he told "Kenny" he believed the trusses were

inadequately braced.  Gurevich referred "Kenny" to the Green

Sheet, and "Kenny" showed him his copy of the sheet.  Gurevich

said he saw the scene after the accident occurred and noticed the

cross-bracing he recommended had not been installed.  While

Gurevich did not know "Kenny's" last name, there was no evidence

indicating anyone else on the job site shared Frank's first name. 

	Frank admitted that he talked to Gurevich at the site, although

he denied anything was said about inadequate bracing.

     Frank claims there was no evidence that he deliberately

encountered a known risk.  He supports his contention that the

instruction should not have been given with the testimony of one

of his expert witnesses:

	     "Q: And you would agree with me that even you ***

if you had been at the site with your degree of

knowledge, given the short time frame in which to

analyze the situation, would not have predicted that

the bracing being used by those workers on that site

would fail; true?

	     A: If I were there only with the benefit of

looking, I would not be able to predict that it would

fail."

     While this may call into question Gurevich's credibility when he claimed he could see the trusses were not adequately

braced, credibility questions are left to the jury.  Aguinaga, 243 Ill. App. 3d at 560 ("It is the function of the jury to

resolve substantial factual disputes requiring either the

assessment of the witness' credibility or an election between

conflicting evidence").  The fact that the jury heard conflicting

testimony on this issue does not mean the trial court should not

have issued an instruction on assumption of risk.  

     Gurevich's testimony was sufficient to support the trial

court's submission of the assumption of risk instruction. 

Boland, 309 Ill. App. 3d at 654 (assumption of risk instruction properly issued where plaintiff was orally warned of potential

danger).  Plaintiff's expert testimony does not negate Gurevich's

claims, it simply creates a factual issue for the jury to

resolve.

     It is unlikely the assumption of risk instruction had any

impact on the jury in this case.  There were three plaintiffs. 

Assumption of risk applied only to Frank.  No one suggested to

the jury that assumption of the risk had anything to do with the

other two plaintiffs.  Evidence concerning the warnings applied

equally to all three.  The jury found against all three.  We find

giving the instruction was not an abuse of discretion.

Directed Verdict - Breach of Warranty

     Plaintiff contends the trial court erred in granting defendant's motion for a directed verdict on the breach of warranty count of the complaint.  

     A trial court's decision to grant a directed verdict is

reviewed de novo.  Susnis v. Radfar, 317 Ill. App. 3d 817, 825- 26, 739 N.E.2d 960 (2000).  A motion for directed verdict should

be granted if all the evidence, viewed in the light most

favorable to the opponent, so overwhelmingly favors the movant

that no contrary verdict could stand.  Pedrick v. Peoria & Easter R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967).

     Under section 2-314 of the Uniform Commercial Code (UCC),

unless excluded or modified, every sale of goods includes an

implied warranty of merchantibility.  810 ILCS 5/2-314 (West

1998). Section 2-315 of the UCC says when the seller has reason

to know the buyer needs the goods for a particular purpose and

knows the buyer is relying on the seller's skill in selecting the

goods, an implied warranty of fitness for a particular purpose is

inferred.  810 ILCS 5/2-315 (West 1998).

     Section 2-318 defines the reach of these warranties:

	     "Third Party Beneficiaries of Warranties Express

or Implied.  A seller's warranty whether express or

implied extends to any natural person who is in the

family or household of his buyer or who is a guest in

his home if it is reasonable to expect that such person

may use, consume or be affected by the goods and who is

injured in person by breach of the warranty.  A seller

may not exclude or limit the operation of this Section."  810 ILCS 5/2-318 (West 1998).

     This section of the UCC allows parties having a certain

relationship with the buyer to maintain warranty claims under the

UCC despite a lack of privity with the seller of the goods. 

Lukwinski v. Stone Container Corporation, 312 Ill. App. 3d 385, 390, 726 N.E.2d 665 (2000).  While we have held a UCC warranty

may extend to the employee of a buyer under section 2-318,

Whitaker v. Lian Feng Machine Co., 156 Ill. App. 3d 316, 321, 509 N.E.2d 591 (1987), it does not extend to non-employees who

contract with the buyer to provide a service.  Lukwinski, 312 Ill. App. 3d at 393.

     This case is factually similar to Lukwinski.  There, the plaintiff was employed as a truck driver for a delivery carrier

company (FAB).  Defendant (Stone) was a cardboard box

manufacturer.  FAB contracted with Stone to deliver the boxes to

buyers.  Plaintiff was injured while delivering the boxes to a

buyer.  He claimed section 2-318 covered him as a third-party

beneficiary of the UCC warranty between Stone and the buyer.  We

disagreed:

	    "Plaintiff *** argues he was akin to an employee of

Coca-Cola by virtue of the directive he received from

Stone's dispatcher and the request for assistance

expressed by Coca Cola's forklift operator.  We

disagree.  The record clearly shows that at the time of

his injuries plaintiff was acting within the course of his employment with FAB. ***

	     As discussed, the courts may enlarge the scope of

section 2-318 where the circumstances of the case

warrant.  Notwithstanding this discretion, we are

extremely reluctant, in light of the express wording of

the statute, to expand this section's operation absent

a compelling and well-founded reason. *** Plaintiff

here *** provides no compelling basis under warranty

law for the extension of third-party beneficiary

coverage under the facts of the case. *** Plaintiff's

relationship with [the buyer] under the facts is too

far removed from those relationships warranting

protection under section 2-318.  Notably, plaintiff is

not without remedy for his injuries and has other legal

theories available under which he can pursue relief." 

Lukwinski, 312 Ill. App. 3d at 393-94.

     In this case, plaintiff does not contend section 2-318

should be extended - instead he stretchesmisrepresents the facts by claiming

he was "technically *** in Artech's *** employ."  Frank was not

in Artech's employ.  He was employed by C. Bentley Builders.  C.

Bentley Builders contracted with Artech to erect the trusses. 

Section 2-318 does not extend to Frank.  We affirm the trial

court's directed verdict on the breach of warranty count.

Summary Judgment - Structural Work Act Count

     Plaintiff contends the trial court erred in granting defendant's motion for summary judgment on the count of the

complaint alleging violation of the Structural Work Act.  740 ILCS 150/1 et seq. (West 1994)2.  

     Review of the trial court's ruling on a motion for summary

judgment is de novo.  Lajato v. AT&T, Inc., 283 Ill. App. 3d 126, 135, 669 N.E.2d 645 (1996).  Summary judgment is proper when the

pleadings, depositions, and affidavits on file, construed in the

light most favorable to the nonmoving party, establish there is

no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.  Lajato, 283 Ill. App. 3d at 135.

     Section 9 of the Structural Work Act says, in relevant part:

	     "Any owner, contractor, sub-contractor, 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 ***.

	***

	     For any injury to person or property, occasioned

by any wilful violations of this Act, or willful

failure to comply with any of its provisions, a right

of action shall accrue to the party injured, for any direct damages sustained thereby ***."  740 ILCS 150/9

(West 19948).

     A plaintiff must establish the following elements in order

to sustain a cause of action for violation of the Act: (1)

plaintiff was involved in 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 his injuries; (6) the defendant had charge of

the work; (7) the defendant willfully violated the Act's safety

standard.  Cockrum v. Kajima, International, Inc., 163 Ill. 2d 485, 491, 645 N.E.2d 917 (1994).

     Here, the trial court found plaintiff could not establish a

material issue of fact regarding whether Hines "had charge of"

the work which resulted in plaintiff's injuries.  

     Plaintiff contends the trial court failed to consider the

extent to which Hines provided instructions for the erection of

the trusses.  Plaintiff points to deposition testimony indicating

the reason Hines delivered the Green Sheet to the job site was to

"show how to erect truesses and the correct way to pick them up

with the crane."  Plaintiff notes Hines' engineering department

was available for consultation and "would have" affirmatively

performed work to insure workers' safety, had it been asked to do

so.

     The problem with plaintiff's argument is that case law clearly says the question is not whether the defendant "would

have" taken more control over the job site if it had been asked

to do so.  

     The factors to be considered in determining whether a person

"had charge of" the work are: (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, 163 Ill. 2d at 492-93.

     These factors focus on the amount of control the defendant

actually exerted, or retained the right to exert, over the work

that resulted in the injury.  Plaintiff failed to establish that

Hines took any steps to take actual charge of the work.  Whether

Hines could have exerted some control over the work is

insignificant.  Plaintiff may recover only where Hines actually

exerted control, or was supposed to exert control and failed to

do so.  

     Hines' contract with Fanizza was for the manufacture and

delivery of the trusses.  Though Hines included instructions for the erection of the trusses with the product, the erection of the

trusses was performed by sub-contractors hired by Artech.  A

review of the record establishes Hines did not take charge of

erection of the trusses once they were delivered, nor did the

parties anticipate that it would.  We affirm the trial court's

decision granting summary judgment in defendant's favor on this

issue.

CONCLUSION

     We affirm the jury's verdict and the trial court orders we

have discussed.

     Affirmed.  

	HALL, P.J., and CERDA, J., concur.