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Bishop v. Napier

AUGUST 31, 1965.




Appeal from the Circuit Court of McHenry County; the Hon. WILLIAM M. CARROLL, Judge, presiding. Judgment affirmed.


The plaintiff, Stanley D. Bishop, brought this action under the Structural Work Act, ch 48, secs 60-69, Ill Rev Stats, against James L. Napier, defendant. At the close of the plaintiff's case in chief, the trial court granted defendant's motion for a directed verdict and, thereafter, denied the plaintiff's post trial motion. The plaintiff appealed to the Supreme Court of Illinois. On plaintiff's motion the cause was transferred to this court for decision and the alleged constitutional question was waived.

The question remaining for this court to determine is whether the facts of the case create a cause of action under the Structural Work Act. Three portions of the Act are pertinent. The preamble reads:

"An Act providing for the protection and safety of persons in and about the construction, repairing, alteration, or removal of buildings, bridges, viaducts and other structures, and to provide for the enforcement thereof."

Section 60 provides in part as follows:

"That all . . . ladders . . . erected or constructed by any person . . . for the use in the erection, repairing, alteration, removal or painting of any house . . . shall be erected and constructed, in a safe, suitable and proper manner. . . ."

Section 69 then provides:

"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 party injured. . . ."

The evidence reveals that the defendant hired the plaintiff to remove storm windows from his house, wash the regular windows and then put up the window screens. In the process of accomplishing this, a regular work pattern evolved. The defendant would unlatch the storm windows from inside his home and push the bottom of the window outward. The plaintiff, who was outside, would then unhook the windows from the top and carry them to the ground. In order to reach the second floor a ladder was used. The particular ladder involved measured between 16-18 feet in length and was borrowed by the plaintiff from his own rented premises.

The plaintiff's injury occurred while he was removing one of the storm windows from the second floor. Plaintiff had placed the bottom of the ladder upon a wet and uneven flagstone type patio, with the top resting just below a second story windowsill. He then climbed the ladder and removed the storm window. No one was holding the ladder. The defendant was inside the house, ascending the stairs to the second floor. At this particular moment, the bottom of the ladder slipped, causing the top of the ladder to slide rapidly down the side of the house. The plaintiff landed on the heels of his feet, thereby sustaining the injury complained of. The window was still in his hands when he landed on the ground. Neither the window nor the ladder was damaged.

There is no conflict in the evidence as to the fact that the plaintiff was an employee of the defendant; that the patio was wet because of a mist falling at the time of the accident; that the ladder, although not owned by either party, was seen and observed by the defendant before the accident; and that the ladder was in the same condition before the accident as it was afterwards.

The plaintiff contends, 1) that any work activity which requires the use of a ladder is inherently dangerous and therefore within the purview of the Structural Work Act, and 2) that replacing the storm windows with window screens was an "alteration" of defendant's home within the meaning of the Act.

[1-5] This is a case of first impression. In order to adopt either of the conclusions advanced by the plaintiff we would have to find that the Legislature intended such a result. The statute creates a cause of action which is additional to the remedies recognized at common law. Although the Act is remedial in nature, there are certain limitations which govern its interpretation. As was stated in Cedar Park Cemetery Ass'n, Inc. v. Cooper, 408 Ill. 79, at page 83, 96 N.E.2d 482:

"Some may say the act has its remedial aspects when examined from the standpoint of the evil attacked by the legislature. Even though that be so, it will not warrant construing the act liberally from the standpoint of exclusions and inclusions of persons, for we cannot read into it something which is not within the clearly expressed intent of the legislature. (50 Am Jur, Statutes, sec 394.) Where a statute has remedial features and is at the same time in derogation of the common ...

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