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Frick v. O'hare-chicago Corp.

MAY 9, 1966.

WALTER P. FRICK, PLAINTIFF-APPELLANT,

v.

O'HARE-CHICAGO CORPORATION, DEFENDANT-APPELLEE, AND CHELL & ANDERSON, INC., A CORPORATION, DEFENDANT.



Appeal from the Circuit Court of Cook County; the Hon. ALBERT E. HALLETT, Judge, presiding. Reversed and remanded.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

This is a Scaffold Act case, in which plaintiff was injured when he fell from an unsecured plank, which was on top of a wooden form into which concrete was to be poured. A summary judgment was entered in favor of the defendant owner. The action against the defendant contractor is still pending. The trial court found there was no just reason for delaying enforcement or appeal from the judgment order, and plaintiff appeals.

[1-3] In a summary judgment, the right of the moving party should be free from doubt, and the whole record must be considered. If, upon an examination of the pleadings, depositions, affidavits and admissions on file, it can be fairly said that there is a genuine issue as to any material fact, a motion for a summary judgment should be denied. On the other hand, where the record shows there is no triable issue of fact, a summary judgment will be granted. People ex rel. Sharp v. City of Chicago, 13 Ill.2d 157, 160, 161, 148 N.E.2d 481 (1958); Tuohey v. Yellow Cab Co., 33 Ill. App.2d 180, 183, 180 N.E.2d 691 (1962).

On November 29, 1961, plaintiff, Walter P. Frick, was working as an electrician for an electrical contractor, Henry Newgard & Company, on an addition to the O'Hare Inn in DesPlaines, Illinois. Defendant O'Hare-Chicago Corporation was the owner of the premises. Defendant Chell & Anderson, Inc., was on the job site under a contract for "masonry and carpentry work."

On the day of the occurrence, plaintiff was informed by the foreman of defendant Chell & Anderson that plaintiff should take measurements for an electrical wire conduit pipe, which was to be placed in a form into which concrete was to be poured on the following day. The form was in an excavation and was made of 1-inch plywood with 2 x 4's on top, secured by braces to the side of the form. An unsecured 2 x 6 plank was on top of and parallel with the 2 x 4's. The form was 14 feet high from the basement level, and its top was reached by walking on a plank from the unexcavated ground.

Plaintiff took the measurements while standing on the 2 x 6 plank, and as he turned to leave, the board slipped and he fell to the ground. Then, to get out of the basement, he used "a big ladder that a lot of workers used to get in and out of the basement."

The complaint had two counts, the first of which was based on common-law negligence. The second count, based on the Structural Work Act (Ill Rev Stats 1963, c 48, §§ 60-69) alleges that defendant O'Hare "owned, managed, and controlled" the premises and "hired as their agents and servants, the defendant, Chell and Anderson, Inc., a corporation, to do repairs and alterations" on the building, and while acting both on their own behalf and as agents and servants of defendant O'Hare, defendant Chell & Anderson "constructed a scaffold, support or stay on said premises," which was "negligently erected and maintained," as a result of which plaintiff was injured.

The answer of defendant O'Hare admits ownership of the premises, but (1) denies that it managed, controlled or was in possession of that portion of the premises involved; and (2) denies that Chell & Anderson were hired as agents and servants of O'Hare or that they constructed a scaffold or support as agents and servants of O'Hare. O'Hare further denies "that the device referred to in plaintiff's complaint was a scaffold, support or stay."

The answer of defendant Chell & Anderson admits that it was hired to do certain repair work in the building and denies that it was the agent or servant of defendant O'Hare. It further denies that plaintiff was lawfully or rightfully on the scaffold alleged and denies that there was anything wrong or improper with the scaffold.

The summary judgment in favor of defendant O'Hare was based upon (1) an affidavit by the president of defendant O'Hare that "during the construction of the aforesaid addition to the O'Hare Inn, the O'Hare-Chicago Corporation had no one on the premises, either supervising, directing or controlling the construction or the method in which the construction was done"; (2) an affidavit which set forth extracts from defendant's discovery deposition relating to the occurrence and the nature of the alleged scaffold; (3) a counteraffidavit which set forth extracts from the contract between defendant owner O'Hare and defendant contractor Chell & Anderson; and (4) interrogatories and answers.

During the pendency of the motion for summary judgment, the court entered orders which (1) struck a counteraffidavit by plaintiff, and (2) sustained objections by both defendants to interrogatories filed by plaintiff to be answered by both defendants. Plaintiff has also appealed from these orders.

Considered first is defendant's contention that the plank from which plaintiff fell was not "a `scaffold' within the meaning of the Structural Work Act." Cases cited include Thon v. Johnson, 30 Ill. App.2d 317, 174 N.E.2d 400 (1961); Welk v. Jackson, Architectural Iron Works, 184 N.Y. 519, 76 N.E. 1116 (1906); Broderick v. Cauldwell-Wingate Co., 301 N.Y. 182, 93 N.E.2d 629 (1950); Remelius v. Corbetta Const. Co., Inc., 265 App. Div. 827, 37 NYS2d 843 (1942), and others. In Thon v. Johnson, plaintiff was injured when he fell from an erected form into which concrete was to be poured. The court said (p 322):

". . . we do not feel that the cement form upon which plaintiff stood in the case at bar can be considered to be a scaffold within the meaning of the statute. We are aware of the rule that our statute should be liberally construed, but if the statute were construed so as to cover the concrete form involved in this case, such a construction of the statute would be equivalent to holding that each and every place where a workman chooses to stand thereby becomes a scaffold within the meaning of the statute. . . . On the contrary, the authorities discussed herein appear to be quite pertinent and lend support to our conclusion that the concrete form involved in this case was not a scaffold within the meaning of the statute."

The authorities referred to in Thon v. Johnson include Haughey v. Thatcher, 89 App. Div. 375, 85 NYS 935, where plaintiff stood on a temporary arch structure because the work he was engaged in could be done more easily and in less time. The men working on the arches were furnished with scaffolding, but they stepped on ...


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