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Morck v. Nicosia

JANUARY 29, 1968.

LEROY MORCK, PLAINTIFF-APPELLANT,

v.

FRANK NICOSIA, INDIVIDUALLY, AND D/B/A CAPITAL CONSTRUCTION CO., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. ROBERT E. McAULIFFE, Judge, presiding. Judgment affirmed.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT.

Leroy Morck filed his complaint against Frank Nicosia, alleging a violation of the Structural Work Act, Ill. Rev Stats 1965, ch 48, § 60 et seq. A motion to strike and dismiss the second amended complaint was denied. An answer was filed and depositions of plaintiff and defendant were taken. Upon being assigned for trial, defendant moved for summary judgment, which motion was allowed. Plaintiff now prosecutes this appeal.

We note initially that there is no error in the procedure of entering a summary judgment after a motion to dismiss the complaint has been denied. Stanko v. Zilien, 33 Ill. App.2d 364, 179 N.E.2d 436 (1962).

Defendant's motion for summary judgment adopted by express reference the discovery depositions of both plaintiff and defendant. The facts, as they appear from those depositions, show that defendant was a general contractor in charge of the construction of an apartment building. Plaintiff was a carpenter employed by one of the defendant's subcontractors. At the time of the accident which gave rise to the instant law suit, he was working about 14 1/2 feet above the ground on "the first floor subfloor which would be, actually, the ceiling of the first floor and it would be forming the floor of the second floor." Plaintiff was "leveling the joists . . . mak(ing) them the same height so that the floor would be perfectly straight." The building was 24 feet wide and the joists involved spanned from wall to wall. The flooring, which had already been installed, was about 1,500 feet of flat surface with no openings, voids or holes.

Joists are "leveled" by placing shims, or wedges, underneath them. This operation is performed by raising the end joist to the desired height. A string is stretched from this end joist to the other end of the building. Plaintiff would stand on the wall, which was eight inches wide, facing the center of the building. From a squatting position, he would insert a crowbar under each joist and raise it to the proper height. The joists had to be raised, on the average, about one-half inch. Plaintiff carried the wedges or shims in his nail apron and after raising the joist, he would select a proper wedge, insert it under the joist and put in a retaining nail. He would then stand up and step over to the next joist, moving his tools with him. It was in making such a move to an adjacent joist that plaintiff's feet slipped out from under him and he fell to the ground.

Plaintiff's second amended complaint is in one count. It charges the defendant with willfully violating the Structural Work Act in that he failed to erect and provide a scaffolding for plaintiff to stand on while leveling joists. The actions of defendant, which the complaint alleges constituted the violations of the Act, are as follows:

"a. Willfully failed to erect and construct a scaffold upon which the said LEROY MORCK could work in a safe, suitable and proper manner, and willfully failed to erect, construct, place and operate the same for said LEROY MORCK to work upon, so as to give proper and adequate protection to the life and limb of the plaintiff working at said place, in violation of Section 60 of Chapter 48 of the Revised Statute (1957).

"b. Willfully failed to erect and construct a scaffold upon which said LEROY MORCK could work in a safe, suitable and proper manner, and willfully failed to erect, construct, place and operate the same for said LEROY MORCK to work upon so as to give proper and adequate protection to the life and limb of the plaintiff working at said place, in violation of Section 60 of Chapter 48 of the Revised Statute (1957).

"c. Willfully failed to supply a scaffold or support to said plaintiff to perform his work upon, and as a result there was created a dangerous, precarious and hazardous work condition.

"d. Willfully failed to provide a safe place to work for said plaintiff, which was hazardous and dangerous without the erection of a scaffold or support.

"e. Willfully failed to provide a handrail or other reasonable means to prevent the plaintiff from falling from the dangerous, precarious and hazardous position required of him by the defendant in the construction of the building.

"f. Willfully failed to comply with the custom and practice of safety adopted in the Building Construction Industry to protect the plaintiff from falling from a high hazardous position.

"g. Willfully failed to observe the safe rules of conduct in providing scaffolding, ladders, supports, handrails or other contrivance to adequately protect the plaintiff from falling from great heights, to which height he was required to ascend in completion of the defendant's construction work.

"h. Willfully failed to properly inspect the area in which the plaintiff was required to work to make certain that scaffolding, supports, ladders or other contrivances were ...


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