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Spiezio v. Commonwealth Edison Co.

FEBRUARY 5, 1968.




Appeal from the Circuit Court of Cook County; the Hon. IRWIN N. COHEN, Judge, presiding. Affirmed. MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.

Rehearing denied March 4, 1968.

This is a personal injury action based on alleged violations of the Structural Work Act (Ill Rev Stats, c 48, §§ 60-69). Plaintiff, an ironworker, fell 40 or 42 feet from a steel column and was seriously injured. He was an employee of Bethlehem Steel Company, then engaged in the erection of an addition to a power plant of defendant, Commonwealth Edison Company. Defendant appeals from a $190,000 verdict and judgment entered against it as owner in charge of work being performed on its premises by Bethlehem Steel Company. The jury answered "Yes" to special interrogatories whether defendant had "charge of the work" and whether plaintiff's injuries were occasioned by "a wilful violation of the Structural Work Act, or a wilful failure to comply with any of its provisions."

On appeal, defendant does not challenge the amount of the verdict. Defendant contends (1) there were no violations of any provisions of the statute; (2) defendant was not "in charge of" the work of Bethlehem so as to be guilty of a "wilful violation" of the statute; and (3) defendant asserts prejudicial trial errors and erroneous instructions.

On October 8, 1957, Bethlehem Steel Company was engaged in the erection of structural steel for an additional generating unit to Commonwealth Edison's power plant between Rockdale and Joliet, Illinois. Bethlehem was a prime contractor, and the area of the construction project where plaintiff fell was intended to be the boiler and turbine room.

Plaintiff was 42 years old and had worked as an ironworker since 1941. On the afternoon of October 8, he was assigned to work as a "connector." The work of a connector is to line up the bolt holes in a horizontal beam with the bolt holes in the vertical column with a spud wrench and to insert and tighten enough bolts to hold the beam in place until the "bolter-upper" crew can place and tighten the remainder of the bolts to be used. Each piece of structural steel is fabricated in accordance with the plans for the particular place where it is to go in the structure, and the bolt holes are designed to be opposite each other when in place.

The ironworkers doing work as "connectors" carry, as did plaintiff, two "spud" wrenches, 18 inches long, in a holder. At one end of each spud wrench are jaws to fit the nut to be screwed onto a bolt that the connector is to insert into the holes fabricated in the column and beam. For that purpose he also carries with him a bolt bag and sledgehammer. The opposite ends of each spud wrench are narrow, tapering shanks, which are inserted into the holes of the column. The connector must hold and stand on one or both spud wrenches to get into position. He must then remove at least one of the spud wrenches to use the tapered end of the spud wrench to line up the holes in the vertical column and horizontal beam which are to be bolted together.

Plaintiff was directed by his foreman to connect a horizontal beam to the south face of a column at about 80 feet above the ground level. Plaintiff climbed the north face of the column, the side opposite to that on which he was to make the connection. The column, which was H-shaped, was an unusually wide one. Plaintiff climbed by holding the flanges and "walking up" the rivet heads in the face of the column. This was the customary way to climb a column of that size, and other men had climbed the column that way earlier that day to connect a beam at a lower level. There was no other way for a connector to get to the place where the beam was to be bolted, and plaintiff was familiar with the manner of climbing that kind of column.

Plaintiff had to climb almost 40 feet to get into position to make the intended connection, and it was necessary for plaintiff to get to the opposite side of the column where the beam was to be swung into place by a crane. He fell from that point, roughly 40 or 42 feet down to a plank floor.

Plaintiff could not recall much of what happened. He thought he had got his spud wrenches in holes in the web of the column at about waist level, and that he tried to get one foot on one of the wrenches to support himself. He thought one of the spuds fell out — "All I remember is I was trying to get on the spud and the next thing I knew I was in the hospital. I hardly remember falling or anything, but I came to in the hospital, I don't know how many days later." He further testified, "On a narrow column in case anything happens, you get tired or something, if you start to fall, you can grab this, and hang on. With a wide column there is nothing to grab. When you go to fall you are done."

At the close of plaintiff's evidence and with leave of court, plaintiff filed a second amended complaint, of which Count I alleged "that the defendant had the right to control the job and was in charge of the job, and that it violated the Structural Work Act as set out in Chapter 48, Section 60 . . . and Section 64 . . . in one or more of the following particulars:

"(a) The stay, support or other mechanical contrivance used in the alteration of a building or structure was not placed and operated as to give proper and adequate protection to the life and limb of any person engaged thereon;

"(b) Failed to have a safe and proper scaffold, stay, support, or other suitable device not less than sixteen feet or more below the area on which the plaintiff was working, although the said work was being performed at a height in excess of 32 feet;

"(c) Had an area covered with steel beams and structures 41 feet below the area of the stay or support on which the plaintiff was then working, so that upon striking the said beams the violence was increased."

Later plaintiff added an additional allegation:

"(d) Failed to provide the plaintiff with a float upon which to support himself while doing the work required of him."

At the close of all the evidence, defendant's motion to strike the allegations of each of the subparagraphs and to withdraw each from the consideration of the jury was denied and, over defendant's objections, the jury was instructed as to both sections of the statute and all of the subparagraphs.

Considered first is defendant's contention "that upon the undisputed facts in this record neither statute nor the allegations of the subparagraphs were applicable."

Defendant states that the column from which plaintiff fell was a permanent structure of the building under construction, and that no "scaffold" or "float" (a working platform) was used.

Defendant asserts that it has been settled by two recent Appellate Court decisions that paragraph 60 does not apply to a permanent structure of the building, or require the furnishing of a scaffold. The two cases, in both of which leave to appeal has been denied by our Supreme Court, are Parizon v. Granite City Steel Co., 71 Ill. App.2d 53, 218 N.E.2d 27 (May 18, 1966), and Bohannon v. Joseph T. Ryerson & Son, Inc., 72 Ill. App.2d 397, 219 N.E.2d 627 (June 28, 1966).

In Parizon, the plaintiff slipped and fell from the completed portion of the roof of a building under construction, as he was carrying a corrugated sheet to be installed as part of the roof. He sued both the contractor and the owner. In reversing judgments against both defendants, the court stated (p 60):

"This appeal directly raises the issue of whether or not the Structural Work Act applies to those circumstances where men work upon permanent structures. The pleading, as the case went to the jury, alleged that it was necessary to use scaffolds and that the roof of the building was so used. We understand that there is no controversy as to the fact that the sheets of roofing were permanently affixed and installed as a part of the building at the time the several workmen were upon the roof placing and fastening the next row of sheets.

"If the allegations of the pleading that it was necessary to use a scaffold are taken to mean that there was a statutory duty to erect and construct a scaffold for the work being done upon this occasion, the recent authority of opinions of our courts are to the contrary. It has been held in Miller v. De Witt, 59 Ill. App.2d 38, 208 N.E.2d 249, and Bradley v. Metropolitan Sanitary Dist., 56 Ill. App.2d 482, 206 N.E.2d 276, that section 1 of the Structural Work Act does not undertake to state or provide when or under what conditions a scaffold is required to be erected as a matter of statutory duty."

After reviewing the common meaning of the term "scaffold," it is said (p 62):

"[I]t is difficult to conclude that the intent or understanding of the Legislature was that the language of the Act applied to a fixed permanent structure, or that such a structure, or its parts, would be a scaffold or platform within the meaning of the Act.

"No cases from our Supreme Court have been cited and we have found none which hold a permanent structure, or, as in this case, the roof of the building as permanently affixed is to be treated as a scaffold or as an item of the several categories set forth in section 1 of the Act. On the contrary, the several cases of our Appellate Courts cited and referred to, or developed through our own investigation, emphasize that the Act is applicable to the temporary structures erected for use as an incident to the construction work."

In Parizon (p 69), the court also considered the contention "that this case should be viewed in the light of the fact that the plaintiff was engaged in an ultrahazardous form of work," and noted, "there is a distinction between a cause of action under the Structural Work Act and a cause of action for failure to provide a safe place to work," and stated (p 70):

"[T]he rule of liberal construction does not permit either restriction or enlargement of the meaning of the terms of the statute, and it is not within the province of the court to take from, or enlarge, the meaning of a statute by reading into it language which will, in the opinion of the court, correct any supposed omission or defect. Rather, we must seek the construction of statutory language in the usual meaning attached to the words used. . . . In distinction, we are here asked to add new connotations to the language of a statute which does not require that scaffold or comparable appliances be used, and which specifies the instrumentalities, each with its own use, and an apparent usual meaning, none of which suggest or connote a structure of the sort now at issue."

Defendant notes that in Bohannon (72 Ill. App.2d 397, 219 N.E.2d 627), the plaintiff was standing on wire mesh, a permanent part of the structure. He fell when the hog or pen rings holding the wire parted, causing him to fall through the opening ...

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