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Louis v. Barenfanger

OPINION FILED MARCH 28, 1968.

CHARLES LOUIS, APPELLEE,

v.

LOUIS BARENFANGER, D/B/A BARENFANGER CONSTRUCTION COMPANY, APPELLANT.



APPEAL from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of Marion County; the Hon. DANIEL H. DAILEY, Judge, presiding. MR. JUSTICE KLINGBIEL DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 27, 1968.

On July 7, 1956, Charles Louis, a workman employed by a subcontractor in the construction of a school building, sustained injuries when he fell from the place where he was working. He filed complaint against the general contractor, alleging violations of the Structural Work Act. (Ill. Rev. Stat. 1955, chap. 48, pars. 60 et seq.) On motion by defendant the third amended complaint was dismissed for failing to state a cause of action, and plaintiff appealed to the appellate court. That court reversed, remanding the cause for further proceedings (81 Ill. App.2d 104), and we have granted defendant's petition for leave to appeal. The question is whether the complaint alleges a cause of action under the statute.

Section 1 of the Structural Work Act says "That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." (Ill. Rev. Stat. 1955, chap. 48, par. 60.) Section 9 provides in part that any person injured as a result of a wilful violation of the Act is given a right of action for damages. Ill. Rev. Stat. 1955, chap. 48, par. 69.

Insofar as it is relevant the complaint alleges that defendant knowingly permitted a support, stay, or other mechanical contrivance to be used in the construction of said building, when said support, stay or other mechanical contrivance was not so erected, constructed and placed as to give proper and adequate protection to the life and limb of the plaintiff and that its component parts were too far apart and of insufficient width to give proper footing. It is further alleged, in a separate paragraph 8 D, that planking type scaffolds used in constructing the building "were not so placed as to give proper and adequate protection to the life and limb of the plaintiff and other persons employed or engaged thereon." The complaint then alleges that "as a direct and proximate result of the defendant's failure to comply with the provisions of the aforesaid Statute in one or more of the foregoing respects, the plaintiff fell from the place where he was working." The defendant demanded a bill of particulars with regard to the allegations of paragraph 8 D, in response to which plaintiff stated that he was not standing on a planking type scaffold when he fell, because none was properly placed for his use.

Arguing on the basis of facts nowhere alleged in the complaint or bill of particulars, defendant says that an integral part of a building under construction does not constitute a scaffold or support within the meaning of the Act, and that since the plaintiff by the bill of particulars admits he was not using a "planking type scaffold" his fall had no connection with any of the devices mentioned in the Act. The narrow question presented on this appeal is whether the complaint ought to have been dismissed in view of the bill of particulars and whether the failure to provide a scaffolding is a violation of the Act. In determining this issue, we must be mindful that we have construed the objective of this Act as to provide protection to workmen engaged in extrahazardous work. Schultz v. Ericsson Co., 264 Ill. 156, 165; Gannon v. Chicago, Milwaukee, St. Paul and Pacific Railway Co., 22 Ill.2d 305, 317, 318; Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 322.

As we noted in the Gannon case: "[In considering] the construction of this act, we must apply the legal axiom that the words of a statute should be construed to give effect to the legislative intention, which must be ascertained not only from the language of the entire act, but from the evil to be remedied and the object to be attained.

"* * * As its title signifies, the Scaffold Act endeavored to give protection to workmen engaged in structural work by requiring certain standards for such work, and by providing both criminal penalties and civil liability for failure to comply therewith. The statutory purpose, as interpreted in the early Schultz case [citation] was `to prevent injuries to persons employed in this dangerous and extrahazardous occupation, so that negligence on their part in the manner of doing their work might not prove fatal.'"

Certainly, the failure to furnish a scaffold could be actionable at common law in many negligence situations. Thus, it is well-established that a general contractor in control of premises must furnish the employees of sub-contractors a safe place to work. See: 20 ALR 2d 873. To hold that the failure to furnish a scaffold would not be actionable under this Act would, as we noted in Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 325, produce "the absurd result * * * that a statute designed to broaden the common-law duty and to give added protection, would be construed as imposing a lesser duty than the common law."

From a realistic viewpoint, if the failure to provide scaffolding would not be actionable under this statute, then every person to whom the Act was directed could defeat its purpose by simply failing to provide a scaffold, stays or supports.

Accordingly, we hold that the failure to provide scaffolding can be the basis of a cause of action under the Structural Work Act.

Another question urged is whether a permanent structure, used as a stay or temporary support, is, because of its permanent character, excluded from the Act. The Act itself nowhere excludes, expressly or impliedly, from its broad coverage permanent structures.

In Schultz v. Ericsson Co., 264 Ill. 156, 164, we carefully noted: "No attempt is made to define what shall be considered or shall constitute a safe, suitable and proper scaffold, which, from the very nature of things, could not well be done, for what might be a safe, suitable and proper scaffold for one kind of work under one set of conditions or circumstances would be wholly inadequate, insufficient and unsafe for doing another kind of work under other conditions or circumstances and at a different height from the ground. Consequently the legislature has not attempted to define what shall constitute a safe, suitable and proper scaffold but has cast the burden of constructing safe, suitable and proper scaffolds upon the employer, and he cannot escape liability for injuries sustained by reason of his failing to furnish such scaffolds by pleading ignorance of their dangerous condition when the conditions are known to him."

Thus, an airplane hangar door (Skinner v. United States, 209 F. Supp. 424); an overhead crane which ran the length of a steel mill (Bounougias v. Republic Steel Corp. (7th cir.), 277 F.2d 726); a shovel extension mounted on a tractor, (Oldham v. Kubinski, 37 Ill. App.2d 65); a plank laid across a concrete form (Frick v. O'Hare-Chicago Corp., 70 Ill. App.2d 303) have all been held scaffolds under the facts in those cases.

The Wisconsin Supreme Court in Koepp v. National Enameling and Stamping Company, 151 Wis. 302, 139 N.W. 179, interpreted a statute similar to our own and said at p. 184: "Much that has been said respecting `repairing' applies to `scaffolding' and `mechanical contrivance.' The scope thereof would reasonably include any temporary structure made up of parts, viewing the term in its broadest scope, used for support while doing any kind of work mentioned in the law, — any kind of an elevated platform for workmen to use in the performance of their duties. Any combination for use in doing any kind of work mentioned in the statute where the servant is dependable thereon for support, in place of an ordinary surface, such as the ground or floor, is a mechanical contrivance. The Legislature, in the combination of words, `scaffolding, hoists, stays, ladders or other mechanical contrivance,' viewed in a broad ...


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