United States District Court, Eastern District of Illinois
June 4, 1968
ALLEN JUENGER AND FERN JUENGER, PLAINTIFFS,
BUCYRUS-ERIE COMPANY, A CORPORATION, AND WALTER PALMER, DEFENDANTS.
The opinion of the court was delivered by: Juergens, Chief Judge.
MEMORANDUM AND ORDER
Defendant Bucyrus-Erie Company moves to dismiss Counts V,
VII, IX and X, and defendant Walter Palmer moves to dismiss
Count VIII of the complaint. Each motion is premised on
failure to state a claim upon which relief can be granted.
Count V is based on the Structural Work Act of the State of
Illinois, namely, Section 60-69, Chapter 48, Illinois Revised
Statutes. This Act, commonly referred to as the "Scaffolding
Act," provides in pertinent parts as follows:
"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.
"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, for any direct damages sustained
thereby; * * *."
Defendant moves to dismiss this count for failure to state
a cause of action in that under the provisions of the Act the
scaffold must be used "in the erection, repairing, alteration,
removal or painting of any house, building, bridge, viaduct,
or other structure, * * *" and asserts that the stripping
shovel, the cat-walk of which it is alleged was a scaffold,
does not come within the provisions of the Scaffolding Act.
The complaint alleges that the plaintiff was employed on a
stripping shovel, described as "world-record size stripping
shovel" which is as high as a 20-story building and is wider
than an 8-lane highway and outreaches an average city block.
It is contended that the stripping shovel comes within the
description of the statute as "other structure."
No case has been cited where any court of the State of
Illinois has been called to rule upon the specific question
here presented, namely, as to whether the Scaffolding Act
applies to personal property such as is here involved, or
whether the application of the Act is limited to real estate.
The Act provides protection for scaffolds, etc., which are
used on or about any house, building, bridge, viaduct, or
other structure. The rule of ejusdem generis applies in
construing the words "other structure" used in the statute.
Bullman v. City of Chicago, 367 Ill. 217, 10 N.E.2d 961.
Bossert v. Wabash R. Co., 338 Ill. App. 488, 87 N.E.2d 859.
Each of the words preceding "other structure" describes items
that are permanently fixed to real estate. Albeit, the
stripping shovel here mentioned as the "world-record size
stripping shovel" is huge in proportions, having a height
equivalent to a 20-story building and being wider than an
8-lane highway, it is nevertheless movable and is so
constructed as to be moved about on real estate. It is not
fixed to real estate as are the items preceding the words
"other structure" in the statute. If the Scaffolding Act
applied to work being performed on movable personal items, it
would then follow that a mechanic working on a truck and using
a saw-horse to stand upon could come within the provisions of
the Scaffolding Act; clearly, such an interpretation is not
warranted. If this item of personal property is intended to be
within the provisions of the Scaffolding Act, such inclusion
must be on the part of the Legislature and it is not within the
prerogative of this Court to so extend the interpretation of
the legislative act.
Since the work being performed was on a movable item of
personal property, it does not come within the provisions of
the Scaffolding Act and defendant's motion to dismiss Count V
will be allowed.
Defendants move to dismiss Counts VII and VIII. These counts
are based on the doctrine of res ipsa loquitur and contain
sufficient allegations to invoke the doctrine. The motion to
dismiss Counts VII and VIII will be denied.
Defendant Bucyrus-Erie contends that Counts IX and X of the
complaint (products liability counts) do not state with
sufficient particularity the manner in which the design of the
shovel was defective and do not state with sufficient
particularity the manner in which the item in question was
Under Illinois law a defect in design, as well as a defect
in manufacture, is actionable and whether the design defect in
the present case is of a nature upon which liability can be
imposed involves the factual question of whether it creates an
unreasonably dangerous condition or whether the product in
question has lived up to the required standard of safety.
Wright v. Massey-Harris, Incorporated, 68 Ill. App.2d 70,
215 N.E.2d 465 (5th Dist. 1966). Count IX alleges specific
defective conditions as to design and manufacture. Count X
alleges negligent design and manufacturing. Both counts
specify the factors which support the allegations. Considering
the counts in their entirety, they are sufficient to state a
cause of action under the products liability theory as it has
been developed by the courts of the State of Illinois. The
motion to dismiss Counts IX and X will be denied.
It is therefore, the order of this Court that defendant
Bucyrus-Erie Company's motion to dismiss Count V be and the
same is hereby allowed and Count V is hereby dismissed.
It is the further order of this Court that defendant
Bucyrus-Erie Company's motion to dismiss Counts VII, IX and X
be and the same is hereby denied.
It is the further order of this Court that defendant Walter
Palmer's motion to dismiss Count XIII be and the same is
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