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Navlyt v. Kalinich

JULY 13, 1970.

NANCY NAVLYT, A MINOR, JO ANN NAVLYT, A MINOR, AND DONALD NAVLYT, A MINOR, BY MARY NAVLYT, THEIR MOTHER AND NEXT FRIEND, AND MARY NAVLYT, INDIVIDUALLY, PLAINTIFFS-APPELLANTS,

v.

PAUL T. KALINICH, INDIVIDUALLY AND D/B/A WEST COOK COUNTY BUILDERS, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of DuPage County; the Hon. WILLIAM L. GUILD, Judge, presiding. Reversed and remanded.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT.

Plaintiffs appeal from a final judgment dismissing a complaint brought under the Illinois Structural Work Act (Ill Rev Stats 1967, c 48, §§ 60, 69). *fn1

The narrowly defined issue is whether the decedent, killed by the collapse of a trench, in which he was installing sewer tiles in connection with town house units under construction by defendant, was working on or about a "house, building . . . or other structure" within the meaning of the act.

It is conceded that no "scaffold, hoist, crane, stay, ladder, support, or other mechanical contrivance" as described in section 60, was provided.

The decedent was standing on the earth bottom of the trench, which was 10 to 12 feet deep, and was in the process of installing sewer tile, when a portion of the wall of the trench collapsed upon him.

Plaintiffs urge that the Structural Work Act is to be liberally construed to effectuate its broad purpose of providing workmen in extrahazardous operations with a safe place to work; and that the concept of a "structure," as that term is used in the act and as liberally construed, embraces the sewer system on which the plaintiff was working, either by itself or considered as an integral part of the buildings being erected on the site.

Defendant argues that a trench excavation is not a "structure" within the act and, therefore, the court properly found that no cause of action had been stated.

The tendency of courts to provide a liberal construction of the Structural Work Act to attain the purpose of providing workmen in extrahazardous operations with a safe place to work is clearly indicated by the cases. See Louis v. Barenfanger, 39 Ill.2d 445, 448, 236 N.E.2d 724 (1968); Burgh v. Crane Const. Co., Inc., 102 Ill. App.2d 188, 193, 243 N.E.2d 590 (1968).

Under the particular facts before us, this appears to be a case of first impression in Illinois. In the great majority of the Illinois cases which have been cited under the Structural Work Act, whether a workman has been injured while employed on a structure has not been an issue. A substantial number of the cases involve falls from a place which is intended to support a worker while performing his duties, and deal with the definition of scaffolds rather than structures. (E.g., Louis v. Barenfanger, supra, and cases cited therein at pages 449, 450.) More relevant is the holding that shoring or supports involved in construction work which are inadequate to protect a workman from the results of an overhead collapse may bring a case within the act. See Miller v. DeWitt, 59 Ill. App.2d 38, 127, 208 N.E.2d 249 (1965) (affirmed in 37 Ill.2d 273, 226 N.E.2d 630 (1967)).

Defendant has principally relied upon Bradley v. Metropolitan Sanitary Dist. of Greater Chicago, 56 Ill. App.2d 482, 206 N.E.2d 276 (1965) to support the position that the decedent was not working on a structure within the act. In Bradley, a workman, while using an air spade to excavate for a drop manhole, was killed as the result of a cave-in in the excavation. The court recognized that the act included a purpose "to protect persons working on scaffolds as well as those passing under them . . ." (page 485), to prevent the falling of material, but concluded that (page 487):

"However, we find that the Structural Work Act does not `require' supports or stays to be used in excavation work as claimed by plaintiffs; that a drop manhole is not a `structure' within the Act; and that the accident was not caused by the insufficiency of a `scaffold, support or stay' because none was used."

That portion of the rationale of the Bradley opinion that scaffolding or supports are not required under the Structural Work Act, but only if they are used must they be safe, appears to have been rejected by the majority opinion in Louis v. Barenfanger, supra, in its holding (page 449):

". . . that the failure to provide scaffolding *fn2 can be the basis of a cause of action under the Structural Work Act."

We do not feel that we are compelled to decide the instant case upon a question whether the ditch or excavation which collapsed was itself a "structure." The plaintiffs' decedent was working upon a sewer system which we clearly conceive to be a "structure" under the Structural Work Act either considered by ...


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