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Juliano v. Oravec

FEBRUARY 4, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH M. WOSIK, Judge, presiding.


Plaintiff brought this action to recover for personal injuries which resulted from an accident at a construction site. In his amended complaint and the amendment thereto, plaintiff alleged that defendant's negligence and his willful violation of Ill. Rev. Stat. 1959, ch. 48, pars. 60, 61 and 62, parts of the Structural Work Act, *fn1 proximately caused the injuries of which plaintiff complains. During trial the negligence count was withdrawn. A jury verdict was rendered against defendant and damages were assessed in the amount of $75,000.00 and judgment was entered on the verdict. On appeal defendant contends: (1) that the Structural Work Act does not apply to this occurrence; (2) that plaintiff has failed to prove an essential element of his case; and (3) that the verdict was contrary to the manifest weight of the evidence.

The evidence presented at trial may be summarized. Defendant was a general contractor engaged in the construction of two buildings at 5237 and 5239 West Warwick Avenue in Chicago. The structures, both two-story buildings containing two apartments, were built on two adjacent lots owned by defendant. He planned to and did sell the properties when the buildings were completed. As general contractor, defendant obtained building permits and supervised the work of the subcontractors. He would go to the building site once or twice daily to check the progress, inspect the work done and consult with the various subcontractors concerning the acceptability of their work. Although on this particular job defendant only gave the carpentry subcontractor special instructions on the size of the medicine cabinets, he could have rejected any carpentry work which did not conform to the plan.

On the afternoon of June 2, 1961 plaintiff, an apprentice plumber, together with two journeyman plumbers, was working on the second floor of one of the above-mentioned buildings. As was customary in the construction industry the tradesmen depended upon subflooring for their support as they worked in this building which was under construction. As an apprentice plumber, plaintiff did the bidding of the journeymen, obtained materials for them and watched them in the performance of their trade. Pursuant to his duties plaintiff walked over the subflooring to a portable furnace which weighed 10 to 15 pounds and was one foot high and was located about twenty feet from the place where he was working. There he obtained a ladle full of molten lead which was to be used in the making of a pipe joint. As he returned, his foot went through the subflooring. As he fell, his elbow hit the subflooring causing the molten lead to be hurled from the ladle into his eye and onto his arm. Plaintiff's co-workers went to his aid and immediately took him for medical treatment.

The subfloor is an initial and permanent part of the building. In the building industry subflooring may be termed as a "stay." It is constructed by laying one inch by eight inch spruce boards side by side. *fn2 The lumber used in the construction of the subflooring of these particular buildings was that type commonly used for subflooring in the building industry at the time. It was not the least expensive lumber which could have been used and its strength varied with thickness, moisture conditions and the presence of knots. Although knots were present in this lumber, knots may make a board stronger. Neither plaintiff, his co-workers, defendants, nor any of the other witnesses noticed anything unusual about the subfloor before the incident. Plaintiff himself testified that the subfloor looked like that of any other building under construction. Both plaintiff and one of his co-workers testified that the hole which plaintiff's foot went through was jagged in appearance. The carpentry subcontractor examined the lumber as the subfloor was being constructed and found nothing unusual. Defendant visually inspected the lumber for thickness before the subfloor was constructed. There were no signs posted which would have informed the workmen of the load which the subfloor was designed to carry or could have safely carried.

A structural engineer testified that a floor which is capable of supporting a live load of fifty pounds per square foot, i.e., one which is capable of supporting fifty pounds per square foot evenly distributed over its area, is adequate to support a human being.


For plaintiff to retain his judgment on this appeal the following questions must be answered affirmatively. Do any of the sections of the Structural Work Act relied upon by plaintiff apply to the instant case? Did defendant willfully violate an applicable section? Was plaintiff's injury proximately caused by such violation?

(1) First, it must be determined whether any of the provisions of the Structural Work Act relied upon by plaintiff are applicable to this case.

Section 60 enumerates a number of devices which, if used in the erection of a house, building or other structure, must be erected and constructed in a safe, suitable and proper manner in order that proper and adequate protection be given to the life and limbs of persons employed or engaged thereon. Defendant would have us believe that an integral and permanent part of a completed structure would, by its very nature, not be within the Structural Work Act. In support of this theory he has cited many Illinois Appellate Court decisions. Those cases are, however, of little use to defendant in light of the Supreme Court's decision in Louis v. Barenfanger (1968), 39 Ill.2d 445, 449, cert. denied (1968), 393 U.S. 935. There the court said that a permanent structure is not excluded from the broad coverage of the act in spite of the fact that it was temporarily used as a stay or support. See also McGinnis v. Cosmopolitan National Bank & Trust Co. (1969), 114 Ill. App.2d 113, 116 and Bennett v. Musgrave (1970), (Ill. App.2d), 266 N.E.2d 128, 131.

• 1 Defendant also contends that the subflooring could not be considered within the purview of Section 60 because it was not constructed "for use in the erection, repairing, alteration, removal or painting of any house, [or] building * * *." This contention, however, is contrary to the facts brought out at trial. Defendant, as general contractor, the subcontractors and the tradesmen all used the subfloor for support as they inspected and constructed the buildings on Warwick Avenue. The Supreme Court, in Louis v. Barenfanger implied that even though the primary purpose of a device or instrumentality is that it be an integral part of the finished structure, it may have the secondary purpose of being used in the erection of that structure. Thus, a permanent part of a finished structure will be subject to the provisions of the Structural Work Act if it is used in the erection, repairing, etc. of any house, building, bridge, etc. The determining factor is the use to which a contrivance is put, not whether it is permanent or temporary.

• 2 Our attention is next directed to the question of whether or not a subflooring may be characterized as a "scaffold." The subflooring was used as a support for tradesmen as they worked inside the structure. They depended upon it for their safety as they plied their trade. It seems difficult to comprehend the difference between a scaffold, erected for the sole purpose of providing a platform from which a tradesman discharges his duties and a subfloor on which the same tradesman stands to discharge his duties in the construction of the same building. In either situation he is using a "scaffold" for aboveground support as he does his job. This interpretation follows the liberal construction to be afforded this act to effectuate the purposes of the statute. (Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 164.) Therefore, it is immaterial whether the apparatus used was a temporary or permanent part of the structure, because the apparatus provided an aboveground footing or support for workmen, it falls within the purview of Section 60 of the Structural Work Act. Spiezio v. Commonwealth Edison Co. (1968), 91 Ill. App.2d 392, 405-406.

Next, the applicability of Sections 61 and 62 must be considered. Section 61 requires that the floor of certain types of structures be capable of bearing a live load of fifty pounds for every square foot of surface. Section 62 requires owners of certain types of structures under construction to display placards stating the load per square foot of floor surface which may be safely applied to the floor of that structure. Both sections are applicable to the construction of houses, buildings and structures "except a private house used exclusively as a private residence." Defendant contends that the buildings he was constructing come within the statutory exceptions.

The buildings, upon their completion, were to be two-story apartment buildings with each floor designed as a separate, private residence. Defendant owned the land upon which the buildings were ...

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