United States District Court, Northern District of Illinois, E.D
June 15, 1972
PAUL WOOD, PLAINTIFF,
COMMONWEALTH EDISON COMPANY AND ALDRIDGE ELECTRIC, INC., DEFENDANTS.
The opinion of the court was delivered by: Tone, District Judge.
MEMORANDUM OF DECISION
Plaintiff, an employee of Aldridge Electric, Inc., was injured
when, while stringing wire, he fell from a wooden utility pole
owned by Commonwealth Edison Company. In Count I of his complaint
plaintiff alleges liability of Commonwealth Edison Company, in
part based upon violation of the Illinois Structural Work Act
(Ill.Rev.Stats. 1971, Ch. 48, §§ 60, 64 and 69). That defendant
has moved for summary judgment on the ground that the Structural
Work Act is not applicable.
The first issue for consideration is whether a wooden utility
pole falls within the statutory requirement of Section 60 of a
scaffold, hoist, crane, stay, ladder, support, or other
mechanical contrivance. I hold that the pole does meet this
statutory requirement. In Spiezio v. Commonwealth Edison Co.,
91 Ill. App.2d 392, 235 N.E.2d 323 (1st Dist. 1968), the plaintiff,
an iron worker employed by Bethlehem Steel Corporation in the
construction of a power plant for Commonwealth Edison, fell from
a steel column which was a permanent part of the structure. The
plaintiff had climbed the column to a point where he could
connect a crossbeam to the column. The Court held that the column
fell within the statutory definition of the Act:
"In our opinion, the rule to be applied here should
be that if the apparatus was intended to be and was
put to temporary use to provide footing or support
above the ground or floor for workmen at the time of
the occurrence, it was a scaffold and within the
purview of the Scaffold Act, regardless of whether
the apparatus or device was, or was intended to be, a
permanent part of the structure being worked upon."
235 N.E.2d at 329.
Louis v. Barenfanger, 39 Ill.2d 445
, 236 N.E.2d 724
implicitly overruled such earlier cases as Parizon v. Granite
City Steel Co., 71 Ill. App.2d 53, 218 N.E.2d 27
Bohannon v. Joseph T. Ryerson & Son, Inc., 72 Ill. App.2d 397,
219 N.E.2d 627
(1966), which held a permanent part of a structure not
to be within the definition of the Act.
The next issue for consideration is whether the further
statutory requirement of Section 60 is met — that the pole have
been "erected or constructed . . . for the use in the erection,
repairing, alteration . . . of any house, bridge, viaduct, or
other structure." I conclude that this statutory definition is
Spiezio is again controlling. Certainly the pole itself
together with any of its crossbeams and any wire strung therefrom
is a structure. The pole, part of the structure, was serving as
a temporary scaffolding or support upon which the plaintiff was
to stand while altering the structure itself — stringing
additional wire from it. Thus, the pole was erected, at least
partially, for use in altering the structure, i.e., the pole,
crossbeam, wire combination.
Defendant Commonwealth Edison Company further argues that
summary judgment should be granted as to
that portion of the claim based upon Section 64 of the Act, which
requires that a safety scaffolding be present underneath the
worker, but only if the work is being performed at a height of 32
feet or more. Commonwealth Edison relies upon plaintiff's
deposition testimony that the pole he was working upon was
approximately 55 feet high and that he was working 20-25 feet
from the top, and upon a statement attached to the deposition
wherein plaintiff states that he was working approximately 30
feet up on the pole. These estimates of the plaintiff, while
admissible in evidence against him on the issue of the height of
the work, are not conclusive and do not preclude him from
offering additional evidence on that issue at the trial. Summary
judgment cannot be granted on the basis of these statements by
The final basis asserted by defendant Commonwealth Edison
Company for summary judgment is that Commonwealth Edison was not
"in charge" of the work and thus the statutory requirement of
Section 69 was not met. That section places liability for
violation of the Act upon "any owner, contractor, subcontractor,
foreman or other person having charge of the erection,
construction, repairing, alteration, . . . of any building,
bridge, viaduct or other structure within the provisions of this
Act. . . ." (Emphasis added.)
Violations of the Act can only be committed by persons directly
connected with the operation, not by virtue of mere ownership of
the premises. Gannon v. Chicago, Milwaukee, St. Paul, and Pacific
Railway Company, 22 Ill.2d 305, 175 N.E.2d 785 (1961). Whether an
owner is "in charge" of the work is a jury question. Larson v.
Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247 (1965).
Actual control and supervision over the specific work is not the
legal equivalent of the statutory language "having charge of."
Ibid. Larson also held that the contractual retention of the
right to control the work, whether exercised or not, can be
sufficient to subject a defendant to liability under the Act. See
also Kobus v. Formfit Co., 35 Ill.2d 533, 221 N.E.2d 633 (1966),
where the Illinois Supreme Court reversed a grant of summary
judgment to defendant where plaintiff contended that the owner of
the building acted as its own general contractor and engaged an
architect to select the various contractors and subcontractors
and where the owner received progress reports from the architect
and reserved the right to make alterations or corrections.
In the present case the defendant specifically states that he
relies solely upon the plaintiff's deposition as a basis for
summary judgment. There is no showing therein that
defendant-owner did not retain the right to control.
For the aforementioned reasons defendant Commonwealth Edison
Company's motion for summary judgment is hereby denied.
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