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Halberstadt v. Harris Trust & Savings Bank

SEPTEMBER 25, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. HARRY D. PORTER, Judge, presiding.


Violet Halberstadt (plaintiff) appeals from dismissal of her suit against Harris Trust & Savings Bank, a corporation, N.W. Harris Corporation and Robert G. Van Nest (defendants). Plaintiff sought to enforce a cause of action for alleged violation by defendants of the Structural Work Act (Ill. Rev. Stat. 1971, ch. 48, pars. 60 et seq.), which caused the death of her late husband, Gerald Halberstadt. The order of dismissal was entered on the pleadings without evidence.

• 1 We will first summarize the factual allegations of plaintiff's second amended complaint which are admitted by the motion of defendants to dismiss. (Acorn Auto Driving School, Inc. v. Board of Education, 27 Ill.2d 93, 96, 187 N.E.2d 722.) It was alleged that plaintiff and her husband had six minor children and all were dependent upon him for support. On July 22, 1965, the husband was killed by a fall from an eighth floor window in a large office building in Chicago. He had been employed as a window washer. Defendants owned, operated, maintained and controlled the building and had the right to stop the work if it was done in a dangerous manner or under conditions violating the Structural Work Act. The second amended complaint further alleged that defendants failed to provide a safe and adequate scaffold, knowing the hazardous condition of the stays attached to the building, in violation of the statute. It also alleged that defendants, knowing of the inability of deceased and other workmen properly to attach safety harnesses to the premises, failed to provide a suitable scaffold or other mechanical contrivances. These violations were alleged to be the proximate cause of death of decedent. Plaintiff claimed damages including loss of support for herself and the children.

Defendants joined in a motion to strike and dismiss the second amended complaint. They contended that the occupation of window washer and the work alleged were not within the scope of the Structural Work Act; that the work of decedent was that of an independent individual subject to his own direction and choice of equipment and that there was no allegation that defendants failed to do anything required by the statute. The motion also raised the point that the second amended complaint was barred by the statute of limitations.

In this court, plaintiff contends that the work activity of the decedent as a professional window cleaner was covered by the Structural Work Act and that the statute of limitations was not applicable. Defendants urge the complete reverse of both of these propositions.

The Structural Work Act of Illinois was enacted in 1907. It has recently been used with increasing frequency as a result of erection of more tall buildings and other modern structures. Construction of this statute has been the subject of a myriad of decisions in Illinois. The statute was an attempt to ameliorate the harsh rules of the common law which would have barred many gravely injured workmen from recovery under the doctrine of assumed risk. This newly created cause of action antedated Workmen's Compensation legislation. Note the important historical material stated in Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill.2d 305 at pages 317-319, 175 N.E.2d 785. This statute was first considered by the Supreme Court of Illinois in 1911 and its constitutionality established by Claffy v. Chicago Dock Co., 249 Ill. 210. See Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., supra.

We will next state the pertinent provisions of the statute. It provides that all scaffolds or other mechanical contrivances which are used "* * * 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 * * *." (Ill. Rev. Stat. 1971, ch. 48, par. 60.) It should be noted that reference to cleaning or washing of windows or other portions of any structure is omitted here.

Paragraph 63 of the same statute provides for action by the Director of Labor of Illinois, or the local authority of any city, concerning scaffolding "* * * or other similar device used in the construction, alteration, repairing, removing, cleaning or painting of buildings * * *." If the Director has notice that such scaffolds or other devices are unsafe or liable to prove dangerous, he is required immediately to inspect the same; and, if found dangerous, to notify the responsible person against use thereof and also to prohibit further use. The Director or local authority also has the duty to examine or test any scaffolding or similar device. It should be observed that the word "cleaning" appears in this paragraph of the statute.

Paragraph 69 provides for imposition of a penalty of fine or imprisonment or both upon any "* * * person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this Act * * *." This paragraph also creates a right of action for injury to person or property for any wilful violation of the statute or unlawful failure to comply with its provisions. In event of loss of life by reason of such violation, or failure, a right of action accrues to the widow of the deceased and to his lineal heirs and persons dependent upon him for support. It should be noted that the word "cleaning" which is contained in paragraph 63 of the statute does not appear in paragraph 69.

• 2, 3 If this statute applied to the activities of decedent, the second amended complaint would appear to be sufficient. Our reviewing courts have declared that failure to provide a proper, safe and sufficient scaffold or other construction instrumentality may constitute a violation of the statute. Our Supreme Court has held sufficient a statement of claim which charged this type of failure. (Schultz v. Henry Ericsson Co., 264 Ill. 156, 162, 106 N.E. 236. See also Louis v. Barenfanger, 39 Ill.2d 445, 449, 236 N.E.2d 724.) In addition, a part of a permanent structure may itself constitute a "scaffold" within the contemplation of the statute. Louis v. Barenfanger, supra.

• 4 The allegations of the second amended complaint that defendants had a right to stop the work of decedent if done in a dangerous manner or under conditions violating the statute are a sufficient allegation that defendants had charge of the work within the meaning of the statute. (Miller v. De Witt, 37 Ill.2d 273, 286, 226 N.E.2d 630.) If the activities and work of decedent were covered by the statute, the issue of liability of defendants as being in charge of the work would constitute a question for the trier of fact. Kobus v. Formfit Co., 35 Ill.2d 533, 537-538, 221 N.E.2d 633; Walden v. Schillmoeller & Krofl Co., 111 Ill. App.2d 95, 99-100, 248 N.E.2d 547.

After painstaking and deliberate consideration, we have concluded that the activities of decedent as a professional window washer, as alleged in the second amended complaint, are within the purview of the Structural Work Act. Our reasons for this decision follow.

• 5, 6 We must reject the argument of defendants that the Structural Work Act does not apply because the activity of window washing is not specifically included within the categories stated in paragraphs 60 and 69 of the statute. This is not a case in which the language of the entire statute is so clear and unambiguous as to leave no room for interpretation or construction. (See Dept. of Public Works v. Schon, 42 Ill.2d 537, 539, 250 N.E.2d 135.) The legislature has inserted the word "cleaning" in paragraph 63 of the statute. It is impossible for us to ignore this use of that word. In People ex rel. Barrett v. Barrett, 31 Ill.2d 360, 201 N.E.2d 849, the Supreme Court held (31 Ill.2d at page 364):

"It is a cardinal rule of statutory construction that significance and effect should, if possible, without destroying the sense or effect of the law, be accorded every paragraph, sentence, phrase and word. (50 Am.Jur.sec. 358.) A statute should be so construed, if possible, that no word, clause or sentence is rendered meaningless or superfluous. Peacock v. ...

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