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Tenenbaum v. City of Chicago

OPINION FILED MARCH 24, 1975.

JULIUS TENENBAUM, APPELLANT,

v.

THE CITY OF CHICAGO ET AL., APPELLEES.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Henry W. Dieringer, Judge, presiding.

PER CURIAM:

Plaintiff, Julius Tenenbaum, brought this action in the circuit court of Cook County against the defendants, the City of Chicago and O'Neil Construction Company, to recover damages for personal injuries suffered while working on an underground water-treatment plant being constructed for the City. A jury returned a verdict in the amount of $150,000 in favor of plaintiff against both defendants, and the circuit court directed a verdict for $150,000 in favor of the City on its counterclaim against O'Neil for contractual indemnity. Judgment was entered on each of the verdicts.

The City and O'Neil appealed from the judgment entered against them in favor of plaintiff, and O'Neil appealed from the judgment entered against it in favor of the City. A divided appellate court, in three separate opinions, reversed the judgments, remanded the cause for a new trial (11 Ill. App.3d 987) and thereafter issued a certificate of importance.

Plaintiff's original complaint contained one count charging both defendants with negligence. Prior to trial, plaintiff filed an amended complaint containing two additional counts. In count II plaintiff alleged willful violations of the Structural Work Act (Ill. Rev. Stat. 1963, ch. 48, pars. 60 through 69) on the part of both defendants, and in count III he alleged willful violations by both defendants of the Safeguards During Construction Ordinance of the City of Chicago (Municipal Code of Chicago, ch. 75, par. 1 et seq.). In each of the three counts plaintiff alleged that the defendants were jointly in charge of the construction. Prior to trial, on plaintiff's motion, count I was dismissed, and the case was tried and submitted to the jury on counts II and III. The jury returned a general verdict in favor of plaintiff.

The testimony shows that the City had contracted with several prime contractors for the construction of the underground water-treatment plant. Both Link Belt Corp., plaintiff's employer, and defendant O'Neil were prime contractors who contracted directly with the City; there was no contractual relationship between the contractors. O'Neil, the first contractor on the job, was to construct the underground structure, and Link Belt was to install chemical mixing and scraping equipment. Seven engineers employed by the defendant city were assigned to the job and inspected the work daily.

Although several hundred photographs of the structure taken by the City during construction, and a number of engineering drawings, were used by the witnesses when testifying concerning the structure, neither the photographs nor the drawings were contained in the record filed in this court. We note parenthetically that the presence of the photographs and drawings would have greatly aided the court in its review of the testimony.

The underground structure covered an area of approximately 15 acres. The place where plaintiff was injured was referred to as Basin No. 4 and contained three levels. The roof of the structure was at ground level; 17 feet below the roof was a floor called the intermediate level, and approximately 17 or 18 feet below the intermediate level was the bottom, or basement level. Located on the intermediate level was the coagulating room, where the water would be churned by paddle mixers. This room, approximately 130 feet in length, contained concrete walls so placed as to create a "maze" of smaller rooms or areas. Adjoining the coagulating room was the baffle area, described as a vertical chamber open from the roof to the basement. The purpose of the baffle chamber was to "baffle" the water back and forth for further mixing. The opening provided in the floor of the intermediate level for the baffle area was described as being 9 feet 6 inches wide, but there was no testimony as to its length.

On the morning of the occurrence, plaintiff, employed as Link Belt's labor foreman, sent two men down to the coagulating room to clean up any debris left there by Link Belt. Later that day a city engineer told plaintiff that he was not satisfied with Link Belt's clean-up operation, and plaintiff went down to the coagulating room to inspect it. Because the entire structure was to be filled with water, there had been no provision made for permanent lighting. Apparently there was a light in the first room of the maze, but when plaintiff entered the second or third room and attempted to turn on the temporary lights they would not work, so he used his flashlight. As he walked through the area he noticed debris and working materials left on the floor by Link Belt. As he was walking toward the baffle chamber something struck his arm, causing him to drop his flashlight, and it went out. While attempting to find the flashlight he tripped and fell into the open unbarricaded baffle chamber and plunged to the basement floor 17 or 18 feet below the intermediate level. He stated that while trying to regain his balance he felt the edge of a ladder which shifted with him as he fell. As a result of the fall, plaintiff suffered severe injuries.

It is plaintiff's theory that defendants are liable under the Structural Work Act by reason of violation of three of its provisions. He contends that the evidence shows that the opening through which he fell had been used in the hoisting of concrete forms and other materials and equipment from the sub-levels to the surface grade of the project and that under the provisions of section 7 of the Structural Work Act (ch. 48, par. 66) defendants were required to enclose the opening by use of a fence or railing. He contends further that the ladder to which plaintiff referred in his testimony, in violation of section 1 of the Structural Work Act, was not properly placed. Citing Louis v. Barenfanger, 39 Ill.2d 445, Juliano v. Oravec, 53 Ill.2d 566, St. John v. R.R. Donnelley & Sons Co., 54 Ill.2d 271, and Halberstadt v. Harris Trust & Savings Bank, 55 Ill.2d 121, plaintiff also contends that the intermediate floor adjacent to the opening for the baffle area was being used as a scaffold or platform within the meaning of the Structural Work Act.

Defendants contend that plaintiff did not prove a prima facie case under the Structural Work Act and that the Safeguards During Construction Ordinance did not provide a civil remedy for its violation. Plaintiff argues that he proved his case under both the Structural Work Act and the city ordinance, and that even if the ordinance did not create a civil cause of action for its violation, the submission of that theory of liability to the jury was not prejudicial error.

We consider first plaintiff's contention that the floor from which he fell was a scaffold or platform within the meaning of the Structural Work Act.

Barenfanger, cited by plaintiff, was decided on the pleadings. There the plaintiff fell while walking along a series of metal girders known as long-span steel joists and T-rails which were a permanent part of the roof of the school building being constructed. In its opinion the court decided two questions: (1) that failure to provide scaffolding can be the basis of a cause of action under the Structural Work Act and (2) that a permanent part of the structure used as a stay or temporary support is not, by reason of its permanent character, excluded from the Act. Because the case was decided on the pleadings there was no decision that there was a need for, or that defendant had failed to provide scaffolding, or that the roof girders were being used as a stay or temporary support within the meaning of the Act. The rationale of Barenfanger is that if there has been a failure to provide a safe, suitable and proper scaffold, ladder or support, and a part of the structure is used in lieu of such a scaffold, ladder or support, then that part of the structure is temporarily a scaffold, ladder or support within the meaning of the Act and must be safe, suitable and proper for such temporary use.

Juliano involved a plumber's apprentice who was carrying a ladle of molten lead when his foot went through the subflooring upon which he was walking, causing the lead to be thrown into his eye and down his arm. A jury returned a verdict of $75,000 under a complaint charging violations of sections 1, 2 and 3 (pars. 61, 62 and 63) of the Act. Section 1 required safe scaffolds, stays or supports; section 2 required that all floors of certain structures be capable of supporting a live load of 50 pounds per square foot of floor space; and section 3 required that the owners of certain buildings, during construction, conspicuously display on each floor a placard stating the load per square foot of floor surface which may with safety be applied to that particular floor. While there is language in the opinion that the subflooring was a "stay" or "support" within the Act, the holding was carefully ...


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