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Mccarty v. City of Marshall





APPEAL from the Circuit Court of Clark County; the Hon. RICHARD E. SCOTT, Judge, presiding. MR. JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 19, 1977.

Does the Structural Work Act apply here? Yes.

Will a structural work action lie here? No.

McCarty was employed by the electric department of the City of Marshall. On July 9, 1973, while under the supervision of an employee of the municipal defendant, plaintiff was instructed to perform certain repairs and maintenance work upon the city's power plant and electrical substation. In the course of this work, plaintiff received an electric shock and fell about ten feet to the ground. The plaintiff sued under the provisions of the Structural Work Act (Ill. Rev. Stat. 1973, ch. 48, par. 60 et seq.) to recover for injuries sustained in the fall from property owned by the defendant. The trial court allowed defendant's motion to dismiss the complaint and plaintiff appeals from the trial court's refusal to reconsider its order of dismissal. Two different theories of recovery were tendered: (1) a violation of the Structural Work Act and (2) common law negligence on the part of the City of Marshall. The success or failure of plaintiff's action is not at issue here. The only question presented is whether the plaintiff may maintain either a structural work action or a common law negligence action against the City of Marshall in its capacity as the owner of the premises when plaintiff has also received workmen's compensation benefits supplied by that source.

There can be no doubt that under the Act an employer includes a city, an employee includes those who work for a city, and that the Act applies where a city is engaged in maintenance work of one of its owned buildings. The City argued in its motion to dismiss, and continues to argue here, that it is immune from suits against it under the Structural Work Act or under a theory of common law negligence because of section 5(a) of the Workmen's Compensation Act (Ill. Rev. Stat. 1975, ch. 48, par. 138.5(a)). That section precludes actions against an employer who is liable for injuries to his employees under the Illinois Workmen's Compensation Act. Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1958), 13 Ill.2d 460, 150 N.E.2d 141.

Yet, regardless of the broad sweep of this prohibition, an employee injured by a failure to comply with the Structural Work Act has been permitted to maintain a separate action under it against a non-employer owner of the premises regardless of his corresponding compensation under the Workmen's Compensation Act. Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431, 150 N.E.2d 134.

Thus the question presented to this court is whether its dual capacity as employer and owner prevents the defendant city from asserting the immunity to suit by an employee provided by the Workmen's Compensation Act.

That question was addressed recently by our supreme court in Laffoon v. Bell & Zoller Coal Co. (1976), 65 Ill.2d 437, 359 N.E.2d 125, albeit under a slightly different fact situation. There, the owner of the premises was forced to pay workmen's compensation benefits to an injured employee because the actual employer of the employee, a subcontractor, did not carry workmen's compensation insurance (see Ill. Rev. Stat. 1973, ch. 48, par. 138.1(a)(3)). The owner sought to subrogate himself to the position of the actual employer and claimed immunity from the employee's Structural Work Act action. But the supreme court refused to allow the owner under such circumstances to utilize the immunity provided by section 5(a) of the Workmen's Compensation Act. In Laffoon the court said:

"[T]he purpose of the Workmen's Compensation Act is to afford employees financial protection when their earning power is temporarily diminished or terminated due to employment injuries. It was the obvious intent of the legislature in enacting section 1(a)(3) to ensure this purpose was carried out when the employer-subcontractor cannot fulfill this obligation. It was logical and reasonable to impose the liability for compensation benefits upon the general contractor, because he was in a position to hire subcontractors who possessed the necessary insurance. To bestow immunity upon the general contractors would reward those employing subcontractors who have no workmen's compensation coverage but yet are bound by the provisions of the Workmen's Compensation Act; and it would penalize those general contractors who, mindful of the purpose and spirit of said Act, only employ insured subcontractors." 65 Ill.2d 437, 446, 359 N.E.2d 125, 129.

The court then held:

"Accordingly, we must interpret section 5(a) as conferring immunity upon employers only from common law or statutory actions for damages by their immediate employees." (Emphasis added.) 65 Ill.2d 437, 447, 359 N.E.2d 125, 130.

We conclude that the limiting effect and narrow interpretation of Laffoon is controlling of this case. We are also in accord with our sister court's analysis and reasoning in similar circumstances involving employee and employer-owner in the recent case of Carey v. Coca-Cola Bottling Co. (1977), 48 Ill. App.3d 482, 363 N.E.2d 400.

In sum, the City of Marshall was the employer, plaintiff was an immediate employee, the work involved came within the parameters of the Act and the legislative grant of immunity — as so recently interpreted by our supreme court — clearly encompasses both the parties and the facts before us.

The trial court correctly allowed the motion of the City of Marshall to dismiss the complaint ...

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