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Long v. City of New Boston

OPINION FILED APRIL 30, 1981.

CHESTER M. LONG ET AL., PLAINTIFFS-APPELLANTS,

v.

THE CITY OF NEW BOSTON ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Mercer County; the Hon. DAVID J. MASON, Judge, presiding.

MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearings denied May 27, 1981.

Chester M. Long was injured when he fell from a ladder while erecting decorative Christmas lights on utility poles along the main street of New Boston, Illinois. He brought suit against three defendants in the Circuit Court of Mercer County seeking damages for his injuries. His wife, Mary Lou Long, joined in his complaint as a plaintiff seeking to recover for loss of consortium as a result of the same incident. On July 8, 1980, the circuit court dismissed the plaintiff's complaint. This appeal is taken from that order.

According to the facts alleged in the complaint, the city of New Boston agreed with the New Boston American Legion Post No. 48 to decorate the city's main street during the Christmas season. In 1972, in furtherance of that agreement, the city and the Legion made a joint purchase of decorative lights. During the years that followed the city and the Legion jointly undertook the annual task of stringing the decorative lights from one utility pole to another across the main street of New Boston.

On November 30, 1977, Chester Long volunteered to assist in the annual undertaking which, according to his complaint, was jointly the project of the city and the Legion. Long was joined by another volunteer, Clair Riley. In the course of stringing the lights on the day mentioned, Long was atop a ladder which was leaning against a utility pole. The ladder moved; Long lost his balance, fell to the ground, and was seriously injured.

The complaint which was filed is in 10 counts against three defendants with two different theories of liability alleged. Counts I through IV are directed against the city and the Legion by both of the plaintiffs, and are premised on the liability imposed by the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.). Counts V through X are based upon the common law theory of negligence, naming the city, the Legion and volunteer Riley as parties defendant. As previously recounted, the circuit court dismissed all counts of plaintiffs' complaint.

• 1, 2 The standard to be applied in judging the sufficiency of a complaint is by now axiomatic. A cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved which will entitle the plaintiffs to recover. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc. (1974), 57 Ill.2d 298, 312 N.E.2d 259; Johnston v. City of Bloomington (1979), 77 Ill.2d 108, 395 N.E.2d 549.) In determining whether the motion to dismiss was properly allowed, the well-pleaded allegations of fact must be taken as true. (Edgar County Bank & Trust Co. v. Paris Hospital, Inc.) As the facts which would permit recovery under a common law theory of negligence differ from the facts which would permit recovery under the Structural Work Act, we shall consider separately the dismissal of the counts under each theory.

In the negligence counts directed against the city and the Legion, the following omissions are alleged as actionable:

"A. Failed to provide a person to hold or secure the ladder upon which Plaintiff was engaged;

B. Failed to provide any stays, support or other artifices to secure the ladder upon which Plaintiff was engaged;

C. Failed to provide any scaffolds, hoists, cranes, stays, supports or other mechanical devices to give adequate and proper protection to the life and limb of Plaintiff herein."

The allegations against the defendant Riley are identical except that allegation "A" is modified as follows:

"A. Failed to hold or secure the ladder upon which Plaintiff was engaged."

We believe the allegations of negligence as set forth establish as a matter of law that the plaintiff Long negligently ...


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