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Crist v. Debron Corp.

OPINION FILED MAY 28, 1981.

CLARENCE CRIST, PLAINTIFF-APPELLANT,

v.

DEBRON CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Kane County; the Hon. MARVIN A. DUNN, Judge, presiding.

MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

The plaintiff, Clarence Crist, filed this action for bodily injury against defendant Summit Wholesale Supply Company (Summit) and defendant Debron Corporation alleging in count I a cause of action under the Illinois Structural Work Act and in count II a cause of action based on common law negligence. Upon Summit's motion for summary judgment, the trial court granted judgment in its favor on both counts. Subsequently, Debron Corporation was dismissed from the lawsuit with prejudice, and plaintiff now appeals only the summary judgment in favor of Summit. The issues presented on appeal are whether the trial court correctly granted summary judgment on both counts based upon his findings from the pleadings and 17 depositions that Summit was not one having charge of the operation within the meaning of the Illinois Structural Work Act and further did not owe a duty under the facts to plaintiff to base an action in negligence.

The plaintiff, an estimator and employee of Elgin Roofing, was injured on July 15, 1975, when he fell through an open skylight hole on the roof of a partially constructed one-story industrial building being built in Elgin. The steelworkers, employees of MVSS Erection Company of Illinois, a subsidiary of a division of Debron Corporation, had not completed laying the steel roof decking and were still working on the roof that day. The general contractor was Lamp, Inc., whose carpenters were also on the roof doing blocking around the roof perimeter. While some of the deposition evidence was related to whether Lamp, Inc., was "pushing" the job and therefore the skylight holes were cut and roofers and carpenters on the roof beginning work earlier than the normal custom and practice before the steelworkers were completed, this was more pertinent to the action against Debron Corporation and is unnecessary to further recite for the purposes of the issues in this appeal directed against Summit. Summit is a roofing supply company which sold and delivered roofing materials and equipment. It further provided "skyhook" service upon request of a customer which consisted of providing an operator and a truck with a crane on it which could be used to lift the roofing material to the roof. The customer was to provide workers on the ground to load the bundles of roofing onto the end of the crane and workers on top of the building to direct the depositing of the roofing material and to unload it.

The standard procedure and the procedure used on the day of the accident was that the operator would park the tractor and trailer as directed by the customer, set the crane downrigger, unfold the crane boom, unstrap the load, and wait for the roofers to begin. Roofers on the ground would then take the sling, put it around the two bundles of insulation and loop the sling ends over the hook of the crane. When the ground roofers moved out of the way, the crane operator lifted the load into the air and waited for direction by voice or hand signal from a man on the roof. He would then maneuver to set the load down as directed. When the load got down on the roof someone had to unhook it. The load could not be unhooked before it was resting on the roof because the weight on the sling would not allow it. While the load was on the roof, the groundmen put the straps around two more bundles for the next load. The "sling" involved consisted of two individual woven nylon straps. The straps are each 30 feet long and 4 inches wide. They had a loop in each end made by hemming the end to make a flat loop. The end was passed under the bundles which had a two to three inch clearance under them. The two loops were placed on the crane hook. When lifted by the crane, the straps closed to hold the load.

Elgin Roofing had previously ordered roof insulation from Summit to be delivered on July 15. Mike Bellettiere, an employee of Summit and a crane operator, had arrived that day with a 40-foot trailer full of bundles of roof insulation and a truck-tractor with a crane on it. Lawrence Clary, a foreman for Elgin Roofing, had been told by plaintiff that the insulation would arrive that day. Clary told Bellettiere where to park his truck and to set the insulation down on the east side of the roof because that's where the decking had been finished. Clary directed the other roofers at the site. The bundles were placed on the roof in a row, the third bundle being placed three or four feet south of the first of a row of six open skylight holes. The fourth bundle was placed between the first skylight hole and a second skylight hole. It was at this time that the plaintiff first assisted in the unstrapping, although that was not part of his job as he was a job estimator and supervisor.

There were three roofers below. One stood on the ground and pushed the straps through under the bundles with a stick or rod. Two others got up on the truck to loop the straps over the bundles and hook the ends on the crane hook. They then got off the truck and stood out of the way. The crane operator lifted the load in the air when he saw they were out of the way. Clary and Monroe Shales, also an employee of Elgin Roofing, were on the roof unloading the bundles. A bundle was unloaded by unhooking the straps and then pulling the straps out.

The plaintiff then began helping unstrap a bundle that had just been placed on the roof some 4 to 15 feet south of the second skylight hole. Plaintiff took ahold of one of the straps which had been unhooked and the next thing that happened was that he fell through a skylight hole. Plaintiff now has no recollection of the day of the accident. One carpenter from Lamp, Inc., Kim Petschow, saw plaintiff walking backwards while pulling a strap from a bundle, but Petschow turned before the accident occurred. When he turned around after hearing Clary yell, plaintiff was gone. Clary did not see plaintiff fall although they both were pulling on the same strap to pull it from the bundle. No one else witnessed the actual fall.

The depositions further disclose that Bellettiere, the crane operator, was the only Summit employee involved in this operation and that his function was to deliver the roofing insulation and place it on the roof as directed by Elgin Roofing. By prior practice the customer, Elgin Roofing, had to supply the personnel to strap the roofing material, direct the crane operator where to land it and unload it. Bellettiere on this occasion did not go onto the roof, but placed the bundles as directed by employees of Elgin Roofing. However, Bellettiere was solely in charge of the actual operation of the crane. There is no evidence in the depositions that the crane sling gave way or the load shifted or fell, or that the strap plaintiff was pulling on was defective or didn't come out smoothly, or that the crane was improperly operated.

First, we address the issue of whether the trial judge was correct in granting summary judgment for the defendant in the count based on the Structural Work Act. The goal of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) is to provide workmen in extra-hazardous occupations with a safe place to work and protection is given only to those related to construction work or activity. (Wright v. Synergistics, Inc. (1977), 52 Ill. App.3d 233, 367 N.E.2d 466.) The tendency of the courts> in Illinois is to liberally construe the Act to effectuate its purpose of protecting persons engaged in extra-hazardous occupations of working in and about construction, repairing, alteration or removal of buildings, bridges, viaducts, and other structures. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 151, 317 N.E.2d 573.) The sections of the Act pertinent to this appeal are:

"§ 1. That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use 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, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.

§ 9. Any owner, contractor, sub-contractor, foreman or other 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, shall comply with all the terms thereof, * * *." Ill. Rev. Stat. 1979, ch. 48, pars. 60, 69.

Plaintiff contends that there was sufficient evidence in the depositions to show that Summit was one of the persons having charge of the phase of the operation in which plaintiff was injured to present a question of fact to the jury. Summit contends that it had no control over the condition of the building roof, that it was not in charge of anything but delivery of roofing insulation and operation of the crane used to lift that material to the roof, nor did it commit any violation of the Act.

The issue of who has charge of the work is generally a fact question for the jury. (Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 175 N.E.2d 785.) However, this issue may be determined as a matter of law where the evidence presented is insufficient to create a factual question. Norton v. Wilbur Waggoner Equipment Rental & Excavating Co. (1979), 76 Ill.2d 481, 486, 394 N.E.2d 403.

A motion for summary judgment should be granted where there is no genuine issue as to any material fact. The court is to determine the existence or absence of a genuine issue as to any material fact from the affidavits, depositions, admissions, exhibits and pleadings in the case. (Carruthers v. B.C. Christopher & Co. (1974), 57 Ill.2d 376, 380, 313 ...


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