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Walker v. Shell Chemical

OPINION FILED NOVEMBER 2, 1981.

DARRELL R. WALKER, PLAINTIFF-APPELLANT,

v.

SHELL CHEMICAL, INC., ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. MYRON T. GOMBERG, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 7, 1981.

This appeal arises from an action brought by Darrell Walker (plaintiff) and his wife Patricia A. Walker for damages from a fall suffered while Mr. Walker was working on the construction of a facility for Shell Chemical Company. The amended complaint includes four counts alleging in order liability based on the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60 et seq.), ordinary negligence, strict liability in tort and damages to plaintiff's wife for loss of consortium. The trial court denied plaintiff's motion for leave to amend the amended complaint and allowed motions to dismiss with prejudice count III sounding in strict liability. Plaintiff appeals.

In considering a motion to dismiss, all facts properly pleaded in the complaint are accepted as true by this court. (Johnston v. City of Bloomington (1979), 77 Ill.2d 108, 111, 395 N.E.2d 549.) "[T]he entire complaint must be construed as a whole rather than separately considering its individual portions." (Gravitt v. Jennings (1979), 79 Ill. App.3d 286, 288, 398 N.E.2d 395.) "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 plaintiffs to recover." Johnston, 77 Ill.2d 108, 113.

Although we are required to construe a complaint "liberally" this "of course, does not mean * * * that the plaintiffs are relieved of `the necessity of stating a cause of action.'" First National Bank v. City of Aurora (1978), 71 Ill.2d 1, 9, 373 N.E.2d 1326, quoting Ill. Ann. Stat., ch. 110, par. 42, Historical and Practice Notes, at 98 (Smith-Hurd 1968).

In the case at bar, there are six corporate defendants. Plaintiff's amended complaint alleges in count III that "the defendants" [without specification] were engaged in designing and manufacturing a "product commonly known as a fabricated guardrail." These guardrails were to be used in construction of a building. The guardrails were not reasonably safe for their intended and foreseeable purposes.

It is further alleged:

(a) The defendants failed to provide adequate warnings;

(b) The rail was designed with inadequate welding to secure it in place;

(c) The rail was distributed with insufficient warning it would break;

(d) It was manufactured and designed with inadequate materials;

(e) Defendants failed to fabricate the rail to prevent it from breaking when foreseeably used;

(f) Defendants failed to inspect the rail prior to its installation into a building.

The amended complaint also alleged in count III that said fabricated guardrail was used by employees of Arthur G. McKee Co. in a certain building. Plaintiff in the course of his employment at ...


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