Appeal from the Circuit Court of Madison County; the Hon.
Charles Chapman, Judge, presiding.
PRESIDING JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 18, 1982.
Plaintiff, Kenneth Cooley, recovered a judgment for damages for personal injuries received in a construction project accident that occurred because of an alleged violation of the Illinois Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60) after a jury trial in the circuit court of Madison County, against Central Illinois Public Service Company. The jury returned a verdict for defendant on the negligence counts of the complaint. The trial court denied defendant's motion for directed verdict and its post-trial motions in arrest of judgment and for judgment notwithstanding the verdict.
On appeal, defendant contends that judgment should be entered in its favor as plaintiff's complaint neither stated nor did the evidence at trial prove a cause of action arising under the Structural Work Act. Defendant further contends that there was no proof that defendant wilfully violated the Act.
Plaintiff was employed as an operating engineer by a joint venture known as Newton Associates, the general contractor for the construction of a power plant for defendant at Newton, Illinois. His particular employment was to operate a crane known as a "creter" crane, derived from the word concrete, a large vehicle weighing approximately 100,000 pounds, which consists of a long-boom crane attached to conveyor belts used to transport concrete to various elevations at a jobsite by the raising and lowering of the conveyors by use of the crane boom. The conveyor belt is activated by motors powered by a generator located at the rear of the crane. Power to the generator is furnished by a diesel engine located behind the cab. All controls, including the generator controls, are located in the cab of the crane which is five feet off the ground.
Plaintiff was injured on Monday, May 8, 1978. On the Friday prior to this date, while the crane was in use pouring concrete at the jobsite, the generator which powered the conveyor belts quit operating. Plaintiff was directed to move the crane to a road away from the construction area so the generator could be repaired by mechanics employed by the general contractor. Plaintiff did not work Saturday and Sunday. When he returned to work at 8 a.m. on Monday, it had been raining, as it had been off and on for the prior week. At 8:20 a.m. it stopped raining and the men were instructed to report to work. Plaintiff went to the site where he had parked the crane on Friday. A mechanic then began to remove the generator from the crane. Plaintiff proceeded to the cab, intending to enter the cab and, apparently, start the engine. He was unable, however, to state any reason for so doing as the crane was temporarily out of service. The crane had no ladder, steps or grab-bars as a means of climbing into the cab and plaintiff proceeded, as he had always done for approximately four years, to climb into the cab by first stepping up onto the steering bar with his left foot, then placing his right foot onto the axle, then his left foot. As he swung his right foot over to enter the open door of the cab, his left foot slipped from the axle and he fell to the ground injuring his back. His feet were muddy from the mud on the roadway, a temporary construction road, which had been built by the general contractor. It was rocked but nonetheless would become muddy after rain, causing the rubber tires of the crane to sink into the roadway. The road was sometimes used by operating personnel of defendant.
Section 1 of the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60) as here pertinent provides:
"[A]ll * * * cranes * * * or other mechanical contrivances erected or constructed by any person * * * for use in the erection, repairing, alteration * * * of any * * * structure, shall be erected or 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." (Emphasis added.)
Defendant's first contention is that there were no allegations in plaintiff's second amended complaint or proof at trial that at the time of the accident the crane was being used in the erection of any structure in connection with the construction of the power plant as it was inoperative, out of service, and was parked on a construction road undergoing repairs; therefore, the crane was not being used in construction at the time of the accident. The allegations of the complaint are that defendant wilfully violated the Act by failing to require placement of rock on the construction road; by permitting operation of the crane on the muddy construction road under weather conditions that were unsafe; by permitting the operation of the crane without adequate steps and grab-bars; and by failing to require that the crane be repaired on a hard surface area. Defendant does not deny that it was in charge of the work being performed.
Plaintiff argues that repair of the equipment is "operation" of the crane as it is an integral part of the entire operation of erecting a power plant and that the construction contract between the defendant owner and the general contractor contemplated that equipment would be required to be repaired as the defendant agreed to reimburse the general contractor for the cost of repairs to equipment under the "cost-plus" contract between the parties. This theory derives from McNellis v. Combustion Engineering, Inc. (1973), 13 Ill. App.3d 733, 301 N.E.2d 96; aff'd (1974), 58 Ill.2d 146, 317 N.E.2d 573.
In McNellis, a workman received fatal injuries while removing large, 20,000 pound pedestals from a railroad car located one-half mile from the construction site of Commonwealth Edison's power-generating plant. The pedestals were eventually to be installed in the plant as part of the steam generating units. Cranes were available to assist in unloading the pedestals but were not used. The workman was assisting in cutting loose the metal plates that secured the pedestals to the gondola car when one of the pedestals fell, pinning him to the car. The cranes could have been used to hold the pedestals in place.
In response to defendant's argument that unloading of equipment was not a structural work activity, the appellate court reasoned that the agreements between the owner, Commonwealth Edison, and the general contractor, who subcontracted the unloading of the pedestals to the deceased workman's employer, contemplated that unloading was a part of erecting the generators within the plant and that considering the size of the construction project, unloading of equipment some distance from the plant was required. The appellate court concluded that "the unloading in question was an integral part of the entire operation of erecting the generating units." (13 Ill. App.3d 733, 741, 301 N.E.2d 96, 102.) The court reasoned that the failure of Commonwealth Edison to require the use of cranes was, therefore, a violation of the Act just as the failure to require safe scaffolding would be actionable under the Act. (See Louis v. Barenfanger (1968), 39 Ill.2d 445, 236 N.E.2d 724.) The supreme court agreed with the reasoning of the appellate court and stated, "under the terms of this contract and facts of this case the unloading may fairly be viewed as an integral part of the erection operation." (McNellis v. Combustion Engineering, Inc. (1973), 58 Ill.2d 146, 151, 317 N.E.2d 573, 576.) Plaintiff reasons that repair of equipment, as unloading of equipment, was an integral part of the construction of this power plant, and was anticipated and provided for under the contract between the owner and general contractor. Therefore, the Structural Work Act was applicable to the activity in which plaintiff was engaged at the time of his injury.
Defendant argues that the reasoning of Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill.2d 533, 263 N.E.2d 817, should control our decision in this case. In Crafton, plaintiff, an ironworker, was engaged in moving structural steel from a rail siding to the site of a building construction project being done for Caterpillar Tractor Company. Structural steel was fastened to a cable hoist, part of a tractor equipped with a 30-foot, side-boom hoist. The structural steel was tied into bundles and fastened to the cable hoist. The bundles were then lifted off the ground and transported by the tractor to the building site where plaintiff would unfasten the steel, which would then be lifted by other hoists onto the structure being erected. At the time of his injury, plaintiff was in the process of getting onto the tractor to ride the distance from the rail siding to the building site, an area covered with deep mud. Plaintiff slipped from the track of the tractor, which was muddy and slick, as the operator started the tractor in motion and fell, sustaining injuries. The court concluded that notwithstanding a liberal construction of the Structural Work Act is mandated, the Act does not apply to any and all construction activities and that the hoist attached to the tractor had nothing to do with plaintiff's injury, which was caused by the lurching of the tractor as plaintiff was attempting to board it as a means of transportation. The court stated:
"It is difficult for us to understand how, from the plain wording of the statute, the * * * tractor was `erected or constructed * * * for use in erection, repairing, alteration, removal or painting of any * * * ...