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Prange v. Kamar Construction Corp.

OPINION FILED OCTOBER 28, 1982.

HENRY J. PRANGE ET AL., PLAINTIFFS-APPELLANTS,

v.

KAMAR CONSTRUCTION CORPORATION, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLEE. — (FRANK L. FLEMING, ADM'R OF THE ESTATE OF OHREN SLUDER, DECEASED, THIRD-PARTY DEFENDANT, APPELLEE.)



Appeal from the Circuit Court of Sangamon County; the Hon. Simon L. Friedman, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal by plaintiffs Henry Prange and June Prange from entry of summary judgment against them in their suit against defendant Kamar Construction Corporation (hereinafter Kamar), under the Structural Work Act (Ill. Rev. Stat. 1977, ch. 48, par. 60). In the action, defendant Kamar also filed a third-party suit against Ohren Sluder, its subcontractor and plaintiff Henry Prange's employer, who is now represented by Frank Fleming, administrator of Sluder's estate. The trial court found there was no genuine issue of fact and that the tractor-forklift upon which Henry Prange was seated at the time of the accident was not instrumentality within the purview of the Structural Work Act (hereinafter Act). Accordingly, the court entered a summary judgment in favor of Kamar, based upon the Act's inapplicability, and also entered summary judgment in favor of Fleming, as against Kamar, in the third-party action. The latter judgment was premised upon the court's dismissal of the principal suit by the Pranges against Kamar. A second motion for summary judgment, filed by Fleming against Kamar and based upon an active-passive negligence theory, was denied, the court concluding a question of fact existed thereon. The Pranges appeal, arguing error in the court's rulings and judgment.

The record reveals that on December 31, 1975, plaintiff Henry Prange was employed by Ohren Sluder in Sluder's construction of a pole barn on a farm near Roodhouse, Illinois. Sluder was a subcontractor for defendant Kamar. At the time of the accident, Prange was operating a Massey-Ferguson tractor, equipped with a forklift device supplied by Kamar. On the day of the accident, Prange was operating the tractor-forklift at the construction site. He had a load of four or five 18-foot-long poles (six by six inches) on the forklift device and had raised them to an elevation above his head. The poles were being transported from the material pile to positions near their places of installation in the barn itself. Holes, which were to receive the poles, had been previously dug, and the four or five poles carried by Prange were the last poles to be installed.

Shortly after having picked the poles from the material pile, Prange, seeking to move them to their places of installation, encountered a muddy area. The tractor-forklift had some difficulty maneuvering in the mud, and as he attempted to move through the mud, Prange raised the forklift device, which was supporting the poles. As the forklift raised, the lift device tilted backwards, depositing all but one of the poles onto the plaintiff Prange. Each pole which rolled off the device weighed somewhere between 300 and 600 pounds. Prange sustained injuries of a severe nature as a result of the accident. The tractor-forklift was not equipped at the time of the accident with a rollover protection device, or other cage for protection of the driver from injury. Neither was it equipped with an automatic leveling device, also designed for driver safety.

Deposition evidence before the court indicated that the tractor, with attached forklift, was utilized to carry the poles from where they had been stored, at one end of the site, to their places of installation within the barn. The tractor-forklift would carry the poles down the line of previously dug holes, and workers would push one end of a pole off the forklift and into the hole. The other end was then raised and the poles secured in the ground. The poles were held horizontally across the forks of the forklift and could be raised or lowered while there, as needed, for transportation and installation.

Other evidence indicated that Kamar had purchased the tractor new and had added the forklift device, as well as a chain and boom device, later. The tractor, along with the accessories, had been purchased for use in construction of the pole barns. There was other evidence indicating that the boom and chain device could have been used to transport and install the poles. However, the boom and chain could only pick up one pole at a time, thereby rendering it much slower in the installation process.

The circuit court, on motion for summary judgment by Kamar, found that the tractor-forklift upon which Prange was seated at the time of the accident was not a "mechanical contrivance" as defined and covered by the Structural Work Act (Ill. Rev Stat. 1977, ch. 48, par. 60), and thereupon concluded that the Act did not cover and apply to the injuries suffered by Prange in the forklift accident. From the judgment, the Pranges appeal.

Section 60 of the Act states:

"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, 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."

The First District, in Urman v. Walter (1981), 101 Ill. App.3d 1085, 1090, 428 N.E.2d 1051, recently summarized the well-established rules governing Structural Work Act cases:

"The Structural Work Act is designed to protect workers engaged in extrahazardous activities from certain risks inherent in the nature of their jobs. [Citations.] Although the Act should be liberally construed [citation], it is not intended to cover all injuries that may occur on or near a construction site. [Citation.]

The elements of a cause of action under section one include the following: (1) the device involved must be one listed in the Act; (2) the device involved must be used in the construction of a building or `other structure' within the Act; (3) the device must be unsafe, or not safely placed or operated (or there must be a failure to provide such a device); (4) defendants (those who are `in charge of' the work) must have `wilfully' violated the Act; and (5) plaintiff's injury must be proximately caused by defendants' violation. [Citation.]"

The principal issue in the instant case is whether the tractor-forklift operated by Prange, and upon which he was injured by the falling poles, was a "mechanical contrivance" within the meaning of section 60 of the Act. As the cases have pointed out, a decision upon whether a particular device is covered by the Act cannot be based solely on the identity of the device, apart from the actual use to which it is put in the circumstances of each case. Rather, the decision must be based upon the use and function of a device, within the circumstances shown. (Urman v. Walter (1981), 101 Ill. App.3d 1085, 1093 (and cases cited therein); Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App.3d 1024, 1026-27, 414 N.E.2d 147.) Although the Act is commonly known as the Scaffold Act, with due regard for its history, it is established that the Act applies to devices other than scaffolds, and to the functions which they serve in common with scaffolds. By its terms, the Act applies to "hoists, cranes, stays, ladders, supports" and "other mechanical contrivances" constructed or erected for use in the construction of certain structures. As the Urman court noted, the essential common characteristic of the specific items listed in section 60 of the Act is that they are all support devices, either for men or materials. (101 Ill. App.3d 1085, 1090-95.) As the court in Matthews put it (90 Ill. App.3d 1024, 1026), "The common feature of these is an artificial foundation bearing a load against gravity." Thus, in deciding whether the tractor-forklift upon which Prange was injured was a "mechanical contrivance" within the Act, we must construe "mechanical contrivance" in connection with the specific items listed in section 60, and the common support function shared by all. If the tractor-forklift in this case was being used to perform a support function similar to that performed by the enumerated devices, then it would have to be classified as a "mechanical contrivance" within the meaning of the Act.

• 1 The defense, at the outset, argues for a narrowing of the Act. It is asserted that the Act was intended to apply only to support devices which are used to support workmen, thus to the exclusion of support devices for materials on a construction site. The defense seeks to narrow the scope of the Act to scaffold and scaffold-like devices. Matthews is cited in support of this argument and interpretation. Such a reading of the Act is much too narrow. It has recently been pointed out that Matthews' narrow construction of the Act in this regard is not supported by any case authority ...


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