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Ashley v. Osman & Associates

OPINION FILED APRIL 29, 1983.

FLOYD THOMAS ASHLEY, PLAINTIFF-APPELLANT,

v.

OSMAN & ASSOCIATES, INC., ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Brian Duff, Judge, presiding.

PRESIDING JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Plaintiff, an employee of Hans Rosenow Roofing Company, Inc., filed a two-count complaint seeking damages for injuries sustained when he fell at an office building construction site during the course of his employment. Count I of the complaint alleged that defendants, Osman & Associates, Inc. (general contractor), Robert Jaydos & Associates (architects), and Charter Properties, Inc. (owner of the office building complex), were guilty of violations of the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) (the Act) and count II alleged common law negligence. *fn1 Pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 45), defendants moved for dismissal of count I of the complaint. The motion was granted. Thereafter, pursuant to Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)), plaintiff was granted his motion for an express finding to allow immediate appeal of the dismissal of count I. Plaintiff's timely appeal followed. The issues before this court are: (1) whether plaintiff was using a scaffold, support or device within the purview of the Act at the time he fell and was injured, and (2) whether carrying materials and/or equipment at a construction site is an activity covered by the Act. For the reasons that follow, we reverse the trial court's decision.

In August 1980, plaintiff and defendants were engaged in the construction of an office building complex in Wheeling, Illinois. The record indicates that, at that time, the ground at the construction site was ungraded and covered in deep mud due to an abnormal amount of rainfall. As a result, it was impossible for vehicles of any kind to make deliveries directly to the buildings under construction. Instead, materials and equipment had to be deposited as close to the buildings as conditions would allow, at which point workmen would then carry the materials and equipment to wherever they were needed. To prevent workmen from sinking into the mud, planks and concrete forms were set up as walkways across the site.

On August 12, 1980, while plaintiff, a roofer, was walking on one of the walkways, carrying a 200-pound propane tank to the building where he was working, the planking beneath him slipped out from under his feet and he fell to the ground with the propane tank on top of him. As a result, plaintiff suffered severe muscle and nerve damage.

OPINION

The principal issue of this appeal involves the scope of section 1 of the Act, which provides:

"[A]ll 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." Ill. Rev. Stat. 1979, ch. 48, par. 60.

The purpose of the Act is to protect persons engaged in extrahazardous occupations on or near a construction site. In order to effectuate this benevolent purpose, the Act is to be liberally construed. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 151, 317 N.E.2d 573.) However, judicial construction should not be so broad as to have the Act cover all construction-related injuries. (St. John v. City of Naperville (1982), 108 Ill. App.3d 519, 522, 439 N.E.2d 12.) Rather, particular attention must be directed to the special circumstances surrounding each injury-causing accident.

The elements of a cause of action under section 1 of the Act include the following: (1) the device involved must be one listed in the Act; (2) the device involved must be used to complete 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) those in charge of the work must have wilfully violated the Act; and (5) plaintiff's injury must be proximately caused by defendant's violation. (Ring, The Scaffold Act: Its Past, Present and Future, 64 Ill. B.J. 666, 670 (1976).) The pending appeal involves only the first element, whether the planks and concrete forms erected as walkways are within the scope of the Act.

Defendants argue that planks and boards laid flat on the ground do not constitute a "scaffold" within the meaning of the Act. In support of their position, defendants rely on Louis v. Barenfanger (1968), 39 Ill.2d 445, 451, 236 N.E.2d 724 (section one covers construction work required to be done beyond a person's ordinary reach); Juliano v. Oravec (1972), 3 Ill. App.3d 835, 840, 279 N.E.2d 376 (subflooring is the same as a scaffold in that both are used for above-ground support); and Spiezio v. Commonwealth Edison Co. (1968), 91 Ill. App.2d 392, 405-06, 235 N.E.2d 323 ("if the apparatus was intended to be and was put to temporary use to provide footing or support above the ground or floor * * * it was a scaffold * * *.") In adopting this position, defendants focused exclusively on the term "scaffold" to the exclusion of hoists, cranes, stays, ladders, supports or other mechanical contrivances, which are also expressly listed in the Act. It is precisely this narrow focus which we find at error in defendant's argument.

As this court stated in Urman v. Walter (1981), 101 Ill. App.3d 1085, 1090-91, 428 N.E.2d 1051, "[I]f we construe the other terms [of the Act] as exact synonyms of `scaffold,' * * * we judicially erase terms that the legislature thought important enough to include. Such a result is illogical and unnecessary." In reaffirming our position in Urman regarding use of the terms, we turn our focus away from the term "scaffold" and direct it to the term "support." *fn2

Because the Act itself does not define the terms listed in section 1, it has become a necessary function of the courts to do so. As a result, a three-prong judicial guideline has evolved over the years which, when applied to a given fact situation, facilitates the delineation of the scope of section 1. First, courts inquire into the intended use of the device in question at the time of the injury. Crothers v. La Salle Institute (1977), 68 Ill.2d 399, 370 N.E.2d 213 (worker fell off a roof while installing insulation and skylights. Held: roof was within the meaning of section 1 because at the time of the injury, the roof was being used as the only support for the worker); Quinn v. L.B.C., Inc. (1981), 94 Ill. App.3d 660, 418 N.E.2d 1011 (while inspecting a building under construction, a city inspector tripped over debris strewn on a concrete floor. Held: floor was not within the meaning of section 1 because it was being utilized solely as a completed floor); Acquaviva v. Sears Roebuck & Co. (1979), 68 Ill. App.3d 588, 386 N.E.2d 381 (in an effort to start the mortar mixer, a worker fell while standing with one foot on top of an empty wheelbarrow and the other on top of the mortar mixer. Held: the mortar mixer was within the meaning of section 1 of the Act because it was employed as a necessary support in the performance of the worker's task); Swendsen v. Brighton Building & Maintenance Co. (1976), 41 Ill. App.3d 930, 355 N.E.2d 164 (worker was injured when he fell off a stack of pilings at a construction site. Held: pilings were not within the scope of the Act because they were not intended for use as a scaffold or support).

Second, courts inquire into whether the injury has some connection with the hazardous nature of the device in question. For example, in Quinn v. L.B.C., Inc. (1981), 94 Ill. App.3d 660, 418 N.E.2d 1011, the unfinished character of the floor had no connection with the inspector's injury. Instead, the inspector had tripped over debris and fallen, hitting himself on a reinforced steel column. Similarly, in Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 325 N.E.2d 607, plaintiff foreman was inspecting a building under construction when he tripped, fell against a ladder, and then fell through the open unbarricaded baffle chamber to the basement 17 or 18 feet below. The court held that neither the floor nor the ladder were within the meaning of section 1 in this particular fact situation. First, the floor was not being used as a working platform, a scaffold or for the purpose of completing construction. Second, although a ladder is expressly listed in section 1 of the Act, the use of the ladder in this situation takes it out of the Act. The foreman did not fall off of the ladder. Rather, he fell into it while trying to regain his balance. Thus, the hazardous nature of the ladder was not the cause of the foreman's injury. As the court stated, "The ladder may well have been placed or left in the baffle area in a negligent manner and may have contributed to plaintiff's injury, but the testimony shows no violation of the Structural Work Act." Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 371.

Finally, courts inquire into the element of danger involved in the use of the support device and whether this was the danger which the legislature was attempting to alleviate in enacting the statute. Louis v. ...


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