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Clow v. Metropolitan Sanitary District

OPINION FILED DECEMBER 22, 1983.

RONALD CLOW, PLAINTIFF-APPELLANT,

v.

METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Joseph Gordon, Judge, presiding.

JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:

Rehearing Denied January 13, 1984.

Ronald Clow, the plaintiff, was injured while he was working on the construction of a tunnel. He filed a multi-count complaint. Only the count stating a cause of action under the Structural Work Act is now at issue. (Ill. Rev. Stat. 1981, ch. 48, pars. 60-69.) The trial court granted a motion for summary judgment in favor of the defendant, Metropolitan Sanitary District of Greater Chicago (MSD). Clow appeals.

Clow was employed as a locomotive engineer for a contractor on the project. MSD was the owner of the property and was allegedly in charge of the work. The job site consisted of a 30-foot diameter shaft which was approximately 280 feet deep and which provided access to two horizontal tunnels. Without incident Clow went down to the tunnel by means of a bucket lowered by a crane. As he emerged from the bucket he stood on some flooring. For purposes of the motion for summary judgment MSD accepted the fact that the flooring was a structure within the purview of the Structural Work Act. The flooring was over a pit. It consisted of removable steel plates about four feet wide, eight feet long and one inch thick. The plates were laid close together and were not connected to each other or tied down. There was no framing on the sides. The area of the purported structure was about 16 feet by 12 feet. While Clow was standing on the flooring an explosion occurred in the shaft beneath him. Propane gas and/or diesel fuel was used on the project for heating and melting ice. The gas or oil was apparently the cause of the explosion. Clow was knocked to his knees but not off the platform. The explosion disrupted the arrangement of the plates. The complaint alleged that MSD was in charge of the work and wilfully violated the Structural Work Act because it failed to provide a safe, suitable and proper scaffold. Section 60 of the Structural Work Act provides:

"That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed * * * for the use in the erection, repairing * * * of any * * * structure, shall be erected and constructed, in a safe, suitable and proper manner * * * to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon * * *." (Ill. Rev. Stat. 1981, ch. 48, par. 60.)

Issues are raised as to whether this was a safe, suitable and proper structure and also as to proximate cause. We believe that the trial court properly entered judgment in favor of MSD because it was not shown that the structure was not erected in a safe, suitable and proper manner. Consequently, it is not necessary to consider the issue of proximate cause. See Illinois Pattern Jury Instruction, Civil, No. 180.09 (2d ed. 1971).

What is a safe, suitable and proper structure varies according to conditions and circumstances and no attempt has been made by the courts> to define those terms. (Louis v. Barenfanger (1968), 39 Ill.2d 445, 449, 236 N.E.2d 724, cert. denied (1968), 393 U.S. 935, 21 L.Ed.2d 271, 89 S.Ct. 296.) Such questions are ordinarily for the jury. (Oldham v. Kubinski (1962), 37 Ill. App.2d 65, 185 N.E.2d 270; Burgh v. Crane Construction Co. (1968), 102 Ill. App.2d 188, 243 N.E.2d 590.) The Structural Work Act was designed to prevent injuries to persons employed in dangerous and extra-hazardous occupations and is to be liberally construed to that end. (Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill.2d 533, 263 N.E.2d 817.) The Act is to "give protection to workmen engaged in structural work." Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co. (1961), 22 Ill.2d 305, 317, 175 N.E.2d 785, 791.

The failure to provide a structure is a violation of the Act. (Louis v. Barenfanger (1968), 39 Ill.2d 445, 236 N.E.2d 724, cert. denied (1968), 393 U.S. 935, 21 L.Ed.2d 271, 89 S.Ct. 296.) A safe, suitable and proper structure must protect a workman from falling off the structure or from the structure itself falling. (Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 371, 325 N.E.2d 607.) For purposes of this appeal, there was a structure in the instant case. Clow did not fall off the structure. The only suggestion that the structure was not safe, suitable and proper was that the unsecured planking was disrupted by the explosion and, Clow concludes, came up and struck him. The unsecured planking, however, did not render the structure unsafe, unsuitable or improper for engaging in structural work. A structure does not have to protect a workman from every hazard in the workplace, only hazards relating to structural work. An explosion is not, in our estimation, related to structural work.

Clow argues that MSD knew, either actively or constructively, that the gas or oil was placed below the scaffolding and that consequently, the Structural Work Act should require the structure to protect workers against such an explosion. For the reasons stated we do not think that the Act intended such a result. Whether the explosion resulted from negligence is not before the court at this time. To say that the Structural Work Act must protect against the explosion because gas or oil is on the premises would mean that the Structural Work Act must protect a worker against a fire because there are materials on a construction site which might cause a fire.

Clow also argues that whether the structure was safe, suitable and proper under the circumstances is a question of fact to be decided by the jury. However, that general proposition is modified by the exception that when the facts are undisputed and reasonable men could not draw different inferences from these facts a question of law is presented. (See St. John v. City of Naperville (1982), 108 Ill. App.3d 519, 439 N.E.2d 12.) We do not believe that reasonable persons could draw any inference other than that the record fails to show that the structure was not safe, suitable and proper for structural work.

For the foregoing reasons, the decision of the trial court is affirmed.

ROMITI, P.J., and LINN, J., concur.

PRESIDING JUSTICE LINN, dissenting:

On petition for rehearing, Justice Linn would allow the petition Page 714a and dissents from the majority ...


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