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Simmons v. Union Electric Co.

OPINION FILED JANUARY 10, 1984.

EDWARD SIMMONS, PLAINTIFF AND COUNTERDEFENDANT-APPELLEE,

v.

UNION ELECTRIC COMPANY, DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (SACHS ELECTRIC COMPANY, THIRD-PARTY DEFENDANT AND COUNTERPLAINTIFF-APPELLEE).



Appeal from the Circuit Court of St. Clair County; the Hon. Thomas M. Daley, Judge, presiding.

PRESIDING JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Rehearing denied February 7, 1984.

Plaintiff Edward Simmons commenced this action in the circuit court of St. Clair County to recover damages for personal injuries suffered in a fall from a ladder at the Cahokia power plant owned by defendant Union Electric (UE). The complaint was based upon the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) and common law negligence. UE, in turn, filed a third-party complaint seeking indemnity or contribution from the plaintiff's employer, electrical contractor Sachs Electric Company (Sachs). Following a bench trial, the court entered judgment for the plaintiff and against UE on the Structural Work Act count of the complaint. Damages were assessed at $219,000. Judgment was also entered against UE and in favor of Sachs on the third-party complaint.

UE appeals from this judgment and presents several issues to this court. It first contends that the trial court should have entered judgment in its favor on the Structural Work Act count of the plaintiff's complaint. It also maintains that the award of damages was excessive, that the court erroneously failed to grant it contribution or indemnity on the third-party complaint, and that the trial judge erred in not recusing himself due to a credit dispute with UE. Sachs denies that UE was entitled to contribution or indemnity from it, but argues that if we held otherwise, then it adopts UE's arguments pertaining to the award of damages and the trial judge's duty to recuse himself. Sachs further asserts that if UE is granted contributions or indemnity from it, then Sachs should be allowed indemnity or contribution from the plaintiff.

Simmons was injured on December 19, 1978, at the site of a power plant owned by UE in Cahokia, Illinois. The plant was built in 1923, and much of it is below the water level of the Mississippi River. It had been determined that the plant was no longer suitable for the generation of electricity, and so in 1976, those functions ceased at the plant. UE kept the site in use as an electrical substation until October 1977, when the plant was taken out of service entirely. From that point, UE did not maintain permanent, full-time employees at the plant. Instead, it entered into contracts with two independent concerns.

One of the contractors, Easterling and Steinmetz, provided security personnel for the plant. The other contractor was Sachs. Pursuant to its first contract proposal submitted to and accepted by UE, Sachs installed an electrical system to furnish outside power to certain sections of the plant which had been powered previously by electricity generated within the plant. This power would allow the continued operation of pumps, lights, cranes and other devices which would keep the plant's premises in a secure and dry condition pending location of a buyer. UE engineers designed and defined the scope of the new electrical system.

Sachs' second contract proposal resulted in a time and materials contract whereby Sachs would maintain and repair the system which it had installed. This contract did not require Sachs to keep full-time personnel on the premises of the plant. If a problem arose with the electrical system, UE would normally become aware of it through its employees who visited the plant on an occasional basis or from security personnel. UE would then contact Sachs, which would dispatch personnel to the plant.

On December 19, 1978, the plaintiff was at another jobsite when his foreman informed him of a trouble call at the plant. The plaintiff, a journeyman electrician, left with apprentice Jim Perry for the plant. Perry died before trial from injuries sustained in an automobile accident. When the men arrived at the plant, they learned that there had been a pump failure in the plant's north ash pit. The pit is a structure of several levels, encased in concrete and primarily below ground level. The bottom level, which is approximately 15 feet in depth, was almost entirely flooded. That level of the pit is separated from the middle level by a concrete floor, upon which rest the motors to two permanent sump pumps. Those pumps were designed to drain water from the entire pit, including the bottom level. A mobile, temporary sump pump had been placed at the bottom of the pit to remove water in case the permanent pumps did not work.

The plaintiff was not certain whether he and Perry were met by a UE employee at the plant or whether they were met by a security guard. Nonetheless, they were shown to the pit where they observed the flooding. They went to the switch box and determined that an electrical failure had occurred in the temporary pump, not in the permanent pumps. The permanent pumps had not worked because of a defective float, which had not activated them when the bottom level of the pit became flooded. The plaintiff and Perry adjusted that float and then used the two permanent pumps to rid the bottom level of water.

The plaintiff was of the opinion that several fuses had been blown on the temporary pump. In any case, it was decided that the pump had to be removed from the pit for inspection and repair. Because the pump was heavy, it could not be lifted by hand, and a hoist had to be attached to the pump, which could then be lifted by a winch on a truck at ground level. The plaintiff and Perry dropped the hoist into the bottom of the pit, and also extended a temporary light into that area. To gain access to the pump, the plaintiff started to descend to the bottom of the pit by way of a ladder which had been affixed to a concrete wall. As he did so, his feet slipped from one of the rungs, and he fell to the floor, landing on some debris. At trial, the plaintiff was of the opinion that he slipped from the ladder because it became covered with oil during the removal of the water from the pit. In a deposition taken before trial, he stated that he did not know if there was anything on the ladder that caused him to slip, and he did not know why he fell.

APPEAL OF UE AGAINST PLAINTIFF

• 1 The threshold issue presented by UE is whether the plaintiff was covered by the Structural Work Act when he was injured. The Act covers support devices used in "the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure." (Ill. Rev. Stat. 1981, ch. 48, par. 60.) The device which the plaintiff was attempting to repair when he fell was a temporary sump pump. This pump was never attached to the pit itself, but had only been set in place at the bottom of the pit and, in fact, had been moved by Sachs "a number of times." Thus, according to UE, the plaintiff was in the process of repairing a piece of machinery and was not engaged in structural work at the time of his injury. UE concludes that he was therefore not covered by the Act.

Whether a plaintiff was engaged in structural work when he was injured is a question of law. (See, e.g., Long v. City of New Boston (1982), 91 Ill.2d 456, 440 N.E.2d 625; Cooley v. Central Illinois Public Service Co. (1982), 110 Ill. App.3d 685, 442 N.E.2d 1330; Kelly v. Northwest Community Hospital (1978), 66 Ill. App.3d 679, 384 N.E.2d 102.) As the language of the Act plainly indicates, this inquiry requires a two-part analysis. First, was the plaintiff erecting, altering, removing, painting or cleaning (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill.2d 121, 302 N.E.2d 64) something? Second, was the object of the plaintiff's activities a house, building, bridge, viaduct or other structure? We have no doubt that the plaintiff was employed in repair work at the approximate time he was injured. The question then becomes whether he was repairing a structure.

• 2, 3 Before we can answer this question, we must determine the temporal limits to our inquiry into the plaintiff's activities. In other words, must we look only at the specific action undertaken by the plaintiff as he was injured, or should we consider the plaintiff's role in a larger project? This can be quite significant in many cases. For example, if a carpenter was injured while nailing together boards which had not yet been attached to a building under construction, it could be argued that the carpenter was working on lumber and not on a structure, when he was injured. However, the Act is to be given a liberal construction to effectuate its purpose of protecting persons in the extrahazardous occupations of working in and about the construction, repair, alteration or removal of structures (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 151, 317 N.E.2d 573, 576), and to ask only what the plaintiff was doing at the precise moment of injury would not further that purpose. Courts> have instead attempted to ascertain whether the actions of the plaintiff were connected with, and significantly furthered, one of the activities enumerated in the Act. (McNellis v. Combustion Engineering, Inc.; Prange v. Kamar Construction Corp. (1982), 109 Ill. App.3d 1125, 441 N.E.2d 889; Gall v. Metropolitan Sanitary District (1982), 109 Ill. App.3d 502, 440 N.E.2d 973; Quinn v. L.B.C., Inc. (1981), 94 Ill. App.3d 660, 418 N.E.2d 1011.) If the plaintiff's actions, seen in a broad context, are not an integral part of the erection, alteration, removal, painting or cleaning of a structure, then he is not covered by the Act as a matter of law. Cooley v. Central Illinois Public Service Co.; Allen v. Godar (S.D. Ill. 1979), 476 F. Supp. 172.

Under these principles, we can see that UE's argument is based on an unduly narrow view of the scope of our inquiry into the connection of the plaintiff with a structural work activity. The plaintiff was not sent to the plant solely to repair the mobile, temporary sump pump. His task was to repair the entire pump system — permanent and temporary — and to make repairs on the electrical system if that was necessary to accomplish that ...


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