Appeal from the Circuit Court of Peoria County; the Hon.
Calvin R. Stone, Judge, presiding.
JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
This is an appeal from an order of the circuit court of Peoria County which struck certain affirmative defenses which sought application of comparative negligence principles to an action brought under the Illinois Structural Work Act.
The plaintiff Prewein filed a two-count complaint against the defendant Caterpillar Tractor Company. We are concerned only with count I which was brought under the Structural Work Act. In this count it was averred by the plaintiff that he was injured on December 5, 1979, while employed as an iron worker by the defendant company. Couched in the terms of the Act, it was alleged that he was injured while operating a "mark lift hydraulic hoist," which he utilized as a support and/or scaffold. The plaintiff alleged that he was injured when the mark lift tipped, causing injuries and that the accident occurred because of various violations of the Act.
The defendant denied that it violated the Act and raised the affirmative defense that the plaintiff was guilty of contributory negligence as the result of acts or omissions on the part of the plaintiff and that if judgment should be entered in favor of the plaintiff, such recovery would be for damages to which plaintiff contributed and that the judgment should be reduced proportionately.
The issue certified to this court pursuant to Supreme Court Rule 308 is whether the doctrine of comparative negligence or fault is applicable to actions brought under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, pars. 60 through 69).
Well reasoned, impressive arguments, both legal and philosophical, were presented to this court as to why the doctrine of comparative negligence should be or should not be adopted in Structural Work Act cases.
In 1981, our supreme court changed long-existing law in our State by holding that in cases involving negligence the common law doctrine of contributory negligence was no longer to be the law in our State, and it was to be replaced by the doctrine of common law negligence. (Alvis v. Ribar (1981), 85 Ill.2d 1, 421 N.E.2d 886.) Since this decision the cauldron has been boiling. Following this decision our supreme court in 1983 held that equitable principles require that the total damages for a plaintiff's injuries be apportioned on the basis of the relative degree to which a defective product and a plaintiff's conduct proximately caused them. Our supreme court extended the doctrine of comparative negligence to strict liability action. Coney v. J.L.G. Industries, Inc. (1983), 97 Ill.2d 104, 454 N.E.2d 197.
The defendant Caterpillar Tractor Company is now asking that the doctrine of comparative negligence be made applicable to cases brought pursuant to the statutory provisions of the Structural Work Act. The defendant first calls attention to the language of section 69 of the Act (Ill. Rev. Stat. 1979, ch. 48, par. 69), which provides in part as follows:
"For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby * * *." (Emphasis added.)
It is defendant's argument that the words "directly sustained thereby" should dictate that plaintiff's recovery should be relegated to those damages which are directly sustained by the defendant's breach of the Act. If this advocated interpretation is adopted, then there would be of necessity a determination as to the amount of damages directly caused by the defendant. If less than 100% of the damages were directly caused by the defendant then who caused the remaining damages? Under the defendant's theory it would be the plaintiff. A more precise explanation of the defendant's argument is that the words "any direct damages sustained thereby" contained in section 69 are indicative of the legislature's intent to include in the Structural Work Act the principles of comparative negligence or fault.
The words "any direct damages sustained thereby" have been in the Structural Work Act for many years, probably since its enactment in 1907. The exact language was most assuredly in the Act in 1913. (See Schultz v. Henry Ericsson Co. (1914), 264 Ill. 156, 106 N.E. 236.) We deem it both interesting and noteworthy that during the passage of so many years the courts> have never construed the language in question in the manner requested by the defendant. To our knowledge, the language has never been construed, and for reasons hereinafter set forth we will not now do so.
The defendant presents both legal and policy arguments as to why the reasoning in Alvis and Coney are applicable to the adoption of the doctrine of comparative negligence in Structural Work Act cases. Should we accept the arguments of the defendant the result would be to overrule and ignore viable decisions which have interpreted and established the meaning and effect of the Structural Work Act. Our courts> of review have ruled that once a wilful violation of the Act has been proved which is at least one proximate cause of injury, concurrent fault is not a defense to liability under the Act. (Gall v. Metropolitan Sanitary District (1982), 109 Ill. App.3d 502, 440 N.E.2d 973.) It is also well established that neither contributory negligence nor wilful conduct of the plaintiff has ever been a defense to an action under the Structural Work Act. (Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App.2d 1, 225 N.E.2d 67.) The Act was enacted approximately 77 years ago, and while this court recognizes that it has authority to change one of its basic concepts by determining that the doctrine of comparative negligence is applicable in suits brought pursuant to its provisions, we are loath to do so. Our unwillingness is not to be interpreted that we agree or disagree with the defendant's arguments, but is predicated on different grounds. A question of such magnitude should be addressed by our State legislature or State supreme court. Our supreme court noted in Alvis that our legislature had failed to address the issue before the court and further recognized an observation of Justice Ward in his dissenting opinion in the case of Maki v. Frelk (1968), 40 Ill.2d 193, 239 N.E.2d 445. That observation was as follows:
"It can be argued that the legislature's inaction in this area is attributable to its feeling that it is more appropriate, considering the history of the question in Illinois, ...