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Bullistron v. Northern Builders

OPINION FILED SEPTEMBER 4, 1984.

PATRICK BULLISTRON, PLAINTIFF-APPELLANT,

v.

NORTHERN BUILDERS, INC., DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Plaintiff Patrick Bullistron sued defendant Northern Builders, Inc., for injuries sustained by plaintiff while working on a job site owned by defendant. Defendant's motion for summary judgment was granted and plaintiff appeals.

On July 17, 1979, plaintiff was employed by Millgard Corporation as a construction laborer at a work site located in Wheeling. Millgard was working as a subcontractor to prepare foundations for a partially built warehouse owned by defendant, Northern Builders, Inc. Plaintiff's job involved working on a truck-mounted drilling rig which was being used to drill caissons for the building foundation.

At approximately 2 p.m. on July 17, 1979, plaintiff completed drilling the caissons for defendant's building. Several of Millgard's employees proceeded to change the oil in the drilling machine in order to prepare it to be moved from the job site. While changing the oil, the employees noticed that hydraulic fluid was leaking from an area surrounding a part called a Kelly bar. In order to reach the leaking hydraulic fitting, plaintiff's supervisor directed that the machine be driven alongside a partially completed brick wall which had been put up by bricklayers to a height of approximately three feet.

In order to loosen the cup at the base of the Kelly bar to get at the packing which was causing the leak, the plaintiff and another employee used a "chain dog" wrench. Plaintiff and the other employee stood atop the three-foot wall and passed the wrench to each other as the cup rotated. Once the packing was replaced, they began tightening the cup with the wrench until it became too difficult. At this point, plaintiff and the other employee located a piece of scrap lumber and wedged it between the cup and a part of the machine. This allowed for further tightening of the cup by use of the machine's power. As plaintiff stood atop the three-foot wall, the machine was turned on and the Kelly bar turned and the cup began tightening. As the tightening continued, the piece of wood apparently popped loose and struck plaintiff, knocking him off the wall and injuring him.

Based upon the foregoing facts, the trial judge granted defendant's motion for summary judgment. Plaintiff appeals.

The statute which is the subject of this appeal is commonly referred to as the Illinois Structural Work Act and provides as follows:

"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, 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.)

In his complaint, plaintiff alleged that the wall he was standing on while repairing the truck-mounted drilling rig was constructed in an unsafe manner and that as a proximate result of this faulty construction, he was injured. In its motion for summary judgment, defendant asserted that the drilling rig which plaintiff was repairing did "not constitute a house, building, bridge, viaduct, or other structure within the requirements of the Illinois Structural Work Act" and that therefore no valid cause of action could be stated against Northern Builders, Inc. under the Act. Both parties argued their respective theories before the trial judge.

Initially, plaintiff submits that the trial court based its grant of summary judgment on the fact that no construction work was being done at the time plaintiff was injured. The record does contain colloquy indicating that the court was exploring the relevance of the fact that the drilling rig was being repaired after the construction work had ceased. However, the colloquy immediately preceding the court's ruling revealed that the issue the court had focused on was whether the drilling rig was a "structure" under the Structural Work Act. In the course of granting defendant summary judgment, the court stated that:

"Granting, as the case of Cooley cites, he is standing on the structure. I think I agree with you that Cooley does not involve the man standing on the structure, but that seems to be immaterial because that portion of the act indicates what his activities are directed to. That is the problem we have. For that reason, I will sustain the motion." (Emphasis added.)

Although the court was not as precise as it could have been, we find that the court's ruling was based on the finding that the drilling rig did not qualify as a "structure" under the Structural Work Act. The court's references to the Cooley case do not convince us otherwise because Cooley held, inter alia, that the crane involved in that case was not a "structure" under the Act. See Cooley v. Central Illinois Public Service Co. (1982), 110 Ill. App.3d 685, 691-92, 442 N.E.2d 1330.

In determining what constitutes a "structure" under the Structural Work Act, we are guided by the supreme court's rulings in McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 317 N.E.2d 573, and Farley v. Marion Power Shovel Co. (1975), 60 Ill.2d 432, 328 N.E.2d 318. In McNellis, a workman received fatal injuries while unloading 20,000 pound pedestals from a railroad car located one-half mile from the construction site of a power-generating plant. The pedestals were to be installed as part of the plant's steam generating units. As the metal plates which secured the pedestals were cut loose, one of the pedestals fell, pinning the workman to the railroad car. Cranes were available to assist in the unloading but were not used. The construction contract provided that the general task of erecting the generators within the power station would necessitate the incidental tasks of unloading and storage, and the nature of the work required that unloading be performed some distance from the actual building. Defendant argued that the unloading of equipment was not a structural work activity. The supreme court rejected this argument, stating that "under the terms of this contract and facts of this case the unloading may fairly be viewed as an integral part of the erection operation." 58 Ill.2d 146, 151.

• 1 In Farley, the plaintiff was injured while aiding in the assembly of a self-propelled power shovel of mammoth proportions which was to be used to strip-mine coal. The issue before the court in Farley was whether this power shovel, which was admittedly larger than many buildings, was a "structure" within the meaning of the Structural Work Act. The court focused on that portion of the Act which provided that the work covered by the Act must be directed to "any house, building, bridge, viaduct, or other structure * * *." (Ill. Rev. Stat. 1981, ch. 48, par. 60.) Particular attention was directed to the legislature's choice of the phrase "or other structure." The court held that under the doctrine of ejusdem generis, the "plain ...


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