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Rambert v. Advance Construction Co.

OPINION FILED MAY 28, 1985.

EDWARD T. RAMBERT, PLAINTIFF-APPELLANT,

v.

ADVANCE CONSTRUCTION COMPANY, INC., ET AL., DEFENDANTS-APPELLEES (ADVANCE MANAGEMENT CORPORATION ET AL., DEFENDANTS).



Appeal from the Circuit Court of Cook County; the Hon. William R. Quinlan, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 20, 1985.

Plaintiff's first amended complaint alleged violations of the Structural Work Act (the Act) and his second amended complaint sounded in negligence. Defendants Advance Construction Company, Inc., Herbert Portes, as trustee under Barbara L. Carson Children's Trust No. 2, and Demax Construction Company, Inc., filed motions for summary judgment against plaintiff based on the inapplicability of the Act to plaintiff's injury. Herbert Portes filed a separate motion for summary judgment against plaintiff on the basis that he was not "in charge of" the work as required by the Act. The trial court ultimately treated the amended complaints as one pleading, with the first amended complaint comprising count I and the second amended complaint comprising count II. On March 23, 1984, the trial court granted summary judgment in favor of Advance Construction, Herbert Portes, and Demax Construction and against plaintiff on count I. Herbert Portes' separate motion for summary judgment was denied. On April 30, 1984, the trial court made the March 23 summary judgment order appealable.

The legal title to the property on which this accident occurred is held by Herbert Portes as the trustee under the Children's Trust No. 2. Defendant Advance Construction leased the property from Portes, and defendant Demax Construction was acting as the general contractor for the construction of a heliport on the site. Plaintiff was employed by Professional Construction Company, a subcontractor hired by Demax and a third-party defendant to this action.

On March 26, 1979, plaintiff was performing construction work on the site. Plaintiff and another worker were installing external siding on the east wall of the heliport. The plaintiff was working on the ground and could install all the siding from the ground. Plaintiff and his partner had walked over to pick up a piece of corrugated steel to bring back to install. Plaintiff and his partner picked up the piece of steel siding and, with plaintiff walking backwards, made their way to the point of the wall where the siding was to be installed. As they were walking, plaintiff's partner told plaintiff that they would need the pair of vice-grips lying on the ground to plaintiff's right. Plaintiff held the siding with his left hand, bent down and picked up the tool, regripped the siding and continued walking backwards toward the point of installation, which was now very close. As plaintiff began to start walking backwards again, he stepped into a 55-gallon drum with his left leg. The drum had been buried in the ground with the rim flush with the surface on the ground. The drum was to be later filled with concrete for the installation of a post and was very near to the area where plaintiff was working. Approximately 20 minutes before the accident, there had been a covering over the hole created by the buried drum. The hole was very near or in the path that plaintiff and his partner had been following when they went to retrieve other steel panels, and was approximately one foot from the wall where the next piece of siding was to be installed.

Plaintiff brought this action against the various defendants under the Act. (Ill. Rev. Stat. 1979, ch. 48, par. 60 et seq.) The defendants' motions for summary judgment were based upon the theory that, because the facts alleged that plaintiff was working on the ground and fell into a hole in the ground, that no action could lie under the Act. Plaintiff contended that the failure to have a support over the hole was actionable under the Act. Upon the granting of summary judgment in favor of defendants, plaintiff filed this appeal pursuant to Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)). The sole issue for review is whether the failure to provide a cover over the 55-gallon drum in the ground is actionable under the Act.

Upon review of the trial court's entry of summary judgment, this court must determine whether the lower court was correct in ruling that no genuine issue of material fact was raised and, if none was raised, whether entry of the judgment was correct as a matter of law. (Fuller v. Justice (1983), 117 Ill. App.3d 933, 938, 453 N.E.2d 1133.) Summary judgment "is to be granted only where the evidence, when construed most strongly against the moving party, establishes clearly and without doubt his right thereto." Motz v. Central National Bank (1983), 119 Ill. App.3d 601, 605, 456 N.E.2d 958.

• 1 Generally, the Act "protects work activities of a particularly hazardous nature and is designed to lessen the extent of the danger." (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill.2d 121, 127, 302 N.E.2d 64.) The Act is liberally construed in order to help achieve its goal of protecting those persons engaged in such extrahazardous occupations. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 151, 317 N.E.2d 573.) However, the scope of the Act should not be expanded through strained or unnatural interpretations, especially when the injured party has recourse to his normal workers' compensation and tort remedies. (Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App.3d 1024, 1028, 414 N.E.2d 147.) The Act was never intended to cover all construction activities or all injuries at and around construction sites. (Urman v. Walter (1981), 101 Ill. App.3d 1085, 1090, 428 N.E.2d 1051.) A commentator has noted that any extension of the Act must be warranted by compulsions and economic interests requiring the extension of legislative privilege in the form of a prohibition of a contributory negligence defense. (Marcus, How Big an Umbrella? The Illinois Structural Work Act's Extent of Coverage, 53 Chi. Bar Rec. 149, 157 (1972).) Concern over expanding the scope of the Act is also fueled by the recent case of Simmons v. Union Electric Co. (1984), 104 Ill.2d 444, 473 N.E.2d 946, where our supreme court held "that comparative negligence does not apply to the conduct of a workman who is eligible to rely upon the Act." 104 Ill.2d 444, 459.

The importance to an injured person of having his claim brought under the Act is obvious, given the fact that the sole inquiry under the Act is an examination of the defendant's culpability; the plaintiff's own conduct is, essentially, irrelevant. Unfortunately, the line of demarcation between injuries and activities covered by the Act and those that are not is dull at best. In the present case, in order to determine whether defendants failed to provide a proper support over the hole created by the buried 55-gallon drum, the seminal question becomes whether a plank or board laid over that hole would be properly classified as a "support" for purposes of the Act. For the following reasons, we believe that any such board or plank laid over the hole would properly be classified as a "support" and that the entry of summary judgment against plaintiff was improper.

In Louis v. Barenfanger (1968), 39 Ill.2d 445, 236 N.E.2d 724, the supreme court held that the failure to provide scaffolding or supports when needed is actionable under the Act. (39 Ill.2d 445, 449.) The concerned parties cannot avoid the operation of the Act by closing their eyes to unsafe conditions at or near the construction site. Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431, 439, 150 N.E.2d 134.

The principal case in support of plaintiff's position is Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App.3d 293, 448 N.E.2d 1011. In Ashley, the ground around a construction site was extremely muddy and, to prevent workers from sinking into the mud as they walked to the building, planks were laid out as walkways. While the plaintiff was walking on one of the planks, it slipped out and caused him to fall. The Ashley court held that the planks and forms used as a temporary walkway were supports within the meaning of the Act. (114 Ill. App.3d 293, 298.) The court went on to state:

"It is undisputed that the construction site was ungraded, wet and covered in mud so deep that plaintiff, at one time, sunk up to the top of his hip boots. Plaintiff's accident itself further illustrates the severity of the slippery conditions. Thus, it is our opinion that as a result of the unusually muddy conditions, planks and concrete forms were erected as supports specifically intended to prevent the workmen and their materials from sinking into the mud. In so finding, we emphasize that our decision is premised on the particular ground conditions which existed at the time of plaintiff's injury." 114 Ill. App.3d 293, 298.

In reaching its determination, the Ashley court used a three-prong analysis, first looking at the intended use of the planks at the time of the injury. The court found it important that the planks were intended to keep the workers and their materials from sinking into the mud. The court then determined whether there was a connection between the injury and the hazardous nature of the supports. Recognizing that there is nothing inherently hazardous about planks placed on the ground, the court went on to state that the planks became hazardous when placed, unsecured, on the ungraded and slippery mud. Since the plaintiff was injured when a plank slipped in the mud, the connection criteria was satisfied. The final criteria focused on whether the danger involved was intended to be covered by the Act. Finding that it was, the court noted that the plaintiff's task of carrying materials was integrally related to his duties as a roofer. Consequently, the danger present from the unsecured planks on the ground was covered by the Act.

We find Ashley applicable to the present situation. In this case, as in Ashley, there was a peculiar ground condition that warranted a plank or board to act as a temporary cover should a worker stand or walk over the hole. Logically, a plank or board over an artificially created hole in the ground is analogous to the planks and forms placed on top of the deep mud naturally resulting in Ashley. In both cases, the planks act as supports for the workers to walk or stand on to avoid the conditions below. Using the three-prong test outlined in Ashley, ...


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