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Fisher v. Crippen

OPINION FILED JUNE 4, 1986.

DONALD FISHER, PLAINTIFF-APPELLANT,

v.

WILLIAM CRIPPEN, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jackson County; the Hon. Bill F. Green, Judge, presiding.

JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

Plaintiff, Donald Fisher, sued defendant, William Crippen, alleging a violation of the Structural Work Act in one count and negligence in a second count. The court granted defendant's motion for summary judgment on both counts. Plaintiff has appealed claiming genuine issues of material fact remained on both counts and that defendant was not entitled to judgment as a matter of law.

The following facts were found in the depositions and affidavits filed in the trial court. Defendant was building his own home, one which he had designed. A power company pole stood at each front corner of the lot, and electrical cables ran along the entire front of the property. On February 20, 1981, defendant phoned the Carbondale Concrete Company to order concrete blocks. Later that day, plaintiff, an employee of Carbondale Concrete, delivered the blocks to the construction site using a truck with a hoist boom used for unloading materials. When plaintiff arrived in the truck, defendant was finishing fresh concrete. Defendant saw plaintiff drive up, said, "Hello," but gave him no instructions.

Plaintiff backed the truck into the gravel driveway of the site, the only vehicle access point. Plaintiff, while standing on the ground next to the truck, began to operate the boom using a hand-held remote control device. The boom was approximately 20 to 30 feet long. As plaintiff maneuvered the boom, it came in contact with overhead power lines. Plaintiff was severely injured by an electrical shock. Defendant ran to where plaintiff was lying, knocked the energized control box from plaintiff's chest, and dragged plaintiff away from the truck, the tires of which were burning.

In his deposition, plaintiff admitted that he was aware that if he came in contact with high voltage electricity, he would be shocked, and also admitted that he knew he should not let the boom come in contact with overhead wires. He said he had seen the overhead wires prior to the accident. He also stated that there was a warning sign on the back part of the boom concerning the danger of operating the boom near overhead electrical wires, and that he had seen the sign prior to the incident. Plaintiff stated he had used this truck with the boom since 1977, and that the truck and boom had been purchased for his use. In an affidavit, plaintiff stated that he had intended to "move the materials to positions within the foundation of the construction where said materials could be made immediately accessible for workers to incorporate into the structure that was being erected."

Also in the record is the affidavit of Jim Greer, a partner in Carbondale Concrete. He stated that defendant was a journeyman carpenter and was familiar with the custom and practice for delivering blocks to residential construction sites. Mr. Greer stated that the custom is for the person in charge of the construction site to direct the driver to place blocks within the foundation so they would be immediately accessible for the erection of the structure.

Defendant, in a deposition, stated he was not a general contractor for purposes of building this house. He also stated he did not have the right to stop the work plaintiff was doing, and instead felt he should yield to plaintiff's experience. However, defendant stated he felt he did have the right to stop the work of certain other persons at the site. While defendant was busy with concrete and did not see the accident happen, he did see where plaintiff parked the truck prior to beginning the unloading operation. According to defendant, plaintiff could have backed up another "four to five feet."

Defendant's motion for summary judgment alleged that plaintiff was not entitled to recover under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60-69) (hereinafter referred to as the Act) because, for various reasons, plaintiff was not a person covered by the Act, and also because defendant was not in charge of the work at the construction site. Defendant also alleged plaintiff could not recover under a negligence theory because defendant had no duty to protect plaintiff against the obvious danger presented by overhead electrical wires. The court granted summary judgment in favor of defendant on both the Structural Work Act count and the negligence count on May 21, 1985.

• 1, 2 Summary judgment is appropriate where there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Pioneer Bank & Trust Co. v. Mitchell (1984), 126 Ill. App.3d 870, 873, 467 N.E.2d 1011, 1014.) Summary judgment is proper 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, 961.

• 3 The following elements must be proved in an action brought under the Structural Work Act: (1) the plaintiff was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused the plaintiff's injuries; (6) the defendant had charge of the work being performed; and (7) the defendant wilfully violated the Act's safety standard. Gill v. ParCable, Inc. (1985), 138 Ill. App.3d 409, 411, 485 N.E.2d 1215, 1216.

• 4, 5 Defendant argues that he was not "in charge of" the work done by plaintiff. The issue of who has charge of the work is usually for the jury to decide, but the issue is one of law if the undisputed facts permit only one conclusion. (See Winter v. Davis (1980), 85 Ill. App.3d 912, 915, 407 N.E.2d 696, 699.) Mere ownership of the premises is not sufficient to place the owner "in charge of" the work. (Winter v. Davis (1980), 85 Ill. App.3d 912, 407 N.E.2d 696.) Plaintiff relies on defendant's actual presence at the site, that defendant was a carpenter and that he was doing some work himself. However, when viewed in light of all the circumstances, these facts show defendant was not in charge of the work. If defendant was present, and "in charge of" the unloading, why did he not take charge? If he had taken charge of the unloading, we would have to conclude that he was "in charge." If defendant had been absent when plaintiff delivered the blocks, defendant might still be deemed "in charge," though by virtue of his absence he could not have taken charge of that operation. Here, however, defendant was in ideal position to "take charge," yet did not do so.

Additional undisputed facts also indicate defendant was not "in charge of" the unloading. Plaintiff provided his own equipment for the unloading. (Winter v. Davis (1980), 85 Ill. App.3d 912, 916, 407 N.E.2d 696, 700.) Defendant had never operated a truck crane and thus was unfamiliar with plaintiff's equipment. We conclude defendant was not in a position to assure plaintiff's safety or alleviate improper work habits or deficiencies in plaintiff's equipment. (Winter v. Davis (1980), 85 Ill. App.3d 912, 407 N.E.2d 696.) There was no reason for defendant to expect to tell plaintiff how to operate his own truck safely.

• 6 Because we find that the issue of whether defendant was in charge of the work is beyond question of fact, the summary judgment of the trial court as to count I was proper. However, we believe the judgment was proper for a second reason. To establish a cause of action under the Act, the plaintiff must prove that defendant's violation of the Act was a proximate cause of the plaintiff's injury. (Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App.3d 293, 296, 448 N.E.2d 1011, 1013; Gill v. ParCable, Inc. (1985), 138 Ill. App.3d 409, 485 N.E.2d 1215.) In the Structural Work Act count of his ultimate complaint, plaintiff alleged that defendant violated the Act by failing to provide a safe, suitable and proper method of placement of the "mechanical contrivance." Yet plaintiff admitted his awareness of the danger of overhead wires, and that he saw these wires as would anyone who looked. There is no allegation that the wires were hidden or that the unloading could only be accomplished under the wires. In light of these admissions, is there any issue of fact that defendant's alleged omissions were a proximate cause of plaintiff's injury? No, the cause which far exceeds defendant's conduct in significance is plaintiff's failure to look at the obvious danger overhead while operating the boom; compared to that, defendant's conduct was not a lesser cause, but rather no cause at all.

• 7 We turn to count II, the negligence count. Again, considerations of proximate cause require judgment for defendant. Proximate cause is also indispensable to a negligence cause of action. (See Rios v. Sifuentes (1976), 38 Ill. App.3d 128, 130, 347 N.E.2d 337, 339.) As we explained in Kerns v. Engelke (1977), 54 Ill. App.3d 323, 333, ...


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