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02/25/87 Robert J. Langley, v. J. L. Simmons Contracting

February 25, 1987





504 N.E.2d 1328, 152 Ill. App. 3d 899, 105 Ill. Dec. 810 1987.IL.233

Appeal from the Circuit Court of Madison County; the Hon. Horace L. Calvo, Judge, presiding.


PRESIDING JUSTICE KARNS delivered the opinion of the court. KASSERMAN and HARRISON, JJ., concur.


This cause arises from injuries incurred by plaintiff, Robert J. Langley (Langley), while working as general superintendent on a construction project. Langley was employed by third-party defendant, H.K. Ferguson Company (Ferguson). Ferguson was hired by Carlisle Tire and Rubber Company (Carlisle) as a general contractor to supervise the construction of a factory designed to manufacture rubber material. Defendant, J. L. Simmons Contracting Company (Simmons) was hired by Ferguson as a subcontractor to install equipment. Simmons contracted with Wilbur Waggoner Equipment Rental and Excavating Company (Waggoner) for the use and operation of a "cherry picker" crane. While making a job inspection, Langley entered a work area assigned to Simmons. Langley stepped onto a stack of scaffold boards less than 16 inches high. While walking across the boards, a board tipped, Langley's feet "went down" and he ended up sitting on the floor in oil, sustaining injuries.

Langley filed a complaint against Carlisle, Simmons and Waggoner alleging negligence and violation of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.). Waggoner paid Langley $150,000 pursuant to a settlement agreement. Langley recovered $103,364.03 from his workers' compensation claim against Ferguson. Simmons filed a third-party complaint against Ferguson seeking contribution in the event that Simmons was held liable to Langley. The trial court entered a directed verdict in favor of Carlisle on both counts and in favor of Simmons on the Structural Work Act count. The jury returned a verdict for Langley and against Simmons in the amount of $1,000,000. The jury also found Langley 90% at fault and the verdict was reduced to $100,000. In the third-party action, the jury found that Simmons and Ferguson were equally at fault as to Langley and that Simmons was therefore entitled to 50% contribution from Ferguson. Upon considering the parties' post-trial motions, the trial court found that Simmons was entitled to a setoff of $150,000, the amount of Waggoner's settlement, and entered a judgment in favor of Langley and against Simmons for $0. Because Simmons was required to pay nothing to Langley, Ferguson was not ordered to make any contribution to Simmons. Finally, the trial court reduced the amount of Ferguson's workers' compensation lien by $50,000, "based upon the jury's third-party contribution verdict."

On appeal, Langley challenges the trial court's directed verdict on the Structural Work Act claim and the jury's finding of comparative negligence. On cross-appeal, Ferguson challenges the trial court's reduction of the workers' compensation lien.

Langley's first contention is that the trial court erred in entering a directed verdict in favor of Simmons on his claim under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60, 69). Although the Structural Work Act is to be liberally construed, it was never intended to cover all construction activities or all injuries incurred at construction sites. (Deibert v. Bauer Brothers Construction Co. (1986), 145 Ill. App. 3d 915, 917, 495 N.E.2d 1348, 1349.) Section 1 specifically enumerates those devices covered by the Act by providing that "all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed . . . for the use in the erection of any . . . structure, shall be erected and constructed in a safe . . . manner . . . to give proper and adequate protection to the life and limb of any person . . . employed or engaged thereon." (Ill. Rev. Stat. 1985, ch. 48, par. 60.) In determining whether a device falls within the purview of the Act, both the identity of the device and its intended use at the time of injury must be considered. Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, 343, 491 N.E.2d 1246, 1248.

Langley argues that the stack of scaffold boards was used as a means of support and, therefore, falls within the scope of the Act. The cases relied upon by Langley are distinguishable from the instant cause. In Acquaviva v. Sears Roebuck & Co. (1979), 68 Ill. App. 3d 588, 386 N.E.2d 381, plaintiff was injured while standing partly on a wheelbarrow and partly on a mortar mixer in order to operate the mixer. In holding that the mixer was a support covered by the Act, the court focused on the fact that plaintiff employed the machine as a "necessary support in pursuance of his task" and was "dependent upon both the wheelbarrow and the machine, instead of the concrete floor . . . in order to reach the necessary control." (68 Ill. App. 3d 588, 591, 386 N.E.2d 381, 383.) In Ashley v. Osman & Associates, Inc. (1983), 114 Ill. App. 3d 293, 295, 448 N.E.2d 1011, 1012, planks and concrete forms were set up as walkways to prevent workers from sinking into deep mud which covered the construction site. Plaintiff was injured while walking on one of the walkways. (114 Ill. App. 3d 293, 295, 448 N.E.2d 1011, 1012.) In concluding that the planks and concrete forms were erected as supports specifically intended to prevent the workmen from sinking into the mud, the court emphasized that its decision was premised on the particular ground conditions which existed at the time of the injury. (114 Ill. App. 3d 292, 298, 448 N.E.2d 1011, 1015.) Similarly, in Rambert v. Advance Construction Co. (1985), 134 Ill. App. 3d 155, 159-60, 479 N.E.2d 1007, 1010, the court held that the peculiar ground conditions warranted the use of a plank or board as a support and the failure to provide such support fell within the purview of the Act.

Unlike the circumstances of Acquaviva, Langley's testimony reveals that he did not walk across the boards out of necessity. His access to the other part of the building was not blocked by the stack of boards. Langley testified that he would have had to walk an additional 50 feet to go around the boards and that he cut across the boards for his own convenience. Unlike Ashley and Rambert, no peculiar ground conditions warranted the use of the boards as a means of support. Here, the boards were stacked on a concrete floor.

Schultz v. Ottawa Silica Co. (1985), 133 Ill. App. 3d 412, 478 N.E.2d 857, is analogous to this cause. In Schultz, plaintiff was injured while pulling an individual scaffold section out of a tangled pile of scaffold boards. Evidence indicated that on occasion plaintiff would climb up on the pile in order to remove individual pieces. (133 Ill. App. 3d 412, 412-13, 478 N.E.2d 857, 858.) In concluding that the pile of scaffold sections was not a scaffold or support within the meaning of the Act, the court stated that "[t]he purpose of piling the individual scaffold pieces on the ground was not to provide a support structure for workers to use on the site." (133 Ill. App. 3d 412, 414, 478 N.E.2d 857, 859.) Similarly, in Swendsen v. Brighton Building & Maintenance Co. (1976), 41 Ill. App. 3d 930, 933, 355 N.E.2d 164, 166, the court reasoned that "[t]he fact that a worker chooses to walk upon a stack of material instead of around it does not convert the materials into a scaffold [or support] within the meaning of the Act."

The rationale of Schultz and Swendsen applies to this cause. Nothing in the record indicates that the placement of the stack of scaffold boards was for any reason other than storage. Simply because Langley chose to walk across the boards, instead of around them, does not convert them into a support device. We conclude that the stack of boards does not constitute a support within the meaning of the Act.

Langley also maintains that the Act was violated by the unsafe condition created by the "cherry picker" crane leaking hydraulic fluid onto the floor where Langley fell. Langley testified that when he slipped off the stack of boards, he landed on the floor in an oily substance which appeared to have leaked from the crane. Langley also stated that he did not know the extent to which the oil contributed to his fall and subsequent injury. Even if one of the devices enumerated in the Act is involved, the Act does not apply unless the injury has some connection with the hazardous nature of the devices named in the Act. (Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill. App. 3d 535, 537, 487 N.E.2d 1124, 1125; Cooley v. Central Illinois Public Service Co. (1982), 110 Ill. App. 3d 685, 691, 442 N.E.2d 1330, 1335.) The essential common characteristic of the items enumerated in section 1 of the Act is that they are all support devices, either for men or materials. (Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 1129, 441 N.E.2d 889, 892.) The obvious hazard of support devices is that workers or materials may fall off such devices or that the devices themselves may fall, injuring the workers or those passing by the device. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371, 325 N.E.2d 607, 612.) At the time of Langley's injury, the crane was stored indoors and was not in use. Neither Langley nor anyone else was attempting to operate the crane. At the time of injury, the crane was serving no function whatsoever. The hazard of leaking fluid involved in the instant cause could occur in any piece of machinery. Langley could just have easily slipped on oil which had leaked from an automobile, lawnmower or some other object not contemplated by the Act and suffered the same injury. (60 Ill. 2d 363, 371, 325 ...

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