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04/30/87 Eugene Duffin, v. Clark Seibring

April 30, 1987

EUGENE DUFFIN, PLAINTIFF-APPELLEE

v.

CLARK SEIBRING, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

507 N.E.2d 930, 154 Ill. App. 3d 821, 107 Ill. Dec. 777 1987.IL.568

Appeal from the Circuit Court of Ford County; the Hon. William M. Roberts, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Following a fall from a grain bin owned by defendant Clark Seibring (Seibring), the plaintiff, Eugene Duffin (Duffin), filed suit against Seibring, requesting damages on the basis of a violation of the Structural Work Act (Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). The jury returned a verdict in Duffin's favor and the court entered judgment thereon. Seibring appeals the denial of his post-trial motion which requested judgment notwithstanding the jury's verdict or, in the alternative, a new trial.

Duffin filed his initial complaint, alleging negligence on the part of Seibring, on September 29, 1983. On June 11, 1985, Duffin filed an amended complaint which contained an additional count requesting damages on the basis of an alleged violation of the Structural Work Act. That count stated that on July 22, 1982, Seibring was the owner of a grain bin on a Ford County farm. On that date, Duffin was required to work on and about the grain bin spraying insecticide, fell from the roof of the bin, and was injured. Duffin alleged that in wilful violation of the Act, Seibring totally failed to provide "scaffolds, hoists, cranes, stays, ladders, or other mechanical contrivances" for use in spraying the bin.

On August 7, 1986, the circuit court denied Seibring's motion to dismiss the Structural Work Act count of Duffin's complaint. In so ruling, the court stated, "[s]praying insecticide around grain bins is as much a part of the maintenance of buildings in rural areas, as the washing of windows in cities."

At trial, Clark Seibring, whom Duffin called as an adverse witness, testified that on the morning of Duffin's accident, he directed Duffin to fumigate the grain bins located on the Seibring farm. As preventive maintenance, Seibring had the grain bins on the farm sprayed with corn weevil insecticide yearly.

There are approximately 30 grain bins on the Seibring farm. The bins are arranged in three rows, running in an east-west direction. On the morning in question, a crew consisting of Rich Seibring (Seibring's son), Vince McCabe, and Duffin began work on the first row of bins. The first bin on which Duffin began to work is made of corrugated steel and is 18 feet in diameter. The roof of the bin rises from its edge to a peak at about a 2-foot pitch. The edge of the bin's roof is about 18 or 20 feet above the ground. Spaced around the roof of the bin, which consists of approximately 24 sections divided by raised sections of metal, are four angle irons, or toeholds, which are approximately 19 inches to 2 feet from the center cap of the bin, which is located at the peak of its roof. Other grain bins on the Seibring farm have toeholds on every other roof section.

Duffin testified that he, McCabe and Rich Seibring all went to the top of a grain bin on the morning of July 21, 1982. The bin was empty and was sprayed with a hose running from a sprayer. McCabe and Rich Seibring had already descended to the ground on the ladder of the bin, and Duffin bolted on the hatch of the bin. After he had finished bolting the hatch, Duffin thought his right foot slipped. He did not know if he got something stuck on his foot. The next thing he knew, he was flat on his back and sliding down the bin's roof. He had no idea what caused him to fall from the bin. Duffin landed on the ground in front of the second bin in the row. He did not strike either that bin or the bin which he had sprayed on the way down.

On cross-examination, Duffin testified that he had worked for Seibring since 1970. The placement of the toeholds on the grain bin from which he fell had not changed during the years that he worked for Seibring, and Duffin had been on the bin's roof on numerous prior occasions. He knew the positions of the toeholds, which are 13 inches wide. Although his fall occurred at approximately 8 a.m., there was no dew, moisture, or foreign substance on the roof of the grain bin. Nor were there any defects in the roof itself, such as damaged metal. When he fell, Duffin was wearing old cowboy boots with pointed toes and raised heels. Since McCabe was already on the ground, the spraying apparatus would have been out of the way when Duffin fell. Duffin did not know for a fact that he slipped on any of the fumigants.

Dr. Alain Menguey testified that as a result of his fall from the grain bin, Duffin sustained a fracture of the L-2 vertebrae. This condition is permanent in nature and can cause back pain for a lengthy period of time.

Vince McCabe stated that on the morning of Duffin's fall, he heard Duffin sliding off the grain bin, and saw Duffin land beside him. McCabe did not check the bin roof for spills until much later in the day. At that time he saw no indication that he had spilled any chemicals on the roof.

Testifying in his own behalf, Seibring stated that he purchased the group of grain bins which included the bin from which Duffin fell from the Federal government in 1959. When he purchased the bins, they were in the same spot as when Duffin's fall occurred. The only structural change which Seibring made in the bins after acquiring them was to elevate two of them for the apparent purpose of drying corn. Seibring has never removed any of the toeholds on the bins or changed the position of the toeholds.

At the Conclusion of the trial, the jury rendered a verdict in favor of Duffin in the amount of $40,000, on which the circuit court subsequently entered judgment.

Seibring first contends that the circuit court erred in denying his motion to dismiss Duffin's complaint, because Duffin did not state a cause of action for a violation of the Structural Work Act. In support of this contention, Seibring notes that the Act pertains to only structural work and asserts there is no evidence that the spraying of insecticide preserved or helped to maintain the grain bins. Seibring contends that, instead, this activity is comparable to changing storm windows or trimming trees, activities which are not within the scope of the Structural Work Act.

Duffin contends that the work which he was performing when injured is within the scope of the Structural Work Act, since under the liberal construction which should be accorded the Act, its coverage extends to any work upon a structure, and a grain bin is a structure within the meaning of the Act. He analogizes the spraying of a grain bin to activities which help to maintain a structure within the meaning of the Act, such as window washing. He suggests it would be absurd to hold that he could recover under the Act for damages sustained in a fall while painting a grain bin, but that he could not recover under the Act for injuries sustained in a fall from the same position while spraying the bin.

In his reply argument, Seibring maintains that Duffin's complaint does not state a cause of action for a violation of the Structural Work Act because it does not allege that Duffin was engaged in or passing by a structural activity when injured, that the spraying was being performed with reference to a structure, or that a defect existed in the construction of the grain bin. Seibring also attempts to ...


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