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09/16/87 Miles Black, v. Peoria Marine Construction

September 16, 1987

MILES BLACK, PLAINTIFF-APPELLANT

v.

PEORIA MARINE CONSTRUCTION COMPANY, INC., ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

513 N.E.2d 622, 160 Ill. App. 3d 357, 112 Ill. Dec. 208 1987.IL.1354

Appeal from the Circuit Court of Peoria County; the Hon. Richard E. Eagleton, Judge, presiding.

APPELLATE Judges:

JUSTICE WOMBACHER delivered the opinion of the court. BARRY, P.J., and HEIPLE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOMBACHER

Plaintiff, Miles Black, brought this action to recover for injuries he allegedly received during a loading operation at Peoria Barge Terminal, Inc. (Peoria Barge). Plaintiff was injured when a piece of equipment fell off a forklift which he was directing. Plaintiff's second amended complaint, which contained seven counts, named a bridge subcontractor, Peoria Marine Construction, Inc. (Peoria Marine), and a trucking company, N.E. Finch Company. (N.E. Finch), as defendants. The trial court dismissed counts I and III of the amended complaint, which were premised on the Structural Work Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 60, et seq.); and count VII, which alleged a cause of action for common law negligence against Peoria Marine directly. The case was tried on plaintiff's negligence claim against the trucking company and on plaintiff's negligence claim against Peoria Marine on a vicarious liability theory. The jury returned a general verdict in favor of both defendants. In answers to special interrogatories, the jury found that the operator of the forklift involved in the loading operation was loaned by the trucking company, N.E. Finch, to the employer of the plaintiff, Peoria Barge, and that N.E. Finch was the agent of the bridge subcontractor, Peoria Marine, at the time of the occurrence.

Plaintiff presents six issues for review: (1) whether the trial court properly dismissed counts I and III of plaintiff's amended complaint for failure to state a cause of action under the Structural Work Act; (2) whether count VII stated a cause of action for common law negligence against defendant Peoria Marine Construction, Inc.; (3) whether the trial court properly instructed the jury; (4) whether the jury's findings on the special interrogatories were consistent; (5) whether the jury's verdict on the issue of Gary Finch's status and the issue of Gary Finch's negligence was against the manifest weight of the evidence; and (6) whether the trial court erred in excluding the evidence of thermography.

Plaintiff was working as a longshoreman-laborer for Peoria Barge when he was injured on June 25, 1982, during a loading operation. The loading operation involved lifting a large power unit of an earth augur from its place of storage onto a flatbed trailer for transportation to a jobsite several miles away. The earth auger was going to be used by Peoria Marine in the construction of an overpass bridge.

Richard Gresham, Peoria Marine's bridge site superintendent, testified that no one from Peoria Marine was involved in the loading operation of the power unit which took place at Peoria Barge's storage facility.

The plaintiff was acting as the signalman for the forklift operator during the loading operation. The forklift was owned by Peoria Barge. Gary Finch, the forklift operator, was an operating engineer regularly employed by the N. E. Finch Company. Gary Finch was leased from N. E. Finch to Peoria Barge on June 25, 1982, to perform the loading operation at Peoria Barge Terminal because Peoria Barge's own operating engineers were busy operating other equipment. While working at Peoria Barge, Gary Finch reported to Mark Burlingame, the supervisor at Peoria Barge. Burlingame had the right to tell Gary Finch what functions to perform, when to perform different activities and for how long. He also had the authority to fire Gary Finch from his job.

After Gary Finch picked up the power unit with the forklift, plaintiff directed Finch to the flatbed trailer. As Finch approached the trailer, plaintiff was standing in front of the forklift in order to signal Finch when to stop. When Finch raised the forks to load the power unit onto the truck, the power unit on the forks started to tip. Plaintiff became tangled in the forks as he tried to get away. The power unit fell off the forks, hit the ground, and then rolled over onto the plaintiff.

Plaintiff first argues that the trial court erred in dismissing counts I and III of his complaint for failure to state a cause of action under the Structural Work Act. In count I of the amended complaint plaintiff alleged a cause of action under the Structural Work Act against Peoria Marine. In count III of the amended complaint plaintiff alleged a cause of action under the Structural Work Act against Peoria Marine under a vicarious liability theory and alleged that N. E. Finch was the agent of Peoria Marine.

Plaintiff argues that the off-site loading of the power unit in this case is an activity covered under the Structural Work Act. Plaintiff contends that the Illinois Supreme Court considered this exact issue in McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573, finding that unloading operations which occur away from the actual construction site are activities which are covered by the Structural Work Act. Plaintiff also claims that the forklift is a ...


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