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10/13/87 Robert Kittleson, v. United Parcel Service

October 13, 1987

ROBERT KITTLESON, PLAINTIFF-APPELLANT

v.

UNITED PARCEL SERVICE, INC., ET AL., DEFENDANTS-APPELLEES (W. E. O'NEILL CONSTRUCTION COMPANY, DEFENDANT)

CIRCUMSTANCES MORE ANALOGOUS TO THOSE NOW BEFORE THE COURT EXISTED IN SCHROEDER

v.

REDDICK FUMIGANTS, INC. (1984), 128 ILL. APP. 3D 832, 837, 471 N.E.2D 621, IN WHICH THE COURT STATED:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

516 N.E.2d 350, 162 Ill. App. 3d 966, 114 Ill. Dec. 195 1987.IL.1533

Appeal from the Circuit Court of Cook County; the Hon. Alan E. Morrill, Judge, presiding.

APPELLATE Judges:

JUSTICE O'CONNOR delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR

This is an appeal from an order granting summary judgment to defendants United Parcel Service, Inc. , Brookind Corp., and Metz, Train and Youngren, Inc., on that count of plaintiff's complaint alleging violations of the Structural Work Act (Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). Plaintiff raises the following issues on appeal: (1) whether the trial court abused its discretion by failing to permit plaintiff to depose three UPS construction engineers prior to the hearing on the motion for summary judgment; (2) whether the trial court erred in ruling that as a matter of law, the Structural Work Act was not applicable; and (3) whether a question of fact existed which would preclude a motion for summary judgment. We affirm.

The plaintiff, Robert Kittleson, was injured on April 10, 1981, when he and a fellow ironworker, George Habbick, were moving "noseovers," which were parts to a conveyor system being assembled at the UPS distribution center in Addison, Illinois. The two men were employees of the Ken Thelen Company, which was a subcontractor responsible for the erection of the conveyor system. The conveyor system was being erected inside of a building which was already completed. The noseovers were 60 inches long, 15 to 18 inches wide, weighed 200 to 300 pounds, and were made of structural steel.

The accident occurred in a paved parking lot outside the conveyor building as Kittleson and Habbick were moving various noseover parts from a storage area to a forklift truck, which they were then going to use to move the pieces to the inside of the building for assembly. As the two men walked together, with each holding an end of the noseover, Habbick tripped over some debris, which caused him to drop his end of the noseover. Kittleson was thrown to the left and struck the ground, suffering injury to his spine.

Plaintiff filed his original complaint on April 19, 1983, alleging violations of the Structural Work Act due to defendant's failure to clean debris off of the parking lot. An amended complaint was filed on October 25, 1985. The first count alleged that the defendants were engaged in the construction of a distribution center building containing loading facilities and conveyor systems and that a noseover was an integral part of the building. It further alleged that the storage area was so crowded and full of debris that it was not possible to move a hoist into the storage area in order to carry the noseovers and that the defendants violated the Structural Work Act by failing to utilize a safe hoist or hoisting method for the movement of the structural steel.

On December 2, 1985, the trial court granted defendants' motions for summary judgment on the Structural Work Act count of the amended complaint. That order was subsequently vacated and set for rehearing on May 23, 1986. After arguments on rehearing, the trial court sustained its original grant of summary judgment as to the Structural Work Act count of the amended complaint on the basis that it was not the unavailability of support for the noseover which caused the injury, but the fact that plaintiff's co-worker dropped his end of the noseover which caused plaintiff to fall. Plaintiff now appeals.

Plaintiff first argues that the trial court's refusal to continue the hearing on the defendants' motions for summary judgment in order to allow plaintiff to depose three UPS construction engineers constituted an abuse of discretion. He notes that the discovery depositions had been continued at defendants' request and contends that the evidence of the UPS engineers is central to whether the Structural Work Act is applicable. Plaintiff relies on Hanes v. Orr & Associates (1977), 53 Ill. App. 3d 72, 368 N.E.2d 584, in which this court found that the trial court had abused its discretion by granting a summary judgment without permitting the plaintiff to take the deposition of an employee who was central to the resolution of the summary judgment.

The plaintiff in Hanes was injured by a crane operated by an employee of one of the defendant corporations. After the defendant filed a motion for summary judgment, the plaintiff requested a stay of the proceedings in order to depose the crane operator to determine whether the corporation had surrendered full control over him as a loaned employee. The factual issue of whether the crane operator was a loaned servant was central to the resolution of the summary judgment, and, therefore, the trial court's refusal to grant the requested stay and the grant of summary judgment were found to constitute a manifest abuse of discretion.

"Finally, plaintiff contends that the entry of summary judgment for the defendant was premature because the defendants had refused to produce certain witnesses for discovery. Had plaintiff believed that more facts needed to be determined prior to a ruling on the motions for summary judgment . . . she could have filed an affidavit in compliance with Supreme Court Rule 191(b) (87 Ill. 2d R. 191(b)), setting forth the facts to which she believed these witnesses would testify and her reasons for that belief. Having failed to do this, plaintiff cannot now complain that summary judgment was prematurely granted. [Citations.]"

See also Wooding v. L & J Press Corp. (1981), 99 Ill. App. 3d 382, 384-86, 425 N.E.2d 1055, appeal ...


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