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10/26/87 Archie Holley, v. Brad Badgerow Et Al.

October 26, 1987

ARCHIE HOLLEY, PLAINTIFF-APPELLANT

v.

BRAD BADGEROW ET AL., INDIV. AND AS A PARTNERSHIP D/B/A B & E BUILDERS, ET AL., DEFENDANTS AND COUNTERPLAINTIFFS-APPELLEES (ARCHIE HOLLEY, D/B/A ARCHIE HOLLEY MASONRY, COUNTERDEFENDANT-APPELLANT)



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

515 N.E.2d 1257, 162 Ill. App. 3d 572, 113 Ill. Dec. 950 1987.IL.1587

Appeal from the Circuit Court of Peoria County; the Hon. John J. Gorman, Judge, presiding.

APPELLATE Judges:

JUSTICE STOUDER delivered the opinion of the court. SCOTT and WOMBACHER, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

The plaintiff, Archie Holley, filed a complaint against the defendants Brad Badgerow, Bruce Ekhoff (B & E Builders), and Benjamin and Paulette Board for injuries the plaintiff received when he fell from a scaffold which he had constructed while repairing the Boards' residence. The complaint was filed pursuant to the Structural Work Act. (Ill. Rev. Stat. 1983, ch. 48, par. 60.) The trial court granted the defendants' motion for summary judgment, finding that the plaintiff is not a protected person within the meaning of the Act. The plaintiff has appealed.

On appeal, the plaintiff contends the trial court erred when finding him to be an unprotected person under the Structural Work Act.

B & E Builders was hired to perform construction work on a home owned by Benjamin and Paulette Board. B & E Builders then engaged the plaintiff, a sole proprietor, as a subcontractor to rebuild a fireplace in the Boards' residence. The plaintiff, in turn, hired a mason and a general laborer to assist him in performing the subcontracted repairs. Plaintiff and his assistant erected a scaffold several days prior to actually beginning the project. The scaffolding materials were owned by the plaintiff. After working on the project for about three weeks, the plaintiff raised the scaffold to a higher level in order to facilitate his work on the Boards' chimney. While both the plaintiff and his assistant were working, the scaffold tipped over, and both men were injured. The plaintiff filed suit pursuant to the Structural Work Act against B & E Builders and Benjamin and Paulette Board.

The Structural Work Act provides in relevant part, as follows:

"Sec. 1. That all scaffolds, . . . erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, . . . or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon." Ill. Rev. Stat. 1983, ch. 48, par. 60.

Sec. 9. Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building . . . or other structure within the provisions of this act, shall comply with all the terms thereof . . ..

For any injury to person or property, occasioned by any wilful . . . failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby . . . ." Ill. Rev. Stat. 1983, ch. 48, par. 69.

The Structural Work Act is designed to lessen the extent of danger encountered by workmen employed in hazardous activities. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill. 2d 121, 302 N.E.2d 64.) The purpose of the Act is to remove the fault of the employee as a defense and place the responsibility on the person in charge. Bryntesen v. Carroll Construction Co. (1963), 27 Ill. 2d 566, 190 N.E.2d 315.

The plaintiff argues that the Structural Work Act does not deny recovery to sole proprietors and does not limit recovery to those individuals who are servants or employees of others. A number of cases have interpreted the Structural Work Act; consequently, a Discussion of the relevant cases would be helpful in determining whether the plaintiff, a sole proprietor, is a protected person within the meaning of the Act. In Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App. 2d 1, 225 N.E.2d 67, a contractor's employee brought suit against an owner allegedly in charge of the work, for injuries he received in a fall from a scaffolding. The owner interpleaded the contractor, seeking indemnity. The owner contended that the injured employee's negligence in constructing the scaffolding was the active cause of the injuries and argued that the employer was liable under the rule of ...


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