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12/21/87 Wayne Keyser, v. Metropolitan Sanitary

December 21, 1987





520 N.E.2d 678, 165 Ill. App. 3d 696, 117 Ill. Dec. 327 1987.IL.1880

Appeal from the Circuit Court of Cook County; the Hon. Jerome T. Burke, Judge, presiding.


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


The defendant Metropolitan Sanitary District appeals from the judgment of the circuit court of Cook County entered in favor of plaintiff Wayne Keyser following a jury verdict in the amount of $350,000, contending that the trial court erred when it denied its motion to dismiss the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) count of Keyser's complaint, and that it erred when it denied its motion for judgment notwithstanding the verdict.

The plaintiff, Wayne Keyser, was a certified miner employed by Morrison-Knudsen, Paschen, Kenny and S & M Company, a general contractor hired by the defendant MSD for its "deep tunnel" project in Chicago, Illinois. Plaintiff was involved in excavating that portion of the tunnel known as the "Nashville Avenue Shaft." Working in the "future tail" tunnel where the excavation took place, plaintiff and his co-workers would loosen the rock by drilling, blasting, and manually removing the rock; then, an "end loader" would move down the right-hand side of the tunnel and clean out the rock debris into a "muck bucket" that was, thereafter, mechanically lifted out of the hole and emptied. Plaintiff testified that the end loader always moved down the right side and always left a ridge of muck (loose rock that was moist with water and sometimes oil) on the left side of the future tail tunnel. The ridge of muck was about two feet high and 20 to 25 feet long. The total length of the tail tunnel was about 100 feet long.

Plaintiff testified that the left side of the wall was lined with steel pegs from which hung a telephone for above-ground communication, the junction box, and a string of temporary lights. According to the plaintiff, the steel pegs were placed on down the left wall about seven feet from the tunnel floor and protruded 18 inches to 2 feet at an upward angle, so that the lighting cables would fall toward the tunnel wall. The lighting cables were between 75 and 100 feet long when uncoiled and weighed about 100 pounds. Plaintiff testified that because of the height and the angle of the pegs, every time the lighting cables were moved it necessitated using some type of support. Keyser stated that he and his co-workers used the muck pile, the bucket part of the end loader, or the boom of the drill as supports to elevate them to the height needed to lift the coiled cable up and off the peg.

On June 18, 1980, plaintiff was working in one of these tunnels and stepped on the muck pile to remove a rolled up cable from its peg when he slipped on the loose rock. Although he did not fall, plaintiff injured his back and required surgery on three separate occasions following the accident. Plaintiff is now unable to perform heavy work.

Plaintiff filed a complaint against MSD on March 4, 1981. On May 3, 1985, plaintiff amended the complaint to add a Structural Work Act count. (Ill. Rev. Stat. 1985, ch. 40, par. 60.) Subsequently, defendant filed a motion to dismiss the Structural Work Act count of the amended complaint, and argued that the allegations of the plaintiff demonstrate that he merely slipped on what was the floor of the tunnel, and even when taken as true, the allegations did not constitute a claim under the statute, as a matter of law. However, the trial court denied MSD's motion and allowed plaintiff to file a second amended complaint in which he alleged, in the alternative, that either the muck on the tunnel floor on which he slipped constituted an "inadequate" support or that the defendant had failed to provide a necessary support required by his work. Consistent with the plaintiff's amended complaint, at the close of the evidence, the trial court instructed the jury pursuant to Illinois Pattern Jury Instructions, Civil, No. 180.15 (2d ed. 1971) (hereinafter IPI Civil 2d), which provides: "The statute [is] violated if the persons

having charge of the work failed to provide a support under circumstances which required a support in order to protect the plaintiff from injury, and the defendants knew or, in the exercise of ordinary care, could have known that a support was required." (IPI Civil 2d No. 180.15.) As stated above, the jury thereafter rendered a verdict for the plaintiff and against MSD in the amount of $350,000. The defendant filed a post-trial motion for judgment notwithstanding the verdict which was denied and it has now appealed to this court.

It is undisputed that excavation of a tunnel, such as the Nashville Avenue Shaft here, is the construction of a structure within the meaning of the Structural Work Act. (See Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 290 N.E.2d 219.) The question in this case is whether the jury verdict finding MSD liable for a wilful violation of the Structural Work Act either because the ridge of muck was an inadequate support or because MSD failed to provide plaintiff Keyser with a necessary support was against the manifest weight of the evidence.

To sustain his Structural Work Act claim, the plaintiff must offer proof that MSD, while in charge of the Nashville Avenue Shaft portion of the Deep Tunnel Project, either provided an unsafe device or wilfully failed to provide a device necessary in the construction of the tunnel and that plaintiff's injuries were proximately caused by defendant's violation. (Ill. Rev. Stat. 1985, ch. 48, par. 60; Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051, 1059.) The issue of proximate cause here was submitted to the jury with proper instructions and has not been raised as an issue on appeal. The specific issue here, as it was below, is whether in the exercise of ordinary care the defendant should have known that plaintiff was using the muck pile, which was an inadequate support, to reach the overhead electric cables or whether MSD, knowing that a device for support was necessary, wilfully failed to provide plaintiff with an adequate support.

The defendant concedes that it was in charge of the work here, but denies that it provided an unsafe device or support, i.e., the muck pile, or that there was any wilful failure on its part to provide a necessary and adequate support. Defendant asserts that the muck pile was a part of the tunnel floor and, hence, could not be considered a support and that it could not have known in the exercise of ordinary care that plaintiff was stepping on the accumulated loose rock to get to the coiled electric cables. The defendant further notes that at trial the exact height of the pegs involved in plaintiff's accident was never ascertained, and thus, it submits that the plaintiff could have safely removed the cable without a support for elevation. Furthermore, the defendant contends that the plaintiff could not and did not establish that MSD failed to provide an adequate device within the coverage of the Structural Work Act. The defendant argues that there was no wilful failure on its ...

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