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05/10/88 Robert E. Smith, v. the Excello Press

May 10, 1988

ROBERT E. SMITH, PLAINTIFF-APPELLANT

v.

THE EXCELLO PRESS, INC., DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

523 N.E.2d 1231, 169 Ill. App. 3d 1084, 120 Ill. Dec. 320 1988.IL.715

Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.

Rehearing Denied June 16, 1988.

APPELLATE Judges:

JUSTICE STAMOS* delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Plaintiff, Robert E. Smith, appeals pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)) from the summary judgment for defendant, The Excello Press, Inc. (Excello), an Illinois corporation, as to count I of his complaint. Count I alleged liability in tort under the Structural Work Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, par. 60 et seq.) for injuries to plaintiff from a fall on defendant's premises.

The issue is whether the circuit court properly entered summary judgment for Excello on the ground that "the activity involved in this case does not fall within the [Act]."

Plaintiff contends that, on a liberal interpretation of the totality of facts and circumstances of his activity and his injury, he was a member of the class protected by the Act and was engaged in activity covered by the Act; that his activity when injured was an integral part of construction activity; and that his unloading activity, Excello's placement of and failure to provide support for materials, and Excello's placement and use of a scaffold all bring this cause within the Act.

Excello contends that summary judgment was properly ordered because there was no genuine issue of material fact as to whether the floor on which plaintiff was walking was a scaffold under the Act; that plaintiff was not engaged in unloading when injured; that the Act does not require supports for materials rather than persons; that plaintiff waived his argument as to the totality of circumstances by failure to raise it in the trial court; and that in any event a totality-of-circumstances test properly applies only to determining who has charge of a work site under the Act, not to determining whether a worker's activity is protected by the Act.

Facts

Viewing the pleadings, testimony, and evidence most favorably to plaintiff, the record discloses the following: On January 5, 1983, plaintiff was employed by Reliable Refrigeration and Air Conditioning Corporation (Reliable) as a pipefitter, connecting and hanging pipes at Excello's premises in Elk Grove Village. Excello was in charge of placing, erecting, constructing, and maintaining the premises, piping, and piping hangers.

Excello's chilling water system included an extensive network of piping that ran from printing equipment upward toward the ceiling and outside to a cooling tower. The cooling tower was a large, boxy assembly adjacent to the upper part of an exterior wall. Reliable billed Excello at least $397,000 for its piping and other work; the contract price of $339,555 was to cover very extensive construction of stands, placement of machinery, and installation of water, air, and gas piping systems.

Plaintiff was a pipefitter, and his job at Excello's premises pertained to all the piping that would be involved with the printing presses being installed there. Most of the pipe he installed was overhead. The building was already constructed when he began work there, but no printing presses were yet installed.

On the accident date, he and co-workers had been installing pipe near the ceiling. At the time, there were three presses in the plant. The accident occurred at about 2 p.m., and from about 1:45 p.m. he and his co-workers had been unloading steel pipe from a truck at his foreman's direction.

Immediately before the accident, plaintiff and a co-worker were carrying 2 1/2-inch pipe weighing 160 to 180 pounds directly from the truck to the lowered scaffold, because it would have been the next pipe installed, as 2 1/2-inch pipe was being worked on when the truck arrived.

The scaffold was an electrically powered hydraulic scaffold of scissors type. The accident happened just west and maybe a few feet north of the scaffold.

As plaintiff and his co-worker approached the scaffold, they were carrying the pipe on their shoulders, the co-worker being in front. At this time, workers setting up a press were performing a trial run. Just as the co-worker walked by the press, a jam occurred, paper built up at the end of the press, and the Excello pressman started taking paper off the end and throwing it across the aisle. The paper was glossy and in sheets of perhaps three feet by three feet. Plaintiff was perhaps five feet from the press when he noticed the pressman throwing handfuls of paper out.

As the papers reached the floor, plaintiff slid on them; his left leg went out; papers covered several pieces of all-thread rod that were lying nearby; the rod rolled when plaintiff's foot made contact with it; and plaintiff suffered injury. All-thread rod is used for installing pipe hangers and hanging pipe. Although the paper covered the rod, the rod was certainly there because Reliable's band saw was there, and the rod consisted of cutoffs that were used for hangers and that had been cut by the saw. There was a pile for the all-thread rod beside the saw, but he did not trip on the pile of rod itself. After recovering his footing, plaintiff and the co-worker continued with the pipe to the scaffold.

At this point in plaintiff's deposition, the following exchange occurred:

"Q. [attorney for Excello]: To the best of your knowledge did the presence of the scaffold itself have anything ...


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