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06/27/88 Lorenz Beck Seeden, v. Metropolitan Sanitary

June 27, 1988

LORENZ BECK SEEDEN, PLAINTIFF-APPELLANT

v.

METROPOLITAN SANITARY DISTRICT OF GREATER CHICAGO ET AL., DEFENDANTS-APPELLEES (MATERIAL SERVICE CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

526 N.E.2d 482, 172 Ill. App. 3d 239, 122 Ill. Dec. 223 1988.IL.1005

Appeal from the Circuit Court of Cook County; the Hon. Myron T. Gomberg, Judge, presiding.

APPELLATE Judges:

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

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

Plaintiff, Lorenz Beck Seeden, brought this action to recover damages for injuries she allegedly sustained while working as a truck driver for Material Service Corporation . In count I, plaintiff sought recovery under the Structural Work Act (the Act) (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.); in count II, plaintiff alleged a cause of action based on common law negligence. Summary judgment was entered on count I in favor of defendants Metropolitan Sanitary District of Greater Chicago, S. A. Healy Company, E. J. Albrecht Company and Vanessa General Builders, Inc., and third-party defendant Material Service Corporation . Count II remains pending below. Plaintiff has appealed the summary judgment against her on count I, presenting the following issue for review: whether a personal injury cause of action is cognizable under the Structural Work Act based on allegations that the defendant failed to provide adequate supports for construction materials. We affirm.

Plaintiff was a truck driver employed by MSC on December 4, 1981, when she delivered a load of concrete to the "Deep Tunnel" construction project at 127th and Sacramento in Blue Island. Upon arriving at the delivery site, she backed her cement truck to the edge of a 45-degree downgrade which sloped approximately 50 feet downward to a hole in the ground. The hole in turn led to an extensive underground excavation.

The cement was to be delivered at a point approximately 45 feet down the grade; however the cement truck chutes extended only 12 to 15 feet in length. To compensate for the inadequate length of the chute, laborers attached an auxiliary chute to the chutes attached to the cement truck. The auxiliary chute was attached with hooks which fit into eyelets on the cement truck chutes. Additionally, the hookup was secured by a chain and locking system. When assembled, the chute extended down and paralleled the 45-degree slope at a point approximately four feet above the ground level. The plaintiff testified that the auxiliary chute overlapped the Material Service chute by 2 1/2 to 3 inches but that the chutes did not fit firmly together.

After the chutes were connected, Ms. Seeden began discharging cement from her truck. The chute normally had a tendency to drift to the left (i.e., the passenger's side of the vehicle) when cement was being discharged. Because the auxiliary chute was attached, the force of the leftward drift was transferred to the auxiliary chute, causing it to twist where the chutes were joined. The twisting of the chutes caused the cement to spill on the ground so plaintiff immediately stopped discharging the cement.

The laborers attempted to adjust the chutes so that they fit together more snugly. They adjusted the juncture of the MSC chutes and the auxiliary chutes and secured them with a wire which they inserted through a flange on the MSC chute. They also wedged a five-foot two-by-four piece of lumber between the ground and the chute to minimize the leftward drift.

Plaintiff again began to discharge cement. To assure that the leftward drift of her chutes would not twist the auxiliary chute, Ms. Seeden leaned against the chutes with her hands. The auxiliary chutes and the Material Service chutes then separated, causing the Material Service chute to "kick" sharply to the left. The "kick" caused Ms. Seeden to bend backwards, resulting in severe back injuries.

In deposition testimony, the plaintiff testified that she did not fall and was not struck by any object. There was no evidence indicating that the two-by-four moved or failed to support the chutes. The trial court held that the Structural Work Act was inapplicable to a cause of action based on allegedly inadequate support for materials and granted summary judgment for defendants. This appeal followed.

In determining whether a trial court properly granted summary judgment, a reviewing court must decide whether the trial court was correct in finding that no genuine issue of material fact was raised, and, if none was raised, as a matter of law entry of the judgment was proper. Carnevale v. Inland Ryerson Building Systems (1988), 169 Ill. App. 3d 740.

As the facts surrounding Ms. Seeden's injury are undisputed, we must determine whether as a matter of law the injury occurred as the result of a violation of the Structural Work Act. Plaintiff's position is that the Structural Work Act is triggered because the wooden two-by-four was a "support" for the cement chute and because the metal chain wrapped ...


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