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09/02/88 Nona Burks, Indiv. and As v. Matrix Vision of Wilmette

September 2, 1988

NONA BURKS, INDI

v.

AND AS MOTHER OF STEPHEN SIMPSON, ET AL., ET AL., PLAINTIFFS-APPELLANTS,

v.

MATRIX VISION OF WILMETTE, INC., ET AL., DEFENDANTS-APPELLEES

PLAINTIFFS APPEAL THE DISMISSAL OF COUNT I OF THEIR COMPLAINT AT LAW FOR FAILURE TO STATE A CAUSE OF ACTION UNDER THE STRUCTURAL WORK ACT (ACT) (ILL. RE

v.

STAT. 1985, CH. 48, PARS. 60 THROUGH 69).



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

529 N.E.2d 642, 174 Ill. App. 3d 1086, 124 Ill. Dec. 661 1988.IL.1342

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

APPELLATE Judges:

PRESIDING JUSTICE LORENZ delivered the opinion of the court. PINCHAM and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ

We affirm.

This matter arises out of an incident which occurred on March 15, 1983. As alleged in the complaint, defendants Matrix Vision of Wilmette, Incorporated (Matrix Vision), and Matrix Enterprises, Incorporated (Matrix), were then engaged as general contractors to install television transmission cables on existing wooden poles owned by defendant Commonwealth Edison Company (Commonwealth Edison) in Skokie, Illinois. In the process of that installation, Stephen Simpson, an employee of Matrix Vision, was injured and later died, when the pole upon which he was working cracked at its base and fell to the ground.

Following Simpson's death, plaintiffs filed a four-count complaint, as amended, in the circuit court of Cook County naming Matrix Vision, Matrix, and Commonwealth Edison as defendants. Pertinent to this appeal, count I of the complaint sought to establish liability as to each defendant under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69).

On April 11, 1986, Commonwealth Edison, joined by Matrix Vision and Matrix, moved, inter alia, to dismiss count I, pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), on the basis that attachment of television cable to a wooden pole was not an activity undertaken with respect to a structure such as to come within purview of the Structural Work Act. The motion was granted after hearing on February 5, 1987, and that portion of the order dismissing count I was made final and appealable. Plaintiffs filed a timely notice of appeal on February 13, 1987.

Opinion

On review of dismissal of a count of a complaint pursuant to section 2-615 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-615), we must accept as true all well-pleaded allegations, drawing all reasonable inferences arising therefrom, and determine whether any possibility of recovery exists under the theory alleged. Richmond v. Hahn (1985), 134 Ill. App. 3d 947, 481 N.E.2d 943.

Count I of plaintiffs' complaint is predicated on various violations of the Structural Work Act. Section 1 of the Act outlines the types of injuries for which the Act may apply, as recovery is permitted where the injury occurs in relation to the use of "scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances" during "the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 48, par. 60.) It is axiomatic that an action which seeks to establish liability under the Structural Work Act must be based on the existence of a structure as contemplated by language contained within the Act. Kochan v. Commonwealth Edison Co. (1984), 123 Ill. App. 3d 844, 463 N.E.2d 921.

The allegations of count I give rise to two possibilities for establishing the existence of a structure for purposes of determining applicability of the Act. First, the wooden pole together with the network of attached television cable might constitute a structure. Second, the wooden pole might constitute a structure of its own outside of the network of attached cable. We note, however, that plaintiffs' opening brief addresses only the issue of whether a structure existed under the first possibility, a combined system of poles and cable. We therefore decline to consider in this appeal whether the pole itself might constitute a structure as we deem plaintiffs have waived that issue. 107 Ill. 2d R. 341(e)(7); Dunn v. Baltimore & Ohio R.R. Co. (1987), 162 Ill. App. 3d 97, 515 N.E.2d 1027.

Plaintiffs contend that a system which consists of television cable attached to wooden poles should be considered as a structure for purposes of the Structural Work Act because such systems are extremely large, covering entire counties, are permanent in nature, and involve overhead erection and suspension of materials. Plaintiffs rely primarily on Wood v. Commonwealth Edison Co. (N.D. Ill. 1972), 343 F. Supp. 1270, which plaintiffs contend involves a situation closely analogous to that before us. Plaintiffs also point out that other jurisdictions have affirmatively answered the question of whether a system of poles and wires constitutes a structure. Plaintiffs cite the Oregon Supreme Court decision in Forbes v. Willamette Falls Electric Co. (1890), 19 Or. 61, 23 P. 670, in which poles planted in the ground connected together with wires and insulators were held to constitute a structure for purposes of a mechanic's lien statute applying to structures similar to those enumerated in the Structural Work Act. Plaintiffs argue that the ease with which the Oregon court in Forbes determined the existence of a structure is ...


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