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10/07/88 Paul Wellston, v. the Levy Organization

October 7, 1988

PAUL WELLSTON, PLAINTIFF-APPELLANT

v.

THE LEVY ORGANIZATION, INC., ET AL., DEFENDANTS-APPELLEES (CRESCENT CORPORATION, THIRD-PARTY DEFENDANT)



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 60, 175 Ill. App. 3d 301, 125 Ill. Dec. 142 1988.IL.1513

Appeal from the Circuit Court of Du Page County; the Hon. William E. Black, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. INGLIS and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, Paul Wellston, appeals from an order granting summary judgment to defendants The Levy Organization, Inc., The Schal Associates, Inc., Skidmore, Owings & Merrill, and the Mazur Construction Co. and to third-party defendant, the Crescent Corp. (Crescent), on count I of plaintiff's third amended complaint, which alleged violations of the Structural Work Act (Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). The sole issue raised on appeal is whether the trial court erred in ruling that the Structural Work Act was inapplicable as a matter of law to the facts surrounding plaintiff's injury.

This case arose out of an accident that occurred on February 13, 1983, during the construction of the One Magnificent Mile building in Chicago. Plaintiff was employed as an ironworker on the project by Crescent, which was a subcontractor hired to install windows in the building. Crescent's employees did not install any windows on the day of plaintiff's injury, however. At the time, the 42d floor had a roughly finished floor and outside walls, but the windows had not yet been installed and there were large, unprotected window openings through which the wind could pass. Plaintiff was part of an eight-man crew unloading window vents. Four of the men unloaded a truck on the ground floor and placed the windows on a hoist. Two other men unloaded the hoist on the 42d floor, where plaintiff and another man placed them on a cart and moved them to an area 50 to 60 feet from the hoist where they stored them for later installation. While transporting a cartload of windows, plaintiff passed a column against which were stacked 15 to 20 large metal fire doors, each weighing approximately 150 pounds. The doors were stacked vertically and were not secured to each other or to the column. As he passed the column, six of the doors fell over onto plaintiff and seriously injured him. Plaintiff did not know what caused the doors to fall and did not believe that the cart came into contact with the doors.

It is appropriate in Structural Work Act cases for a court to enter summary judgment where the relevant facts are not in dispute and the court determines that the Act is inapplicable as a matter of law to those facts. (See, e.g., Duffin v. Seibring (1987), 154 Ill. App. 3d 821, 831; Page v. Corley Cos. (1985), 131 Ill. App. 3d 56, 58.) Section 1 of the Act provides:

"[All] scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, 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, bridge, viaduct, 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, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." (Ill. Rev. Stat. 1983, ch. 48, par. 60.)

The Act affords a cause of action for injuries resulting from a willful violation of its provisions. (Ill. Rev. Stat. 1983, ch. 48, par. 69.) Plaintiff contends that his claim is cognizable under the Act on two distinct theories: (1) he was using the 42d floor of the building as a temporary "support" or" scaffold" which was rendered unsafe, in violation of the Act, by the presence of the unsupported doors; and (2) the defendants' failure to use a "stay" or "support" to support the doors themselves was a violation of the Act.

In determining whether a particular device constitutes a support under the Act, the court must focus not only on the identity of the device but on its intended use at the time of the injury. (Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 422.) The court below concluded that plaintiff was using the floor only as a floor, or pathway, and that it therefore did not constitute a support under the Act. (See, e.g., Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 370.) It is unnecessary, however, to reach that issue, as the case law additionally requires that there be some causal connection between the hazardous nature of the support devices described in the Act and the injury suffered by the plaintiff. (Tenenbaum, 60 Ill. 2d at 371; Dvorak v. Primus Corp. (1988), 168 Ill. App. 3d 625, 631; Langley v. J. L. Simmons Contracting Co. (1987), 152 Ill. App. 3d 899, 903.) Plaintiff's injury was wholly unrelated to the risks occasioned by his use of the 42d floor as a support. The floor did not fail to support plaintiff or the materials stored there. Although plaintiff was injured by falling materials, those materials did not fall from or through the floor or as a result of the improper placement or construction of the floor. (Ill. Rev. Stat. 1983, ch. 48, par. 60.) Plaintiff's use of the floor as a support therefore cannot provide the basis for a Structural Work Act claim.

The more difficult issue is whether the defendants' failure to provide a stay or support for the doors was a violation of the Act. The failure to provide a scaffold or other support device can be the basis of a Structural Work Act claim. (Louis v. Barenfanger (1968), 39 Ill. 2d 445, 449.) The trial court rejected plaintiff's theory, however, holding that the Act applies only to devices used to support workmen. There is a division of authority in the case law on this issue.

In Matthews v. Commonwealth Edison Co. (1980), 90 Ill. App. 3d 1024, the Appellate Court sitting in the First District rejected the Structural Work Act claim of a plaintiff who was injured while using a bulldozer to clear trees from an area, and one of the trees fell onto him. The court concluded that the Act does not apply to supports or mechanical contrivances used to support something other than a person. 90 Ill. App. 3d at 1027.

Another panel of the Appellate Court sitting in the First District expressly rejected Matthews in the case of Urman v. Walter (1981), 101 Ill. App. 3d 1085. In Urman, the plaintiff was injured when some trusses stacked on the uneven ground inside a partially constructed building fell over onto his leg. The testimony at trial indicated that it was a standard practice in the industry to ...


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