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11/14/88 Harold Meyer, v. Caterpillar Tractor

November 14, 1988








533 N.E.2d 386, 179 Ill. App. 3d 268, 127 Ill. Dec. 514 1988.IL.1643

Appeal from the Circuit Court of Cook County; the Hon. James A. Geroulis, Judge, presiding.


JUSTICE PINCHAM delivered the opinion of the court. LORENZ, P.J., concurs. JUSTICE MURRAY, specially Concurring.


Plaintiff, Harold Meyer, brought this action to recover damages for an injury to his knee suffered while working as a millwright for defendant Engineered Structural Products, Inc. . Plaintiff alleged a violation of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60) and also named as defendants Caterpillar Tractor Company (Caterpillar) and Frazier Manufacturing Corp. (Frazier), which sought indemnity from ESP. The jury awarded $900,000 to plaintiff and found against defendants Caterpillar and Frazier on the indemnity claim. Defendants appeal from this judgment.

On appeal, defendants contend that: (1) plaintiff's cause of action is not authorized under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60); (2) defendants were denied a fair trial by plaintiff's introduction of the opinion testimony of five previously undisclosed expert witnesses on the "unsafeness" of the procedure used in unbundling the storage racks during which plaintiff's injury occurred; and (3) the $900,000 verdict of the jury was grossly excessive for the knee injury sustained by the plaintiff. The facts developed at trial follow.

In 1976, defendant Caterpillar purchased a storage rack system from defendant Frazier. Frazier subcontracted the fabrication, delivery and installation of the racks to defendant ESP. ESP manufactured and installed the rack system. Plaintiff was employed as a millwright for ESP in the installation of the storage rack system at Caterpillar.

On September 8, 1976, plaintiff walked up to a bundle of storage racks sitting on the curb at Caterpillar. Suddenly plaintiff heard a snap and a shout "[It's] coming at you." The bundle of storage racks began to tip over. Plaintiff tried to move away to avoid the racks falling on him but he fell. Plaintiff's knee hit the curb. Despite plaintiff's attempt to grab the bundle of storage racks, they toppled over and fell on plaintiff's knee and injured it. He was treated at Mercy Center's emergency room, where surgery was performed and his leg placed in a cast. Plaintiff remained in the hospital until September 13, 1976, a period of five days.

The defendants argue that plaintiff is not entitled to recovery under the Structural Work Act because: the storage racks that were involved in his injury only supported material and they did not support workmen and the Structural Work Act applies only to structures intended to support workmen and not materials. Defendants additionally argue that even if the Structural Work Act applies to devices intended to support materials, plaintiff still is not entitled to recover for his injuries because the materials which fell on him were placed on the wrong side of the storage racks and not because the storage racks were not properly supported. Defendants also contend that the Structural Work Act as construed and applied by the trial court in this case was so vague and arbitrary that defendants were denied due process. We disagree with each of these contentions by the defendants.

"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 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."

Illinois courts have held that the purpose of the Structural Work Act is to protect workers who are employed in extrahazardous conditions on the construction site from injury while working on, by, or under scaffolds and other support devices. A violation of the Act may occur from the failure to provide a safe scaffold or support device or the failure to provide any scaffold or support device at all, where one is required. The Act should be liberally construed to effectuate its purpose. Prange v. Kamar Construction Corp. (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889; Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051.

In the present case, the plaintiff was injured because the defendants failed to provide a safe, suitable, and proper support for a bundle of storage racks weighing approximately 2,000 pounds which tipped over onto plaintiff, causing severe and permanent injury to his left knee. The defendants admit that the plaintiff's injury occurred when the storage racks fell on plaintiff at the construction site. A defense raised by the defendants in their brief is that "[the] theory of recovery advanced by plaintiff does not as a matter of law authorize recovery under the Structural Work Act." This contention is based upon the defendants' further contention that "[the] Structural Work Act applies only to devices intended to support workmen" and does not apply to devices which are intended to support materials on the construction site.

These contentions of the defendants' are fallacious. The Structural Work Act is intended to cover support devices used on the construction site whether their purpose is to support workmen or materials. In Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051, this court considered this precise contention raised by the defendants herein and rejected it. In Urman, the plaintiff, an iron-worker, was injured when a 600-pound steel roof truss, which a fellow worker was attaching to a sling to be hooked on to a crane for lifting to the building roof, fell on plaintiff's leg. In Urman, the defendants contended, as do the defendants in the case at bar, that under the Structural Work Act the scaffold or support involved must be one for the support of the workmen and for none other. We there pointed out defendants' contention as follows:

"Defendants strongly urge us to hold that, for purposes of Structural Work Act liability, the scaffold must be used only for the purpose of supporting workers. If a device is used for any other purpose, it would not be a scaffold and thus would not come within the coverage of the Act. Since plaintiff in this case was standing on the ground, defendants argue, he was not using a scaffold. Nor would cribbing or other 'supports' for the trusses constitute a scaffold within the Act's meaning because the purpose of such cribbing would be to support the trusses, not the workers." (Urman, 101 Ill. App. 3d at 1090.)

In rejecting the defendants' contention in Urman that the " sole relevant inquiry under the Act is whether the injury-causing device can be classified as a working platform for persons" (101 Ill. App. 3d at 1093), this court reviewed the prior decisional law analyzing the Structural Work Act.

The analysis review in Urman began with Matthews v. Commonwealth Edison (1980), 90 Ill. App. 3d 1024, 414 N.E.2d 147, which held that the Structural Work Act covered only injuries caused by a faulty device used to support workmen. In Urman, this court criticized the Matthews decision, saying that the declaration in Matthews that the Structural Work Act was limited only to cases involving faulty supports for workers was not supported by the citation of any authorities, and there are not any cases which so hold. This court further stated in Urman that the rationale employed by the Illinois Supreme Court in Structural Work Act cases contradicted the holding of Matthews.

In Navlyt v. Kalinich (1972), 53 Ill. 2d 137, also considered and discussed by the court in Urman, the support device was a type of "lateral stays, supports, shorings, or other mechanical contrivances" which would have prevented the walls of a trench from collapsing and killing a worker who was installing sewer tiles in a trench. In McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, also considered and discussed by the court in Urman, the support device was a crane which should have prevented a 2,000-pound metal pedestal from falling on the worker and killing him while he was unloading equipment. In Urman, this court observed:

"Like the situations in McNellis and Navlyt, the instant facts involve the failure to provide a support device. The crane mentioned in McNellis, if properly used, would have functioned as a support for materials, not workers. The shoring that was not provided in Navlyt likewise would have functioned as 'stays' or 'supports' rather than scaffolds.

Therefore, even though McNellis and Navlyt were primarily concerned with another aspect of the Act, the reasoning of both cases supports plaintiff's position." (Urman, 101 Ill. App. 3d at 1095.)

This court then held in Urman :

"[ Where ], as here, the injured party in the performance of his work is struck by unsupported trusses, he can recover if the jury determines from the evidence that he was proximately injured by the defendants' failure to provide such supports in violation of the Act." (Emphasis added.) (Urman, 101 Ill. App. 3d at 1096.)

Therefore, Urman pointedly rejected the defendants' contention in the case at bar that "[the] Structural Work Act applies only to devices intended to support workmen."

In Prange v. Kamar Construction (1982), 109 Ill. App. 3d 1125, 441 N.E.2d 889, this court again followed the holding in Urman. In Prange, the employee driver of a tractor-forklift was injured when a load of four or five 18-foot-long 500- to 600-pound poles fell off the forklift, which was attached to the front of the tractor, and onto the driver injuring him. The trial court held, on defendants' motion for summary judgment, that the tractor-forklift was not a mechanical contrivance under the Structural Work Act. On appeal, the reviewing court reversed this ruling of the trial court. The Prange court considered the defendant's assertion "that the Act was intended to apply only to support devices which are used to support workmen, thus to the exclusion of support devices for material on a construction site" (109 Ill. App. 3d at 1129) and said:

"The defense seeks to narrow the scope of the Act to scaffold and scaffold-like devices. Matthews is cited in support of this argument and interpretation. Such a reading of the Act is much too narrow. It has recently been pointed out that Matthews ' narrow construction of the Act in this regard is not supported by any case authority and runs contrary to the express language of Section 60. [Citation.] . . .

A narrow reading of the Act, focusing upon workman support devices only, ignores that the primary function of hoists, cranes and stays is not as support for men, but rather for materials. Those devices are specifically enumerated in the Act. Furthermore, as the Urman [court] points out, the statutory language indicates a desire to protect workmen in, on, around and under support devices for materials on a construction site. We conclude, as did the Urman court, that the Act is intended to cover support devices used on a construction site, whether their purpose is to support workmen ...

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