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04/12/89 Edward Peter Gannon Et Al. v. Commonwealth Edison

April 12, 1989

EDWARD PETER GANNON ET AL., PLAINTIFFS-APPELLANTS

v.

COMMONWEALTH EDISON COMPANY ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

537 N.E.2d 994, 182 Ill. App. 3d 228, 130 Ill. Dec. 665 1989.IL.512

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

APPELLATE Judges:

JUSTICE McNAMARA* delivered the opinion of the court. FREEMAN, P.J., and WHITE, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Plaintiffs, Edward Gannon and Judith Gannon, brought this action against defendants, Westinghouse Electric Company and Commonwealth Edison Company, seeking recovery for injuries suffered when Edward slipped while working at a construction site. Only one count of their complaint is involved in this appeal. In that count, plaintiffs alleged that defendants violated the Structural Work Act (Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69). The trial court granted defendants' motion for summary judgment as to that count. Plaintiffs appeal, urging that Edward's injuries occurred while performing an activity within the scope of the Structural Work Act.

Edward was employed by Phillips Getschow Co. as a pipefitter. On September 3, 1981, he was working at Commonwealth's Braidwood Power Station in Braidwood, Illinois. At that time, construction of the power station was under the control and supervision of several companies, including Westinghouse. Edward and his partner were working in the turbine building. They were transferring channel beams from one area to another area for stockpiling. The channel beams, seven to eight feet in length, are transferred from a "tub" by an overhead crane. The beams are brought up to the working platform, elevation 451 (a permanent floor), and are loaded into a cart. Workers then manually unload the beams from the cart. As Edward and his partner were picking up one of the beams from the cart, Edward's right foot skidded. He immediately felt pain across his back and down to his feet. Edward noticed oil, grease or water on the floor where he slipped.

Plaintiffs brought a three-count action against defendants. Count I of the complaint alleged a violation of the Structural Work Act. Westinghouse, joined by Commonwealth, filed a motion for summary judgment as to this count. This appeal arises from the order granting defendants' motion. (The remaining counts of the complaint, based on negligence and loss of consortium, presently are pending in the trial court.)

We initially consider plaintiffs' contention that there is a triable issue of fact regarding whether defendants' failure to provide a crane or hoist for the unloading of the channel beams from the cart was a violation of the Structural Work Act. Defendants counter that plaintiffs' failure to make such a charge in the complaint precludes this court from considering the issue.

The complaint alleged that Edward suffered injuries on a "temporary support, which was improperly placed, constructed and/or operated and otherwise unsafe and which caused plaintiff to fall." The complaint makes no mention of the "failure to provide" theory. Moreover, plaintiffs never properly presented a motion to amend the complaint to include this theory to the trial court. Nonetheless, plaintiffs did seek leave to amend the complaint to include this issue in their response to defendants' motion for summary judgment. The trial court did not rule on plaintiffs' request, but instead ruled on defendants' motion for summary judgment as if the allegations had been included in the complaint. Thus, the trial court considered the failure to provide theory. Consequently, we will review plaintiffs' contention that defendants' failure to provide a safe, suitable and proper hoist was a violation of the Act. Our review, however, is limited to those arguments presented in the trial court. Vuletich v. Alivotvodic (1979), 73 Ill. App. 3d 927, 392 N.E.2d 663.

The Structural Work Act provides in relevant part:

"That 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. 1981, ch. 48, par. 60.)

Thus, the Act is designed to protect workers engaged in extrahazardous activities from certain risks inherent in the nature of their jobs. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 428 N.E.2d 1051.) Furthermore, our courts have recognized that the Act is intended to cover support devices used in a construction site, and, necessarily, the failure to supply the same. (Delgatto v. Brandon Associates, Ltd. (1988), 172 Ill. App. 3d 424, 526 N.E.2d 384; Carnevale v. Inland Ryerson Building Systems (1988), 169 Ill. App. 3d 740, 523 N.E.2d 1056.) Accordingly, the failure to provide a crane in conjunction with certain construction activities may be a violation of the Act. See, e.g., McNellis v. Combustion Engineering, Inc. (1974), 58 Ill. 2d 146, 317 N.E.2d 573.

Plaintiffs cite McNellis in support of their position that defendants' failure to provide a crane was a violation of the Act. In McNellis, plaintiff was fatally injured when a piece of equipment weighing 20,000 pounds fell on him as he was unloading it from a railroad car. The court found that the failure to use a crane was a violation of the Act. The court noted that the activity in question was an integral part of the entire operation of the construction and that there was ...


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