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05/04/89 Gloria Barrera, As Widow v. Windy City Exteriors

May 4, 1989

BARRERA, DECEASED, PLAINTIFF-APPELLANT

v.

WINDY CITY EXTERIORS, INC., DEFENDANT-APPELLEE (COMMONWEALTH EDISON COMPANY, DEFENDANT)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

GLORIA BARRERA, as Widow of Frank Barrera, as Mother and

Next Friend of Rudolfo Barrera, et al., Minors, and

as Special Adm'r of the Estate of Frank

538 N.E.2d 773, 182 Ill. App. 3d 936, 131 Ill. Dec. 398 1989.IL.674

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

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. LINN and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Plaintiff, Gloria Barrera, as widow of Frank Barrera and mother and next of kin to his dependant children, brought an action against defendant, Windy City Exteriors, Inc., for willful violations of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.) (hereinafter the Act). The trial court dismissed plaintiff's amended complaint and count I of plaintiff's second amended complaint for failure to state a cause of action under the Act. Commonwealth Edison Company, also named as a defendant, is not a party in this appeal. The sole issue presented for review is whether the trial court erred in dismissing plaintiff's amended complaint and count I of plaintiff's second amended complaint for failure to state a cause of action under the Act.

We affirm.

Defendant, a home improvement contractor, contracted with the owner of a three-story residence for the installation of new exterior siding. Defendant engaged Frank Barrera, now deceased, to install the siding on the structure. A scaffold was erected and work commenced on August 29, 1985. While on the scaffold, Barrera picked up a section of aluminum siding. The distal end of the siding came into contact with the overhead high voltage electrical power lines. Barrera received severe electrical shock and subsequently died.

On March 19, 1986, plaintiff filed a complaint against defendants for the wrongful death of her husband. The complaint consisted of eight counts, but only count I was directed toward Windy City Exteriors. Count I alleged that defendant willfully violated the Act.

On November 17, 1986, the trial court granted defendants' motions to strike and dismiss plaintiff's complaint. In dismissing count I, the trial court found that there was no cause of action for loss of consortium under the Act.

Plaintiff then filed an amended complaint. Count I was directed toward defendant Windy City Exteriors. Plaintiff alleged willful violation of the Act in placing the scaffold dangerously close to the live overhead power lines. The trial court again dismissed count I for failure to state a cause of action. The court found that pursuant to Smyrniotis v. Brockob Construction Co. (1986), 142 Ill. App. 3d 340, and Kochan v. Commonwealth Edison Co. ...


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