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09/27/89 Thomas Delgatto Et Al., v. Brandon Associates

September 27, 1989





545 N.E.2d 689, 131 Ill. 2d 183, 137 Ill. Dec. 36 1989.IL.1511

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Myron T. Gomberg, Judge, presiding.


JUSTICE WARD delivered the opinion of the court.


The plaintiffs, Thomas L. and Ann Marie Delgatto, commenced an action in the circuit court of Cook County against Brandon Associates, Ltd., and other defendants, to recover for injuries Thomas Delgatto sustained in the renovation of a building in Chicago. At the time of the injury, he and a co-worker were assembling an air duct system to be used in the heating and air conditioning system of the building. They took a 90-inch-long piece of the ductwork system and stood it upright against an adjacent wall. The injury occurred when, as the plaintiff moved a disconnected radiator away from the wall and across the floor to clear the assembly and installation area, the ductwork fell, striking the plaintiff and knocking him into the radiator.

Count III of the complaint, the only count involved in this appeal, asserted a claim under the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.), alleging that the sole remaining defendant, Brandon Associates, Ltd., had violated the Structural Work Act in one or more of the following ways:

"a. Failed to provide a proper support for the piece of duct work thereby rendering said duct work in an unstable position;

b. Provided a scaffold, support or other mechanical contrivance, for the support of the duct work which was unstable and unsteady;

c. Failed to provide a scaffold, support or other mechanical contrivance for the support of the duct work which could have safely and adequately supported the duct work while the plaintiff was working in that area;

d. Failed to provide the plaintiff with an adequate support, scaffold, or other mechanical contrivance which could have enabled him to avoid being hit by the duct work on the date of the accident."

The defendant's answer denied these allegations. Thereafter, on March 10, 1986, the defendant filed a motion for summary judgment directed to this count. The motion was supported by the deposition of the plaintiff. The gist of this testimony was that the duct had been on the ground where he was putting "duct mate" between the pieces of ductwork in order to join them. About five pieces had been joined when he and his co-worker stood that segment up against the wall because they had one side finished and had to turn it over to fasten the other side. He always stood elbow ductwork up like that when he worked on it, and it had never fallen in the past. He had no idea why it fell on this occasion. No one had pushed it or shoved it.

The hearing on the summary judgment motion was held on July 7 and 8. At that hearing, noting that discovery was to remain open until late August, the plaintiff requested a continuance to obtain expert affidavits. The trial Judge stated that the plaintiff could earlier have made a request of the court under Rule 191(b) (107 Ill. 2d R. 191(b)) and the plaintiff's failure to do so should, in his discretion, preclude the plaintiff's being granted a continuance. The court granted summary judgment on count III for the defendant. A motion to vacate by the plaintiff supported by the affidavit of the plaintiff and of an expert, together with other material, was denied after the affidavits had been stricken for failure to comply with Rule 191(b), and the order was certified for appeal under Rule 304 (107 Ill. 2d R. 304). (All claims were not disposed of by the judgment entered.)

The appellate court reversed. (172 Ill. App. 3d 424.) It held that the ground of the defendant's motion was that it had no duty to provide the plaintiff with a device to either support the ductwork itself, or to prevent the ductwork from striking the plaintiff, and for that reason was, in reality, "a motion for judgment on the pleadings masquerading as one for summary judgment." Treating the motion as a motion with respect to pleadings under section 2 -- 615 of the Code of Civil Procedure, the court held that the allegation of a failure to provide stays or supports to prevent the piece of ...

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