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STARTZ v. TOM MARTIN CONSTR. CO.

April 21, 1993

MICHAEL J. STARTZ, Plaintiff,
v.
TOM MARTIN CONSTRUCTION CO., INC., and AUTO AUCTION, INC., Defendants.


Kocoras


The opinion of the court was delivered by: CHARLES P. KOCORAS

CHARLES P. KOCORAS, District Judge:

 This matter is before the Court on defendant's motion to dismiss Count I of plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons set forth below, the motion is denied.

 BACKGROUND

 Plaintiff, Michael J. Startz ("Startz"), a citizen of the State of Illinois, filed a two count personal injury action in circuit court against defendants, Tom Martin Construction Co., Inc. ("Martin Construction"), a Kansas corporation, and Arena Auto Auction Inc., a Delaware corporation. The defendants filed a notice of removal with the clerk of this Court. This suit arises from personal injuries allegedly suffered by Startz when he fell on an icy sheet roof at a construction project. Count I of Startz's complaint alleges violations of the Illinois Structural Work Act, Ill. Rev. Stat., ch. 48, paras. 60-69 ("Structural Work Act"). Count II alleges that defendants' negligent acts and/or omissions caused Startz to slip and fall, and thereby caused him to sustain severe and permanent injuries.

 As alleged, on and before December 5, 1990, the defendants owned and/or were in charge of the erection, construction, repairs, alteration, removal and/or painting of a certain building or other structure located at Routes 53 and 55 in the Village of Bolingbrook in the State of Illinois. Startz was employed by Star Erectors on these premises in furtherance of this work. The defendants, individually and through their agents, servants and employees, were allegedly present during the course of such erection, construction, repairs, alteration, removal and/or painting and participated, inter alia, in coordinating the work being done and in the inspection of the work. Moreover, the defendants allegedly had the authority to stop the work, refuse the work, and order changes in the work in the event the work was being performed in a dangerous manner or for any other reason.

 As set forth in Count I of the complaint, on December 5, 1990, Startz was required, as part of his duties and responsibilities, to work in the early morning hours on a slippery roof sheet being used in the aforesaid erection, construction, repairs, alteration, removal, and/or painting. While working on the icy roof sheet, Startz slipped and fell, proximately causing him severe and permanent injuries as well as great pain and anguish. As alleged, the defendants wilfully violated the Structural Work Act in one or more of the following ways: (a) failed to erect a safe, suitable and proper temporary support for the protection of Startz and others like him; (b) failed to erect a safe, suitable and proper scaffold for the protection of Startz and others like him; and (c) required Startz to work on a slippery roof sheet in the early morning before the sun melted the ice.

 In Count II of his complaint, Startz further alleges that each of the defendants had a duty to exercise reasonable care in the erection, construction, placement, or operation of the construction site, including the provision of a safe, suitable and proper roof sheet for Startz and the other workers. Notwithstanding their duty, defendants, by and through their agents, servants and employees, allegedly engaged in one or more careless and negligent acts and/or omissions, which proximately caused Startz's slip and fall and subsequent injuries.

 Defendant Martin Construction presently moves to dismiss Count I of Startz's complaint, which purports to state a claim under the Structural Work Act. In support of its present motion, Martin Construction argues that the Occupational Safety and Health Act of 1970, ("OSHA" or "OSH Act"), 29 U.S.C. § 651 et seq. (1985), preempts, and therefore makes unenforceable, the Illinois Structural Work Act in view of the Supreme Court's recent decision in Gade v. National Solid Wastes Management Association, 120 L. Ed. 2d 73, U.S. , 112 S. Ct. 2374 (1992). Startz, in turn, contends that OSHA does not preempt his claims for personal injuries under the Structural Work Act for a number of reasons including Congress' express preservation of his cause of action by virtue of OSHA's "savings" provision, 29 U.S.C. § 653(b)(4) (1985) ("Section 653(b)(4)").

 In consideration of the parties' arguments and the pertinent case law, this Court agrees with Startz that Section 653(b)(4) of OSHA operates to save his claim for damages under the Structural Work Act, and we deny Martin Construction's motion to dismiss on this basis. *fn1"

 ANALYSIS

 As recently articulated by the Supreme Court in Gade, pre-emption may be either expressed or implied, and "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose." 112 S. Ct. at 2383 (citations omitted). "Our ultimate task in any preemption case is to determine whether state regulation is consistent with the structure and purpose of the statute as a whole." Id.

 With respect to OSHA, the Supreme Court stated, "The OSH Act as a whole evidences Congress' intent to avoid subjecting workers and employers to duplicative regulation; a State may develop an occupational safety and health program tailored to its own needs, but only if it is willing to completely displace the applicable federal regulations." Id. at 2384. Accordingly, the Supreme Court concluded, "looking at the provisions of § 18 as a whole, we conclude that the OSH Act precludes any state regulation of an occupational safety or health issue with respect to which a federal standard has been established, unless a state plan has been submitted and approved pursuant to § 18(b)." Id. at 2385.

 In reaching this conclusion, the Supreme Court first set forth the following overview of OSHA, which informs ...


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