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VUKADINOVICH v. TERMINAL 5 VENTURE

September 22, 1993

WALTER VUKADINOVICH, Plaintiff,
v.
TERMINAL 5 Venture, a/k/a T5V, GILBANE BUILDING COMPANY, Individually and d/b/a TERMINAL 5 VENTURE, CONCRETE STRUCTURES OF THE MIDWEST, INC., CASTLE CONSTRUCTION CORPORATION, HAVENS STEEL COMPANY and MONROE TIMMONS CONSTRUCTION, INC., Defendants. HAVENS STEEL COMPANY and TERMINAL 5 VENTURE a/k/a T5V and GILBANE BUILDING COMPANY, Individually and d/b/a TERMINAL 5 VENTURE, Third-Party Plaintiffs, v. DELGADO STEEL ERECTORS, INC., Third-Party Defendant.


MAROVICH


The opinion of the court was delivered by: GEORGE M. MAROVICH

Plaintiff Walter Vukadinovich ("Vukadinovich") filed suit against Defendants Terminal Five Venture ("T5V"), Gilbane Building Company ("Gilbane"), Concrete Structures of the Midwest, Inc. ("CSM"), Castle Construction Corporation ("Castle"), Havens Steel ("Havens") and Monroe Timmons Construction, Inc. ("Timmons") (collectively "Defendants") seeking to recover for injuries he suffered when he fell through a hole in a building structure at O'Hare International Airport in Chicago. Havens, T5V, and Gilbane then filed suit as third party plaintiffs against third party defendant Delgado Steel ("Delgado"). Vukadinovich brings claims under both common law negligence and The Illinois Structural Work Act, 740 ILCS 150/1-150/9 (West 1993). Defendants have collectively moved for judgment on the pleadings *fn1" pursuant to Fed. R. Civ. P. 12(c) alleging that the Occupational Safety and Health Act of 1970 ("OSHA"), 29 U.S.C. ยง 651 (1985) preempts the Illinois Structural Work Act claims. For the following reasons, we hold that the Illinois Structural Work Act claims are not preempted by OSHA because they fall within OSHA's "savings clause."

 BACKGROUND

 Terminal Five Venture is the construction manager for the new International Terminal at O'Hare International Airport in Chicago. Gilbane Building Company is one of five joint venture partners of the Terminal Five Venture. Havens Steel contracted with T5V to fabricate and erect steel for the International Terminal. Delgado subcontracted with T5V to erect structural steel. Vukadinovich was employed by Delgado.

 On December 20, 1991 a certain concrete floor deck existed which had a hole within it. Vukadinovich was in the process of acquiring plywood for purposes of building a temporary deck to be used in the constructing process when he picked up a piece of plywood which was positioned over a hole and fell through the space. He landed approximately twenty-five feet below and suffered severe injuries.

 Plaintiff alleges that Defendants:

 
(a) Failed to install, or cause to be installed, a safe or adequate covering over said hole;
 
(b) Failed to install, or cause to be installed, barricades, saw horses, guardrails or other forms of protective devices over or around said hole;
 
(c) Failed to install, or cause to be installed, any warning signs or warning indicators around or over said hole;
 
(d) Failed to warn Plaintiff of the fact that a hole existed in said concrete deck;
 
(e) Caused a piece of plywood to be laid over said hole in the concrete deck without putting any form of warning or other protective device on top of or around said piece of plywood to indicate that a hole existed underneath same.

 Vukadinovich bases his claims on both the Illinois Structural Work Act and the common law.

 DISCUSSION

 A. Preemption

 The Supremacy Clause of the United States Constitution allows for federal law to preempt state laws in various ways. Express preemption occurs when Congress expressly states that federal law will preempt state regulations. Jones v. Rath Packing Co., 430 U.S. 519, 525, 51 L. Ed. 2d 604, 97 S. Ct. 1305 (1977). Preemption can also be implied in the absence of express language if the federal regulation is so comprehensive that no state regulation can supplement it. Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 91 L. Ed. 1447, 67 S. Ct. 1146 (1947). This type of preemption is referred to as field preemption.

 In contrast, implied conflict preemption exists when the scheme of federal regulation has not completely displaced state regulation and that state regulation conflicts to a certain extent with federal law. Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-43, 10 L. Ed. 2d 248, 83 S. Ct. 1210 (1963). The court's "ultimate task in any preemption case is to determine whether state regulation is consistent with the structure and purpose of the ...


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