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02/02/94 WILLIAM A. WEINERT AND VIRGINIA WEINERT v.

February 2, 1994

WILLIAM A. WEINERT AND VIRGINIA WEINERT, PLAINTIFFS-APPELLANTS
v.
NATIONAL ADVERTISING COMPANY, DEFENDANT-APPELLEE -- NATIONAL ADVERTISING COMPANY, THIRD-PARTY PLAINTIFF-APPELLANT V. ALL-SIGN CORPORATION, THIRD-PARTY DEFENDANT-APPELLEE



Appeal from the Circuit Court of Cook County. Honorable Paddy McNamara, Judge Presiding.

Tully, Cerda, Greiman

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

This case arises from the personal injuries incurred by plaintiff, William A. Weinert, when he fell from the top of a signboard, owned by defendant, National Advertising Company (National) and repaired by codefendant, All-Sign Corporation (All-Sign), plaintiff's employer. Plaintiff filed suit against National, alleging negligence and violations of the Structural Work Act (the Act) in its maintenance of the billboard. National subsequently filed a third-party complaint against All-Sign for implied and express indemnification and breach of contract for failure to procure insurance.

All-Sign then filed a motion to dismiss the third-party complaint. On January 21, 1985, the trial court found count I stated a cause of action for implied indemnity. In the same order the court struck count III for breach of contract, but National was granted leave to amend count III. No order was entered concerning count II for contribution; moreover, the orders entered were not final and appealable orders, since the case had not been disposed of and a cause of action was still pending.

On November 21, 1989, National obtained a final order of summary judgment, but as to count III, the trial court specifically granted leave to amend this count. On July 6, 1990, National was given leave to amend its Second Amended Third-Party Complaint, which was filed on July, 6, 1990. This complaint essentially restated the prior counts against All-Sign. On December 7, 1990, the trial court, pursuant to All-Sign's motion, dismissed the entire Second Amended Third-Party Complaint.

On review, we initially consider the underlying cause of action as between plaintiff and defendant. Should we find that the trial court improperly entered summary judgment for defendant on plaintiff's cause of action, we would then need to consider whether National's claims for contribution and indemnity were improperly dismissed.

Plaintiff was employed by All-Sign to do work on a billboard sign, owned by National, located near 163rd Street and I-294 in Markham, Illinois. While working on the sign, plaintiff fell and suffered numerous injuries. According to plaintiff's complaint, National was negligent in that it failed to equip the sign with adequate guard rails, angle irons or hooks, and failed to provide an access road to the bill board, thus, preventing proper erection of a scaffold via the use of plaintiff's truck. Plaintiff was engaged in hoisting the sign facing by means of a wire, for purposes of affixing it to the billboard structure.

Defendant failed to equip the billboard with platforms or catwalks and failed to provide an access road to the sign so that it could be serviced properly. Plaintiff also alleged violations of the Act.

I. SUMMARY JUDGMENT AGAINST PLAINTIFF

The trial court entered summary judgment in National's favor, finding there existed no genuine issue of material fact. In order for plaintiff to hoist the display facing, it was necessary that he stand on top of the sign. The wire holding up the sign then snapped, causing plaintiff to fall to the ground approximately fifty feet below.

The Act reads in pertinent part:

"All scaffolds, hoists, cranes, stays, ladders, supports * * * erected or constructed * * * 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 the 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. 1983, ch. 48, par. 60.

The Act also expressly creates a private cause of action to anyone injured thereunder. The applicability of the Act turns upon whether or not the billboard in itself could be considered a "scaffold" or "other structure" to ...


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