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03/29/94 ROBERT OSBORNE v. TIM TARWATER

March 29, 1994

ROBERT OSBORNE, PLAINTIFF-APPELLANT,
v.
TIM TARWATER, INDIV. AND D/B/A TARWATER CONCRETE, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 91-L-1335. Honorable Robert K. Kilander, Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Geiger, Inglis, Colwell

The opinion of the court was delivered by: Geiger

JUSTICE GEIGER delivered the opinion of the court:

This action was brought pursuant to the Structural Work Act (the Act) (740 ILCS 150/1 et seq. (West 1992)). The plaintiff, Robert Osborne, seeks to recover from the defendant, Tim Tarwater, individually and doing business as Tarwater Concrete, for injuries sustained when he walked on a floor and fell through an insulation-covered hole at a residential construction site. The trial court granted the defendant's motion for summary judgment, finding that the insulation-covered hole and surrounding floor were not "scaffolding" or a "support" as defined in the Act.

The plaintiff appeals from the order granting summary judgment. On appeal, the plaintiff argues that the trial court's order granting the defendant's motion for summary judgment should be reversed because the floor that he was walking on was a "support" within the meaning of the Act. We affirm.

The facts in this case are undisputed. Tarwater was a concrete contractor responsible for the pouring of a cement basement floor ata residential construction site in Darien, Illinois. The plaintiff was employed as a laborer by the rough carpentry subcontractor on the same construction site.

On April 7, 1990, the two-story, single-family dwelling was "roughed in." Within the interior, there was a complete plywood floor with a hole cut in it to accommodate a staircase from the basement to the main floor. On the same date, the plaintiff performed clean-up duties and placed electrical cords for other workers at the construction site. At the time he was injured, the plaintiff was walking across the plywood subflooring on the first floor to a stairway beyond the insulation board. He intended to go to the second floor to pick up electrical cords and tools before he went home.

As the plaintiff walked toward the stairway, he stepped on a hole covered by insulation and fell into the basement. At the time the plaintiff fell through the hole, he was not doing anything other than walking from the window from which he entered the building to the stairway. The plaintiff took 8 to 10 steps from the time he entered the building to the time he fell. He did not plan to do any work in the front entryway area or near the hole. He did not plan to leave through the hole. He was simply walking past the area.

On July 5, 1991, the plaintiff filed his complaint at law naming Thomeoi Ventura as a defendant under the Act. On October 21, 1991, the plaintiff filed his amended complaint at law, alleging violations of the Act. Ventura filed a motion for summary judgment, alleging that the plaintiff used the floor as a pathway and that, therefore, his claim does not fall within the purview of the Act. On January 13, 1992, the trial court denied Ventura's motion for summary judgment.

On April 6, 1992, the plaintiff filed his second amended complaint adding a count II that named Tarwater, individually and doing business as Tarwater Concrete, as defendant alleging the same violations of the Act as alleged in the count against Ventura. On November 2, 1992, the defendant filed his motion for summary judgment, and the hearing on the motion was set for November 23, 1992. The motion was briefed, and the hearing was held on November 23, 1992. In addition, on the day of the hearing, the plaintiff voluntarily dismissed Ventura as a defendant.

On November 24, 1992, the trial court filed its order granting summary judgment for the defendant, holding that "the plaintiff was not working when injured, but was walking to a work area in a different part of the building. Therefore, this Court finds as a matter of law that the insulation covering the hole, and the floor around the hole were not 'scaffolding' or 'supports' under the Act." It is from this order of November 24, 1992, granting the defendant's motion for summary judgment, that the plaintiff appeals.

On appeal, the plaintiff argues that the trial court's order granting the defendant's motion for summary judgment should be reversed because the plywood floor that he was walking on was a "support" within the meaning of the Act. Summary judgment is appropriate where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. ...


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