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03/31/94 DAVID ONSEN v. COMMONWEALTH EDISON COMPANY

March 31, 1994

DAVID ONSEN, PLAINTIFF-APPELLANT,
v.
COMMONWEALTH EDISON COMPANY, AN ILLINOIS CORPORATION, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois. No. 90-L-94. Honorable Robert L. Carter Judge, Presiding.

As Modified on Denial of Rehearing May 24, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Peg Breslin, Justice, Honorable Tom M. Lytton, Justice

The opinion of the court was delivered by: Lytton

MODIFIED ON DENIAL OF PETITION FOR REHEARING

JUSTICE LYTTON delivered the opinion of the court:

This appeal presents the issue of whether an employer's failure to provide a hoist for the purpose of removing materials from a work site can provide the basis for a claim under the Structural Work Act (Act). (740 ILCS 150/0.01 et seq. (West 1992).) For reasons stated below, we find that it does and reverse the trial court's entry of summary judgment dismissing plaintiff's complaint and remand for further proceedings.

Plaintiff, David Onsen, was employed as a laborer for Morrison Construction Company. On March 26, 1988, Onsen was working on the renovation of the Unit Two Nuclear Reactor at the LaSalle Nuclear Power Station of defendant, Commonwealth Edison. Onsen was engaged in the removal of snubbers, which are large pipes, 12 feet long, containing coil springs and weighing approximately 300 pounds. Onsen was familiar with the procedure for removing the snubbers, as he had removed around 30 of them at the site prior to this occurrence.

The snubber at issue was situated about two feet off the ground. Onsen and a coworker unbolted the mountings located on the ends of the snubber and lowered it to the ground. Onsen intended to move the snubber to another location in the facility with the assistance of his coworker. Because of congestion caused by pipes and other items in the work area, Onsen asked the foreman if the items could be moved out of the way so that they could get a hoist in to move the snubber. The foreman consulted one of defendant's employees who responded that the items would not be removed. The foreman instructed Onsen to go ahead and move the snubber as best they could. Onsen and his coworker intended to attach nylon straps to the snubber to transport it out of the drywell area. As Onsen picked up one end of the snubber in order to slip the nylon strap around it, he felt a "pop" in his back, which was later diagnosed as a "central herniated lumbar intervertebral disc" injury.

Onsen filed a one-count complaint against defendant based on the Act. The trial court granted defendant's motion for summary judgment (735 ILCS 5/2-1005(c) (West 1992)) and Onsen appeals.

Onsen argues that the trial court erred in granting defendant's motion for summary judgment because the Act was designed to provide a cause of action for workers injured when engaged in an ultrahazardous activity where the party in charge of and control of the work failed to provide a device enumerated in the Act. Onsen was working in a nuclear power plant and was required to wear protective clothing; he was engaged in an ultrahazardous activity under the control of defendant. He alleges that he was injured as a result of defendant's failure to provide a hoist, an enumerated device under the Act.

Defendant responds that Onsen's activity was not covered under the Act, that the mere lifting of an object has no connection to the hazards posed by the device.

In order for a trial court to grant a motion for summary judgment, the pleadings, depositions and affidavits must show that there is no genuine issue of material fact. (735 ILCS 5/2-1005(c) (West 1992).) Summary judgment is proper when the parties agree upon the facts, but dispute the correct construction of the Act and whether the facts sustain a cause of action. ( American National Bank & Trust Company of Chicago v. National Advertisement Company (1992), 149 Ill. 2d 14, 22, 594 N.E.2d 313, 171 Ill. Dec. 461.) Whether the Act covers the plaintiff's injuries is a matter of statutory construction and therefore a question of law for the court. ( American National Bank, 149 Ill. 2d at 22.) When an appeal is taken from a summary judgment order, our standard of review is de novo. Myers v. Health Specialists, S.C. (1992), 225 Ill. App. 3d 68, 72, 587 N.E.2d 494, 167 Ill. Dec. 225, appeal denied 145 Ill. 2d 635.

The Structural Work Act provides, in relevant part, as follows:

"All * * * hoists * * * erected or constructed by any person, firm or corporation in this State for the use in * * * repairing * * * of any * * * building * * * 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 proper and adequate ...


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