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05/20/94 STEVEN E. KERKER v. GREGORY A. ELBERT

May 20, 1994

STEVEN E. KERKER, PLAINTIFF-APPELLEE,
v.
GREGORY A. ELBERT, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Woodford County. No. 92L20. Honorable Richard M. Baner, Judge Presiding.

Petition for Rehearing and/or Certificate of Importance Denied June 20, 1994. Released for Publication June 20, 1994. As Corrected June 27, 1994.

Honorable Frederick S. Green, J., Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Green

JUSTICE GREEN delivered the opinion of the court:

Pursuant to Supreme Court Rule 308(a), we granted leave to appeal in this case after the trial court denied a defense motion to dismiss a count of a complaint and found that the ruling involved "a question of law as to which there is substantial ground for a difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." (134 Ill. 2d R. 308(a).) The question of law involved was stated by the court to be:

"Whether the Illinois Structural Work Act, 740 ILCS 150/0.01 is preempted by the Federal Occupational Safety and Health Act, 29 U.S.C. 651 as to a cause of action brought by a person not employed at the workplace but engaged thereon, or passing under or by the same[.]"

In Faier v. Ambrose & Cushing, P.C. (1993), 154 Ill. 2d 384, 609 N.E.2d 315, 182 Ill. Dec. 12, the supreme court held that the appellate court erred in denying leave to appeal under Supreme Court Rule 308 and then heard the appeal and ruled by answering the legal questions to which a substantial amount of disagreement was stated to exist. The supreme court then remanded to the circuit court. A Dissent maintained that the appropriate procedure was for the court to rule upon the propriety of the order from which appeal was taken. ( Faier, 154 Ill. 2d at 387-90, 609 N.E.2d at 316-18 (Harrison, J., Dissenting).) We conclude that Faier overruled, sub silentio, our holding in Schoonover v. American Family Insurance Co. (1991), 214 Ill. App. 3d 33, 40-41, 572 N.E.2d 1258, 1262-63, 157 Ill. Dec. 794, where this court adopted the procedure explained in the Dissent.

Accordingly, we answer the question stated and certified by the circuit court by ruling that, under the circumstances set forth in the question, an action to recover damages for injuries under the Structural Work Act (Act) (740 ILCS 150/0.01 through 150/9 (West 1992)) is not preempted by the Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 et seq. (1988)).

On July 21, 1992, plaintiff Steven E. Kerker filed a single-count complaint in the circuit court of Woodford County against defendant Gregory A. Elbert. Plaintiff alleged that on April 15, 1992, at defendant's request, he was present at a site where defendant was erecting a dwelling house and, while lifting a wooden beam to be used as a scaffold, he fell through a hole in the floor and was injured. Plaintiff charged defendant with negligence. Subsequently, plaintiff was granted leave to file an amended complaint with a second count which contained many similar allegations to the previous complaint but sought recovery under the Act on the basis that defendant was in charge of the work taking place and had wilfully violated the Act in a way which was a proximate cause of plaintiff's injuries.

After various procedural maneuverings, a motion for summary judgment filed by defendant was amended to a motion for involuntary dismissal of count II pursuant to section 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619 (West 1992)). The theory of the motion was that the Act was preempted by OSHA. However, at the time the court ruled on the motion, affirmative matter before the court indicated that at the time of injury, plaintiff was a volunteer and not an employee of defendant. On October 5, 1993, the circuit court entered the order on appeal denying the motion to dismiss the complaint.

At the time the circuit court denied the motion to dismiss, the defendant asked that questions be submitted to this court as follows:

"(a) Whether the Illinois Structural Work Act, 740 ILCS 150/.01, is preempted by the Federal Occupational Safety and Health Act, 29 U.S.C. 651[.]

(b) Whether a cause of action brought by a volunteer worker is not saved by the savings provision of the Occupational Safety and Health Act[.]

Then and now, defendant has maintained that OSHA has preempted the Act in its entirety and still seeks such a determination. ...


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