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05/25/94 DAVID K. MILLER AND MARSHA MILLER v.

May 25, 1994

DAVID K. MILLER AND MARSHA MILLER, PLAINTIFFS-APPELLANTS,
v.
ARCHER-DANIELS-MIDLAND COMPANY, A FOREIGN CORPORATION, AND ALL TRI-R, INC., A FOREIGN CORPORATION, DEFENDANTS-APPELLEES, AND ARCHER-DANIELS-MIDLAND COMPANY, A FOREIGN CORPORATION, THIRD-PARTY PLAINTIFF, V. R & R GENERAL CONTRACTORS, INC., THIRD-PARTY DEFENDANT.



Appeal from Circuit Court of Macon County. No. 91L224. Honorable John K. Greanias, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

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

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In August 1991, David and Marsha Miller filed their initial complaint against defendants, Archer-Daniels-Midland Company (ADM) and All Tri-R, Inc. (Tri-R), based on common law negligence and the Structural Work Act (Act) (Ill. Rev. Stat. 1989, ch. 48, pars. 60 through 69) to recover damages sustained when David Miller (Miller) fell through a man lift opening. After plaintiffs filed an amended complaint, the trial court granted summary judgment in favor of defendants, concluding that (1) this lawsuit did not fall within the Act, and (2) no genuine issue of material fact existed regarding the negligence claim. Plaintiffs appeal, and we affirm.

I. BACKGROUND

The record before the trial court on the issue of summary judgment discloses the following facts. In September 1989, Miller was working his fourth or fifth day for R & R General Contractors, Inc. (R & R), at ADM'S Industrial Isolate Building, which was under construction. ADM owned the property and coordinated the contractors doing the construction work. Tri-R was one of three subcontractors. The flooring on which Miller worked was being installed by Tri-R; the handrails were being installed by Miller's employer, R & R.

Miller was instructed by his R & R supervisor to work with another man on the top level of the building, the fifth-floor mezzanine, to install handrailing. His duties were to follow the other worker, who was welding the handrail, with a hand-held grinder to prepare the handrail for finishing.

Miller walked up the stairs, five floors plus the mezzanine level, in the morning, but he took the man lift down on his morning break. To get to the man lift, Miller had to walk down the stairs from the fifth-floor mezzanine to the fourth floor. The man lift was not accessible from the fifth floor because it terminated at the fourth floor. However, apparatus from the man lift protruded three to four feet above the fifth floor. The hole surrounding this apparatus on the fifth floor was open and obvious, and Miller admitted he had noticed it. This hole did not have any handrailing or other guarding, and the floor surrounding it was metal grating.

Miller had worked approximately four hours before the accident occurred and had come down from the fifth-floor mezzanine once during that time for his morning break. After his morning break, Miller took the man lift back to the fourth floor and then walked up the stairs to the fifth-floor mezzanine. At lunchtime, Miller descended the stairs from the mezzanine to the fifth floor in order to take the man lift down from the fourth floor again. However, just before he reached the fifth-floor level, he remembered that he had left his jacket upstairs, and he returned to the mezzanine to retrieve it. His co-worker went ahead without him; consequently, no one witnessed the accident.

After Miller got his jacket and descended to the fifth floor, he walked toward the man lift opening, intending to take the stairs down to the fourth floor to board the man lift. He veered his course slightly in order to check the motor of the man lift (that motor had been worked on earlier, although no one was working on it at the time). Miller tripped and fell into the man lift hole and down to the fourth floor. He does not know what caused him to trip. This fall seriously injured him.

II. THE STRUCTURAL WORK ACT

After a hearing on defendants' motions for summary judgment, the trial court concluded that this action did not fall within the Act and granted summary judgment in favor of defendants on the counts alleging a violation of the Act. Miller contends the trial court erred in doing so because, at the time of injury, he was on a temporary support performing an activity covered by the Act.

A trial court should grant summary judgment when the pleadings, depositions, and affidavits show that (1) no genuine issue of material fact exists, and (2) the moving party is entitled to judgment as a matter of law. ( Vuletich v. United States Steel Corp. (1987), 117 Ill. 2d 417, 421, 512 N.E.2d 1223, 1224, 111 Ill. Dec. 586; Tracy v. Montgomery Ward & Co. (1990), 193 Ill. App. 3d 304, 307, 549 N.E.2d 984, 986, 140 Ill. Dec. 333; see also Ill. Rev. Stat. 1989, ch. 110, par. 2-1005.) Summary judgment in cases brought under the Act is appropriate "where the material facts are not in dispute and the controversy is over the proper construction of ...


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