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06/23/94 DOLORES HESSELINK v. R.L. PERLOW

June 23, 1994

DOLORES HESSELINK, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF ROBERT L. HESSELINK, DECEASED, AND AS MOTHER AND NEXT FRIEND OF CHAD HESSELINK, A MINOR, DEE STOKES, AMY HESSELINK AND JODI HESSELINK, PLAINTIFF-APPELLANT,
v.
R.L. PERLOW CORPORATION, A CORPORATION; NERCON ENGINEERING & MANUFACTURING, INC., A CORPORATION; AND OVERHEAD MATERIAL HANDLING, INC., A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Aaron Jaffe, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Theis, Hoffman, Johnson

The opinion of the court was delivered by: Theis

JUSTICE THEIS delivered the opinion of the court:

Plaintiff Dolores Hesselink appeals from an order of the circuit court of Cook County granting summary judgment in favor of all defendants on her action for damages arising from the death of her husband, Robert Hesselink ("Hesselink"). Hesselink was electrocuted when he came into contact with an energized metal rod which he was repositioning while working atop a metal scaffold. Plaintiff, as special administrator of Hesselink's estate, brought this action based on alleged violations of the Structural Work Act. (Ill. Rev. Stat. 1985, ch. 48, pars. 60-69.) The primary issue on appeal is whether a metal scaffold conductive to electricity constitutes a safe and suitable structural device under the Structural Work Act for the kind of work in which the decedent was engaged at the time of his death. Because a question of fact exists as to whether the conductive nature of the scaffold proximately caused the decedent's electrocution, we reverse the circuit court's grant of summary judgment and remand the matter for trial.

FACTUAL AND PROCEDURAL BACKGROUND

On August 13, 1986, Hesselink was electrocuted while installing an indoor overhead crane in a storage facility owned by R.L. Perlow Corporation ("Perlow"), a wholesaler of structural steel. Perlow had contracted with Overhead Material Company, a general contractor, for the purchase and installation of a five-ton capacity, indoor overhead crane to replace a smaller capacity crane in Perlow's South Chicago storage facility. One of the subcontractors that assisted with the installation process was Hesselink's employer, J.C. General Construction.

In order to accommodate the installation of the new crane, J.C. General Construction had to widen the distance between the existing runway and the "bus bar," an insulated metal rod which transmits electricity. This bar, which was located adjacent to the tracks upon which the overhead traveling crane rides, provided the electrical current necessary to energize the crane. Because of size differences between the cranes, the bus bar had to be moved.

On the day of the accident, Hesselink was repositioning the bus bar. He was working on top of a makeshift scaffold consisting of a metal platform mounted on the prongs of a forklift truck supplied by Perlow. When Hesselink encountered some steel equipment in his pathway, he interrupted his work and told his boss that he was going to use the smaller overhead crane to move the obstructing material. Hesselink went to the switch box controlling the bus bar power, turned the power on, and moved the equipment. Apparently forgetting to turn off the power, he returned to his work atop the makeshift scaffold. When he touched the energized bar, he was electrocuted and died.

Plaintiff Dolores Hesselink brought this action against defendants, alleging violations of the Illinois Structural Work Act. Plaintiff alleged that defendants violated the Act by failing to provide adequate scaffolds and to erect them in a safe area; by placing the scaffold upon which the decedent was working in close proximity to an energized high voltage power line; and by providing a scaffold to be used in the vicinity of energized high voltage circuits that was unsafe because it was not grounded.

Defendants moved for summary judgment, contending that the Act does not contemplate risks of injuries due to electrocution. Defendants argued that the scaffold upon which Hesselink was working neither fell down, collapsed, nor proximately caused his death. Defendants asserted that Hesselink's death resulted not from any failure of a scaffold, but rather from electrocution.

Plaintiff responded that the scaffold was a cause of the electrocution because it was made of conductive material. Plaintiff submitted an affidavit of Dr. Louis Jacobs, a registered architect and professional engineer specializing in the field of construction safety, who asserted that the scaffolding for the work involved in this case should have been constructed of wood and not metal. Dr. Jacobs further asserted that the scaffolding was neither safe nor suitable for the work being performed.

Plaintiff also submitted an affidavit from Robert Freund, a licensed professional electrical engineer, who asserted that he is an expert in electrical matters relating to safety, fire, and construction. Freund asserted in his affidavit that he believed Hesselink died when one of his hands came into contact with the energized bus bar and the other hand then completed the circuit to ground by coming in contact with some conductive material. Freund also asserted that the scaffold upon which Hesselink was working at the time of his death was neither safe nor suitable because it was constructed of conductive material.

Relying upon the testimony of the medical examiner who conducted the post-mortem examination, plaintiff argued that one could reasonably infer that Hesselink was electrocuted when his right hand came into contact with the energized bus bar while his left hand was touching the metal railing of the scaffold. The medical examiner testified at his deposition that the electrical current travelled from one of Hesselink's hands through the chest and heart to the other hand. The examiner observed that electrical burns were found on the palm of Hesselink's left hand. ...


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