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08/23/94 WALTER MONK AND BARBARA MONK v. PHILLIP

August 23, 1994

WALTER MONK AND BARBARA MONK, PLAINTIFFS-APPELLANTS,
v.
PHILLIP KNIERIM AND WINDHAM HOMES, INC., DEFENDANTS-APPELLEES AND THIRD-PARTY PLAINTIFFS (PRAIRIE DESIGN BUILDERS, INC., AND DENNIS DAHLEN, INDIV. AND D/B/A PRAIRIE DESIGN BUILDERS, DEFENDANTS; POPKO INSULATION, INC., THIRD-PARTY DEFENDANT).



Appeal from the Circuit Court of Du Page County. No. 91-L-599. Honorable Robert K. Kilander, Judge, Presiding.

Released for Publication September 29, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Colwell, Bowman, Geiger

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL 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 plaintiffs, Walter Monk (Monk or the plaintiff) and Barbara Monk, seek to recover from the defendants, Phillip Knierim and Windham Homes, Inc., and certain other defendants, for injuries sustained when Monk, while standing and working on a floor at a residential construction site, turned to cross the floor, stepped on a board partially covering an opening in the floor, and fell down into the opening. The trial court granted the summary judgment motion of the defendants, Phillip Knierim and Windham Homes, Inc., finding that neither section 1 nor section 7 of the Act applies to the facts of this case. The trial court specifically found that there was no evidence that the basement stairway cut, into which Monk fell, was used by "elevating machines or hoisting apparatus" within the meaning of section 7 of the Act. The court further found that the floor upon which Monk was standingand walking at the time of his injury was not "scaffolding" or a "support" as defined in the Act.

The plaintiffs appeal from the order granting summary judgment. On appeal, the plaintiffs argue that the trial court's order granting the defendants' motion for summary judgment should be reversed because Monk was using the floor for support at the time of the occurrence, and defendants owed him a duty under the Act to furnish him with a safe means of support. We reverse in part and affirm in part.

The facts in this case are undisputed. Monk was on the jobsite to perform insulating duties for his employer, Popko Insulation. On March 1, 1990, the plaintiff began work at 8 a.m. at a three-story house under construction on the side of a hill. One would walk into the basement living area from the rear of the house and then walk up to the first floor. The first floor was unfinished and only rough plywood had been laid down. Drywall had not yet been put up. The occurrence took place at approximately 2:30 p.m.

The first floor had an open area about 6 to 7 feet long and 3 to 3 1/2 feet wide. This opening was for a stairway located between the family room and dining room of the house. This opening was used to get materials into the basement at the time of the occurrence. Stairs had not been installed in the opening.

Monk was standing near the opening feeding insulation material to a co-worker who was standing on a scaffold which was sitting on the floor. Monk backed up with the intention of going to the garage to obtain more insulation. There was a board sitting across one corner of the opening which covered that corner of the hole. The board was a 2 by 6 or 2 by 8 and was a couple of feet long. Monk was aware of the opening since earlier in the day he and a co-worker covered the opening with plastic wrap to keep the cold air out. As Monk turned or began to pivot, his right foot left the board and he began to fall through the opening. The board moved or shifted as he stepped on it. The board was not nailed down and Monk did not know who put it in place. Monk fell 12 feet to the basement floor below.

Monk and his then wife filed suit against defendants, both under the Structural Work Act and for negligence. Defendants Knierim and Windham Homes, Inc., filed a motion for summary judgment as to the Structural Work Act counts. The complaint was amended after the motion was filed, but the motion stood as to the amended complaint. The defendants' motion addressed counts I and V of that complaint. The motion contended that the Act did not apply because the plaintiff was not using the floor as a support. The depositions of the plaintiff and of his supervisor were filed, as were the affidavits of theplaintiff and the plaintiffs' expert witness. The plaintiffs' expert witness opined that the floor did not furnish adequate support, given the existence of the opening and that the opening was used as a hoistway.

The trial court heard argument on February 23, 1993, and entered judgment in favor of defendants Knierim and Windham on the Structural Work Act counts on March 2, 1993. On May 21, 1993, an order was entered making the summary judgment final and appealable. It is from the order of March 2, 1993, granting the defendants' motion for summary judgment, that the plaintiff appeals.

In its March 2 order, the trial court noted that the plaintiff was arguably using the floor as a support when he was handing up materials moments before the fall, but was only using the floor as a pathway when he turned to walk and get materials. The court found in part:

"The court is aware of authority which instructs that workmen injured while using a floor as a pathway simply going from place to place will not come under the protection of the Act; the Court is also aware of authority which holds that under certain circumstances, a sub-floor, or partially completed floor is considered a scaffold or temporary support, and does fall within the Act's protection. The key in deciding whether the Act applies is found by determining the intended use of the device at the time of the injury, and in determining whether that work-related use was a 'highly dangerous activity', or 'extra hazardous work', and of a type intended of legislative protection.

Seconds before his fall, Plaintiff was arguable [sic] using the floor as a 'support' while handing insulation up to his co-worker on a scaffold; at the time of the fall, plaintiff was using the floor as a pathway to obtain ...


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