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02/08/95 DEBRA F. GLAZIER v. AMERICAN NATIONAL BANK

February 8, 1995

DEBRA F. GLAZIER, WIDOW OF MARK J. GLAZIER, DECEASED, GINGER GLAZIER, AND ANASTASIA GLAZIER, THE MINOR CHILDREN OF MARK J. GLAZIER, DECEASED, AND DEBRA F. GLAZIER, SPECIAL ADMINISTRATOR OF THE ESTATE OF MARK J. GLAZIER, ON BEHALF OF HERSELF AND GINGER GLAZIER AND ANASTASIA GLAZIER, PLAINTIFFS-APPELLANTS,
v.
AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO UNDER TRUST NO. 67143, AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO UNDER TRUST NO. 103096-07, CHICAGO MINI STORAGE LTD. PARTNERSHIP III, A LIMITED PARTNERSHIP WITH ITS GENERAL PARTNERS GERALD M. GREENBERG AND SCOTT D. GREENBERG, GERALD M. GREENBERG AND SCOTT D. GREENBERG, INDIVIDUALLY, GERALD M. GREENBERG AND SCOTT D. GREENBERG, DOING BUSINESS AS ECD COMPANY, STS CONSULTANTS, LTD. A WISCONSIN CORPORATION DOING BUSINESS IN ILLINOIS, RICHARD PREVES, INDIVIDUALLY AND AS OWNER OF RICHARD PREVES & ASSOCIATES, INC., AN ILLINOIS CORPORATION, MARIO CONTE EXCAVATING, INC., AN ILLINOIS CORPORATION, J & R CARROZZA PLUMBING COMPANY, AN ILLINOIS CORPORATION, CUSTOM CONCRETE, INC., A DELAWARE CORPORATION DOING BUSINESS IN ILLINOIS, A. HORN, INC., AN ILLINOIS CORPORATION, CHRIS CARMINE, INDIVIDUALLY AND CHRIS CARMINE, D/B/A SWEATSHOP INDUSTRIES, MAYBRO ELECTRIC, INC., AN ILLINOIS CORPORATION, TRIUS CORPORATION, AN ILLINOIS CORPORATION, GARDI CORPORATION, AN ILLINOIS CORPORATION, WILLIAM DUGUID COMPANY, AN ILLINOIS CORPORATION, LENARCZAK HEATING & VENTILATING, INC., AN ILLINOIS CORPORATION, TONY CASSIDAY, INDIVIDUALLY AND TONY CASSIDAY D/B/A CAC DECORATING, CHARLES CONNELLI, INDIVIDUALLY AND CHARLES CONNELLI D/B/A QUIN-C COMPANY NATIONAL SURVEY SERVICE, INC., PAUL GRIMLEY, INDIVIDUALLY AND PAUL GRIMLEY D/B/A CERTIFIED CONSTRUCTION SURVEY COMPANY, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. Honorable Lester A. Bonaguro, Judge Presiding.

Rehearing Denied May 12, 1995.

The Honorable Justice Cerda delivered the opinion of the court. Greiman, P.j., Concurs. Tully, J., Dissents.

The opinion of the court was delivered by: Cerda

The Honorable Justice CERDA delivered the opinion of the court:

Plaintiff, the estate of the decedent, Mark J. Glazier, sought damages for Glazier's death, which resulted from an explosion that occurred in a caisson hole at a construction site. Defendants, Chicago Mini-Storage III, Ltd. Limited Partnership, Scott and Gerald Greenberg d/b/a ECD, Inc., STS Consultants, Ltd., Charles Canali, and Accurate Drilling and Trenching, Inc. (Accurate Drilling), filed a motion for summary judgment on plaintiff's Structural Work Act (Act) claims. The trial court granted the summary judgment in favor of defendants with a Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)) finding. On appeal, plaintiff asserts that the summary judgment was improper because there remained the issue of whether the ground was a support that failed because it was saturated with methane gas, which caused the fatal fire. We affirm for the reasons that follow.

Defendants, Chicago Mini-Storage and the Greenbergs, hired STS, an engineering consultant firm, and Canali as subcontractors on the project known as the Deerfield Tech Center Development. Canali subcontracted with Accurate Drilling, who employed the decedent.

The project site was an old landfill with loosely broken bricks, sand, and gravel covered with clay. Accurate Drilling was responsible for drilling holes below ground for caissons to be filled with concrete. These concrete pillars would subsequently provide the structural support for the building under construction.

Al Glazier, decedent's brother, stated in his deposition that he, decedent, and a third person were working for Accurate Drilling on the project when the explosion occurred. While the crew was drilling the hole involved in the explosion, they hit an obstruction at 10 to 12 feet. After they placed a caisson in the hole to prevent a cave-in, Al Glazier lowered a lit oxygen acetylene cutting torch to test for the presence of gas. This was done as a safety precaution because the crew was aware that methane gas could be present. Nothing happened when the lit torch was lowered.

Al Glazier then went into the hole to remove the obstruction with a shovel. He spent 15 to 20 minutes in the hole, but could not remove the obstruction. Other than becoming claustrophobic, Al Glazier did not feel any physical effects that would normally result from the inhalation of methane gas. Minutes after he came up, the decedent went into the hole to cut the obstruction with a torch.

While the decedent was standing at the bottom of the hole, an unlit oxygen acetylene torch was lowered down to him. He lit the torch and an explosion occurred. After the explosion, Al Glazier saw two-foot flames at the bottom of the hole, but the hole did not cave in or collapse. The decedent suffered burns to 70% of his body and died nine days later. All of his injuries were caused by the explosion. The decedent did not sustain any injuries as a result of a cave-in of the cased hole, from a collapse of the bottom of the hole, or from the bottom of the hole failing to support his body.

The decedent's widow and his two minor children filed a complaint against numerous defendants connected with the construction project. The trial court granted summary judgment in favor of defendants on Structural Work Act claims.

The issue is whether the methane gas, if present, was integral to the ground, which was the support, or was an ambient hazard. Plaintiff's argument is that the placement of the caisson hole was the cause of the ground failing to support the decedent because gas permeated the ground where it was placed.

Plaintiff contends that the trial court erred when it relied on American National Bank & Trust Co. v. National Advertising Company (1992), 149 Ill. 2d 14, 594 N.E.2d 313, 171 Ill. Dec. 461, where the plaintiff's injuries were not covered by the Act. After the plaintiff climbed a ladder to the top of a billboard, he was electrocuted when he came in contact with a high voltage power line above the sign. ( American National Bank, 149 Ill. 2d at 18, 594 N.E.2d 313.) The court concluded that the Act is meant to insure only that a structure provides proper support, not that the structure be placed where the worker will be free from ambient hazards. American National Bank, 149 Ill. 2d at 23-24, 594 N.E.2d 313.

Plaintiff distinguishes the electrical wires that were near the ladder in American National Bank on the basis that the ground in the ditch failed because it was saturated with methane gas, which caused the explosion. Plaintiff maintains that the hazard of the methane gas was an ...


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