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07/21/95 MICHAEL ESPOSITO v. DIOR BUILDERS

July 21, 1995

MICHAEL ESPOSITO, PLAINTIFF-APPELLANT,
v.
DIOR BUILDERS, DIOR REALTY, INC.; DIOR BUILDERS & REALTY, INC.; PETER DI IORIO; AND JIM HANSEN, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. The Honorable Ian H. Levin, Judge Presiding.

Presiding Justice Cousins delivered the opinion of the court: Gordon and McNULTY, JJ., concur.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

Plaintiff, Michael Esposito, appeals from the trial court's order of January 10, 1994, granting defendants Dior Builders, Dior Realty, Inc., Dior Builders & Realty, Inc. (defendant Dior Builders, Inc.), Peter DiIorio, and Jim Hansen's motion for summary judgment in their favor on plaintiff's claims under the Structural Work Act (see 740 ILCS 150/1 et seq. (West 1992))and for damages caused by defendants' negligence. On appeal, plaintiff contends that the trial court erred in granting summary judgment in favor of defendants.

We affirm.

BACKGROUND

On March 11, 1992, plaintiff filed a two-count complaint against defendants seeking recovery for injuries, mental anguish, medical treatment, as well as lost wages. In particular, plaintiff alleged that on or about March 12, 1990, defendants were engaged in the erection, construction, and painting of a building and structure located on lot 16 of the Glencrest subdivision in Inverness, Illinois. While plaintiff was engaged in the painting of the building at the construction site, plaintiff fell from a ladder and sustained multiple injuries. Subsequently, plaintiff had surgery on his back to remove a herniated disc and had surgery on his right shoulder.

Count I of the complaint sought damages for defendants' alleged violation of the Structural Work Act (see 740 ILCS 150/1 et seq. (West 1992)) and averred that because defendants failed to provide plaintiff with an appropriate ladder or support for painting and failed to warn plaintiff regarding the placement of the ladder, plaintiff fell to the floor and sustained multiple injuries. Count II of the complaint claimed that defendants were liable to plaintiff under a negligence theory because defendants failed to: (1) provide plaintiff with an adequate ladder; (2) provide any safeguards or warnings relative to the risk of falling from the support upon which plaintiff was working; and (3) provide plaintiff with a safe place to work and, as a result, plaintiff was working on a temporary support or ladder which was unsafe and caused him to fall.

On February 16, 1993, defendants filed their answer to plaintiff's complaint. Relative to count I of plaintiff's complaint, defendants admitted that plaintiff was a painter at the construction site at the relevant time, but denied the applicability of the Structural Work Act to plaintiff's allegations. In addition, defendants denied the material allegations of count II of the complaint.

On February 16, 1993, defendant also filed a motion to dismiss plaintiff's complaint. In the motion, defendants maintained that plaintiff's complaint should be dismissed because the Workers' Compensation Act (the Act) (see 820 ILCS 305/1 et seq. (West 1992)) prohibits plaintiff from bringing a common law or statutory cause of action against defendant Dior Builders, Inc., and because defendants Peter DiIorio and Jim Hansen are co-workers of plaintiff.

On March 23, 1993, plaintiff filed a response to defendants' motion to dismiss. In the response, plaintiff claimed that, at the time of his fall, plaintiff was an uninsured subcontractor who was able to recover worker's compensation benefits from defendants under the Act even though he was not a common-law employee. Plaintiff also averred that his complaint against defendants Peter DiIorio and Jim Hansen should not be dismissed on the ground that they were plaintiff's co-workers because plaintiff was not an employee of defendants and, as a result, defendants Peter DiIorio and Jim Hansen were not plaintiff's co-workers. In addition, plaintiff filed an affidavit in support of plaintiff's response to defendants' motion to dismiss wherein plaintiff maintained that on March 12, 1990, he was not an employee of any of defendants, but that he was a subcontractor performing painting services at the time of his fall.

Subsequently, defendants requested leave to withdraw their motion to dismiss. The trial court granted defendants' request.

However, previously, on April 5, 1990, plaintiff had filed an application for adjustment of claim with the Illinois Industrial Commission (the Commission) wherein he alleged that, at the time of his fall, he was employed by defendant Dior Builders, Inc. On April 30, 1991, pursuant to a request for a hearing under the Act, plaintiff's counsel executed a stipulation which provides, in pertinent part:

"Petitioner claims that the Petitioner and Respondent [Dior Builders., Inc.] were on the 12th day of March, 1990, operating under the provisions of the Workers' Compensation and Occupational Diseases Act of the State of Illinois and that the relationship of Employee and Employer existed between the parties on that date."

At the hearing under the Act, in response to being asked whether he was an employee of defendant Dior Builders., Inc., at the time of his fall, plaintiff responded that he was working for defendant Dior Builders, Inc., and that he was a subcontractor on the project at lot 16 in Inverness, Illinois, at the time of his fall. After a relevancy objection by defendants' attorney, the arbitrator asked whether there was an issue as to the existence of an employer-employee relationship. In response, plaintiff's attorney stated "no there is not" and indicated that he was questioning plaintiff on the issue because he was uncertain as to plaintiff's employment status and whether defendant Dior Builders, Inc., was a general contractor or a ...


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