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07/15/96 THOMAS STEURI v. PRUDENTIAL INSURANCE

July 15, 1996

THOMAS STEURI, PLAINTIFF-APPELLANT,
v.
PRUDENTIAL INSURANCE COMPANY OF AMERICA, A FOREIGN CORPORATION, AND PRUDENTIAL PLAZA ASSOCIATION, AN ILLINOIS CORPORATION, DEFENDANTS-APPELLEES. PRUDENTIAL INSURANCE COMPANY OF AMERICA, THIRD-PARTY PLAINTIFF, V. MIDWEST ASBESTOS REMOVAL SERVICE, INC., THIRD-PARTY DEFENDANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE PATRICK E. McGANN, JUDGE PRESIDING.

Released for Publication August 29, 1996.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Braden, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Plaintiff, Thomas Steuri, appeals from two orders of the circuit court of Cook County entered September 10, 1993, and November 18, 1993, respectively: (1) granting summary judgment in favor of defendant, Prudential Insurance Company of America (Prudential) on plaintiff's Structural Work Act and negligence claims; and (2) denying plaintiff's motion for reconsideration and striking certain paragraphs of an affidavit attached to plaintiff's motion for reconsideration. For the following reasons, we affirm.

The record reveals the following relevant facts. On June 2, 1988, plaintiff filed a two count complaint against Prudential. *fn1 In count I, plaintiff stated a claim pursuant to the Structural Work Act (Act) (Ill. Rev. Stat. 1987, ch. 48, par. 60-69 (now 740 ILCS 150/1 (West 1994)), alleging that on June 23, 1986, he slipped and fell on a platform being used in connection with the removal of asbestos from a building located at 130 East Randolph Street in Chicago, causing him to sustain severe and permanent external and internal injuries. In count II, plaintiff alleged negligence by Prudential in the erection, construction, placement or operation of the platform within the building upon which he fell. *fn2

On April 21, 1993, Prudential filed two motions for summary judgment. In the first motion, Prudential argued that plaintiff's claim must fail under the Act because plaintiff's deposition testimony revealed that plaintiff was not injured while he was performing his work.

Prudential attached to its motion the transcript of plaintiff's deposition. Therein, plaintiff testified that he slipped and fell after he stepped down on a platform leading from the shower room into the "dirty room." Plaintiff testified that between the shower room and the dirty room was an area through which he had to pass to get to the actual work area. This passageway was divided into three-chambers: (1) a clean area; (2) a shower area; and (3) a dirty area. On the other side of this three-chambered passageway was the area in which the actual asbestos removal work was done. Thus, Prudential argued that it was undisputed that at the time plaintiff tripped and fell, he: (1) was not in the course of performing any sort of extra-hazardous work; and (2) the dirty room was not a support or scaffold within the meaning of the Act. Prudential argued that it was entitled to summary judgment on count I of plaintiff's complaint because plaintiff's activity fell outside the intended purpose of the Act.

On August 27, 1993, plaintiff filed two responses to Prudential's "Motion For Summary Judgment I" (response I) and "Motion for Summary Judgment II" (response II). Plaintiff argued that his injury was covered by the Act and that Prudential supervised and controlled the work, such that it was "in charge" within the meaning of the Act.

The exhibits and attachments to plaintiff's responses I and II reveal that Prudential entered into a contract with Midwest for the removal of asbestos on the fifth floor annex (annex) of the Prudential Plaza Building. Mark Bewly, Midwest's project foreman, testified that all of the openings into and out of the annex were covered with heavy sheets of visquene *fn3 plastic. The three decontamination chambers (as described above) were separated from each other by an air-lock. The decontamination chamber consisted of a wooden frame, with visquene plastic walls and ceiling, and an elevated plywood platform floor for the shower. The decontamination area was constructed by Midwest employees, and was located entirely within the cordoned off work area.

In order to enter the work area, the workers had to pass through the decontamination chamber. Workers entered through the "clean room" where they changed from their street clothes into specialized paper/plastic "tyvek" suits, consisting of hoods, full body and foot coverings.

From the "clean room," workers passed through an air-lock, consisting of two visquene plastic door flaps, into the shower room. The shower room was raised higher than the other chambers for drainage purposes. Workers walked through the shower room, through another air-lock, and then stepped down into the "dirty room." Finally, workers passed through he "dirty room," through a final air-lock, and entered the actual work area. Whenever the workers left the work area, they had to pass through the decontamination three-chamber area, showering before entering the clean room.

Bewly testified that he was not present at the time plaintiff fell, but filled out accident reports regarding the accident. The accident report stated that plaintiff was entering the work area through the shower decontamination unit and was stepping down from the shower platform when he slipped and fell on his back, hitting his head on the concrete floor.

Bewly stated that Midwest held safety meetings, wherein the workforce and the superintendent discussed work site safety concerns. Midwest owned all of the equipment in the containment area. Only Midwest superiors could instruct Bewly as to how he and his crew performed their jobs.

In his own deposition, plaintiff testified that he fell as he stepped down from the shower room, and into the "dirty room," on his return from lunch.

William Stewart, a Midwest employee, testified that he witnessed plaintiff's accident. Stewart stated that plaintiff pulled back the plastic air-lock door, and as he was stepping down from the dirty room into the ...


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