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11/21/96 CLAUDIE D. BURGESS v. MARK POCRNICH

November 21, 1996

CLAUDIE D. BURGESS, PLAINTIFF-APPELLANT,
v.
MARK POCRNICH, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Effingham County. No. 94-L-72. Honorable Richard H. Brummer, Judge, presiding.

The Honorable Justice Chapman delivered the opinion of the court: Goldenhersh, J., concurs. Justice Welch, dissenting.

The opinion of the court was delivered by: Chapman

The Honorable Justice CHAPMAN delivered the opinion of the court:

On October 24, 1992, Mark Pocrnich, defendant, asked Claudie Burgess, plaintiff, to assist him in trimming a tree on defendant's property because the tree's branches were in close proximity to the utility line connected to defendant's house. Plaintiff agreed. While using defendant's ladder to do the trimming, plaintiff fell to the ground and was injured. Plaintiff filed an action for personal injury under the provisions of the Structural Work Act (740 ILCS 150/1 et seq. (West 1994) (repealed by Pub. Act 89-2, ยง 5, effective February 14, 1995)). The court granted defendant's motion under section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 1994)).

This appeal addresses three issues: (1) whether a volunteer is a person protected by the Structural Work Act; (2) whether a utility line servicing a residence is part of a "house" or "other structure" within the purview of the Structural Work Act; and (3) whether the trimming of trees to prevent damage to a utility line is a covered activity within the meaning of the Structural Work Act. We reverse and remand.

Before addressing the substantive issues presented, we note that the court granted defendant's motion to dismiss pursuant to section 2-615 of the Code of Civil Procedure. A motion to dismiss, under section 2-615, attacks only the legal sufficiency of the complaint. Barber-Colman Co. v. A & K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1068, 603 N.E.2d 1215, 1218, 177 Ill. Dec. 841 (1992). A court reviewing an order granting a section 2-615 motion takes all well-pleaded facts as true. Roehrborn v. Lambert, 277 Ill. App. 3d 181, 183, 660 N.E.2d 180, 182, 213 Ill. Dec. 923 (1995). In reviewing orders on section 2-615 motions to dismiss, appellate courts apply a de novo standard of review. Roehrborn, 277 Ill. App. 3d at 183, 660 N.E.2d at 182.

The first issue to be discussed is whether a volunteer is within the class of people covered by the Structural Work Act (Act). Plaintiff argues that our decision in O'Brien v. Rogers, 198 Ill. App. 3d 341, 555 N.E.2d 1005, 144 Ill. Dec. 486 (1990), governs this case, and that under O'Brien, a volunteer is a protected person under the Act. Defendant agrees that O'Brien governs this issue, but he urges this court to reconsider its ruling in O'Brien.

The plaintiff in O'Brien was seriously injured while assisting the defendant in putting a new roof on defendant's house. O'Brien, 198 Ill. App. 3d at 346, 555 N.E.2d at 1007. Although the plaintiff was not paid for his assistance, there was some dispute as to whether the plaintiff was helping the defendant in order to repay the defendant, who had earlier helped the plaintiff rebuild the roof of his own house. O'Brien, 198 Ill. App. 3d at 345-46, 555 N.E.2d at 1007-08. O'Brien stated:

"Even if we were to assume for the sake of argument that plaintiff was working for free, defendant's argument would still fail. Nothing in the language of the Structural Work Act limits the statute's coverage to individuals who are being paid for their labor. The Act requires that scaffolding and other support devices must be so erected and constructed, placed and operated so as to give proper and adequate protection not only to persons 'employed' thereon, but also to persons 'engaged' thereon. [Citation.] The word 'engaged' has been defined as meaning 'to be busied,' 'to carry on,' 'to devote attention and effort,' 'to embark on,' or 'to take part in.' [Citation.] None of these definitions implies payment for services.

*** To hold otherwise would render the term 'engaged' completely superfluous. This would violate one of the basic rules of statutory construction, namely, that statutes should, if possible, be construed so that no term is rendered meaningless or superfluous." O'Brien, 198 Ill. App. 3d at 347-48, 555 N.E.2d at 1009.

The first district relied upon O'Brien's reasoning for its decision in Coates v. W.W. Babcock Co., 203 Ill. App. 3d 165, 560 N.E.2d 1099, 148 Ill. Dec. 502 (1990). The third district, in Price v. Victory Baptist Church of Sunnyland, 205 Ill. App. 3d 604, 607, 563 N.E.2d 1244, 1247, 151 Ill. Dec. 138 (1990), also concluded that volunteers are not barred from the Structural Work Act's protection simply because they are volunteers. In Warren v. Meeker, 55 Ill. 2d 108, 113, 302 N.E.2d 54, 57 (1973), the supreme court held that the Structural Work Act applied to a farm hand who was injured by falling from a ladder while repairing a structure. Warren relied upon the Act's plain language, "which extends protection to 'any person' engaged on a ladder while repairing a structure." (Emphasis added.) Warren, 55 Ill. 2d at 112-13, 302 N.E.2d at 57. We decline to overrule O'Brien, and we stand firmly behind O'Brien's holding that the Structural Work Act applies to volunteers.

The second issue to be addressed is whether the poles and lines of a utility which services a residence are part of a "house" or "other structure" within the meaning of the Structural Work Act. The Structural Work Act states in pertinent part:

"All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances *** for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon." (Emphasis added.) 750 ILCS 150/1 (West 1994).

Plaintiff argues that the utility line which serviced defendant's house was an integral part of the house. Plaintiff further argues that the utility line, either by itself or in conjunction with defendant's house, was a structure within the meaning of the ...


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