The opinion of the court was delivered by: Presiding Justice Campbell delivered the opinion of the court:
Plaintiff Ronald Martinez appeals an order of the circuit court of Cook County granting summary judgment in favor of defendants Mobil Oil Corporation (Mobil) and Pangere Construction, Inc. (Pangere) on personal injury claims based on the Structural Work Act (740 ILCS 150/1 et seq. (West 1994) (repealed by Pub. Act 89-2, effective Feb. 14, 1995)) (Act). The primary issues on appeal are: (1) whether the Act applies to a construction worker struck by another worker who falls from a structure; (2) whether the structure at issue in this case falls within the scope of the Act; and (3) whether plaintiff's injury falls outside the Act as being caused by plaintiff's voluntary action. For the following reasons, we reverse and remand the case for further proceedings.
The record on appeal indicates the following facts. On December 20, 1993, plaintiff filed a four count complaint against defendants. The complaint alleges that on September 22, 1992, defendants were in charge of construction work being performed at the Mobil Oil Refinery in Elwood, Illinois. Plaintiff was on the premises of the refinery in his capacity as an employee of BMW Constructors, Inc. (BMW). Plaintiff alleged that he was on fire watch for two welders when a foreman employed by Pangere became entangled in a lanyard and fell from a platform. Plaintiff further alleged that he "caught the man in mid-fall causing Plaintiff's body to be twisted thus injuring his back and legs."
Count I of the complaint claimed that Mobil violated the Act by failing to provide safe access to and from platforms or adequate protection to the life and limb of persons engaged thereon. Count II claimed that Mobil negligently failed to provide a reasonably safe work place. Counts III and IV claimed similar violations of the Act and negligence, respectively, against Pangere.
Pretrial discovery proceeded. On January 16, 1996, the defendants filed a joint motion for summary judgment as to counts I, II and III of plaintiff's complaint. The defendants relied primarily on the transcript of plaintiff's deposition. In the deposition, plaintiff discussed the events of September 22, 1992.
Plaintiff testified that Pangere was a contractor for the work at the refinery. Plaintiff was employed by BMW as a firewatch, who would watch the welders and grinders to prevent any fires that could result from their work. At the time he was injured, plaintiff had been watching work performed to build a "structural unit" in the "CCR unit."
Plaintiff was standing approximately 3 feet from two steel platforms that were stacked on top of each other. These platforms, which were approximately 20 feet square, would be eventually hoisted to serve as working platforms for the project. There were large wooden blocks, twice the size of railroad ties (approximately 16 to 18 inches square and 2 1/2 feet long) beneath and between the platforms. Together the platforms stood almost to plaintiff's chest, or approximately 3 1/2 feet tall.
Two iron workers were working on the top platform as they built it. Wayne Swanson, a foreman for Pangere, was also on the platform, originally 6 feet from plaintiff. According to plaintiff, Swanson was approximately 6 feet tall, weighing approximately 200 pounds. Swanson was wearing 6 foot lanyards in a loop hooked to his chest and back, which hung on Swanson's side. Plaintiff watched at Swanson walked to the edge of the platform in apparent preparation to climb down to the ground. Swanson's knee became caught on a lanyard as he was stepping off the platform.
Plaintiff testified that he reached out to Swanson because Swanson's arms went out. Plaintiff grabbed Swanson, putting his left hand under Swanson's arm and his right hand under Swanson's armpit. Plaintiff twisted as Swanson fell. Both men fell to the ground; each on one knee. The men landed next to each other.
After this incident, plaintiff continued to work, but started having a "weird feeling" in his lower right back approximately an hour afterward. Plaintiff thought he had pulled a muscle. Plaintiff told his boss of the incident at lunch time. He also notified BMW's "safety man" later that day.
Following a hearing on the matter, the trial court ruled that the type of activity at issue was not covered by the Act. The trial court entered an order granting summary judgment in favor of the defendants on counts I and III of plaintiff's complaint and finding no just reason to delay enforcement or appeal of the order. Plaintiff filed a timely Notice of Appeal to this court.
The issue on appeal is whether the trial court erred in granting summary judgment. When reviewing a trial court's order of summary judgment, the only issue on appeal is whether the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Board of Directors of Olde Salem Homeowners' Association v. Secretary of Veterans Affairs, 226 Ill. App. 3d 281, 284-85, 589 N.E.2d 761, 763 (1992). Although the use of a summary judgment procedure is encouraged as an aid in expeditious Disposition of a lawsuit, it is a drastic means of disposing of litigation and should only be allowed when the right of the moving party is clear and free from doubt. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). In determining whether the moving party is entitled to summary judgment, the court must construe the pleadings, depositions, admissions and affidavits strictly against the movant and liberally in favor of the opponent. In re Estate of Whittington, 107 Ill. 2d 169, 177, 483 N.E.2d 210, 215 (1985). Although the court may draw inferences from the undisputed facts, where reasonable persons could draw divergent inferences from the undisputed facts, the issue should be decided by the trier of fact and the motion should be denied. See Pyne v. Witmer, 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308 (1989).
Counts I and III of plaintiff's complaint were based on alleged violations of the Act, which provided ...