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Ciccone v. Dominick's Finer Foods

May 30, 2000

PAOLO CICCONE,
PLAINTIFF,
V.
DOMINICK'S FINER FOODS, INC., A DELAWARE CORPORATION, R.G. LYON & ASSOCIATES, INC., STERN-JOGLEKAR, LTD., AN ILLINOIS CORPORATION, AND ROBERT F. PHILLIPS PLUMBING CO., INC.,
DEFENDANTS
(DOMINICK'S FINER FOODS, INC., A DELAWARE CORPORATION,
THIRD-PARTY PLAINTIFF-APPELLANT;
MERCURI SEWER CONTRACTORS, INC.,
THIRD-PARTY DEFENDANT-APPELLEE).



The opinion of the court was delivered by: Justice Gallagher

Appeal from the Circuit Court of Cook County Honorable Susan G. Fleming Judge Presiding.

Dominick's Finer Foods, Inc. (Dominick's), appeals from the trial court's dismissal of count I of Dominick's third-party contribution action against Mercuri Sewer Contractors, Inc. *fn1 (Mercuri). The court found that Dominick's right to contribution did not accrue prior to the repeal of the Structural Work Act (Act) (740 ILCS 150/0/01 et seq. (West 1992)) and that therefore its contribution claim under the Act was barred. The sole issue on appeal is when Dominick's right to contribution accrued under the Structural Work Act. We reverse and remand.

On September 14, 1994, plaintiff Paolo Ciccone (plaintiff), an employee of Mercuri, was allegedly injured while performing his duties on the construction site for an addition to a grocery store owned and managed by Dominick's in the Village of River Grove, Illinois. Dominick's had entered into a contract with Robert F. Phillips Plumbing Company (Phillips) to perform plumbing work at the construction site. Phillips, in turn, had subcontracted with Mercuri to perform part of the job. At the time of his injury, plaintiff was engaged in removing reinforced cement from the work site. He was balancing on a pile of concrete in a Dumpster for support when he fell and sustained his injury.

On September 13, 1996, plaintiff filed suit against Dominick's, Phillips, R.G. Lyon & Associates, Inc., the architectural firm, and Stern-Joglekar, Ltd., the structural engineering firm (defendants). Plaintiff later voluntarily nonsuited R.G. Lyon & Associates and Stern- Joglekar. Plaintiff filed an amended complaint on April 22, 1997. Count I of the amended complaint alleged that defendants proximately caused plaintiff's injuries by violating provisions of the Structural Work Act. Count II alleged negligence. Dominick's filed a motion to dismiss count I of the amended complaint arguing that plaintiff could not claim under the Structural Work Act because the Act was repealed, effective February 15, 1995. Plaintiff responded that his injury occurred before the effective date of repeal. The trial court denied Dominick's motion to dismiss.

On May 1, 1998, Dominick's filed a third-party complaint against Mercuri for contribution under the Joint Tortfeasor Contribution Act (740 ILCS 100/0.02 et seq. (West Supp. 1999)). In count I, Dominick's sought contribution from Mercuri based on alleged violations of the Structural Work Act. In count II, Dominick's sought contribution from Mercuri based on negligence. Mercuri moved to dismiss count I pursuant to section 2-615 of the Illinois Code of Civil Procedure (735 ILCS 5/2- 615 (West 1992)) for failure to state a claim upon which relief could be granted. Mercuri alleged that Dominick's right of contribution did not arise until September 13, 1996, the date on which the underlying lawsuit was filed. Mercuri argued that, because this date fell after the repeal date of the Structural Work Act, Dominick's could not allege a cause of action based on the Structural Work Act.

After a hearing, the trial court granted Mercuri's motion to dismiss count I of Dominick's third-party complaint. Citing to Caballero v. Rockford Punch Press & Manufacturing Co., 244 Ill. App. 3d 333, 614 N.E. 2d 362 (1993), the trial court stated that a "[r]ight to contribution exists in an inchoate form from the time of the injury to the original claim and accrues for purposes of statutes of limitation, one, when there is no underlying direct action pending and the party seeking contribution makes payment to the injured party, or two, when the party seeking contribution is sued in an underlying direct action and is given notice of the nature of the action upon which the contribution claim is based." The court found that Dominick's right to contribution did not accrue until the date that it was sued by plaintiff and that, since the Structural Work Act was repealed prior to that date, Dominick's third-party contribution claim brought under the Act was barred. The trial court denied Dominick's motion to reconsider and found no just reason to delay appeal of the order. Dominick's filed this timely appeal under Supreme Court Rule 304(a) (134 Ill 2d R. 304(a)).

Our review of the trial court's dismissal of count I of Dominick's third-party complaint pursuant to section 2-615 is de novo. Doe v. McKay, 183 Ill. 2d 272, 274, 700 N.E. 2d 1018, 1020 (1998). We reverse the trial court's order granting Mercuri's motion to dismiss and remand the case to the trial court.

The Structural Work Act was enacted in 1907 to provide protection to workers employed in extrahazardous activities. 740 ILCS 150/0.01 et seq. (West 1992); see Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 152, 598 N.E. 2d 337, 342 (1992). The purpose of the Act was to remove the fault of the employee as a defense and place the responsibility on the person in charge of the work. Cutuk v. Hayes/Gallardo, Inc., 151 Ill. 2d 314, 320, 602 N.E. 2d 834, 836-37 (1992). "The Act applies if, at the time of an injury, the worker was engaged in a hazardous task that was essential to the worker's 'structural' work activities, even though he was not directly engaged in a structural work activity at the time of the injury." (Emphasis added.) Block v. Lohan Associates, Inc., 269 Ill. App. 3d 745, 760, 645 N.E. 2d 207, 218 (1993). Section 9 of the Structural Work Act provided in pertinent part as follows:

"Any owner, contractor, sub-contractor, foreman or other person having charge of the erection, construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structure within the provisions of this Act, shall comply with all the terms thereof * * *.

For any injury to person or property, occasioned by any wilful violations of this Act, or wilful failure to comply with any of its provisions, a right of action shall accrue to the party injured, for any direct damages sustained thereby * * *." 740 ILCS 150/9 (West 1992).

"[I]n keeping with the statutory intent of protecting those involved in ultrahazardous work, liability may attach to any and all persons or entities who, because of their ownership of the faulty equipment, their knowledge of work practices or their duty to ensure the safety of the construction site, knew or should have known of the violation which gave rise to the cause of action." Mahoney v. 223 Associates, 245 Ill. App. 3d 562, 566, 614 N.E. 2d 249, 251-52 (1993). The Act does not contemplate strict liability. Allison v. Shell Oil Co., 113 Ill. 2d 26, 35, 495 N.E. 2d 496, 501 (1986). Liability accrues only to a party who has charge of the work and who commits a wilful violation of the statute that proximately causes plaintiff's injury. Hollis v. R. Latoria Construction, Inc., 122 Ill. App. 3d 290, 298, 461 N.E. 2d 439, 444-45 (1983). Liability may accrue to more than one party. Emberton v. State Farm Mutual Automobile Insurance Co., 71 Ill. 2d 111, 123, 373 N.E. 2d 1348, 1353 (1978).

Public Act 89-2 repealed the Structural Work Act, effective February 14, 1995, and provides in toto:

"An Act to repeal the Structural Work Act.

WHEREAS, It is the intent of the General Assembly that the repeal of the Structural Work Act shall operate as a bar to any action accruing on or after ...


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