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Radtke v. Schal-Bovis

February 20, 2002

DAWN RADTKE, PLAINTIFF-APPELLANT
v.
SCHAL-BOVIS, INC., DEFENDANT-APPELLEE



The opinion of the court was delivered by: Justice Wolfson

UNPUBLISHED

Appeal from the Circuit Court of Cook County. Honorable Mary A. Mulhern, Judge Presiding.

Dawn Radtke filed suit against defendant Schal-Bovis after she tripped and fell while working on a construction project at Navy Pier. Defendant was the general contractor in charge of the construction project. Plaintiff's complaint alleged Structural Work Act violations and negligence. The trial court granted summary judgment in defendant's favor, finding plaintiff could not establish a genuine issue of material fact as to the cause of her fall. On appeal, Radtke contends the trial court erred in granting summary judgment. We agree. We reverse and remand for further proceedings.

FACTS

On October 5, 1994, plaintiff was working for L/C/B Tri-Venture as a laborer on a construction site at Navy Pier. L/C/B Tri-Venture was a subcontractor on the project. She was on scaffolding, carrying mortar to bricklayers, when she tripped and fell. Plaintiff filed suit against defendant alleging violations of the Structural Work Act (740 ILCS 150/1 et seq. (West 1994)). Plaintiff's complaint alleged her injuries were caused by the scaffolding's "improperly placed crank shaft handle."

Several of plaintiff's co-workers were deposed. During his deposition, Kevin Zesch testified he was employed by defendant. Zesch was the senior field superintendent on the Navy Pier site. He was responsible for coordinating the schedule, for logistics, and for plans with all subcontractors at that site.

Zesch said a Morgan scaffold was a scaffold used by masons and laborers. A jack is used to elevate the scaffold as the laborers progress up the wall. The jack handle normally sits in an upright position, out of the way of the path on the scaffold. Morgan scaffolds were used in the project site where plaintiff worked. The laborers typically erected the scaffolds. Zesch testified defendant did not inspect the scaffolds after they were erected. However, if any of defendant's supervisors noticed something unsafe about the scaffold, work would stop until the problem was rectified. Zesch agreed that Schal-Bovis was responsible for safety at the job site.

Norman Graves, who was Tri-Venture's foreman at the project on the day plaintiff was injured, was deposed. He testified plaintiff was working as a laborer on the day she was injured. She was putting out mortar for the bricklayers at the job site. Graves characterized Morgan scaffolding as unsafe. He said he complained about the scaffolding several times. Graves testified that there were problems with broken jack handles. He complained about it, but the problem never was fixed. Graves said the jack handles fell out of their upright position and into the walking path on the scaffolding if they weren't working properly.

John Kentgen, a laborer who was working with plaintiff on the day she fell, was deposed. Kentgen testified plaintiff was a member of his crew. Kentgen said he was walking toward plaintiff when she fell. He was about 10 to 12 feet away from her. Kentgen said plaintiff was carrying a shovel full of mortar when she tripped. He did not see what plaintiff tripped on.

Kentgen said plaintiff told him "right away" that she tripped on a jack handle. Kentgen said when he saw plaintiff fall, he knew she tripped over the jack handle because "[t]hat's the only explanation." Kentgen testified he had tripped over defective jack handles several times during the project.

During her deposition, plaintiff testified there were problems with the jack handles on the scaffolding for as long as she worked at the project site. Plaintiff said the jack handles would fall into the path where the laborers walked.

Before the accident occurred, plaintiff was shoveling mortar onto the mortar boards for the bricklayers. Plaintiff testified she used a shovel to carry the mortar. She had mortar in the shovel when the accident occurred. She was looking at the mortar in her shovel to make sure the mortar wasn't falling out of it. She did not remember being distracted by anything before she fell. She believed she tripped on the jack handle. She believed this because she spoke to several people who saw the accident. The people she spoke with said she fell on the jack handle. Plaintiff also testified she had a red mark across her foot after the accident occurred.

Plaintiff said that at the time she fell, she wasn't sure whether she fell as a result of uneven planking or because of a jack handle. When she fell, the handle of the shovel was shoved into her chest.

During his deposition, Charles Franklin testified he worked on the Navy Pier project with plaintiff. He was working as a laborer. Franklin said he complained to the project supervisors about bad jacks on the scaffolding. A jack that was working properly would stand straight up and would not extend over the walkway of the ...


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