American Nat. Bank & Trust Co. of Chicago v. National Advertising Co.

• Decision Date: 21 May 1992
• Docket Number: No. 71135,71135
• Citation: 149 Ill.2d 14,171 Ill.Dec. 461,594 N.E.2d 313
• Parties: , 171 Ill.Dec. 461 AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, as Adm'r of the Estate of Raymond Lukas, Sr., Deceased, and as Guardian of the Estate of Raymond John Lukas, Jr., Appellee, v. NATIONAL ADVERTISING COMPANY et al. (National Advertising Company, Appellant).
• Court: Illinois Supreme Court

Page 313

594 N.E.2d 313

149 Ill.2d 14, 171 Ill.Dec. 461

AMERICAN NATIONAL BANK & TRUST COMPANY OF CHICAGO, as Adm'r of the Estate of Raymond Lukas, Sr., Deceased, and as Guardian of the Estate of Raymond John Lukas, Jr., Appellee, v. NATIONAL ADVERTISING COMPANY et al. (National Advertising Company, Appellant).

No. 71135.

Supreme Court of Illinois.

May 21, 1992.

Rehearing Denied June 25, 1992.

Henry C. Szesny and Charles E. Joern, Jr., Pope, Ballard, Shepard & Fowle, Ltd., Chicago, for appellant.

John A. Doyle, of Doyle & Ryan, Ltd., Chicago (David A. Novoselsky and Linda A. Bryceland, of counsel), for appellee.

Justice THOMAS J. MORAN delivered the opinion of the court:

In a wrongful death action, plaintiff, American National Bank and Trust Company of Chicago (Bank), as administrator of the estate of decedent Raymond Lukas, Sr. (Lukas), sought to recover damages from various defendants on behalf of Lukas' minor son. Two of the six counts in the Bank's second-amended complaint were directed against National Advertising Company (National). Count IV alleged violation of the Structural Work Act (the Act) (Ill.Rev.Stat.1981, ch. 48, par. 60 et seq.), and count VI was based on negligence. The circuit court of Cook County granted summary judgment in favor of National on both counts. The appellate court reversed and remanded (205 Ill.App.3d 348, 150 Ill.Dec. 254, 562 N.E.2d 1057), and this court granted National's petition for leave to appeal (134 Ill.2d R. 315).

We are asked to determine whether summary judgment was properly granted on counts IV and VI of the Bank's complaint. For the reasons below, we reverse the appellate court's denial of summary judgment for National on count IV (violation of the Act), and affirm its finding that the trial court should reinstate count VI (negligence).

Lukas was electrocuted while painting a billboard (sign) leased to National, which had contracted with Lukas' employer for the painting. The sign, located near Interstate 55 in Will County, was approximately 26 feet high by 60 feet wide, and was oriented in a north-south direction. A walkrail, consisting of two-by-six boards nailed to the structure, ran the length of the sign's back approximately two feet down from its top. A high-voltage power line ran overhead 24 to 30 inches from the top of the sign, crossing it at right angles approximately eight inches inward from the sign's north end.

On the day of the accident, Lukas and his co-worker Jeffrey Skoumal (Skoumal) set up aluminum staging along 20 feet of the sign's front side. The staging was supported by four grappling hooks attached to the top of the sign. In order to position one of the hooks 3 1/2 feet from the north end of the sign, Skoumal placed a wooden extension ladder against the signface at its north end, extending the ladder to reach to approximately two feet from the sign's top, and then walked along the walkrail to position the other hooks. After Lukas and Skoumal had finished painting the lettering in the middle of the sign, Lukas went up the ladder to remove the grappling hooks for a section of the staging. In order to reach the hooks, Lukas had to step from the ladder over the top of the billboard, and then step onto the walkrail on the back side of the sign. Skoumal last saw the decedent when Lukas was coming back towards the ladder along the walkrail from the south end of the sign. Skoumal continued to paint until he felt a slight shock, turned, and saw Lukas falling. Skoumal did not see decedent come into contact with the power line, and there were no other witnesses to the accident. Skoumal testified that he had never seen the power line, either on that day or 15 months earlier, when he and decedent had touched up the lower left-hand of the sign.

The parties agree that Lukas' death was caused by his contact with the power line. The coroner's inquest established that the electricity entered decedent's body through his forehead, and exited through his left hand and left leg. Burn marks from decedent's hands were found near the top of the sign face, directly underneath the power line. Workers subsequently discovered wisps of decedent's hair on the high-tension wire, and burn marks on the ladder.

National has submitted a motion asking that the court strike or disregard portions of plaintiff's brief and argument which are based on statements made by Skoumal in a notarized affidavit and in an unwitnessed summary made by his attorney. Because the summary was unsworn and consists of inadmissible hearsay, and because both documents contain conclusions based on speculation rather than firsthand knowledge, we disregard both documents and all reference made to them by plaintiff.

I

Count IV: Structural Work Act

In count IV of its complaint, the Bank contended that National violated the Act by, inter alia, failing to provide safe scaffolds and supports. National argued that the Act does not contemplate risks of injuries due to workers' contact with power lines. The trial court granted summary judgment on count IV in National's favor, relying on a line of appellate court cases which have held that the Act does not encompass the hazards of high-voltage electrical wires. (O'Rourke v. Oehler (1989), 187 Ill.App.3d 572, 135 Ill.Dec. 163, 543 N.E.2d 546 (painter electrocuted when his aluminum ladder came into contact with electrical wires); Overbeck v. Jon Construction, Inc. (1989), 184 Ill.App.3d 918, 133 Ill.Dec. 103, 540 N.E.2d 969 (electrician thrown off ladder due to explosion caused by contact with "hot" wire); Barrera v. Windy City Exteriors, Inc. (1989), 182 Ill.App.3d 936, 131 Ill.Dec. 398, 538 N.E.2d 773 (worker on scaffold electrocuted when aluminum siding he was installing came into contact with power line); Smyrniotis v. Brockob Construction Co. (1986), 142 Ill.App.3d 340, 96 Ill.Dec. 786, 491 N.E.2d 1246 (worker installing flashing on roof contacted overhead power lines); Kochan v. Commonwealth Edison Co. (1984), 123 Ill.App.3d 844, 79 Ill.Dec. 367, 463 N.E.2d 921 (electrician on ladder injured through contact with electrical wires).) However, the appellate court in the present case was not persuaded by the reasoning in the cases cited, relying instead upon Brazier v. Kontos (1987), 160 Ill.App.3d 177, 111 Ill.Dec. 906, 513 N.E.2d 152, and Burke v. Illinois Power Co. (1978), 57 Ill.App.3d 498, 15 Ill.Dec. 670, 373 N.E.2d 1354, in reaching its decision to reverse summary judgment on count IV.

In Burke, the plaintiff was severely injured when a steel pipe being lifted by the crane he was directing came into contact with a power line which sent a surge of electricity down the pipe and through his body. (Burke, 57 Ill.App.3d 498, 15 Ill.Dec. 670, 373 N.E.2d 1354.) The structural device at issue became a conduit for the electricity, rather than, as in the other appellate court cases, a support by means of which the injured worker made contact with an electric line. Evidence was also brought out in Burke that installation of a safety device on the crane could have prevented the accident. Although the Burke court stated broadly that the purpose of the Act is to provide a safe area in which persons covered by the Act will be working (Burke, 57 Ill.App.3d at 509, 15 Ill.Dec. 670, 373 N.E.2d 1354), the court's primary concern was not with the scope of the Act, but rather with the defendant's liability.

In Brazier, the plaintiff's decedent was electrocuted while descending a hydraulic ladder attached to a truck parked between a power line and the sign on which decedent was working. (Brazier, 160 Ill.App.3d at 180, 111 Ill.Dec. 906, 513 N.E.2d 152.) Although the Brazier court mentioned the defendant's argument that decedent's injuries were caused by contact with electrical wires and not by failure of the support device, the court did not address the specific issue that was raised, and did not refer to the line of appellate court cases which dealt with the question of applicability of the Act to injuries caused by electricity. Rather, to support its conclusion that the Act is violated where ladders are not erected in a safe manner and are not placed and operated so as to give proper protection to construction workers, the court cited Smith v. Georgia Pacific Corp. (1980), 86 Ill.App.3d 570, 41 Ill.Dec. 771, 408 N.E.2d 117. Smith, however, concerned a claim for injuries sustained by a painter who fell from a ladder which he had tried to move while still standing on it. The Smith court found that whether the ladder was placed on a safe base and whether it was properly braced were questions for the jury under the Structural Work Act. The painter in Smith did not come into contact with electricity, and the court did not consider the hazards of electricity in relation to the Act. Thus, neither Brazier, Burke, nor their supporting cases persuade us that the danger of electricity must be considered among the hazards envisaged by the Act.

The Bank contends that improper placement of the ladder gave rise to a cause of action under the Act because the ladder's placement in close proximity to the power line caused decedent to come into contact with the wire which caused his death. National urges that, because the Bank did not raise the issue of improper placement of the ladder in its pleadings or in its appellate court briefs, the issue has been waived. However, in count IV, paragraph 11(d), of its second-amended complaint, the Bank alleged that National:

"[f]ailed to supply adequate ladders or staging, in lieu of scaffolding erected in a safe, suitable and proper manner and placed and operated so as to give proper and adequate protection to the life and limb of any person engaged on said structure being used as a stay or support." (Emphasis added.)

Thus, we find the Bank's pleadings to be sufficient in raising the issue of the ladder's placement. Moreover, an appellee may defend a judgment on review by raising an issue not previously ruled upon by the...