Bakkan v. Vondran, 1-89-0285

• Decision Date: 08 August 1990
• Docket Number: No. 1-89-0285,1-89-0285
• Citation: 559 N.E.2d 815,202 Ill.App.3d 125,147 Ill.Dec. 475
• Parties: , 147 Ill.Dec. 475 Olly BAKKAN, Administrator of the Estate of Arne Bakkan, Plaintiff-Appellant. v. John J. VONDRAN, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 815

559 N.E.2d 815

202 Ill.App.3d 125, 147 Ill.Dec. 475

Olly BAKKAN, Administrator of the Estate of Arne Bakkan Plaintiff-Appellant. v. John J. VONDRAN, et al., Defendants-Appellees.

No. 1-89-0285.

Appellate Court of Illinois,

First District, Third Division.

Aug. 8, 1990.

John W. Lally, Chicago, for plaintiff-appellant.

Mark, Wolfe, Timothy I. McArdle, Chicago (Brinton, Bollinger & Ruberry, of counsel), for defendants-appellees.

Justice FREEMAN delivered the opinion of the court:

Plaintiff, as administrator of the estate of Arne Bakkan, sought to impose liability on defendants, John Vondran, Kathleen Vondran and Jeffrey Counter, doing business as C-V Development, for violations of the Structural Work Act. (Ill.Rev.Stat.1987, ch. 48, par. 60 et seq.) The circuit court entered an order granting defendants' motion for summary judgment. (Ill.Rev.Stat.1987, ch. 110, par. 2-1005.) Plaintiff now appeals.

The facts in this case are not disputed. Plaintiff's decedent was employed as a carpenter by the Wahlburg Construction Company (Wahlburg). On January 30, 1987, Dominick McNicholas, foreman for Wahlburg, gave decedent two assignments, framing a door and hanging dry wall, on the third floor of a building which was owned by defendants. Decedent, who plaintiff and defendants claim was an experienced carpenter, was not given any instruction on how to perform the assigned tasks. Decedent went up to the third floor, alone, to work. An hour later, when McNicholas went up to check on his progress, decedent was lying, unconscious, on the ground on the third floor.

Other workers in the building did not know what had happened to decedent since no one saw or heard him fall. An "A" frame ladder, which was on top of the scaffold, was tipped over and leaning against the wall. The scaffold itself was also tipped over at about a 65 degree angle. No one saw decedent get on the scaffold. Decedent's body was found lying near the scaffold. Deposition testimony of two post-occurrence witnesses conflicted as to whether decedent's body was lying beside or under the scaffold.

As a result of the decedent's fall and subsequent death, plaintiff, in her first amended complaint, alleged that defendants, as owners of the building, violated the Illinois Structural Work Act ("the Act"), and that the violation was the proximate cause of decedent's death. Defendants filed a motion for summary judgment premised on the fact that plaintiff was unable to offer any evidence that the alleged violation of the Act was the proximate cause of decedent's injury. The trial court granted defendants' motion. Plaintiff appeals. We affirm.

As a preliminary matter we note, without consequence, that plaintiff is erroneously designated in the complaint as the administrator of the decedent's estate. "The Structural Work Act creates a distinct cause of action in the dependents of a deceased in their individual capacities." (Gramse v. Royal Crest Enterprises, Inc. (1981), 100 Ill.App.3d 100, 103, 55 Ill.Dec. 468, 426 N.E.2d 614.) Dependents do not recover through the personal representative of the decedent's estate, nor through the decedent's estate. (Bryntesen v. Carroll Construction Co. (1960), 26 Ill.App.2d 307, 312, 167 N.E.2d 581, rev'd on other grounds, (1961), 22 Ill.2d 63, 174 N.E.2d 172, on remand, (1962), 36 Ill.App.2d 167, 184 N.E.2d 129, aff'd, (1963), 27 Ill.2d 566, 190 N.E.2d 315.) A death claim under the Act can only be maintained by the widow and children in their individual capacities. (Gramse, 100 Ill.App.3d at 104, 55 Ill.Dec. 468, 426 N.E.2d 614, citing Bryntesen. Nonetheless, the substance of plaintiff's complaint clearly sets forth her theory of recovery under the Structural Work Act, thus the erroneous designation is not fatal. See Liberty Mutual Insurance v. Lloyd Schoenheit Truck & Tractor Service, Inc. (1989), 191 Ill.App.3d 578, 582, 138 Ill.Dec. 651, 547 N.E.2d 1272.

Plaintiff's sole contention on appeal is that the trial court erred in granting defendants' motion for summary judgment. Plaintiff contends that summary judgment was improper since there was circumstantial evidence from which a jury could infer that decedent's death resulted from falling off of an unsafe scaffold. Defendants argue that since plaintiff failed to show a connection between the scaffold/ladder and decedent's injury, plaintiff has failed to satisfy the elements necessary to state a cause of action under the Act.

We must decide whether there was sufficient evidence to raise a jury question on whether defendants violated the Act. Summary judgment is proper when there exists no genuine issue of material fact and the movant is entitled to judgment as a matter of law. (Vuletich v. United States Steel Corp. (1987), 117 Ill.2d 417, 421, 111 Ill.Dec. 586, 512 N.E.2d 1223; Ill.Rev.Stat.1987, ch. 110, par. 2-1005.) The court's function on such a motion is not to resolve a disputed factual question, but rather to determine whether one exists. (Puttman v. May Excavating Co. (1987), 118 Ill.2d 107, 112, 112 Ill.Dec. 722, 514 N.E.2d 188; Purtill v. Hess (1986), 111 Ill.2d 229, 240, 95 Ill.Dec. 305, 489 N.E.2d 867.) Where the pleadings, depositions, and affidavits fail to establish an element of the plaintiff's cause of action, summary judgment is proper. Smith v. Excello Press, Inc. (1988), 169 Ill.App.3d 1084, 1091, 120 Ill.Dec. 320, 523 N.E.2d 1231; Brunsfeld v. Mineola Hotel & Restaurant, Inc. (1983), 119 Ill.App.3d 337, 74 Ill.Dec. 859, 456 N.E.2d 361.

To state a cause of action for a violation of the Structural Work Act the plaintiff must show, inter alia, that a scaffold or other device, as defined by the Act, created an unsafe condition which was the proximate cause of the plaintiff's injuries. (Tracy v. Montgomery Ward & Co. (1990), 193 Ill.App.3d 304, 307-08, 140 Ill.Dec. 333, 549 N.E.2d 984; Smith, 169 Ill.App.3d 1084, 120 Ill.Dec. 320, 523 N.E.2d 1231.) A cause of action may only be maintained under the Act when it is shown that the injury has some connection with the hazardous nature of one of the devices named therein. (Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 371, 325 N.E.2d 607; Dickmann v. Midwest Interstate Electrical Construction Co. (1986), 143 Ill.App.3d 494, 97 Ill.Dec. 551, 493 N.E.2d 33; St. John v. City of Naperville (1982), 108 Ill.App.3d 519, 64 Ill.Dec. 83, 439 N.E.2d 12.) Ordinarily, the question of proximate cause under the Act is a question of fact for the jury. It becomes a question of law only where there can be no difference in the judgment of reasonable men on inferences to be drawn. Kochan v. Commonwealth Edison Co. (1984), 123 Ill.App.3d 844, 848, 79 Ill.Dec. 367, 463 N.E.2d 921; Wilson v. Illinois Bell Telephone Co. (1974), 19 Ill.App.3d 47, 310 N.E.2d 729. Plaintiff invites our attention to three cases in support of her argument that it is reasonable to infer defendants' negligence from the facts here presented. The cases are distinguishable. In the first case, McKanna v. Duo-Fast Corp. (1987), 161 Ill.App.3d 518, 113 Ill.Dec. 348, 515 N.E.2d 157, the appellate court found that there was sufficient circumstantial evidence from which a reasonable inference could be drawn that the plaintiff's fall resulted from an unsafe ladder. There, a witness testified that he saw the decedent standing on the roof near the boiler room ladder hatchway, saw him place his left hand on the hatchway on the ladder, and then, peripherally perceived his fall. While the witness did not actually see the decedent on the ladder, he had witnessed the decedent's action immediately prior to the fall. Those actions, the court held, clearly permitted a reasonable inference that the decedent intended to descend the ladder.

In the present case there is no evidence that decedent was preparing to get on, come down from, or that he was even on, the scaffold/ladder when he fell. The only evidence which tends to show that he was ever on the scaffold was the fact that a piece of dry wall had actually been hung. According to the deposition testimony of Patrick Hastings, a carpenter for Wahlburg at the time of the incident, there was some dry wall, plywood and a few two-by-fours on the third floor, but there were no work materials on the scaffold.

Plaintiff repeatedly mentions the "critical condition" of decedent as a factor in support of the inference that decedent fell from a high place. The record reveals only that decedent was lying on the floor "with foam coming from his mouth." Hastings, who testified that he did not see any marks on decedent, stated that, until he heard about the "head damage," he believed that decedent had suffered a heart attack. The record is devoid of any expert testimony concerning the extent of any head injuries or the decedent's condition on the floor. The bare facts that decedent was unconscious and foaming at the mouth do not necessarily lead to the conclusion that he fell from a high place.

In the second case, Rysdon Products Co. v. Industrial Comm. (1966), 34...