Burkhart v. Illinois Power Co.
| Decision Date | 10 January 1973 |
| Docket Number | No. 11766,11766 |
| Citation | 291 N.E.2d 673,9 Ill.App.3d 139 |
| Parties | , 84 L.R.R.M. (BNA) 2862 Linda BURKHART, Administrator of the Estate of Ralph Burkhart, Deceased, Plaintiff-Appellant, v. ILLINOIS POWER COMPANY et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Knuppel, Grosboll, Becker & Tice, Petersburg (Eldon H. Becker, Petersburg, of counsel), for plaintiff-appellant.
Gillespie, Burke & Gillespie, Springfield, Charles A. Werner, St. Louis, Mo., Edward F. Casey, Springfield, for defendants-appellees.
Plaintiff-Appellant Linda Burkhart, Administrator of the Estate of Ralph Burkhart deceased, appeals from orders of the trial court which dismissed Counts IV, V and VI of her amended complaint. The trial court also entered an order finding that there was no just reason to delay appeal.
On July 29, 1969, plaintiff's decedent and the crew of men with whom he was working were trimming trees along power lines owned by defendant-appellee Illinois Power Company. The decedent had climbed a tree for the purpose of topping or trimming it. It is alleged that while he was so engaged electrical current from the transmission lines of the Illinois Power Company 'skipped or arced' into Burkhart's body causing his death.
Count IV of the amended complaint was directed against the defendant Illinois Power Company and charged the Company with a violation of the Structural Work Act, Ch. 48, Ill.Rev.Stat.1967, and specifically with failing to provide a scaffold upon which decedent could work during the performance of his duties in violation of Sec. 60 of the Act which provides in part:
'That all scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, shall be erected and constructed, in a safe, suitable and proper menner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon, or passing under or by the same, and in such manner as to prevent the falling of any material that may be used or deposited thereon.'
Plaintiff argues that the failure to provide a scaffold can be the basis of a cause of action under the Structural Work Act, citing Louis v. Barenfanger, 39 Ill.2d 445, 236 N.E.2d 724. In Barenfanger the injured worker was engaged in the construction of a school building and was therefor clearly engaged in the '* * * erection of * * * any building * * *' and thus performing an activity within the precise provisions of Section 60 of the Act. But was the defendant Illinois Power Company required by Section 60 to provide 'scaffolding or a bucket truck' for decedent's use in trimming the tree? Plaintiff urges that a power line is a 'structure' within the meaning of that term as it is used in Section 60 of the Act, citing Navlyt v. Kalinich, 125 Ill.App.2d 290, 260 N.E.2d 855, which held a sewer line to be a structure within the meaning of the Structural Work Act. Assuming, arguendo, that the power transmission line was a 'structure' within the meaning of Section 60 of the Act, we fail to see that plaintiff's theory is supported or advanced by that circumstance for the simple reason that, at the time of decedent's injury he was trimming a tree; he was not working on the transmission line and thus not engaged in the '* * * erection, repairing, alteration, removal or painting of any * * * building * * * or other structure' as provided in Section 60. Nor are we persuaded by defendant's argument that the title of the act 'an act providing for the protection and safety of persons In and About the construction, repairing, alteration, or removal of buildings, bridges, viaducts, and other structures' means that the application of the Act is 'not to be limited to work done directly on or in the structure,' and that under the factual circumstances pleaded liability under the Act should attach. Plaintiff cites Crafton v. Knight and Associates, 114 Ill.App.2d 52, 252 N.E.2d 383 in support of this contention. This case was reversed by the Supreme Court of this State and the opinion appears at 46 Ill.2d 533, 263 N.E.2d 817. The language of the opinion which appears on page 537, 263 N.E.2d 817 lends no support to plaintiff's argument here. The trial court was correct in its dismissal of Count IV of the amended complaint.
Count V of the amended complaint was directed against the defendant-appellee International Brotherhood of Electrical Workers, Local Union No. 51, of which decedent was a member. The defendant is a voluntary, unincorporated association. The plaintiff concedes that the cases in Illinois have held, without exception, that a labor union, as an unincorporated, voluntary association cannot be sued, in an action at law, for damages in its association name. (Collins v. Barry, 11 Ill.App.2d 119, 136 N.E.2d 597; ...
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