Glazier v. American Nat. Bank and Trust Co. of Chicago

• Decision Date: 08 February 1995
• Docket Number: No. 1-93-0251,1-93-0251
• Citation: 271 Ill.App.3d 1098,649 N.E.2d 448,208 Ill.Dec. 392
• Parties: , 208 Ill.Dec. 392 Debra F. GLAZIER, Widow of Mark J. Glazier, Deceased, et al., Plaintiffs-Appellants, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO, Trustee, et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 448

649 N.E.2d 448

271 Ill.App.3d 1098, 208 Ill.Dec. 392

Debra F. GLAZIER, Widow of Mark J. Glazier, Deceased, et al., Plaintiffs-Appellants, v. AMERICAN NATIONAL BANK AND TRUST COMPANY OF CHICAGO Trustee, et al., Defendants-Appellees.

No. 1-93-0251.

Appellate Court of Illinois First District, Third Division.

Feb. 8, 1995.

Rehearing Denied May 12, 1995.

Joseph V. Roddy, Chicago, for appellants (Paul D. Geiger and Joseph V. Roddy, of counsel).

Schoen & Smith, Chicago, for appellees-Greenbergs (David M. Smith and Carolyn M. Diggins, of counsel).

Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, for appellee, STS Consultants, Ltd. (William J. Oberts, Edward M. Kay, and Imelda Terrazino, of counsel).

O'Brien, Hanrahan, Wojcik & Fay, Chicago, for appellee, Charles Canali d/b/a Quin-C Co. (Ernest L. Wojcik, of counsel).

Justice CERDA delivered the opinion of the court:

Plaintiff, the estate of the decedent, Mark J. Glazier, sought damages for Glazier's death, which resulted from an explosion that occurred in a caisson hole at a construction site. Defendants, Chicago Mini-Storage III, Ltd. Limited Partnership, Scott and Gerald Greenberg d/b/a ECD, Inc., STS Consultants, Ltd., Charles Canali, and Accurate Drilling and Trenching, Inc. (Accurate Drilling), filed a motion for summary judgment on plaintiff's Structural Work Act (Act) claims. The trial court granted the summary judgment in favor of defendants with a Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)) finding. On appeal, plaintiff asserts that the summary judgment was improper because there remained the issue of whether the ground was a support that failed because it was saturated with methane gas, which caused the fatal fire. We affirm for the reasons that follow.

Defendants, Chicago Mini-Storage and the Greenbergs, hired STS, an engineering consultant firm, and Canali as subcontractors on the project known as the Deerfield Tech Center Development. Canali subcontracted with Accurate Drilling, who employed the decedent.

The project site was an old landfill with loosely broken bricks, sand, and gravel covered with clay. Accurate Drilling was responsible for drilling holes below ground for caissons to be filled with concrete. These concrete pillars would subsequently provide the structural support for the building under construction.

Al Glazier, decedent's brother, stated in his deposition that he, decedent, and a third person were working for Accurate Drilling on the project when the explosion occurred. While the crew was drilling the hole involved in the explosion, they hit an obstruction at 10 to 12 feet. After they placed a caisson in the hole to prevent a cave-in, Al Glazier lowered a lit oxygen acetylene cutting torch to test for the presence of gas. This was done as a safety precaution because the crew was aware that methane gas could be present. Nothing happened when the lit torch was lowered.

Al Glazier then went into the hole to remove the obstruction with a shovel. He spent 15 to 20 minutes in the hole, but could not remove the obstruction. Other than becoming claustrophobic, Al Glazier did not feel any physical effects that would normally result from the inhalation of methane gas. Minutes after he came up, the decedent went into the hole to cut the obstruction with a torch.

While the decedent was standing at the bottom of the hole, an unlit oxygen acetylene torch was lowered down to him. He lit the torch and an explosion occurred. After the explosion, Al Glazier saw two-foot flames at the bottom of the hole, but the hole did not cave in or collapse. The decedent suffered burns to 70% of his body and died nine days later. All of his injuries were caused by the explosion. The decedent did not sustain any injuries as a result of a cave-in of the cased hole, from a collapse of the bottom of the hole, or from the bottom of the hole failing to support his body.

The decedent's widow and his two minor children filed a complaint against numerous defendants connected with the construction project. The trial court granted summary judgment in favor of defendants on Structural Work Act claims.

The issue is whether the methane gas, if present, was integral to the ground, which was the support, or was an ambient hazard. Plaintiff's argument is that the placement of the caisson hole was the cause of the ground failing to support the decedent because gas permeated the ground where it was placed.

Plaintiff contends that the trial court erred when it relied on American National Bank & Trust Co. v. National Advertising Company (1992), 149 Ill.2d 14, 171 Ill.Dec. 461, 594 N.E.2d 313, where the plaintiff's injuries were not covered by the Act. After the plaintiff climbed a ladder to the top of a billboard, he was electrocuted when he came in contact with a high voltage power line above the sign. (American National Bank, 149 Ill.2d at 18, 171 Ill.Dec. 461, 594 N.E.2d 313.) The court concluded that the Act is meant to insure only that a structure provides proper support, not that the structure be placed where the worker will be free from ambient hazards. American National Bank, 149 Ill.2d at 23-24, 171 Ill.Dec. 461, 594 N.E.2d 313.

Plaintiff distinguishes the electrical wires that were near the ladder in American National Bank on the basis that the ground in the ditch failed because it was saturated with methane gas, which caused the explosion. Plaintiff maintains that the hazard of the methane gas was an intrinsic part of the support, not an ambient hazard that surrounded the ground.

In response, defendants assert that the Act does not apply because the decedent's injuries were not caused by a defect or failure of the ground to provide adequate support, but by an explosion. Defendants contend that the decedent did not fall, the ground did not fail to support him, and the ground used as a support did not proximately cause his injuries. Defendants maintain that the gas surrounded the interior of the hole, which remained stable.

For the following reasons, we affirm. The hazard in this case is analogous to those involving electrocutions and explosions, which are not protected by the Act. (See American National Bank, 149 Ill.2d 14, 171 Ill.Dec. 461, 594 N.E.2d 313 (the plaintiff was injured by a nearby power line, which was an ambient hazard); Bodam v. City of Chicago (1993), 241 Ill.App.3d 937, 182 Ill.Dec. 268, 609 N.E.2d 802 (after being electrocuted, the plaintiff fell off a ladder, which was not defective or unstable); Overbeck v. Jon Constr., Inc. (1989), 184 Ill.App.3d 918, 133 Ill.Dec. 103, 540 N.E.2d 969 (injuries were caused by an explosion that knocked him off a ladder, not by the failure or condition of the ladder); Smyrniotis v. Brockob Construction Co. (1986), 142 Ill.App.3d 340, 96 Ill.Dec. 786, 491 N.E.2d 1246 (injuries were caused by overhead power lines, not by failure of a support); Kochan v. Commonwealth Edison Co. (1984), 123 Ill.App.3d 844, 79 Ill.Dec. 367, 463 N.E.2d 921 (injuries were not caused by a defect in the construction or use of the ladder, but by overhead electrical lines); Clow v. Metropolitan Sanitary District (1983), 120 Ill.App.3d 712, 77 Ill.Dec. 653, 461 N.E.2d 40 (the plaintiff was struck by a plank on which he was standing when an explosion occurred below the planking); and St. John v. City of Naperville (1982), 108 Ill.App.3d 519, 64 Ill.Dec. 83, 439 N.E.2d 12 (assuming arguendo the ground in the ditch was a scaffold, injury was not caused by a failure of the ground in the ditch where the plaintiff was standing, but by nearby electrical wires).

The Structural Work Act provides in relevant part:

"All scaffolds, hoists, cranes, stays, ladders, supports or other mechanical contrivances, erected or constructed* * *for the use in the erection* * *of any* * *building* * *shall be erected and constructed in a safe, suitable and proper manner 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." 740 ILCS 150/1 (West 1992).

The Act is intended to insure stable support to a construction worker and provide him or her with a remedy when no other remedy is available. (American National Bank, 149 Ill.2d at 25, 171 Ill.Dec. 461, 594 N.E.2d 313.) While the Act is to be liberally construed to protect workers engaged in dangerous and extrahazardous occupations, it is not intended to cover any and all construction activities or all injuries at or near a construction site. (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill.2d 1, 7, 142 Ill.Dec. 128, 552 N.E.2d 719.) Instead, the inquiry should focus on the particular circumstances surrounding the occurrence of the injury. Pozzi v. McGee Associates, Inc. (1992), 236 Ill.App 3d 390, 397, 177 Ill.Dec. 130, 602 N.E.2d 1302.

The Act does not apply to an injury unless that injury has some direct connection with the hazardous nature of the devices named in the Act. (Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 371, 325 N.E.2d 607.) The Act's protective measures are directed toward preventing hazards such as workers falling from a structure, a structural device falling, or workers being struck or crushed by materials due to insufficient support. (American National Bank, 149 Ill.2d at 23-24, 171 Ill.Dec. 461, 594 N.E.2d 313; Tenenbaum, 60 Ill.2d at 371, 325 N.E.2d 607.) Generally, an explosion is not related to structural work. Overbeck, 184 Ill.App.3d at 925, 133 Ill.Dec. 103, 540 N.E.2d 969; Clow, 120 Ill.App.3d at 714, 77 Ill.Dec. 653, 461 N.E.2d 40.

We conclude that any gas present was an ambient hazard that surrounded the ground, not an integral part of the ground, which was the support. The ground did not fail since it did not cave in or collapse. Instead, it continued to provide stable support....