Ponziano v. K.R. Kleiner & Co., 1-90-1873

• Decision Date: 14 June 1991
• Docket Number: No. 1-90-1873,1-90-1873
• Citation: 159 Ill.Dec. 489,576 N.E.2d 158,216 Ill.App.3d 22
• Court: United States Appellate Court of Illinois
• Parties: , 159 Ill.Dec. 489 John PONZIANO, Plaintiff-Appellant, v. K.R. KLEINER & COMPANY, a corporation, et al., Defendant-Appellee.

Page 158

576 N.E.2d 158

216 Ill.App.3d 22, 159 Ill.Dec. 489

John PONZIANO, Plaintiff-Appellant, v. K.R. KLEINER & COMPANY, a corporation, et al., Defendant-Appellee.

No. 1-90-1873.

Appellate Court of Illinois First District, Sixth Division.

June 14, 1991.

Harvey L. Walner & Assoc., Ltd. (Lawrence Schlam, of counsel), Chicago, for plaintiff-appellant.

Clausen Miller Gorman Caffrey & Witous, P.C. (James Ferrini, Robert L. Reifenberg, Susan Condon, of counsel), Chicago, for defendant-appellee.

Justice McNAMARA delivered the opinion of the court:

Plaintiff appeals from the trial court's order granting summary judgment for defendant as to plaintiff's amended complaint, which alleged that defendant violated section 60 of the Illinois Structural Work Act (Ill.Rev.Stat.1985, ch. 48, par. 60.) The sole issue for our review is whether plaintiff's injury resulted from a violation of the Act.

Plaintiff, John Ponziano, brought this action against defendant, K.R. Kleiner, to recover for injuries sustained on October 24, 1985, while working as a laborer on renovation of the St. Regis Hotel in Chicago, Illinois. Defendant, the general contractor, subsequently filed a third-party action against Jensen Building Repairs, Inc., plaintiff's employer. The third-party action is not an issue in this appeal.

At the time of the accident, plaintiff had worked on the site for about one week and his tasks until that time included making mortar for bricklayers, picking up debris and erecting scaffolds. On October 24, 1985, plaintiff's supervisor, Steven Fetzer, an agent of Jensen, assigned plaintiff the job of preparing openings for lintels, which are I-beams that fit above doorways and windows. The job required plaintiff to measure lintels, widen existing spaces, and remove bricks.

On the morning of the accident, plaintiff prepared lintel spaces on the first and second floors, using a tubular scaffold to reach the openings which were seven to eight feet above the floor. After lunch, plaintiff was instructed to prepare lintel spaces on the third floor. When plaintiff returned to the site and discovered that his scaffold was gone, he was told by Fetzer to find another scaffold. Plaintiff was unable to find an available scaffold, and he "took it upon [himself] to find someway, hopefully safely, to just go ahead and do what they told [him] to do and start on that opening of that hole." Plaintiff did not inform Fetzer that all scaffolds were being used because he "did not want to bother them." Plaintiff instead decided to stand upon the ledge, while he used a hammer and chisel to remove bricks from the wall. After working for about ten minutes and removing 15 to 20 bricks, a two or three foot piece of steel beam fell from the opening. At his deposition, plaintiff stated: "I pulled out the next brick. The next thing I knew, I saw something fly by my head, bounce off my foot, which was on a ledge * * *. By pulling out those bricks, I uncovered what somebody else left there." The beam fell on plaintiff's right foot, causing severe injury.

Plaintiff's complaint alleged that his injuries were proximately caused by defendant's violation of the Act, namely, defendant's failure "to erect, construct, place or operate certain scaffolds, platforms, supports, ladders and other mechanical contrivances so as to give proper and adequate protection to life and limb of the plaintiff from falling materials that may be used thereon." Defendant moved for summary judgment, denying that the Act applied and alleging that no material issue of fact existed. The trial court granted summary judgment for defendant, and thereafter denied plaintiff's motion to reconsider and vacate the order.

On appeal, plaintiff contends that the trial court erred in granting summary judgment for defendant because defendant violated the Act by failing to provide needed scaffolding. Alternatively, plaintiff maintains that the Act applies because the ledge on which he stood was a scaffold under the Act. Both arguments lack merit because the record reveals that no alleged violation of the Act caused plaintiff's injuries.

Although the Structural Work Act is designed to protect workers engaged in extrahazardous activities from certain risks inherent in their employment, it is not intended to cover all injuries that occur on or near a construction site. (Quinlin v. Northwestern Steel & Wire Co. (1985), 139 Ill.App.3d 535, 94 Ill.Dec. 247, 487 N.E.2d 1124.) Section 1 of the Act provides, in relevant part:

"[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances * * * 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. * * * " (Ill.Rev.Stat.1985, ch. 48, par. 60.)

Thus, the Act protects workers who work on supports above ground level and persons who might be injured from materials falling from such heights. However, the Act does not apply unless the violation of the Act caused the injury. (Quinlin v. Northwestern Steel & Wire Co.) Moreover, whether a plaintiff's injury is directly related to the specific risks protected by the Act is initially to be determined by the trial court. Overbeck v. Jon Construction, Inc. (1989), 184 Ill.App.3d 918, 133 Ill.Dec. 103, 540 N.E.2d 969.

We conclude that plaintiff's injury was not caused by a violation of the Act. We find the holding in Overbeck v. Jon Construction, Inc. to be dispositive of the issue. In that case, plaintiff, an electrician, was injured when an explosion knocked him off a ladder. Plaintiff did not claim that the ladder was defective, but rather that the placement of the ladder prevented him from quickly reaching the electrical wire which caused the explosion. This court rejected the argument, finding that "[t]he placement of the ladder makes it defective only when [it] creates one of the hazards protected by the Act." (Overbeck, 184 Ill.App.3d at 923, 133 Ill.Dec. at 106, 540 N.E.2d at 972.) Because the ladder properly supported plaintiff, it did not cause his injury.

The holding in Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 325 N.E.2d 607, also supports our conclusion. In that case, plaintiff alleged that his fall resulted from an improperly placed ladder. Our supreme court stated:

"The obvious hazards of a scaffold or ladder are that workmen or materials may fall off such devices or that the devices themselves may fall. * * * It is only when an injury has some connection with the hazardous nature of one of the devices named in Section 1 of the Act that a cause of action may be maintained under that section * * *." Tenenbaum, 60 Ill.2d at 371, 325 N.E.2d at 612-13.

The court therefore concluded that the Act did not...