Profilet v. Falconite

• Decision Date: 28 December 1977
• Docket Number: No. 63123,63123
• Citation: 14 Ill.Dec. 16,371 N.E.2d 1069,56 Ill.App.3d 168
• Parties: , 14 Ill.Dec. 16 James PROFILET, Plaintiff-Appellant, v. Joseph FALCONITE d/b/a Falconite Plumbing Company, Defendant-Appellee, L. R. Young Construction Company et al., Defendants.
• Court: United States Appellate Court of Illinois

Page 1069

371 N.E.2d 1069

56 Ill.App.3d 168, 14 Ill.Dec. 16

James PROFILET, Plaintiff-Appellant, v. Joseph FALCONITE d/b/a Falconite Plumbing Company, Defendant-Appellee L. R. Young Construction Company et al., Defendants.

No. 63123.

Appellate Court of Illinois, First District, Third Division.

Dec. 28, 1977.

Philip H. Corboy and Terence J. Mahoney, Chicago, for plaintiff-appellant.

Sweeney & Riman, Chicago, for defendant-appellee.

McGILLICUDDY, Justice.

The plaintiff, James Profilet, appeals from an order of the Circuit Court of Cook County allowing a "motion to strike and dismiss" Count VIII of a complaint charging Joseph Falconite, doing business as Falconite Plumbing, Heating and Equipment Rental Company (Falconite), with strict tort liability as owner and lessor of equipment which allegedly caused physical injuries to the plaintiff. (Suvada v. White Motor Co. (1965), 32 Ill.2d 612, 210 N.E.2d 182; Galluccio v. Hertz Corp. (1971), 1 Ill.App.3d 272, 274 N.E.2d 178.) This count contained the sole charge against Falconite in the complaint. The complaint also joined as defendants numerous other parties under varying theories of liability, but these other defendants are not involved in this appeal. The Circuit Court's dismissal of Count VIII was predicated upon Falconite's affirmative defense that the plaintiff was its employee at the time of the mishap, working under its direction and supervision, and that the plaintiff's exclusive remedy was consequently under section 5(a) of the Workmen's Compensation Act. (Ill.Rev.Stat., 1975, ch. 48, par. 138.5(a).) The order appealed from contains a recital that there is no just reason to delay enforcement or appeal of the order. Ill.Rev.Stat., 1975, ch. 110A, par. 304(a).

The pertinent portions of the complaint alleged that Falconite was in the plumbing and heating business and that it also owned and leased out construction equipment. Falconite had leased a crane to a subcontractor at a water filtration construction site in Alexander County, Illinois. The answers to interrogatories and the transcript of the hearing on the motion to dismiss contained in this record disclose that the plaintiff was employed by Falconite as a "general laborer"; that he was assigned on July 6, 1973 (the date of the injury) to assist the crane operator in lifting filter tanks and moving metal plates at the construction site, and that the crane operator was supplied by Falconite for the operation. The record further discloses that while the plaintiff was assisting the crane operator in that regard, the boom of the crane apparently came in proximity with overhead electrical wires, which caused an electrical arc and conducted electricity down the boom, causing severe burns to the plaintiff. Count VIII of the complaint alleged that Falconite was the owner and lessor of the crane and that it was strictly liable in tort for providing the subcontractor with an unreasonably dangerous product because the crane boom could conduct electricity upon proximity to, while not in contact with, electrical wires, without warning or instruction of such danger.

Falconite's answer to the complaint, in addition to denying and admitting matters not here relevant, advanced the affirmative defense that the plaintiff was employed by and working under the supervision and direction of Falconite at the time of the injury, and that his exclusive remedy lay in the Workmen's Compensation Act. The answer asked that the plaintiff's suit against Falconite "be dismissed." The transcript of the hearing on the motion to strike and dismiss discloses that Falconite paid benefits to the plaintiff under that Act.

The plaintiff asserted in his reply to Falconite's affirmative defense that Falconite acted in a "secondary capacity," as the distributor of an unreasonably dangerous product, and that the exclusive remedy provided in the Workmen's Compensation Act did not apply to such circumstances. The plaintiff cited in support of this position the case of Marcus v. Green (1973), 13 Ill.App.3d 699, 300 N.E.2d 512.

The sole issue advanced on this appeal is whether an employee has a separate cause of action against his employer under strict tort liability when the employer is also the owner and lessor of an allegedly unreasonably dangerous product.

Section 5(a) of the Workmen's Compensation Act provides in pertinent part (Ill.Rev.Stat., 1975, ch. 48, par. 138.5(a)):

"No common law or statutory right to recover damages from the employer, his insurer, his broker, any service organization retained by the employer, his insurer or his broker to provide safety service, advice or recommendations for the employer or the agents or employees of any of them for injury or death sustained by an employee while engaged in the line of his duty as such employee, other than the compensation herein provided, is available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representatives of his estate, or any one otherwise entitled to recover damages for such injury."

In Gannon v. C.M.St.P. & P. Ry. Co. (1958), 13 Ill.2d 460, 150 N.E.2d 141, the Supreme Court interpreted this section of the Act as barring a common-law action by an employee against his employer for injuries received in the course of his employment. Gannon involved a claim by an employee against his employer under the Scaffold Act for injuries received in a fall from a ladder in the course of his employment by the employer as a bricklayer.

More recently, this court decided in the case of Rosales v. Verson Allsteel Press Co. (1976), 41 Ill.App.3d 787, 354 N.E.2d 553, that an employer who is engaged in the manufacture of car seats and who removes a safety device from a punch press used in such manufacture in order to increase productivity, will not be liable as a "quasi-manufacturer" under a strict tort liability to an employee operating the punch press who is injured as a result of the employer's modification of the safety design. In response to the...