Ralls v. Village of Glendale Heights

• Decision Date: 11 August 1992
• Docket Number: No. 2-91-0925,2-91-0925
• Citation: 233 Ill.App.3d 147,174 Ill.Dec. 140,598 N.E.2d 337
• Parties: , 174 Ill.Dec. 140 Roy A. RALLS, Plaintiff-Appellant, v. The VILLAGE OF GLENDALE HEIGHTS et al., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 337

598 N.E.2d 337

233 Ill.App.3d 147, 174 Ill.Dec. 140

Roy A. RALLS, Plaintiff-Appellant, v. The VILLAGE OF GLENDALE HEIGHTS et al., Defendants-Appellees.

No. 2-91-0925.

Appellate Court of Illinois Second District.

Aug. 11, 1992.

Rehearing Denied Sept. 21, 1992.

Francis G. Libbe, Sandra L. Bucha, James Paul Costello, Ltd., Chicago, for Roy V. Ralls.

William J. Wylie, Thomas J. Laz, Stephen A. Rehfeldt, Wylie, Mulherin, Rehfeldt & Varchetto, P.C., Wheaton, for Village Glendale Heights and Concrete Structures of Midwest.

James T. Ferrini, Clausen, Miller, Gorman, Caffrey & Witous, P.C., Chicago, for Advance Mechanical Systems.

William H. Weir, Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir, Johnson & David, Elgin, for Strand Associates, Inc.

Robert G. Black, Hinshaw & Culbertson, Lisle, D. Kendall Griffith, Hinshaw & Culbertson, Chicago, Thomas A. Brabec, Lisle, Douglas J. Esp, Hinshaw & Culbertson, Lisle, for Doetsch Bros. Co.

Justice NICKELS delivered the opinion of the court:

Plaintiff, Roy A. Ralls, appeals the order of the circuit court granting defendants' motions for summary judgment of both Ralls' claim under the Structural Work Act (Ill.Rev.Stat.1987, ch. 48, par. 60 et seq.) and his claim for common-law negligence based on injuries he sustained when he fell on a snow-covered earthen incline at a construction site. Ralls asserts that the circuit court erred in finding as a matter of law that: (1) the earthen incline was neither a support nor was Ralls engaged in ultrahazardous activity at the time of his injury as required for application of the Structural Work Act; and (2) defendants owed no duty to Ralls, which defeated his claim for common-law negligence. We affirm in part and reverse in part.

Sometime prior to February 1988, defendant Village of Glendale Heights (owner) contracted with defendant Concrete Structures of the Midwest, Inc. (general contractor), for the construction of a sewage treatment plant. The construction was designed and engineered by defendant Strand Associates, Inc. (engineer), and defendant Doetsch Brothers (excavator) was the subcontractor for the excavation work. Ralls was the jobsite foreman in charge of the work for the processed plumbing subcontractor, which supplied specialty piping for carrying fluids other than water. As the foreman, Ralls had been at the site daily for seven to eight months and had the authority stop his crews' work if the conditions were unsafe.

The engineer designed, among others, the structure referred to as the blower building, which was the site of Ralls' injuries and which had two entrances. The north entrance was at ground level, but the south entrance was six to eight feet above ground level due to a temporary construction road on the south side of the building. The temporary construction road was below the planned eventual grade to allow access to the foundations of other buildings at the site during construction. The excavator had, however, backfilled the foundation of the blower building six months before Ralls' accident to prevent frost damage. In so doing, the excavator had constructed an earthen incline to the south entrance, as well as a two- to three-foot-wide earthen pathway around the entire perimeter of the building. Deposition evidence presented to the trial court estimated the incline to slope at an angle between 45 and 60 degrees over a space of six to eight feet. After its completion, the earthen incline was routinely used by workmen to reach the south entrance of the blower building. Both the incline and perimeter path were smooth and free from ruts in February 1988.

On February 4, 1988, Ralls and a co-worker were performing tests designed to discover leaks in pipes located in another building. Ralls was to turn on the water to fill the pipes, which he would then shut off when the pipe was full upon a signal from his co-worker. Overfilling of the pipes was to be avoided because freezing of the excess water would damage the pipes. The controls for the water were located in the blower building.

Because the north entrance of the blower building was blocked by masoners, Ralls' only access to the water controls was via the south entrance. Therefore, Ralls used the earthen incline to enter the south entrance of the blower building. However, the perimeter path from the north entrance could have been used to reach the south entrance.

On the day of the accident, the earthen incline was covered with five to six inches of snow with the exception of an 18-inch path that had been packed down by prior workers using the incline to reach the south entrance of the blower building. Ralls' hands were empty as he walked up the incline, entered the blower building, and turned on the water. He paid particular attention to his footing because the pathway was snow packed and icy. Although Ralls could have waited on the perimeter path outside the south entrance, he instead descended the incline to wait for the shut-off signal. Ralls then again began to walk up the incline when he fell to his knees. At his deposition, Ralls testified that, although in his opinion the earthen incline was not dangerous, he slipped on the snow and ice on the footpath on the incline after taking a few steps. As a result of the fall, Ralls suffered injuries to both his knees, which eventually required several surgeries and which caused him ongoing pain.

Ralls brought this action against all defendants alleging in one count under the Structural Work Act that the earthen incline was a support and that he was engaged in an ultrahazardous activity of the type typically occurring at a construction site within the contemplation of the Structural Work Act. In a second count, Ralls claimed that the defendants owed him a duty to provide a safe system of ingress to and egress from the south entrance of the blower building and, therefore, were liable under a theory of common-law negligence for his injuries.

All defendants moved for summary judgment as to both counts. The circuit court eventually granted those motions as to all defendants, and Ralls now appeals. Ralls asserts that the trial court erred as a matter of law in finding that the earthen incline was a mere pathway and not a support and in finding that Ralls' use of the pathway was not the ultrahazardous type of construction activity encompassed by the Structural Work Act. Ralls also asserts that the court erred as a matter of law in finding that the defendants owed no duty to Ralls.

Summary judgment is appropriate where no issue of genuine fact is present and the moving party 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.) However, summary judgment should be awarded with caution so that the right to present a case in which a material dispute exists and so that the right to a trial by jury are not preempted. (Hagy v. McHenry County Conservation District (1989), 190 Ill.App.3d 833, 842, 137 Ill.Dec. 453, 546 N.E.2d 77.) It is a drastic means of resolving litigation and should only be allowed when the the right of the moving party to judgment is clear and free from doubt. (Loyola Academy v. S&S Roof Maintenance, Inc. (1992), 146 Ill.2d 263, 271, 166 Ill.Dec. 882, 586 N.E.2d 1211.) Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1987, ch. 110, par. 2-1005(c); In re Estate of Whittington (1985), 107 Ill.2d 169, 176-77, 90 Ill.Dec. 892, 483 N.E.2d 210.) However, the evidence in the record must be construed strongly against the movant (Hagy, 190 Ill.App.3d at 842, 137 Ill.Dec. 453, 546 N.E.2d 77; Schroth v. Norton Co. (1989), 185 Ill.App.3d 575, 577, 133 Ill.Dec. 644, 541 N.E.2d 855), and, although the party opposing summary judgment need not prove his case at this preliminary stage, he must present some factual basis that would arguably entitle him to a judgment under the applicable law (Fuller v. Justice (1983), 117 Ill.App.3d 933, 939, 73 Ill.Dec. 144, 453 N.E.2d 1133). If undisputed facts permit conflicting inferences, summary judgment should be denied. (Loyola Academy, 146 Ill.2d at 272, 166 Ill.Dec. 882, 586 N.E.2d 1211.) Because of this extreme standard, a trial court is without discretion to grant a motion for summary judgment. Loyola, 146 Ill.2d at 272, 166 Ill.Dec. 882, 586 N.E.2d 1211.

The Structural Work Act provides protection to those workers who are engaged in extrahazardous work. (Lafata v. Village of Lisle (1990), 137 Ill.2d 347, 353, 148 Ill.Dec. 732, 561 N.E.2d 38.) It includes not only devices used to support workers, but those used to support materials and applies to the failure to provide such support. (Meyer v. Caterpillar Tractor Co. (1990), 135 Ill.2d 1, 13, 142 Ill.Dec. 128, 552 N.E.2d 719.) However, although the Structural Work Act should be liberally construed to provide protection to workers engaged in particularly hazardous activities, it was not intended to cover all construction work. (Lafata, 137 Ill.2d at 354, 148 Ill.Dec. 732, 561 N.E.2d 38; Vuletich, 117 Ill.2d at 422, 111 Ill.Dec. 586, 512 N.E.2d 1223.) Thus, every device that elevates a worker is not a "support" within the Structural Work Act. (Vuletich, 117 Ill.2d at 422, 111 Ill.Dec. 586, 512 N.E.2d 1223.) Nor is every routine activity within the protection of the Structural Work Act merely because it fortuitously occurs at a construction site. Vuletich, 117 Ill.2d at 423, 111 Ill.Dec. 586, 512 N.E.2d 1223.

To sustain a cause of action under the Structural Work Act, a plaintiff must establish that he was: (1) involved in a construction activity, (2) with reference to a structure, (3) using a scaffold or other mechanical device, all of which must fit within the definitions and intended coverage of the Structural Work Act. (Smith v....