Smith v. Georgia Pac. Corp.

• Court: Appellate Court of Illinois
• Writing for the Court: SCOTT
• Citation: Smith v. Georgia Pac. Corp., 408 N.E.2d 117, 86 Ill.App.3d 570, 41 Ill.Dec. 771 (Ill. App. 1980)
• Decision Date: 25 July 1980
• Docket Number: No. 79-864,79-864
• Parties: , 41 Ill.Dec. 771 Dean E. SMITH, Plaintiff-Appellant, v. GEORGIA PACIFIC CORPORATION, a Georgia Corporation, Waste Management, Inc., a Foreign Corporation, Capitol Scale Co., a Delaware Corporation, and Paul Smith, d/b/a Capitol Scale Co., Defendants-Appellees, and CAPITOL SCALE CO., a Delaware Corporation, Paul Smith, d/b/a Capitol Scale Co., and Waste Management, Inc., a Foreign Corporation, Defendants-Appellees and Third-Party Plaintiffs, v. Ray SWATA, d/b/a Spectrum Painting & Decorating, Third Party Defendant.

Page 117

408 N.E.2d 117

86 Ill.App.3d 570, 41 Ill.Dec. 771

Dean E. SMITH, Plaintiff-Appellant, v. GEORGIA PACIFIC CORPORATION, a Georgia Corporation, Waste

Management, Inc., a Foreign Corporation, Capitol Scale Co.,

a Delaware Corporation, and Paul Smith, d/b/a Capitol Scale

Co., Defendants-Appellees,

and

CAPITOL SCALE CO., a Delaware Corporation, Paul Smith, d/b/a

Capitol Scale Co., and Waste Management, Inc., a Foreign Corporation, Defendants-Appellees and Third-Party Plaintiffs, v. Ray SWATA, d/b/a Spectrum Painting & Decorating, Third Party

Defendant.

No. 79-864.

Appellate Court of Illinois, Third District.

July 25, 1980.

James Kellstedt, Peoria Heights, for plaintiff-appellant.

John R. Hoffert and James C. Kearns, Heyl, Royster, Voelker & Allen, Westervelt, Johnson, Nicoll & Keller, Peoria, for defendants-appellees.

SCOTT, Justice:

Dean E. Smith is the plaintiff in a suit brought under the Structural Work Act (Ill.Rev.Stat.1979, ch. 48, par. 60 et seq.) in the Circuit Court of Peoria County. The suit was tried before a jury which became deadlocked in its deliberations. Some months later the trial court, having reserved ruling on defendants' motions for directed verdict at the close of the evidence, decided those motions against the plaintiff. Plaintiff appeals the trial court's belated order directing the verdict.

One of the defendants herein, Waste Management, Inc., had entered into a contract to purchase a warehouse building in East Peoria, Illinois, from Georgia Pacific Corporation. In preparation for occupying the structure, Waste Management contracted with another defendant, Paul Smith and his company, Capitol Scale Co., to improve and refurbish the premises. In turn Paul Smith hired Ray Swata, who did business as Spectrum Painting & Decorating, as a subcontractor. Swata, who was made a third-party defendant to these proceedings by Waste Management, was obligated by the subcontract to paint the exterior of the recently acquired building. The plaintiff was employed as a painter by Swata.

On October 23, 1974, the plaintiff was spray painting the warehouse while standing approximately 20 feet off the ground on an aluminum extension ladder. The swivel bases at the bottom of the ladder rested on railroad ties which formed part of a rail siding adjacent to the structure. Sometime on the morning of the 23rd, the plaintiff intentionally "jumped" his ladder. "Jumping" is a procedure employed by a painter to move the ladder a matter of inches so that the area covered by the rungs of the ladder can be painted. This act of "jumping" caused the ladder and its occupant to fall whereby the plaintiff suffered numerous and severe injuries.

The plaintiff brought suit to be compensated for his injuries under the provisions of the Structural Work Act (Ill.Rev.Stat.1979, ch. 48, par. 60 et seq.). Named as defendants were Waste Management, Paul Smith and Capitol Scale. After a twenty-three day trial and eleven hours of deliberation a twelve person jury was unable to reach a verdict on the evidence. Consequently, a mistrial was declared and the jury discharged. Several months later, after considering the evidence and the law, the trial judge ruled on motions for directed verdict which had originally been pressed at the close of all the evidence. In finding for each of the defendants, the court below concluded that "the plaintiff * * * failed to sustain the burden of proof to establish by competent and material evidence that the defendants knowingly or wilfully violated any applicable provision of the Illinois Structural Work Act" and that "the sole proximate cause of plaintiff's injuries was the conduct of the plaintiff at the time of the occurrence in question * * *." The plaintiff urges us to reverse these findings and the directed verdicts for which the findings provide a foundation.

We are reminded that the standard to be applied to the evidence on a motion for directed verdict is as set forth by our supreme court in Pedrick v. Peoria & Eastern R. R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504. Therein the court, by Justice Underwood, held that verdicts ought to be directed "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (229 N.E.2d 504, 513, 514.) If there is competent and material evidence in the record that the defendants violated the Act in a manner which contributed to plaintiff's injuries, then the order of the trial court cannot, in light of the Pedrick rule, be affirmed.

We are also reminded of the unique nature of the causes of action under the Structural Work Act. Neither contributory negligence nor assumption of risk constitute affirmative defenses under the statutory scheme. (Beebe v. Commonwealth Edison Co. (1977), 45 Ill.App.3d 43, 358 N.E.2d 1343.) Concurrent fault on the part of the plaintiff offers no asylum from the liability imposed by the Act. (Beebe v. Commonwealth Edison Co.) The reason for this rule is that the object of the Act is to prevent injuries to persons employed in dangerous and extra hazardous occupations, so that negligence on their part in the manner of doing their work might not prove fatal. (Hosey v. State of Illinois (1965), 25 Ill.Ct.Cl. 144.) Nevertheless, it is still necessary that the statutory violation of the defendant be a contributing cause of plaintiff's injury to sustain liability under the Act. (Beebe v. Commonwealth Edison Co.) Where the statutory violation does not contribute to proximately cause plaintiff's injury, and where only plaintiff's negligence causes the injury, then no liability arises under the terms of the statute.

It is patent from the record that plaintiff's action in "jumping" his ladder contributed to his fall and injury. Such concurrent fault is not a barrier to plaintiff's recovery. In Lindsey v. Dean Evans Co. (1973), 11 Ill.App.3d 432, 297 N.E.2d 8, the plaintiff, Harold Lindsey, was working on a rolling scaffold rather than a ladder. Like the plaintiff in the instant case, Lindsey attempted to move the scaffold without climbing down to the ground. Lindsey's action caused the planks which formed the scaffold's platform to fall with Lindsey trailing in their wake. While Lindsey's action was negligent and...