Smyrniotis v. Brockob Const. Co.

• Decision Date: 31 March 1986
• Docket Number: No. 85-0246,85-0246
• Citation: 491 N.E.2d 1246,96 Ill.Dec. 786,142 Ill.App.3d 340
• Parties: , 96 Ill.Dec. 786 George SMYRNIOTIS, Plaintiff-Appellant, v. BROCKOB CONSTRUCTION CO., a corporation; Midland-Ross Corp., a corporation; National Castings Co., a division of Midland-Ross Corp., Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 1246

491 N.E.2d 1246

142 Ill.App.3d 340, 96 Ill.Dec. 786

George SMYRNIOTIS, Plaintiff-Appellant, v. BROCKOB CONSTRUCTION CO., a corporation; Midland-Ross

Corp., a corporation; National Castings Co., a

division of Midland-Ross Corp.,

Defendants-Appellees.

No. 85-0246.

Appellate Court of Illinois, First District, First Division.

March 31, 1986.

Kenneth J. Sophie, Jr., Law Offices of Gerard A. Facchini, Chicago, for plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller (D. Kendall Griffith, H. Anne McKee and Ronald L. Kammer of counsel), Chicago, for Midland-Ross Corp., defendant-appellee.

Purcell & Wardrope, Chtd., Chicago, for Brockob Const. Co., defendant-appellee.

Presiding Justice BUCKLEY delivered the opinion of the court:

Plaintiff, George Smyrniotis, appeals an order of the trial court granting summary judgment for defendants on the count of his complaint alleging a cause of action under the Structural Work Act ("Act"). (Ill.Rev.Stat.1985, ch. 48, pars. 60 et seq.) The only issue on appeal is whether the Act is applicable to the facts and circumstances of this case. For the reasons set forth below, we affirm.

The occurrence which forms the basis of this litigation took place on October 6, 1981. On that date, plaintiff was employed as a roofer for Dunne Roofing Company ("Dunne"). Dunne had entered into a subcontract with defendant Brockob Construction Company ("Brockob") to repair the roof at a manufacturing facility in Cicero, Illinois, owned by defendant Midland-Ross Corporation ("Midland-Ross"). Midland-Ross had hired Brockob as the contractor for the project.

On the date in question, plaintiff was working on the upper level of Building 32 at the Midland-Ross plant and had been instructed to install flashing on the outer edge of the roof. No scaffold or support, other than the roof itself, was used as a support to perform the work. Hanging several feet above the roof were high-voltage power lines. The power lines met the roof of the building by means of a stanchion.

The record shows that just prior to the accident, plaintiff was on his knees installing flashing on the roof. Plaintiff stood up to stretch his back and the top of his head came in contact with the power lines. He received a severe electrical shock causing burns to his head and hand. He also lost consciousness and fell from the top level of the roof to the next lower level several feet below.

Plaintiff thereafter filed a four-count amended complaint against various parties. Only Counts I and IV were directed at Brockob and Midland-Ross. Count I sought recovery under the Structural Work Act, while Count IV was based on ordinary negligence. In Count I, plaintiff alleged that Brockob and Midland-Ross violated the Act by: (1) directing and permitting him to work atop certain walls or supports which were in close proximity to high-voltage wires; (2) failing to place barricades, fencing material or other protective devices around the wires; (3) failing to isolate the wires in order to protect workers on the roof; (4) failing to warn plaintiff of the danger created by the presence of the wires; and (5) failing to turn off the power while plaintiff was working in the area.

Brockob and Midland-Ross filed a motion for summary judgment as to Count I, arguing that plaintiff failed to prove that his injuries were proximately caused by any defect existing in a support device. The trial court granted defendants' motion, ruling as a matter of law that defendants were not liable under the Structural Work Act. In a memorandum opinion, the court reasoned that the plaintiff's injuries had nothing to do with the hazardous nature of the roof as a support device. Plaintiff's motion for reconsideration was denied and this appeal followed.

On appeal, we are to determine the applicability of section 1 of the Structural Work Act, which provides:

"[A]ll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure, 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." Ill.Rev.Stat.1985, ch. 48, par. 60.

The Structural Work Act is designed to protect work activities of a particularly hazardous nature and to lessen the extent of the danger. (Halberstadt v. Harris Trust & Savings Bank (1973), 55 Ill.2d 121, 127, 302 N.E.2d 64.) While it is held that the Act should be given a liberal interpretation to effectuate its beneficent purpose (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 151, 317 N.E.2d 573), our supreme court has repeatedly indicated that the Act is not intended to cover any and all construction activities or all injuries at or near a construction site. See Innis v. Elmhurst Dodge, Inc. (1985), 107 Ill.2d 151, 89 Ill.Dec. 866, 481 N.E.2d 709; Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill.2d 533, 263 N.E.2d 817.

In an action brought under the Structural Work Act, a plaintiff must prove the following: (1) he was engaged in or was passing under or by a structural activity; (2) the activity was being performed with reference to a structure; (3) a scaffold or other mechanical device was being used; (4) a defect existed in the construction or use of the device; (5) the defect proximately caused his injuries; (6) the defendant had charge of the work; and (7) the defendant wilfully violated the Act. St. John v. City of Naperville (1981), 108 Ill.App.3d 519, 64 Ill.Dec. 83, 439 N.E.2d 12.

What is deemed a scaffold for purposes of the Act is not limited to the identity of the object claimed to be a support or scaffold; rather, the proper inquiry is how the object was being utilized at the time of the injury. (Quinn v. L.B.C., Inc. (1982), 94 Ill.App.3d 660, 663, 50 Ill.Dec. 17, 418 N.E.2d 1011.) It is equally clear, however, that not all accidents involving a scaffold or other type of support device are covered under the Act. (Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363, 371, 325 N.E.2d 607.) When a person is injured by the failure of any support device, the court must determine whether the injury is directly related to the specific, extrahazardous risks against which the Act was designed to protect. Urman v. Walter (1981), 101 Ill.App.3d 1085, 57 Ill.Dec. 371, 428 N.E.2d 1051.

In the present case, plaintiff argues that the roof was defective in its use as a scaffold to support him as he installed flashing. Defendants do not dispute that the roof was being used temporarily by plaintiff as a scaffold. They contend, however, that plaintiff's injuries did not arise out of the roof's failure to function in a manner covered by the Act. The trial court agreed with defendants, holding that the subject occurrence is not the type of extrahazardous risk against which the Act was designed to protect.

We believe that the ruling of the trial court was correct. Two recent cases by this court have involved the issue of whether a cause of action exists under the Structural Work Act for a plaintiff whose injuries are caused by contact with high-voltage wires while using a support device covered by the Act. Both cases hold that no such cause of action exists because the injuries were caused by the contact with the electrical wires and not by any failure of the support device. Kochan v. Commonwealth Edison Co. (1984), 123 Ill.App.3d 844, 79 Ill.Dec. 367, 463 N.E.2d 921; St. John v. City of Naperville (1981), 108 Ill.App.3d 519, 64 Ill.Dec. 83, 439 N.E.2d 12.

In Kochan, the plaintiff was standing on a ladder for his support when he came into contact with overhead high-voltage wires. The ladder itself was not defective. In Kochan, as in the present case, the plaintiff alleged that the placement of the support in close proximity to overhead high-voltage wires constituted a violation of the Structural Work Act. This court affirmed the trial court's holding that the ladder, which was being used as a scaffold, was not the proximate cause of the plaintiff's injury, reasoning as follows:

"[I]t is still necessary that the statutory violation of the defendant be a contributing cause of plaintiff's injury to sustain liability under the Act. 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." (123 Ill.App.3d 844, 847-8, 79 Ill.Dec. 367, 463 N.E.2d 921.)

This court concluded in Kochan that summary judgment was properly granted for the defendant because "no defect in the construction or use of the ladder caused his injuries." 123 Ill.App.3d 844, 848, 79 Ill.Dec. 367, 463 N.E.2d 921.

Similarly, in St. John, the plaintiff received burn injuries when he came in contact with an energized power line while working in a ditch. The trial court's granting of summary judgment was affirmed by this court. We reasoned that even assuming the ditch was a scaffold within the meaning of the Act, it was not the proximate cause of the plaintiff's injury. We stated:

"Clearly, plaintiff's injury was not proximately caused by anything related to the failure of the alleged scaffold to function in a manner falling within the requirements of the Act. It is only when an injury has some connection with the hazardous nature of one of the devices named * * * that a cause of action may be maintained." 108 Ill.App.3d 519, 524, 64 Ill.Dec. 83, 439 N.E.2d 12.

In St. John, we relied on Tenenbaum v. City of Chicago (1975), 60 Ill.2d 363,...