St. John v. City of Naperville

• Decision Date: 04 August 1982
• Docket Number: No. 81-787,81-787
• Citation: 439 N.E.2d 12,64 Ill.Dec. 83,108 Ill.App.3d 519
• Parties: , 64 Ill.Dec. 83 Henry ST. JOHN, Plaintiff-Appellant, v. CITY OF NAPERVILLE, a Municipal Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 12

439 N.E.2d 12

108 Ill.App.3d 519, 64 Ill.Dec. 83

Henry ST. JOHN, Plaintiff-Appellant, v. CITY OF NAPERVILLE, a Municipal Corporation, Defendant-Appellee.

No. 81-787.

Appellate Court of Illinois,

Second District.

Aug. 4, 1982.

Copeland, Finn & Fieri, Ltd., Robert A. Shipley and Brian Higgins, Chicago, for plaintiff-appellant.

Ancel, Glink, Diamond, Murphy & Cope, P. C., Marvin J. Glink, Katherine S. Janega and George G. Davidson, Chicago, for defendant-appellee.

REINHARD, Justice:

Plaintiff, Henry St. John, appeals from a pretrial order granting judgment in favor of defendant, City of Naperville (Naperville). The only issue on appeal is whether the Illinois Structural Work Act (Ill.Rev.Stat.1979, ch. 48, par. 60 et seq.) is applicable under the facts stipulated to in the case at bar.

The plaintiff's fourth amended complaint was brought in two counts alleging a cause of action in Count I under the Structural Work Act and in Count II under common law negligence against Naperville and other named defendants not parties to this appeal. Count I, the only count pertinent in this appeal, alleged that on the date of the occurrence Naperville provided the electric power for the development of a real estate housing development and subdivision; that plaintiff was in the employ of Utility Dynamics Corporation which was hired to do electrical line work on the subdivision in connection with its erection and construction; that as plaintiff was engaged in the repair of a power line and transformer and installation of a pedestal, he was "required" to grasp the power line which was charged thereby causing him severe injury; and that Naperville violated the provisions of the Structural Work Act in numerous respects including the willful failure to provide a crane to assist the plaintiff in performance of his duties and the willful failure to provide a scaffold where plaintiff could safely engage in the repair of the power line and transformer while in the course of his employment. Naperville filed a motion to dismiss under section 48 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 48) stating that plaintiff alleged that he was injured when he grasped a certain power line, that there is no allegation in the fourth amended complaint that this occurrence involved the use of a scaffold, and that plaintiff's discovery deposition indicated that he was standing in a ditch grasping the wire when the accident happened. The trial court heard arguments on this motion at which time the plaintiff's deposition was referred to and read from on several occasions. However, that deposition is not a part of the limited record on appeal provided to us. The parties also stipulated to certain facts as to how the plaintiff was injured. The court below reserved its ruling and indicated it would file a written opinion on the motion.

Subsequently, in a letter of opinion filed in this cause the trial court indicated that the section 48 motion actually was a section 57 (Ill.Rev.Stat.1979, ch. 110, par. 57) motion for summary judgment since it was based upon a stipulated set of facts gleaned from the plaintiff's deposition. The letter of opinion set forth the following as stipulated facts:

"That on the day the plaintiff was injured he was employed as an electrician working on a power line located in a sub-division of Naperville. More specifically at the time he was standing in a ditch that was 3 feet deep and 8 inches wide. The purpose of the ditch was to act as the underground placement area for the electrical wire that he was holding in his hand at the time. The plaintiff mistakenly concluded that the wire in question was not energized when in fact it was. While standing in this ditch a co-worker cut the cable causing it to fly about and burn the plaintiff."

The trial court found the Structural Work Act inapplicable to the facts stated and granted summary judgment in favor of Naperville. In a subsequent written order the court found no just reason to delay the enforcement or appeal of the order, and plaintiff has taken this interlocutory appeal pursuant to Supreme Court Rule 304(a) (91 Ill.2d R. 304(a)).

In this appeal plaintiff has not taken exception to the trial court's recitation of the stipulated facts contained in its letter of opinion or to the court's treatment of Naperville's section 48 motion as a summary judgment motion. Rather, the only issue raised by plaintiff is whether the Structural Work Act is applicable to the facts here. The plaintiff argues that the erection of new power lines is an integral part of the construction of the subdivision, that the ground level of the ditch plaintiff was working in provided the sole support for the plaintiff and was a scaffold, and that "[t]he defect existing in the electrical line structure was that the line being installed was energized, when it should not have been * * * [which] was the direct and proximate cause of Mr. St. John's injury."

The issue of this appeal involves 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.1979, 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; Crist v. Debron Corp. (1981), 96 Ill.App.3d 668, 52 Ill.Dec. 134, 421 N.E.2d 997.) The Act should be given a liberal construction to effectuate its purpose of protecting persons engaged in extra-hazardous occupations of working in and about construction, repairing, alteration or removal of buildings, bridges, viaducts, and other structures. (McNellis v. Combustion Engineering, Inc. (1974), 58 Ill.2d 146, 151, 317 N.E.2d 573.) Nonetheless, the Act is not intended to cover any and all construction activities or all injuries at or near a construction site. Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill.2d 533, 263 N.E.2d 817; Urman v. Walter (1981), 101 Ill.App.3d 1085, 1090, 57 Ill.Dec. 371, 428 N.E.2d 1051.

In an action brought under the Structural Work Act, it has been stated that the plaintiff must prove that: (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 willfully violated the Act's safety standard. Comment, The Illinois Structural Work Act, ...