Appendix — Barenfanger v. Louis

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_.

APPENDIX. x.

Opinion of Appellate Court of Ilinois—Fifth.- District,

Frank Parizon, Plaintiff-Appellee, v. Granite City Steel

7 _ Company, a Corporation, and Bowman Steel Corpo- oie

ration, a Corporation, - ‘Defendants-Appellants,. and —

wat igs Ma Samebiamtistis a Corporation, Defendant.

Gen. No. 65-51. ed

Fifth District.

May 18, 1966.

Trapp, P. J.

The defendants, Granite City Steel Sonnet, a corpo-

-ration, and Bowman Steel Corporation, a corporation,

s; each appeal from a judgment in ‘ue sum of $105,000,

entered upon the verdict of a jury. The several post-

trial motions of the defendants were denied. The ‘‘Scaf-

fold Act’? is in issue.

_-- he structure on whieh plaintiff was woitiling was an

addition ‘to an existing building owned by Granite City,

designated in the pleading and evidence as the ‘‘8 Bay

' Bar Extension Building,’’ construeted by extending the

building apparently in its long dimension. The building

was generally fabricated by the use of metal sheets at-

tached to & metal framework. .

The first issue raised involves. the nature of the roof

of the building and its use as a surface for the men —

working in laying the roof. The Abstract provides

minimal data concerning the dimensions. Plaintiff’s Ex-

hibit 4 is identified as a photograph of a portion of

the building and it shows the roof from the. side of. the

building which appears: to ‘bea roof sloping from a

(BPS TAL ALE GIO INES

s . — =

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. ridgepole sien ‘the: cajiter of the i dimension. A -

witness. for the plaintiff testified that he thought it was

about 20 feet from the center ridge to-the edge of the

roof, Plaintiff testified that he had ‘‘heard’’ that the

. edge of the roof was 32 feet above the ground. One |

7 Bloomquist, a-Granite City building inspector, testify.

ing only from the{photographic exhibit, estimated that

_ the edge of the roof was 35 or 40 feet die the ground. :

From the same source he estimated that the pitch. of |

- the roof was 4 inches per. lateral foot. In his opening

_ statement, plaintiff ’s. counsel stated that the roof. slanted

but ‘‘it was not exceedingly steep.’?

The roofing material consisted ‘of eorrugated* sheets

which were coated with an asbestos or 2. bituminous Re

and asbestos material, at least upon the oter or upper’.

surface as the sheets were laid. The sheets of roofing

varied in length, and there is no agreement by the wit-

nesses as to such dimensions. It‘is probable-that a sheet — ia

4 feet long- was first laid at. the lower edge of. the roof,

a sheet. 7 or 8 feet long was laid next above’ it, and a

third sheet 10 or 11 feet long was laid to the centér.

.' . Fidge. The shéets were 30 or 33 inches in width and they —

were attached by screws to metal purlins which extended

, the length of the building.

In. laying the sheets to form the roof, a crew of ‘three

' men were employed. Two men, standing on the roof of an

existing building, fastened the sheets to the-purlins. Upon

being so fastened, the sheets became a permanent part ©

of: the building, as there was nothing more to be done so *

far as the roof was concerned, The men moved upon.

these fastened sheets and worked from them to lay the

next row or section of the sheets of roofing. Prior to the

time of plaintiff *s injury, the roofing had been laid for a

distance of 50 or 60 feet from the starting point.

‘The plaintiff, as the third man in the crew, had the

_. duty of carrying the sheets as needed to the men who

: i

‘laid them. Ghbotn of roofing were siasiteed according to

their respective sizes across the center ridge of the ‘build-

‘ing at a point near the place where the work began, ap-

parently resting upon a frame so that the sheets would

lie flat. In performing his duties’ plaintiff would pick up

a sheet and walk along the roof, carrying it to the other

. men. From his testimony it: appears that he walked along a

‘the ‘‘upper part’’ of the: roof, which we take to mean.

along ‘the center ridge., No-guardrails or other protective:

_ devices were in place along wae edge of the roof or at any .

other place. ae : . >

°

Plaintiff had been: an jronworker for 13 years, climb-

ing ladders, working on. beams high in the air, and had

had, upon other occasions, engaged in installing roofing

of buildings in the manner generally described. He had

known that work of this character was to be done and

had purchased ‘‘some work shoes for that purpose 2 or: |

3 days before.”? At the time of the injury he had replaced

a man on’ this particular sheeting crew.

Just’ prior to the injury, the men engiiged 3 in Vaaheaties

the sheets were some 50 or 60 feet distant from: the stacks

of sheets. Plaintiff picked up a sheet and started to carry

', it to the men. He. testified that he did not: know what

caused him to fall, but ‘‘my footing got out from under

me and I landed.on my. seat in a sitting position,’? and

he then slipped. dw the roof and over the edge, suffering

_ severe injury. The two .men in his crew saw or heard

nothing of this event and learned that plaintiff had fallen —

_. when someone shouted from below.

cosas roof to the expand.

_ The pleadings in this case consist in the following: . |

On October 19, 1962, plaintiff filed a suit against Granite

City Steel Company, which alleged that plaintiff was work-

‘ing on the toof of the building being erected on the prop-

erty of the defendant, and that by reason of the negligence ©

of the defendant, ‘the plaintiff fell a erent. distance from

td

” — 16> : .

On November 28, 1962, plaintiff filed an amended com-

plaint against Granite City Steel Company, Bowman Steel

Corporation and M. H. Wolfe & Company. (At the close

of plaintiff’s evidente, the court directed a verdict in

favor of Wolfe.) This complaint alleged that the plain-

tiff was working on the roof of the building erected ~

under the control of Granite City Steel and -that

man Steef Corporation was a contractor in charge of

phases of the work; that the defendants negligently and

carelessly carried out the work in such manner as to cause

the plaintiff to fall from the roof of the building to the ~

ground; that in the alternative, defendants; acting together

or individually, willfully violated the provisions of the

Structural Work Act of the State of Illinois, and that as

&-proximate result plaintiff was caused to fall and sus-

tained 1 injury. ,

On June 6, 1963, plaintiff filed a second amended com-

plaint against Granite City Steel Company and. Bowman,

alleging that the plaintiff was working on a steep roof

of a building being erected under the control of Granite

City; alleges the language of section 60 of the Structural -

Work Act; alleges that Bowman was in charge of the

erection or building of the roof and that the defendants,

- jointly or severally, willfully failed to furnish a scaffold

or other mechanical contrivance to protect people working

on the roof, and that asa result of the failure to furnish

a scaffold, plaintiff fell from the roof sustaining injury,

_ . On July 15, 1964, plaintiff filed ‘a third amended com-.

plaint. After rulings by the court at'the close of all of the

evidence,. the case went to the jury upon the Counts as

follows:

o om

Count I was directed against Bowmen and alleged the

provisions of séction 60, chap 48 (Ill Rev Stats, 1965),

the Structural Work Act; that Bo as a general

contractor for Granite City Steel 7 S of install-

ont panied

oe

UV

ing -a roof on a certain building designated; that plain-

tiff was an employee of one r who had been hired

by Bowman to lay the roof of building with rdofing

material to. be furnished by Bowman Steel according

. plans and specifications supplied by Bowman and Granite.

’ City; that in the work of covering said building, it was

necessary for persons employed thereon to use seaffolds,

‘ . supports or ‘other methanical contrivances as a place

A tate aati ted

to work while said work was progressing ; that. when

the work commenced the roof of the ‘‘old building which

was being extended’’.wWas used as a scaffold, support Ae

-other mechanical contrivance to work from and as the+~

covering was placed on the extended building such coyer-

ing was used as a scaffold or support for workm

work on, and that the plaintiff was using such d

or support in the performance of his. work; and that the ©

defendant, Bowman Steel Company, fajled- to comply

-with°the provisions of the Structural Work Act in one

or more of the following aspects:

‘*A. By knowingly permitting the use, erection and

construction of a scaffold, support.or mechanical con- ~

trivance that was not erected and constructed iri a

safe, suitable and. proper manner and was not so

erected, constructed and placed as to give proper

and adequate protection to the life and limb of any

person or persons employed or engaged thereon.

‘*B.. By knowingly permitting the use, erection and

construction on. its premises of a scaffold, support

or mechanical contrivance that was not erected and

constructed © in a safe, suitable and proper manner

and was not so erected, constructed and placed as

to give proper and adequate protection to the life

and limb of any. person employed or engaged thereon

in that said scaffold.was constructed so that the floor-

.ing on said scaffold was not level and in fact steep,

making it highly likely that people working thereon

would be likely to fall a great distance.’’,

—_ 18— |

and that as a proximate result of defendant’s conduct,

plaintiff fell from, the roof, sustaining injuries.

Count III of the third amended complaint was directed

_ against Granite City, alleging the provisions of the Struc-

| tural Work Act and that Granite City was in joint charge

of construction, repair or alteration of buildings as owner, ~

that the plaintiff was employed by a subcontractor hired

to cover the building and that in covering the building

it was. necesSary for the persons employed thereon to use

scaftolds or supports as a place to work while the work

was progressing; and the Count continues to duplicate the

allegations coneerning the use of the roof of the old build-

. ing and of the new building as the work progressed, and

_ realleged the knowing failure to comply with the provi-

sions of the Act in the —— of the allegations against

Bowman. |

Defendant Bowman asserts in its brief and argument

that the primary issue upon the pleadings is whether or

not the completed portion of roof upon which plaintiff

was working constitutes a scaffold under the Structural

Work Act, (c 48, §§ 60-69, Ill Rev Stats, 1965); that such -

‘statute does not create a duty to furnish a scaffold; that

the defendant Bowman had contracted away the erection

of the roof and had no employee working thereon or super-

vising such work, so that it was not ‘‘in charge of’’ the |

construction.

The defendant, Granite City urges that the. plaintiff

‘failed to alleged or prove any cause of action against it

under the provisions of the Act and that the trial co

should have directed a verdict in its favor; that the roo!

on which plaintiff was working and ffom which he fell

not an instrumentality within the terms of the Act;

-plaintiff’s injury was not caused by the insufficiency .

of any scaffold or support within the terms of the

Act, and that under the evidence, it was not ‘‘in charge

f\

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of’’ the erection of the roof on which plaintiff. was em-

ployed. ‘ .

-This appeal directly raises the issue of whether. or not

the Structural Work Act applies to those circumstances ~

where men work upon permanent structures. The. plead- ~

ing, as the case went to the jury, alleged that it was neces-

sary to use scaffokis and that the roof of the. building

was so used. We understand that there is no controversy

as to the fact that the sheets of roofing were permanently

affixed and installed as.a part of the building at the time

the several workmen were upon the roof: placing and fas-

tening > next row of sheets.

[1] If the: allegations of the pleading that it was neces-

sary to use a scaffold are taken to mean that there was a

statutory duty to erect and construct a scaffold for the

‘work being done upon this occasion, the recent authority

‘of opinions of our courts are to the contrary. It has been

held in Miller v. DeWitt, 59 Tll App2d 38, 208 NE2d 249,

and Bradley v. Metropolitan Sanitary Dist., 56 Ill App2d

482, 206 NE2d 276, that section 1 of the Structural Work

Act does not undertake to state or provide when or under -

what conditions a scaffold is required to be erected as a

matter of statutory duty.

: \

Upon the issue as to whether or not section 1 of the

Structural Work Act epeapinn or is applicable where men

work upon a completed ‘permanent structure, we must

turn to dnd consider the language of the Act adopted in

1907. It appears that there has been no amendment of

section 1 of the Act since the date of its adoption.

The operative words, | of section 1 specify scaffolds,

hoists, cranes, stays, ladders, supports or other mechanical

contrivances:

‘¢. . . erected or constructed by any person .-. .

for the use in the erection, repairing, alteration, re-

*

° ° 2

pe 20 - é, .

moval or niin of any house, building . . . shall

be erected and constructed, in a safe, suitable and ©

proper manner... .’’

The Act does not undertake,to define a scaffold or any of

the other items referred to. The common meaning of

‘‘scaffold’’ as found in representative sources includes:

‘*A temporary platform, usually supported on poles,

designed to hold workmen and materials employed in

erection, repairing or decoration of a building.’’

(Shorter Oxford English Dictionary).

or

.**& temporary wooden or metal framework for sup-

porting workmen and materials during the. erecting,

repairing or painting of a building.’’ (Webster’s

New World Dictionary of American Language.) '

~The connotation of the operative words, ‘‘. . . erected

or constructed . . . for the use in the erection, repairing _

.»”? is that of a temporary erection for the express —

specific purpose of construction. The coricept of the erec-

tion for such specific purpose is substantiated: in-the pro- |

visions of sectién 4 of the Act (c 48, § 63, Ill Rev Stats,

1965). It provides for i tion of scaffolding and the’

several items specified. in the statute by the Director of

‘Labor or the local authorities of municipalities charged

with the duty of enforcing ‘‘Building Laws.’’ This section

provides that. if upon inspection such scaffolding or the -

companion items are found dangerous to life or limb, the

authorities should notify the person responsible for the

erection or maintenance, prohibit the use thereof, and the

person responsible is required to remove the scaffolding .

or platform. |

The latter section has not been amended by the Legis-

lature in terms of its operative effect, the only amendment

being to substitute the Director of Labor for an official

formerly known as the Factory Inspector.

= . —_ Ry REET ag RN Ry le O06 IE mE MG hm ERR PRAM POT Be I tg PO EL SLI. AEF EOFs

—21—

Having in mind the common meaning of the term ‘‘scaf-

fold,’’? and the provision that upon notice thé-responsible

person is required .to remove the ‘‘scaffold’”? or ‘‘plat- .

form,”’’ it is diffieult to conclude that the intent or under-

standing of the Legislature Was that the language.of the —

— Act applied to a fixed permanent structure, or that such a

structure, or its parts, would: be a ae or platform

within the meaning of the Act.

No cases from our Supreme Court have been cited and

we have found-none which hold a permanent structure, or,

as in this case, the roof of the building as permanently

affixed is to be treated as a scaffold or as an item of the —

several categories set forth in section 1 of the Act. On the

contrary, the several cases of our Appellate Courts cited |

aid referred to, or developed through our own investiga-

tion, emphasize that the Act is applicable to the temporary

structures erected for use as an incident to the construc-

tion work. In 1915,-the Appellate Court, ‘in Legowski v.

Moreland & Co., 195 Ill App 377, appears to have decided

that the Act was not applicable where a workman fell

while working or walking upon certain uncovered joists,

which was saidn bo be -a customary manner of working.

Specifically, the court held that it was not error to give.

an instruction’ which “ignored”? the Structural Work Act,

and affirmed a verdict . for the defendant. The opinion

noted that the Act did not apply as the injury was not due

' to any defects of the ‘‘appliances’’ specified in the statute.

In the relatively current case of. Thon v. Johnson, 30.

Ill App2d 317, 174 NE2d 400, a certain wooden form had -

‘ been prepared to be used in the pouring of a concrete

- floor. An electrician found it convenient to stand on the

form, which gave way beneath him. The court held that

*the Structural Work Act was not applicable in that the

context of the Act relates to structures erected for thc

support of workmen in ‘the construction of~the building.

3 = .

It appears that the concept of a structural entity erected

for use in the erection of the building. is: emphasized in ©

‘the recent case of Miller. v. DeWitt, 59 Ill App2d 38, 208

NE2d 249. In that case certain supports were constructed

from tubular steel scaffolding and placed to support the

trusses and roof of a building during the process of re-

modeling. These supports collapsed causing injury. It -

was the position of the defendant in that case that the

supports were an integral part of the building and’did . *

not constitute a temporary structure designed and used _

in the construction of the building. The court held that

the supporting structures ‘were supports or stays as speci-

fied within the language of the’ Act and that the Act re-

lated to equipment used in the construction of the build-

ing. It further emphasized that the supports which

collapsed were intended to be removed as soon as the

permanent structure was: completed and hence were not

a permanent part ‘of the building. The thrust of the

opinion is that the Act applied because the supports de-

scribed as shores were erected for use in thé construction

within the purview of the Act and were expressly dis-

tinguishable from ‘‘the integral and ducncunies part. of

the building.’’

In its ‘opinion the court stated that the ienatens lan-

guage is its best exposition and that absent a statutory

definition, the usual meaning of words are to be em-

ployed. It would appear, therefore, that this opinion is

authority for defining a scaffold in. its common meaning .

as a temporary framework designed to be used in the

course of construction of a building. This opinion notes

- Legowski v. Moreland & Company,.and Thon v. Johnson,

and distinguishes the facts in that opinion from those

cases and to such extent approves them as authorities.

In Bradley v. Metropolitan Sanitary Dist., 56 Tl App

2d 482, 206-NE2d 276, plaintiff was injured while working

in an excavation and was killed as a regult of a cave-in.

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° i“ . ‘ — 33 —

Plaintiff sought to recover -under the Structural Work.

Act, it being the theory: that the Act made it a-duty to

provide supports and sidings to prevent the eave-in.. The

court determined that the Act does. not specify when

supports or braces shall be used and that the injury. did

not result from the insufficiency of the ongeees beeause

none had been used. The court said:

“Section 60 of the Illinois Stractural ‘Work Act 7

only provides fer pretection when a scaffold or other

contrivance is ‘erected or constructed.’ We eannot

consider the mandatory requisites of the New York

law in 1 construing the provisions of the Illinois statute

which- ‘apply only when a scaffold is used.’? :

The court’s understanding of the meaning of the Act is

stated in the following language:

| “From section 60 of the statuté: it, would coneer

, that its purpose is to give protection to persons em-

ployed on scaffolds or mechanical ‘contrivances or ,

- passing under or by the same. The purpose may also

be gleaned from other sections. Section 64 pertains

to scaffolds on special types of structures such as °

water pipes, tanks and chimneys; it ‘sets out require- .

ments for a support or ‘other suitable device below _

a scaffold to prevent injuries in the case of accidents

to the working scaffold. The language of that section

does not. require that scaffolding be used on these

projects; it"merely requires that a safe subscaffolding

be used if scaffolding. in fact is utilized. Section 65

‘relates to flooring and beninis and section 66 to éle-

vating machines.’* ° eee

2)

It appears that: the substance of the bouilits opinion is

that the statutory. language is not to be ‘broadened to |

include every place at or upon which a person may work.

In Bounougias v. Republic Steel Corp., 277 F2d 726,

the court considered whether or not a crane ‘affixed to

4 94 — 7 , x

rails suspended from the ceiling of a building was to be

. considered a ‘scaffold when it was placed in position for

use by workmen painting. ‘The court emphasized that: |

| “It was positioned temporarily just as any scaf-

‘ fold would be constructed, or positioned naa apt

to accomplish its purpose.’’, )

\. - and determined. that it lad been literally erected and

~~ _ constructed for usé in the painting. |

Plaintiff strongly urges that the Bounougias v. Re-

public Steel Corporation. constitutes authority which re-

quires us to hold that the permanent roof was the

\ equivalent of a scaffold or platform erected or constructed .

for use in the: construction of the building. The gpinion

employs language which is considered to mean that ‘‘fur-

nish’’ is synonymous with ‘‘erected and constructed,”’

and plaintiff argues that the roof was. furnished as a.

scaffold or-platform. The Bounougias opinion relies upon |

¢ Schultz v. Ericsson Co., 264 Ill 156, 106 NE 236. The

interpretation by- the Federal Court in the opinion’ is not

a precise statement of the holding of the Illingis Supreme

Court in Schultz.. That case was filed in the Municipal

Court asa statement of claim alleging, ‘‘. . . failure

to furnish him a proper, safe and sufficient scaffold upon

which to work. . . .”?. It was contended that the alle-

gations of the statement of claim were insufficient for

failure to plead’ the Structural Work Act. The court

pointed out that in the Municipal Court, claims of this

class did not require written pleadings other than ex-

« pressly prescribed and provided by rule; that the state-

ment ‘of claim need not set forth a cause of action with

- the particularity required of a complaint: at law. Holding

that there was a sufficient pleading of statement of claim

under the Municipal Court Act, the court noted that the

defendant was advised of the nature of the cause as- °

_», the language ‘proper, safe and: sufficient seaffold upon _

':* which to — was almost i in the language of the statute.

ae Pe

— |

It would thus appear that the authority for the. language |

of the Federal Court is of dopbtful relevance upon the

“issue at hand. ; .

The plaintiff further urges that Oldham v. Kubinski,

37 Ill App2d 65, 185 NE2d 270, sustains his position.

In that case the plaintiff workman was lifted some 12

feet in a bucket of a ‘‘loader”’ attached to a tractor.

~The thrust of that opinion. is somewhat different from

the issue here, for the amended complaint alleged use:

of a hoist, an item which is specifically included in the

Act. The language of the pleading refers to ‘the hoist

being used as a scaffold or a working hoist, /while the

defendant denied that the’ machine was a scaffold or a

hoist, There was an allegation of a duty to provide a |

safe and suitable hoist. The court determined that the

defendant, had knowledge of the fact that the machine

was used to lift men to places where they might work.

The opinion employed language noting: that the machine

was positioned temporarily. as any scaffolding would be

temporarily placed to accomplish its purpose, but ex-

plicitly noted, ‘‘It was.not merely a part of the construc-

tion work itself.” ° ” |

We have einebdactel Skinier v. U.S, 209) \F Supp 424,

which plaintiff urges is persuasive in the instant” case.

Recovery under the Illinois Act was sought\ where Jad-

ders employed in painting were placed against large doors

of a hangar which were electrically operated. It is ‘noted

that ladders are specifically included in section 1 of the

- Act. It appeared that under the arrangement in effect,

representatives of the Government had the sole right to

control the operation of the doors, and the mechanism _ _

used to control the doors. Despite evidence of vertain “

precautions alleged to avoid the electrically operated

movement of the doors, a door on which plaintiff was

working was moved and, of course, such movement caused.

the ladder to fall. The court held essentially that while

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the United States-was not technically in charge of the

painting, it was in/complete charge of the doors against

which the ladders’ were placed, and the issue determined .

was, that for purposes of the Act it was in charge of -

the work being done. While there is language in, the-

' opinion describing the doors as an integral part of. a

scaffold, it.does not seem. that the opinion, in its entirety, :

can be said to be relevant to the issues in’ this case,

We have osnubained. the opinion in Evans v. “Portland

Ry., Light & Power Co., 66 Ore 603, 135 P 206 (1913).

It is urged that that case is conclusive upon the issue ~

before us as there a man fell from a completed railroad

trestle upon which he was working in connection with

the construction of a power plant. The court used lan-

guage to the effect that as long as the trestle was em-

ployed as a means: of erecting the powerhouse, ‘it. was

for that one occasion a scaffold’ or staging under the

Oregon statute. That statute, however, has elements which

are not included in the Illinois Act:

~All owners . . . engaged in the construction

; . of any building . . . shall see that . . . scaf-

_ folding, staging cr other structure more than 20 feet ~

from the ground or floor shall be secured from sway-

ing and provided with a strong and efficient safety

rail or other contrivance so as to eaten a ‘pereon

from falling therefrom... .” :

The plaintiff fell from the trestle which was some 20

' or 22 feet above ground level. The issue before the court

was the.contention of the defendant that the language,

“~ , . , other structure more than 20 feet from the ground

. ...” should be interpreted only as applying to structures

of the class of “scaffolding” and “staging.” It is in con-

- nection with such contention that the opinion equates. the

trestle, a permanent structure, with a scaffold, and the

opinion’ actually -holds that .the trestle constituted a plat-

form structure within the meaning of that statuie. The

an

_ quired under the statute.

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- Oregon statute, therefore, contains elements not present in »

the Illinois Act and the case is decided upon such elements. )

\ ;

To the same effect: is Bridal Veil Lumbering. Co: Vv.

Pacific Coast Cas. Co) 75 Ore 57, 145 P 671 (1915). In

that case ‘the plaintiff fell from a flume which was more ° |

than 20 feet above the vet so that a handrail was re-

We have. also been referred to

Koepp v. National. Enameling & Stamping Co., 151 Wis

302, 139 Nw 179 (1912). In that case the i injuries 1 resulted ‘,

when plaintiff. fell from én 11-foot ladder which had been. -

placed upon a movable platform which itself extended

some 20 feet above thie floor’ The court described the in- .

strumentality asp “scaffold and ladder combination. It

appears that the opinion was actually undertaking to con-

strue the seépe and’ extent of the word “repairing” under

the Wisconsin: statute. It appears, therefore, ‘that this

_ Opinion does not assist in the determination of the issues

An this case. »

It is urged strongly that this case should be viewed 3 in

the light of the fact that the plaintiff’ \was engaged in: an

ultrahazardous form of work. As noted in Bradley v.

Metropolitan Sanitary Dist., 56 Ill App2d 482, 206 NE2d

276, there is a distinction between a cause of action under

the’Structural ‘Work Act /and.a cause of action for failure

to provide a safe place to work. Here, Counts U, IV and

VI contained allegations that plaintiff worked on a steep

roof and that no scaffold was provided, while Count VI

includes allegations that/the work was ultrahazardous and.

_— that there was a duty to furnish a safe place’ to work, : at

there was a negligent b each of:a duty, and that the plain- >

tiff was free from contri yutory negligence. ‘The trial court,

however, at the close of all the evidence, withdrew these

counts from the jury. /There is no cross-appeal. This, to-

gether with the evidence, discloses that neither the plain- —

tiff nor ‘his associates at the time of. the’ injury, made

l

a

—~—- £0) =“

complaint of: the working conditions, or requested safe-

guards of any sort. We do not hereby say that complaints

of conditions or demands by workmen are essential to the

determination of liability under the Aé¢t where its pro-

visions are applicable. "Here, however, the workmen were

sophisticated and knowledgeable as to the work being

. done and-plaintiff had been a member ofthe Iron Workers

- Union for 13 years and engaged in all forms of its work.

These observations. are lifnited solely to evaluating the ‘

contention that ultrahazardous work was engaged in as

viewed by the trial court.

[2-4] Plaintiff's argument is that there should be a

liberal construction of the statute to effectuate a legisla-

tive intent to provide for the protection of persons en-

gaged in ultrahazardous work. The Illinois cases cited by

plaintiff are not focused upon the problem at hand. Claffy

v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551) was

an action resulting from the failure of a hoisting device

and the issue was framed upon section 7 of the Structural

Work Act. Schultz v. Ericsson Co., 264 Ill 156, 106 NE

236, and Kennerly v. Shell Oil Co., 13 Ill2d 431, 150 NE2d

134, are directly and explicitly concerned with a scaffold

in the common definition. As stated in American Steel

Foundries v. Gordon, 404 Ill 174, 88 NE2d 465, the rule of

liberal construction does not permit either restriction or

enlargement of the meaning of the terms of the statute,

‘and it is not within the province of the court to take from,

-or enlarge, the meaning of a statute by reading into it

language which will, in the opinion of the court, correct

any supposed omission or defect. Rather, we must seek

the construction of statutory language in the usual mean- °

ing attached to the words used. Blough v. Ekstrom, 14 Ill

App2d 153, 144 NE2d 436, at p 162. In Larson v. Common-

wealth Edison, 33 Ill2d 316, 211 NE2d 247, the Supreme

Court spoke of liberal construction in its refusal to limit

or restrict the meaning of the words “in charge of” by

neeemate petted tne eee

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adding the connotation of exercising supervision and con-

trol. In distinction, we-are here asked to add new con-

notations to the language of a statute which does not re-

quire that scaffold or. comparable appliances be used, and

which specifies the, instrumentalities, each with its own

use, and an apparent usual meaning, none of which sug-

gest or connote a structure of the sort now at issue. As

' was said in Reed v. Johnson, 55 Ill App2d 67, 204 NE 2d

136, at p. 75, it is possible that the Structural Work Act,

enacted as it was before the Workmens Corpensation _

Act, is a proper subject for legislative review and clarifica-

tion, but we, as a court, cannot perform the functions that

properly fall within purview of the Legislature.

For the reasons herein-set forth, the judgment of the

trial court is reversed.

Smith, J., concurs.

Craven, J., dissenting:

The [llinois, Structural Work Act is an Act to provide

‘*for the protection and safety of \persons in and about

construction, repairing, alteration or removal of buildings,

bridges, viaducts, and other structures,” as indicated by

its title. (Ill Rev Stats 1963, ¢ 48, 460 et seq.) It was

stated in the first case interpreting the Act that an exam-

ination of the entire Act ‘‘will clearly show that it was

the- intention of the legislature to require owners and con-

tractors’ constructing, repairing, altering or painting the

buildings and structures mentioned in the act, to provide

for the protection and safety of the men engaged in the

work.’’ Claffy v. Chicago Dock & Canal Co., 249 Ill 210,

94 NE 551 (1911).

It, is obvious that the legislature has recognized dau-\

gerous and extrahazardous occupations and has, by this “sy

legislation, attempted to reduce the hazard to the fullest. _

extent possible (Schultz v. Henry Ericsson Co., 264 Ill

a

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— 30 —

‘156, 106 NE 236 (1914); Kennerly v. Shell Oil Co., 13

Tli2d 431, 150 NE2d 134 (1958)). The language of the

Act should be construed to give effect to this legislative

intention, which is ascertainable not only from the lan-

guage of the Act but from the evil to be remedied and the |

object to be obtained. Brackett v. Osborne, 44 Ill] App2d

441, 195 NE2d 8 (1963).

In view of this expression of legislative purpose and

the previous decisions mandating a liberal construction of

* the Act, I am unable to agree with the majority opinion

that the roof involved in this case is excluded from the

Act by reason of the fact that it is a part of the perma-

nent structure of the building. To so hold frustrates,

rather than effectuates, the purpose of the statute.

The case of Thon v. Johnson, 30 Ill App2d 317, 174

NE2d 400 (1961), held that a form constructed to hold

concrete for a landing at the top of a stairway from a

garage to a basement, into which form the plywood bot-

tom had not yet been placed and the concrete poured, was

not a scaffold within the meaning of our Act. On the

facts in Thon, the form was not furnished as a place to

work. The plaintiff in that case, an electrician, made use

of the form as a place to work afd was injured. The

court, in reversing a judgment for the\plaintiff, observed

that a contrary holding ‘‘would be the equivalent to hold-

ing that each and every place where a workman chooses

to stand thereby becomes a scaffold within the meaning

° of the statu ”

Thon is substantially different fram, the facts in the

instant case. Here the roof was furnishéd as a place to

work and its temporary use as a place to work in the proc-

- ess of construction was obviously contemplated by all

-parties. The statutory language of ‘‘ ‘erected and con-

structed’ means furnished, and it was furnished.’’ Old-

ham v. Kubinski, 37 Ill App2d 65, 185 NE2d 270 (1962);

Baas

Bounougias v. mye Steel Corp. ., 277 F2d 726, CA

7th, Til.

-I would agree that a workman iat by the use of a

permanent part of a building for scaffold purposes, con-

vert the same into a scaffold or other contrivance, within

the scope of the statute, merely by so using it, as was held

in Thon. See also Broderick v. Cauldwell-Wingate Co.,

301 NY 182, 93 NE2d 629." However, when a permanent

portion of a building or structure is furnished as a place

to work for work that would otherwise require construc-

‘tion of a temporary scaffold or other contrivance, within

the purview of. the statute, it should not be excluded. from

this safety statute merely because it is a part of a per-

manent building.

Thon is annotated at 87 ALR2d 973. At pages 983, 984

of that annotation, it .is stated:

“Tt has sometimes been argued, Bee with little

success, that the defective apparatus responsible for

the injury is rot a scaffold because it is part of the

* permanent building or structure under construction

rather than the temporary platforms contemplated by

the statute. .

‘*Where the defendant contended that an injury

caused by a brick falling from a platform consisting

of loose sheathing boards laid across the roof joists

of a building to provide a working area for brick-

layers could not prowde a basis for recovery under

the New York Scaffold Law because the platform was —

not a scaffold, since the loose Voards: forming it were

intended to be a permanent part of the building: and

were to be ultimately nailed down by carpenters, it:

was held in Carpenter v. Burmeister (1925) 217 Mo

App 164, 273 SW 418, that even though the boards’

were to be used permanently, they constituted a tem-

porary scaffold for brick layers at the time of the

accident.

~ 32 —

‘Planking intended to be ultimately nailed down

as part of the flooring in a.coal trestle being con-

structed by the defendant and which at the time of

the accident was laid loosely over the floor joists

to permit workmen to walk back-and forth was a

scaffold, held the Court in Ross v. Delaware, L. & W.

R. Co. (1921) 231 NY 335, 132 NE 108, saying that

the planks were not a permanent part of the flooring

_ but were a temporary device to allow workmen to ©

- accomplish their jobs high above the ground.”

As stated in Thon, there is little authority in Illinois —

as to what is or is not a scaffold within the meaning of

the statute. Each case must necessarily be determined

upon its own set of facts. The authorities in the cited

- ALR annotation suggest that, in making this determina-

tion, consideration should be given to the elements of

danger contemplated: by the statute, as well as the nature

and use of the device. The temporary or permanent

nature of the device or-contrivance should be only a

factor in determining whether it is within the statutory

‘language, which includes ‘‘s¢caffolds,’’ ‘‘hoists,’’ ‘‘cranes,’’

‘*stays,’’ ‘‘ladders,’’ ‘‘supports,’’ or ‘‘other mechanical

contrivances,’’ erected or constructed, i. e., furnished, for

| the use in the erection, alteration, or removal of any .

\ house or bnilding. |

Other issues presented by this appeal, relating to the

question of whether or not the defendants were in charge

of the work, were properly submitted to, and determined

by, the jury under the authority of, Larson v. Common-

wealth Edison Co., 33 Ill2d 316, 211 NE2d 247 (1965).

e reasons stated, I-would affirm the judgment

entered upon the verdict.

.

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APPENDIX Y. da

‘No. 66-61.

Se the Appellate Court of Illinois, Fifth District.

Charles Louis,

oot . Appeal from the

Plaintiff-Appellant, | Circuit Court,

vs. Marion County,

, Illinois. Honorable

! - Daniel Dai

fanger Construction ‘Company, Saas = adh —

Defendant-Appellee. ‘

Goldenhersh, P: J.

Plaintiff appeals from the judgment of the Circuit

Court of Marion County entered upon allowance of a mo-

tion to dismiss plaintiff’s third amended complaint.

Plaintiff’s third amended complaint alleges that de-

fendant was a general contractor engaged in the erection

of a school building, that defendant had charge of the

erection of the building and all scaffolds, stays and sup-

ports ‘used thereon, that the stays and supports were to

‘remain in place and become a part of the building, that

plaintiff was employed by a subcontractor engaged . {

part of the construction job.

_ The complaint further alleges that seetions 60 and 69 -

of Chapter 48, Ill. Rev. Stat. 1955, were then in force

and effect, that it was defendant’s duty to comply with

the provisions of the statute, that defendant wilfully or

knowingly failed to comply with the provisions of the |

statute ‘‘by knowingly permitting one or more planking

type scaffolds to be used in the construction of said build-

ing, the said scaffolds were not so placed as to give

proper and adequate protection to the life and limb of

‘the plaintiff and other persons employed or engaged

ee

thereon.’’ A motion to strike other charges of failure to

comply with the Structural Work Act was allowed prior

to the filing of the motions discussed in the opinion.

Defendant moved that plaintiff be required to file fur-

ther pleadings, and for a bill of particulars. Plaintiff’s

motion for denial of a bill of particulars was overruled,

* and a bill of particulars was filed. In the bill of par-

ticulars plaintiff states that the planking type scaffolds —

referred to in the complaint consisted of boards laid across

‘‘T’? beams, which boards had been furnished by defend-

ant. Plaintiff further states that he was not standing on‘a

plank type scaffold at the time that he fell, for the reason

that the scaffolds were not properly placed for his use,

that he did not know the location of the scaffolds at that

time, and -that employées of the defendant mae ‘*placed

_ or misplaced’’ the scaffolds.

‘The trial court, treating defendant ’s motion as a motion

' to dismiss, allowed it, and Gistnissed the case. This appeal

followed.

Although the exact basis for Gismiasel ‘enunot be deter-

mined from the order entered by the circuit court, the

parties have briefed and argued the following proposi-

tions. Plaintiff contends (a) that the Structural Work

Act is designed to include not only scaffolds, but hoists,

cranes, stays, ladders, supports, 2: ‘‘other mechanical

contrivances’; (b) that a scaffold, by definition, is tem-

porary, but a support, if iti is furnished for, use, and used,

as a support during the course of construction falls within

the purview of the Structural Work Act, although it may

be a part of the pérmanent structure, (c) that if defend- ©

ant knowingly. permitted planks to be used in the con-

struction ‘work, and at the time of plaintiff’s injury the

planks were not so placed as to give proper and adequate

protection to the life-and limb of the plaintiff, defendant |

is in violation of the statutory requirement for proper

placement of supports or scaffolds.

Pes se cites * SIGE: MINE LO EEL LOT ROTTED ET Ge i soaigiaa tangle iinilain alittle res

a

Defendant contends (a) that a permanent part of a

building is not-a scaffold. or support within the meaning |

of the Structural Work Act, (b) that the fact that a

-worknian chooses to walk on an integral permanent part

of a structure does not make that part, of the building a

‘scaffold or support within the meaning of the Structural

Work Act, (c) that the Structural Work Act ‘does not

require a contractor to furnish a scaffold or support to

an employee of a sub-contractor, (d) that the Structural

Work Act does not confer upon a contractor the ‘power,

nor place upon him the duty, to prohibit: an employee of ©

a sub-contractor from walking on an integral part of a

building under construction, (e) the fact that a contractor

might have used a scaffold at some stage of construction, —

does not thereafter impose upon him the duty to place a

‘scaffold for every other operation conducted by a sub-

contractor’s employee.

In determining the sufficiency of a complaint when at-

tacked by a motion to strike or dismiss, the facts well

pleaded must be taken as true. Acorn Auto Driving .

School, Inc. v. Board of Education, 27 Ill.-2d 93, 187 N. E.

2d 722. For purposes of the motion, therefore, it is ad-

mitted that defendant had charge of the erection of the

building and of all scaffolds, stays, and supports used in

the construction work.

As stated in Thon v. Johnson, 30 Ill. App. 2d 317,

‘‘There is little authority in Illinois as to-what does and

what does not constitute a scaffold within the meaning of

the statute’’, and whether an object or instrumentality is

a scaffold or support must be determined on the facts in

each case. Thus an overhead crane (Bounougias v. Re-

public Steel Corporation, 277 F. 2d 726), a shovel exten-—

sion mounted on a trattor (Oldham v. Kubinski, 37 Ill.

App. 2d 65, 185 N. E. 2d 270) and a plank laid across a

concrete: form (Frick v. O’Hare-Chicago Corporation, 217

N. E. 2d 552) were held to be scaffolds under the facts

=— =

presented in those cases. If, as alleged in the complaint,

planks, or ‘‘planking type scaffolds’? were furnished for

use in the construction .of the building, as a place for

plaintiff to work, they were ‘‘supports’’ within the con-

templation of the Structural Work Act.

~ As to whether a plank or support which is, or is to

become, a part of the permanent structure falls within the

provisions of the Structural Work Act, the only-ease de-—

Gided by a court of review in Illinois on this exact issue,

of which this court is aware, is Parizon v. Granite City °

Steel Company, 218 N. E. 2d 27, decided May 18, 1966,

by a divided court, sitting in the Fifth District. In Pari-

zon, the majority held that a part of the permanent: struc-

ture, in that case, the roof, was not a scaffold within the

Structural Work Act. We agree, however, with this state-

ment in the dissenting opinion: ‘‘However, when a per-

manent portion of a building or structure is furnished as

a place to work for work that would otherwise require

construction of a temporary scaffold or other contrivance,

‘within the purview of the statute, it should not be ex-

cluded-from this safety statute merely -because it is a part

of a permanent building.’’ We hold, therefore, that the

fact that the support or scaffold described in the com-

plaint is to become a part of -the permanent stricture

does not render the provisions of the Structural Work

Act inapplicable. - ’

‘Defendant argues that the Structural Work Act does not

apply because ‘plaintiff was not using a ‘scaffold, hoist,

crane, stay, ladder or other mechanical contrivance’ when

he fell’’, As above stated, the plaintiff alleges that he

was not standing on a scaffold when he fell for the: reason

that the planking type scaffold or supports were not prop-

erly placed for his use. The statute upon which plaintiff

relies, provides that scaffolds and supports cae’ be so

' erected and constructed, placed and operated. . .’’. Obvi-

ously the failure to properly place a veaffold or support

is as much an actionable violation of the Structural Work

~

“apc ton seme te My oper ager

- De aa aad

ee 37 —

Act as is.the ‘hihies to properly construct,. erect or ‘oper- .

ate a scaffold or: mechanical contrivance.

The Civil Practice Act provides that pleadings | shall be

liberally construed with a view to doing subgtantial justice

between the parties. Ch, 110, sec. 33 (3), Dll. Rev. Stat.

1965. Section 4 of the Civil Practice Act provides that

the Act shall be liberally construed ‘to. the end that con-—

.troveries may be speedily.and finally determined accord-

ing to the substantive rights of the parties. (Ch. 110, sec.

4, Tl. Rev. Stat. 1965.) A cause of.action should not be

dismissed on the pleadings unless ‘it clearly appears that

~ no set of facts can be proved under the pleadings, which

will entitle the plaintiff to recover. Johnston v. Girvin,

61 Ill, App. 2d 47, 208 N. B. 2d 894, Although the third

amended complaint might have been more artfully drawn,

it states a cause of action under the Structural Work Act

and the dismissal of the cause was error. |

We need not discuss defendant’s contentions (b), (c), —

(d) and (e) for the reason that until evidence is heard

and judgment’ rendered, no issue is presented for decision:

-by this court. Mahin v. Baltis, 34 =. 2d 413, 216 N. E.

2d 132.

For the ay stated, the judgment of the Cireuit

| Court of Marion County is reversed: and the cause re-

‘manded for further proceedings not inconsistent with this

opinion. :

Judgment reversed and case remanded.

Concur: George J. Moran |

Justice Edward C. Eberspacher dissents.

Publish in Full.

Filed .

. Bep. 14, 1966°

James R. McLaughlin

Clerk of, the Appellate Court -

Fifth District of Illinois ~

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