Burgess v. Pocrnich
Annotate this Case
No. 5-95-0947
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
_________________________________________________________________
CLAUDIE D. BURGESS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Effingham County.
)
v. ) No. 94-L-72
)
MARK POCRNICH, ) Honorable
) Richard H. Brummer,
Defendant-Appellee. ) Judge, presiding.
_________________________________________________________________
JUSTICE CHAPMAN delivered the opinion of the court:
On October 24, 1992, Mark Pocrnich, defendant, asked Claudie
Burgess, plaintiff, to assist him in trimming a tree on defendant's
property because the tree's branches were in close proximity to the
utility line connected to defendant's house. Plaintiff agreed.
While using defendant's ladder to do the trimming, plaintiff fell
to the ground and was injured. Plaintiff filed an action for
personal injury under the provisions of the Structural Work Act
(740 ILCS 150/1 et seq. (West 1994) (repealed by Pub. Act 89-2, 5,
effective February 14, 1995)). The court granted defendant's
motion under section 2-615 of the Code of Civil Procedure (735 ILCS
5/2-615 (West 1994)).
This appeal addresses three issues: (1) whether a volunteer is
a person protected by the Structural Work Act; (2) whether a
utility line servicing a residence is part of a "house" or "other
structure" within the purview of the Structural Work Act; and (3)
whether the trimming of trees to prevent damage to a utility line
is a covered activity within the meaning of the Structural Work
Act. We reverse and remand.
Before addressing the substantive issues presented, we note
that the court granted defendant's motion to dismiss pursuant to
section 2-615 of the Code of Civil Procedure. A motion to dismiss,
under section 2-615, attacks only the legal sufficiency of the
complaint. Barber-Colman Co. v. A & K Midwest Insulation Co., 236
Ill. App. 3d 1065, 1068, 603 N.E.2d 1215, 1218 (1992). A court
reviewing an order granting a section 2-615 motion takes all well-
pleaded facts as true. Roehrborn v. Lambert, 277 Ill. App. 3d 181,
183, 660 N.E.2d 180, 182 (1995). In reviewing orders on section 2-
615 motions to dismiss, appellate courts apply a de novo standard
of review. Roehrborn, 277 Ill. App. 3d at 183, 660 N.E.2d at 182.
The first issue to be discussed is whether a volunteer is
within the class of people covered by the Structural Work Act
(Act). Plaintiff argues that our decision in O'Brien v. Rogers,
198 Ill. App. 3d 341, 555 N.E.2d 1005 (1990), governs this case,
and that under O'Brien, a volunteer is a protected person under the
Act. Defendant agrees that O'Brien governs this issue, but he
urges this court to reconsider its ruling in O'Brien.
The plaintiff in O'Brien was seriously injured while assisting
the defendant in putting a new roof on defendant's house. O'Brien,
198 Ill. App. 3d at 346, 555 N.E.2d at 1007. Although the
plaintiff was not paid for his assistance, there was some dispute
as to whether the plaintiff was helping the defendant in order to
repay the defendant, who had earlier helped the plaintiff rebuild
the roof of his own house. O'Brien, 198 Ill. App. 3d at 345-46,
555 N.E.2d at 1007-08. O'Brien stated:
"Even if we were to assume for the sake of argument
that plaintiff was working for free, defendant's argument
would still fail. Nothing in the language of the
Structural Work Act limits the statute's coverage to
individuals who are being paid for their labor. The Act
requires that scaffolding and other support devices must
be so erected and constructed, placed and operated so as
to give proper and adequate protection not only to
persons `employed' thereon, but also to persons `engaged'
thereon. [Citation.] The word `engaged' has been
defined as meaning `to be busied,' `to carry on,' `to
devote attention and effort,' `to embark on,' or `to take
part in.' [Citation.] None of these definitions implies
payment for services.
*** To hold otherwise would render the term
`engaged' completely superfluous. This would violate one
of the basic rules of statutory construction, namely,
that statutes should, if possible, be construed so that
no term is rendered meaningless or superfluous."
O'Brien, 198 Ill. App. 3d at 347-48, 555 N.E.2d at 1009.
The first district relied upon O'Brien's reasoning for its
decision in Coates v. W.W. Babcock Co., 203 Ill. App. 3d 165, 560 N.E.2d 1099 (1990). The third district, in Price v. Victory
Baptist Church of Sunnyland, 205 Ill. App. 3d 604, 607, 563 N.E.2d 1244, 1247 (1990), also concluded that volunteers are not barred
from the Structural Work Act's protection simply because they are
volunteers. In Warren v. Meeker, 55 Ill. 2d 108, 113, 302 N.E.2d 54, 57 (1973), the supreme court held that the Structural Work Act
applied to a farm hand who was injured by falling from a ladder
while repairing a structure. Warren relied upon the Act's plain
language, "which extends protection to `any person' engaged on a
ladder while repairing a structure." (Emphasis added.) Warren, 55 Ill. 2d at 112-13, 302 N.E.2d at 57. We decline to overrule
O'Brien, and we stand firmly behind O'Brien's holding that the
Structural Work Act applies to volunteers.
The second issue to be addressed is whether the poles and
lines of a utility which services a residence are part of a "house"
or "other structure" within the meaning of the Structural Work Act.
The Structural Work Act states in pertinent part:
"All scaffolds, hoists, cranes, stays, ladders, supports,
or other mechanical contrivances *** 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."
(Emphasis added.) 750 ILCS 150/1 (West 1994).
Plaintiff argues that the utility line which serviced defendant's
house was an integral part of the house. Plaintiff further argues
that the utility line, either by itself or in conjunction with
defendant's house, was a structure within the meaning of the
Structural Work Act. Our conclusion is based on the second
contention.
The Illinois Supreme Court has never specifically addressed
whether a utility line is a structure within the meaning of the
Structural Work Act. In Long v. City of New Boston, 91 Ill. 2d 456, 459, 440 N.E.2d 625, 626 (1982), the plaintiff was injured
while standing on a ladder which was leaning against a utility
pole. The plaintiff was stringing Christmas lights along the main
street of the city. The court assumed, for the sake of argument,
that the utility pole was a structure but concluded that, under the
facts of the case, the plaintiff had no cause of action under the
Structural Work Act. Long, 91 Ill. 2d at 467, 440 N.E.2d at 630.
The court did not base its holding on the fact that the utility
pole was not a structure but, instead, based its holding on the
fact that the plaintiff was not engaged in an alteration of the
structure. Long, 91 Ill. 2d at 467, 440 N.E.2d at 630.
In Wood v. Commonwealth Edison Co., 343 F. Supp. 1270, 1271
(N.D. Ill. 1972), the court held that a utility pole, together with
its crossbeams and any wires strung from it, was a structure under
the Illinois Structural Work Act. Gill v. Parcable, Inc., 138 Ill.
App. 3d 409, 412, 485 N.E.2d 1215, 1216 (1985), rejected what it
termed Wood's "broad statutory construction" and distinguished it
on its facts. Specifically, Gill concluded that the plaintiff in
Wood was involved in an alteration of the utility pole itself,
while the plaintiff in Gill, who attached fasteners to utility
poles which were designed to hold a cable television line,
performed a task which was unrelated to the utility pole as part of
a structural system of electricity. Gill, 138 Ill. App. 3d at 412,
485 N.E.2d at 1216-17.
We hold that Gill's analysis of whether a plaintiff has a
cause of action under the Structural Work Act is incorrect. The
first issue to be decided is whether the entity the plaintiff was
working on is a "structure" within the meaning of the Act. The
second, and distinctly different, issue to address is whether the
plaintiff's activity is a covered activity under the Structural
Work Act.
To assist in answering the first question, whether plaintiff
was working on a structure, we look at the Structural Work Act
itself. The Act does not specifically define "structure", and we
are left with case law descriptions as to what constitutes a
structure. Navlyt v. Kalinich, 125 Ill. App. 2d 290, 260 N.E.2d 855 (1970), aff'd, 53 Ill. 2d 137, 290 N.E.2d 219 (1972), involved
a worker killed during the construction of a sewer system when a
ditch collapsed on him. The appellate court decision in Navlyt
provides insight on the meaning of the word "structure" in the
Structural Work Act:
"We recognize limitations in importing definitions from
other statutes, since the context in which a term is used
obviously bears on its intended meaning. However, in the
context of a liberal construction universally given to
the Structural Work Act, we do not conceive that the word
`structure' was intended to have less than its commonly
accepted broad meaning." Navlyt, 125 Ill. App. 2d at
295, 260 N.E.2d at 857.
The appellate court went on to rely upon Brown v. City of
Decatur, 188 Ill. App. 147 (1914), which defined a structure as
"anything that is built or constructed." Navlyt, 125 Ill. App. 2d
at 295, 260 N.E.2d at 857.
The supreme court affirmed the appellate court's decision and
pointed out that whether the ditch was itself a structure was
unimportant because:
"The plaintiffs' decedent was working upon a sewer system
which we clearly conceive to be a `structure' under the
Structural Work Act either considered by itself or as an
integral part of the buildings being erected on a
construction site." Navlyt, 53 Ill. 2d at 138-39, 290 N.E.2d at 220.
Turning from definitions found in cases to those found in dictio-
naries, Black's Law Dictionary defines "structure" as:
"Any construction, or any production or piece or work
artificially built up or composed of parts joined
together in some definite manner. That which is built or
constructed; an edifice or building of any kind."
(Emphasis added.) Black's Law Dictionary 1424 (6th ed.
1990).
Webster's Dictionary defines "structure" as:
"1: the action of building: CONSTRUCTION 2 a: something
(as a building) that is constructed ***." (Emphasis
added.) Webster's Ninth New Collegiate Dictionary 1169
(1988).
In this case, the utility line was constructed above defendant's
parcel of land to provide his house with electricity. Relying on
the common usage of the word "structure", we hold that utility
poles and lines are structures under the Structural Work Act. To
the extent that Gill v. Parcable, Inc., 138 Ill. App. 3d 409, 485 N.E.2d 1215, holds to the contrary, we overrule it.
We now turn to the third issue: whether the trimming of trees
to prevent damage to a utility line is a covered activity within
the meaning of the Structural Work Act. Plaintiff argues that the
complaint contains sufficient allegations to establish that he was
engaged in maintenance, or repair, of the utility line at the time
of his injury. Defendant argues that even if the utility line is
a "structure" within the meaning of the Act, plaintiff's trimming
of a tree near the utility lines, rather than working on the poles
and lines themselves, is not an activity covered by the Act.
The title of the Structural Work Act suggests that the Act is
not limited to work performed directly on a structure:
"An Act providing for the protection and safety of
persons in and about the construction, repairing,
alteration, or removal of buildings, bridges, viaducts,
and other structures, and to provide for the enforcement
thereof." (Emphasis added.) Laws 1907, p. 312, approved
June 3, 1907, eff. July 1, 1907 (740 ILCS 150/1 et seq.
(West 1994)).
In this case, the plaintiff was trimming a tree which
defendant feared would soon interfere with his house's utility
lines. Plaintiff was not repairing the utility line itself, but he
was assisting defendant in preventative maintenance on them.
According to the fact alleged in the complaint, the tree plaintiff
was trimming was close enough to the utility line to satisfy the
"in and about" language of the Structural Work Act. See McNellis
v. Combustion Engineering, Inc., 58 Ill. 2d 146, 317 N.E.2d 573
(1974).
The next logical step is to consider whether "repairing" a
structure under the Act also includes maintenance of the structure.
The supreme court brought maintenance within the provision of the
term "repairs" in Halberstadt v. Harris Trust & Savings Bank, 55 Ill. 2d 121, 302 N.E.2d 64 (1973). Halberstadt held that the
Structural Work Act applied to a window washer who was killed when
he fell from a commercial office building while washing windows.
Washing windows is quite clearly an act of maintenance rather than
one of repair. The supreme court referred to the appellate court's
example of a window cleaner and window painter working on the same
scaffold and its conclusion that it would be absurd to afford the
protection of the Structural Work Act to one worker and not to the
other. The supreme court agreed with the appellate court's
analysis and concluded that "the function of washing windows is
qualitatively comparable to that of repairing or painting a
structure." Halberstadt, 55 Ill. 2d at 128, 302 N.E.2d at 68.
In Simmons v. Union Electric Co., 104 Ill. 2d 444, 473 N.E.2d 946 (1984), the plaintiff was an employee of Sachs Electric
Company, which had a contract with Union Electric to install and
maintain electrical power to Union Electric's Cahokia plant. The
plaintiff was injured while descending into an ash pit to repair or
do maintenance work on a sump pump. The supreme court held that
the plaintiff's activity was covered by the Structural Work Act.
Finally, in Warren v. Meeker, 55 Ill. 2d 108, 302 N.E.2d 54 (1973),
the supreme court held that a complaint stated a cause of action
under the Structural Work Act when it charged that the plaintiff
was injured while repairing a "sweeping auger" in a silo.
The appellate court has also recognized the Structural Work
Act's coverage for what might be more strictly termed maintenance
activities, as opposed to repair activities. For example, Duffin
v. Seibring, 154 Ill. App. 3d 821, 828, 507 N.E.2d 930, 934 (1987),
held that the plaintiff's spraying of insecticide into the
defendant's grain bin was an activity within the scope of the
Structural Work Act. Duffin reasoned that although spraying
insecticide into a grain bin did not affect the structural
integrity of the bin, it did maintain the bin's usefulness for its
intended purpose. Duffin, 154 Ill. App. 3d at 828, 507 N.E.2d at
934. The court reasoned that unless insecticide was sprayed to
control corn weevils, a grain bin would be utterly useless for the
purpose of storing grain. Duffin, 154 Ill. App. 3d at 828, 507 N.E.2d at 934.
Similarly, plaintiff's act of trimming the tree did not affect
the structural integrity of the utility line. Plaintiff's act did,
however, maintain the utility line's usefulness for its intended
purpose of providing electricity to defendant's house. Following
the language of the Structural Work Act to its logical extension,
we hold that maintenance of a structure is equivalent to "repair-
ing" a structure under the Act.
Clearly, if a tree branch had fallen against a utility line,
or a tree had been uprooted and was pushing against a pole, the
tree trimming would be necessary to maintain the regular use of the
line. Therefore, as in Simmons, 104 Ill. 2d 444, 473 N.E.2d 946,
the trimming would be a necessary repair under the Structural Work
Act.
In the words of the Duffin court:
"Like the washing of windows or the repair of a sump pump
in order to remove water from a power plant ash pit, the
spraying of insecticide into a grain bin does not affect
the structural integrity of the bin. It does, however,
maintain the bin's usefulness for its intended purpose,
for absent the spraying of insecticide to control corn
weevils, a grain bin would be utterly useless for the
purpose of storing grain." Duffin, 154 Ill. App. 3d at
828, 507 N.E.2d at 934.
"[The plaintiff] suggests it would be absurd to hold that
he could recover under the Act for damages sustained in
a fall while painting a grain bin, but that he could not
recover under the Act for injuries sustained in a fall
from the same position while spraying the bin." Duffin,
154 Ill. App. 3d at 827, 507 N.E.2d at 933.
We note again that the supreme court approved a similar analogy in
Halberstadt v. Harris Trust & Savings Bank, 55 Ill. 2d 121, 302 N.E.2d 64 (1973).
Defendant argues that this case is very similar to the fourth
district case Burkhart v. Illinois Power Co., 9 Ill. App. 3d 139,
291 N.E.2d 673 (1973). Burkhart affirmed the trial court's
dismissal of the portion of the complaint which charged the
defendant with violating the Structural Work Act, when the decedent
was killed trimming trees along the defendant's power lines.
Burkhart, 9 Ill. App. 3d at 140-41, 291 N.E.2d at 674. The court
does not specifically address whether a power line is a structure
under the Act. Burkhart, 9 Ill. App. 3d at 141, 291 N.E.2d at 674.
Instead, the court based its ruling on the fact that the decedent
was not working on the transmission line itself, and therefore,
according to the court, he was not engaged in the repairing of a
structure. Burkhart, 9 Ill. App. 3d at 141, 291 N.E.2d at 674. In
addition, Burkhart specifically rejected the plaintiff's argument
that the language of the title of the Act means that the Act is not
intended to be limited to work done directly on, or in, a struc-
ture. Burkhart, 9 Ill. App. 3d at 141, 291 N.E.2d at 674.
We acknowledge Burkhart's holding and the apparent factual
similarities to the present case. However, we decline to follow
it.
For the following reasons, we reverse the court's dismissal of
plaintiff's complaint and remand to the circuit court for proceed-
ings consistent with this opinion.
Reversed and remanded.
GOLDENHERSH, J., concurs.
JUSTICE WELCH, dissenting:
I dissent. See Burkhart v. Illinois Power Co., 9 Ill. App. 3d
139 (1973). NO. 5-95-0947
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________
CLAUDIE D. BURGESS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Effingham County.
)
v. ) No. 94-L-72
)
MARK POCRNICH, ) Honorable
) Richard H. Brummer,
Defendant-Appellee. ) Judge, presiding.
___________________________________________________________________________
Opinion Filed: November 21, 1996
___________________________________________________________________________
Justices: Honorable Charles W. Chapman, J.
Honorable Richard P. Goldenhersh, J.,
Concurs
Honorable Thomas M. Welch, J.,
Dissents
___________________________________________________________________________
Attorney Michael J. Meyer, 212 East Jefferson Avenue, P.O. Box 129,
for Effingham, IL 62401
Appellant
___________________________________________________________________________
Attorneys Brien J. O'Brien, Ryan, Bennett & Radloff, 300 Richmond
for East, P.O. Box 629, Mattoon, IL 61938
Appellee
___________________________________________________________________________
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