Martinez v. Mobile Oil Corp.

SIXTH DIVISION
MAY 1, 1998

No. 1-96-2023

RONALD MARTINEZ, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY.
)
v. )
)
MOBIL OIL CORPORATION )
and PANGERE CONSTRUCTION, INC., ) HONORABLE
) JOSEPH N. CASCIATO,
Defendant-Appellee. ) JUDGE PRESIDING.

PRESIDING JUSTICE CAMPBELL delivered the opinion of the
court:
Plaintiff Ronald Martinez appeals an order of the circuit
court of Cook County granting summary judgment in favor of defen-
dants Mobil Oil Corporation (Mobil) and Pangere Construction,
Inc. (Pangere) on personal injury claims based on the Structural
Work Act (740 ILCS 150/1 et seq. (West 1994) (repealed by Pub.
Act 89-2, effective Feb. 14, 1995)) (Act). The primary issues on
appeal are: (1) whether the Act applies to a construction worker
struck by another worker who falls from a structure; (2) whether
the structure at issue in this case falls within the scope of the
Act; and (3) whether plaintiff's injury falls outside the Act as
being caused by plaintiff's voluntary action. For the following
reasons, we reverse and remand the case for further proceedings.
The record on appeal indicates the following facts. On
December 20, 1993, plaintiff filed a four count complaint against
defendants. The complaint alleges that on September 22, 1992,
defendants were in charge of construction work being performed at
the Mobil Oil Refinery in Elwood, Illinois. Plaintiff was on the
premises of the refinery in his capacity as an employee of BMW
Constructors, Inc. (BMW). Plaintiff alleged that he was on fire
watch for two welders when a foreman employed by Pangere became
entangled in a lanyard and fell from a platform. Plaintiff
further alleged that he "caught the man in mid-fall causing
Plaintiff's body to be twisted thus injuring his back and legs."
Count I of the complaint claimed that Mobil violated the Act
by failing to provide safe access to and from platforms or ade-
quate protection to the life and limb of persons engaged thereon.
Count II claimed that Mobil negligently failed to provide a
reasonably safe work place. Counts III and IV claimed similar
violations of the Act and negligence, respectively, against
Pangere.
Pretrial discovery proceeded. On January 16, 1996, the
defendants filed a joint motion for summary judgment as to counts
I, II and III of plaintiff's complaint. The defendants relied
primarily on the transcript of plaintiff's deposition. In the
deposition, plaintiff discussed the events of September 22, 1992.
Plaintiff testified that Pangere was a contractor for the
work at the refinery. Plaintiff was employed by BMW as a fire-
watch, who would watch the welders and grinders to prevent any
fires that could result from their work. At the time he was
injured, plaintiff had been watching work performed to build a
"structural unit" in the "CCR unit."
Plaintiff was standing approximately 3 feet from two steel
platforms that were stacked on top of each other. These plat-
forms, which were approximately 20 feet square, would be even-
tually hoisted to serve as working platforms for the project.
There were large wooden blocks, twice the size of railroad ties
(approximately 16 to 18 inches square and 2 1/2 feet long) be-
neath and between the platforms. Together the platforms stood
almost to plaintiff's chest, or approximately 3 1/2 feet tall.
Two iron workers were working on the top platform as they
built it. Wayne Swanson, a foreman for Pangere, was also on the
platform, originally 6 feet from plaintiff. According to plain-
tiff, Swanson was approximately 6 feet tall, weighing approxi-
mately 200 pounds. Swanson was wearing 6 foot lanyards in a loop
hooked to his chest and back, which hung on Swanson's side.
Plaintiff watched at Swanson walked to the edge of the platform
in apparent preparation to climb down to the ground. Swanson's
knee became caught on a lanyard as he was stepping off the plat-
form.
Plaintiff testified that he reached out to Swanson because
Swanson's arms went out. Plaintiff grabbed Swanson, putting his
left hand under Swanson's arm and his right hand under Swanson's
armpit. Plaintiff twisted as Swanson fell. Both men fell to the
ground; each on one knee. The men landed next to each other.
After this incident, plaintiff continued to work, but start-
ed having a "weird feeling" in his lower right back approximately
an hour afterward. Plaintiff thought he had pulled a muscle.
Plaintiff told his boss of the incident at lunch time. He also
notified BMW's "safety man" later that day.
Following a hearing on the matter, the trial court ruled
that the type of activity at issue was not covered by the Act.
The trial court entered an order granting summary judgment in
favor of the defendants on counts I and III of plaintiff's com-
plaint and finding no just reason to delay enforcement or appeal
of the order. Plaintiff filed a timely Notice of Appeal to this
court.
I
The issue on appeal is whether the trial court erred in
granting summary judgment. When reviewing a trial court's order
of summary judgment, the only issue on appeal is whether the
pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law. Board of Directors of Olde Salem Homeowners'
Association v. Secretary of Veterans Affairs, 226 Ill. App. 3d
281, 284-85, 589 N.E.2d 761, 763 (1992). Although the use of a
summary judgment procedure is encouraged as an aid in expeditious
disposition of a lawsuit, it is a drastic means of disposing of
litigation and should only be allowed when the right of the
moving party is clear and free from doubt. Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867, 871 (1986). In determining
whether the moving party is entitled to summary judgment, the
court must construe the pleadings, depositions, admissions and
affidavits strictly against the movant and liberally in favor of
the opponent. In re Estate of Whittington, 107 Ill. 2d 169, 177,
483 N.E.2d 210, 215 (1985). Although the court may draw infer-
ences from the undisputed facts, where reasonable persons could
draw divergent inferences from the undisputed facts, the issue
should be decided by the trier of fact and the motion should be
denied. See Pyne v. Witmer, 129 Ill. 2d 351, 358, 543 N.E.2d 1304, 1308 (1989).
II
Counts I and III of plaintiff's complaint were based on
alleged violations of the Act, which provided in relevant part as
follows:
"All scaffolds, hoists, cranes, stays, lad-
ders, supports, or other mechanical contriv-
ances, erected or constructed by any person,
firm or corporation in this State for the use
in the erection, repairing, alteration, re-
moval 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 em-
ployed 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." 740 ILCS
150/1 (West 1994)(repealed by Pub. Act 89-2,
effective Feb 14, 1995).
The purpose of the Act is to protect persons engaged in extra--
hazardous occupations such as the construction, repair, alter-
ation, or removal of buildings, bridges, viaducts, or other
structures. Meyer v. Caterpillar Tractor Co., 135 Ill. 2d 1,
7-8, 552 N.E.2d 719, 721 (1990); Vuletich v. United States Steel
Corp., 117 Ill. 2d 417, 421-22, 512 N.E.2d 1223, 1224 (1987).
The Act should be liberally construed, but it is not intended to
cover all construction activities or all injuries which occur at
or near a construction site. Vuletich, 117 Ill. 2d at 422, 512 N.E.2d at 1224. Rather, the inquiry should focus on the particu-
lar circumstances surrounding the occurrence of the injury.
Harper v. Schal Associates, Inc., 159 Ill. App. 3d 542, 545, 510 N.E.2d 1061, 1064 (1987), citing Ashley v. Osman & Associates,
Inc., 114 Ill. App. 3d 293, 295-96, 448 N.E.2d 1011, 1013 (1983).
In order to state a cause of action for a violation of the
Act, it is necessary to show: (1) the device involved is one
listed in the Act; (2) the device was used to complete a building
or other structure within the Act; (3) the device was unsafe, not
safely placed or operated, or there was a failure to provide such
a device; (4) those in charge of the work willfully violated the
Act; and (5) the violation of the Act proximately caused the
plaintiff's injury. Harper, 159 Ill. App. 3d at 545, 510 N.E.2d
at 1064; Ashley, 114 Ill. App. 3d at 296, 448 N.E.2d at 1013.
The first ground for summary judgment asserted by defendants
in this case is that plaintiff cannot recover because he was not
engaged in extrahazardous construction activity at the time of
his injury. See Vuletich, 117 Ill. 2d at 423-24, 512 N.E.2d at
1225. The Act plainly affords protection, however, to persons
who are simply "passing under or by" any of the support devices
to which it applies. 740 ILCS 150/1 (West 1994). Passing by an
inadequate support for people or materials is a highly dangerous
construction activity; an injury resulting from such activity is
directly related to the hazards inherent in the use of (or fail-
ure to use) such devices. See Wellston v. Levy Organization,
Inc., 175 Ill. App. 3d 301, 308-09, 530 N.E.2d 60, 65 (1988). We
find no reason why a person required to remain near a platform by
his job would fall outside the protection defined by Wellston.
Moreover, in Vuletich, the plaintiff slipped and fell from
icy temporary stairs leading from a tool storage trailer.
Vuletich, 117 Ill. 2d at 420, 512 N.E.2d at 1224. In this case,
plaintiff was struck by a person falling from a steel platform.
If the platform is a support within the meaning of the Act, the
injury here would be distinguishable from the slip-and-fall on
the stairs at issue in Vuletich.
Of course, the second ground defendants asserted in their
motion for summary judgment was that the platform here was not a
support within the meaning of the Act, but was being used by
Swanson as a pathway. Whether the platform falls within the Act
is a matter of statutory construction and, thus, a question of
law. See Stead v. Valentine, 218 Ill. App. 3d 1002, 1005, 578 N.E.2d 1227, 1229 (1991); see Heino v. Mellon Stuart Co., 222
Ill. App. 3d 147, 150, 583 N.E.2d 697, 699 (1991). In determin-
ing whether a device falls within the Act, courts generally
examine: (1) the device's intended use at the time of the injury;
(2) whether the injury had some connection with the hazardous
nature of the device; and (3) whether this was the danger that
the legislature attempted to alleviate. Stead, 218 Ill. App. 3d
at 1005, 578 N.E.2d at 1230. Accordingly, the Vuletich court
ruled that the stairs at issue were not a support, for they were
merely used to provide a pathway for ingress and egress from the
trailer. Vuletich, 117 Ill. 2d at 422-23, 512 N.E.2d at 1225.
In this case, following Wellston, the second and third
factors are present. The question remains as to the platform's
intended use at the time of the injury. It is not clear that
this factor must be present in a "passing by" case, as the in-
jured party is by definition not on the scaffold, hoist or other
support at the time of injury. Defendants focus on Swanson's use
of the platform, but Swanson is not the plaintiff.
However, assuming arguendo that a device must have been used
as a support at the time of plaintiff's injury, the element is
satisfied in this case. The fact that a platform may be used as
a walkway may not be determinative if the platform is also being
used as a support. See, e.g., Pozzi v. McGee Associates, 236
Ill. App. 3d 390, 602 N.E.2d 1302 (1992). In this case, while
Swanson may have been attempting to get off the platform at
issue, it is undisputed that two other ironworkers were working
on the platform at the time of plaintiff's injury. Unlike the
stairs in Vuletich, the platform was not being used solely as a
pathway. Thus, the platform was being used as a support at the
time of plaintiff's injury.
The third ground defendants asserted in their motion for
summary judgment was that plaintiff cannot recover for any injury
caused by his own voluntary actions. Our supreme court has ruled
that "[w]hile comparative negligence of the worker and assumption
of risk do not apply to a cause of action under the Act, there is
no liability when the claimed need for a scaffold, support or
shoring arises for the first time by the voluntary act of the
worker." Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183,
193, 545 N.E.2d 689, 694 (1989); Swendsen v. Brighton Building
and Maintenance Co., 41 Ill. App. 3d 930, 355 N.E.2d 162 (1976).
Plaintiff contends that his actions were not voluntary.
Although plaintiff testified that he was three feet from the
platform and that he "reached out" to grab Swanson, plaintiff
asserts that there is no testimony that his actions "were any-
thing more than a reaction to a man falling on top of him." In
Delgatto and Swendsen, there were undisputed facts demonstrating
the creation of the risk by the voluntary act of the plaintiff.
In this case, the record is murkier; it is unclear whether plain-
tiff's acts were such that he created the risk of being struck or
whether they were an attempt to mitigate the injury to both men.
Issues of causation are generally questions of fact to be decided
by a jury. See, e.g., Chicago Title and Trust Co. v. Brescia,
285 Ill. App. 3d 671, 686, 676 N.E.2d 230, 240 (1996). Based on
the record in this case, we cannot conclude that defendants'
right to judgment is free from doubt.
For all of the aforementioned reasons, the judgment of the
circuit court of Cook County is reversed and the case is remanded
for further proceedings consistent with this opinion.
Reversed and remanded.
ZWICK, J., and QUINN, J., concur.