William Lloyd St. John v. R.R. Donnelley & Sons Co.

Mr. JUSTICE VERTICCHIO

delivered the opinion of the court:

The defendant, R. R. Donnelley & Sons Co., Inc., a Corporation, appeals from a judgment in the sum of $42,000 entered upon a jury verdict in favor of the plaintiffs, William Lloyd St. John, Individually, and Mary E. St. John, Individually, for the death of their son incurred from a fall while in the course of his employment.

The sole issue is whether the roof of the structure involved in the occurrence, under the facts of the case, constitutes a scaffold within the meaning of the applicable law.

The Structural Work Act. (Ill. Rev. Stat. 1967, Chapter 48, Section 60) provides:

“All scaffolds, hoists, stays, ladders, supports or other mechanical contrivances, erected * * * for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct, or other structure shall be erected 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 * *

The plaintiff’s complaint alleges that the defendant violated the provisions of the said section by the wilful failure to provide the decedent with a safe, suitable and proper scaffold upon or about which to work.

The facts regarding the occurrence are not controverted. In late March or early April of 1967, the R. R. Donnelley & Sons Co., Inc., defendant herein, through its general contractor, Campbell-Lowrie-Lautermilch Corporation, began work on a new plant on Route 45, North of Mattoon, Illinois. The superstructure was completed July 21, 1987, and the roofing process was nearing completion. The structural work for the roof was finished, the gypsum deck had been poured and hardened, and the roofers were applying the waterproofing.

On the afternoon of July 21, 1967, at about 3:30 P.M., Mr. Swanson, a foreman for Campbell-Lowrie-Lautermilch, Inc., sent employees to the roof to clean away the debris so that the felt and tar waterproofing could be laid on a portion of the roof. Two of the employees, James Edwards, and David St. John, son of the plaintiffs, began removing large runways that had been used as substitute roofing to cover openings left to accommodate heating, lighting, ventilating and light facilities to be installed later. The runways of two-by-fours with one-by-sixes nailed across were ten feet long by thirty-six to forty-two inches wide and weighed seventy to eighty pounds each. These runways had been used as temporary coverings over the openings while buggies of liquid gypsum were being transported across the roof.

The roof was approximately thirty-two feet over the freshly poured concrete floor.

The holes which were over a large part of the roof were to accommodate various pieces of duct work, machinery, lighting and drainage. James Edwards and David St. John, son of the plaintiffs, pursuant to their instructions from Mr. Swanson, a foreman for Campbell-Lowrie-Lautermilch Corporation, worked their way across the roof removing the runways and stacking them near the edge of the roof. Upon reaching a certain runway, approximately twenty feet from the south edge of the roof on the southeast corner of the roof, the two men picked up this runway, and Edwards stepped one or two steps backward. As he stepped backward, he felt the other end of the runway drop. Edwards immediately looked and David St. John had disappeared. He looked through the hole in the roof and saw David St. John on the concrete below.

The runway which was being carried by the employees bore an inscription, “DO NOT MOVE” in red crayon, letters three to four inches high. This inscription had been placed on the runway in question two days prior to the occurrence by Elmer Ross, a foreman for CampbellLowrie-Lautermilch, Inc.

It is the opinion of this court that the inscription on the runways has no probative value as to the issues herein, since the task being performed in the removing of the runways was specifically assigned to the employees.

The appellant in his brief, acknowledges that Louis v. Barenfanger, 39 Ill.2d 445, established new law in the State of Illinois, holding that an integral part of a structure may, under proper circumstances, be a scaffold when it is used as such.

The Supreme Court in Barenfanger at page 448 stated:

“From a realistic viewpoint, if the failure to provide scaffolding would not be actionable under this statute, then every person to whom the Act was directed could defeat its purpose by simply failing to provide a scaffold, stays or supports.

Accordingly, we hold that the failure to provide scaffolding can be the basis of a cause of action under the Structural Work Act.

Another question urged is whether a permanent structure, used as a stay or temporary support, is, because of its permanent character, excluded from the Act. The Act itself nowhere excludes, expressly or impliedly, from its broad coverage permanent structures.”

The defendant attempts to distinguish the instant case from Barenfanger by pointing out that the plaintiff in Barenfanger fell while walking across a series of metal girders known as long span steel joists. Further, that it was necessary for the plaintiff to walk across the said girders for the purpose of placing ceiling mats.

The defendant contends that the facts in the instant case are similar to the facts in McGinnis v. Cosmopolitan Nat. Bank & Trust Co., 114 Ill.App.2d 113. In the McGinnis case, the plaintiff, an employee of the occupant of the building, after a coffee break at ten o’clock A.M., while returning to her winding machine on the first floor, heard a co-worker call her by name. The sound came from a hole in the floor which had been installed for the purpose of a dumbwaiter or elevating hoist. She walked over to the opening in the floor, placed her hand on a protective wooden board about three feet high, leaned over this barrier, and fell into the basement and sustained severe injuries.

She filed a suit for damages for violation of the Structural Work Act. This court held that there was no violation of the Structural Work Act because the hole was not being used in the erection, repair or alteration of the building. It was the alteration and the repair.

The defendant contends that the instant case clearly falls under the rule of the McGinnis case.

The defendant urges that the Structural Work Act has not been interpreted by the Supreme Court to cover all phases of construction activities and, further, the Court has specifically refused to do so in Crafton v. Knight & Associates, Inc., 46 Ill.2d, 533.

In the Crafton case, the plaintiff, Wayne Crafton, an iron worker, was working at the construction site. The plaintiff, at the time of the incident, was working with two other iron workers and was removing structural steel from a railsiding to the site of the actual cons traction. They were using an AHis-Chalmer tractor equipped with a thirty-foot side-boom hoist. The tractor was used exclusively to haul structural steel from the railsiding and storage area to the site of the building several hundred yards away. The plaintiff and his co-worker rode the AHis-Chalmer tractor, either by sitting on the seat with the operator, on the fuel tank behind the seat, or on a specially erected platform on the hoist used for the purpose of transporting people, which had been constructed by the direction of Beasley Company, the construction contractor. The plaintiff, as he was getting on the back of the tractor, had one foot on the housing of the tractor and one foot on the tractor, and when he put his right foot on the track which was all muddy and slick, the operator started backing off before the plaintiff got up on the fuel tank behind the seat, and the plaintiff fell to the ground. He suffered personal injuries as a result of his fall.

The court stated in its opinion at page 536:

“However, despite the fact that a liberal construction is within the clear purpose of the legislature, this court does not feel that the facts of this case fall within the Structural Work Act.”

In the instant case the decedent was sent to the rooftop for the purpose of clearing away debris to permit further construction on the roof.

The intended use of the rooftop was the customary and usual way in the construction of a building to use a temporary device to provide footing or support above the floor for the laborers on the job. The roof W65 used as an elevated platform for the decedent and his co-worker in the performance of their duty. The roof was being put to the use of a temporary platform and was so used at the time of the decedent’s fall to his death.

The statutory purpose of the Structural Work Act is to prevent injuries to persons employed in dangerous and eoctrahazardous occupations, so that negligence on their part in the manner of doing their work might not prove fatal. Schultz v. Ericsson, 264 Ill. 156.

The court also pointed out in Barenfanger at page 450 of the opinion:

“Where the device being used as a scaffold was, or was intended to be, a permanent part of the structure being worked upon, the rule seems to be that if the apparatus in question was being put to a temporary use as a support for workmen at the time of the accident, it is a scaffold, regardless of its ultimate use as a part of the permanent structure. (See Anno: 87 A.L.R. 2d 983). Another criterion used by courts to determine whether a particular structure is a scaffold is the element of danger involved in its use and whether this was the danger which the legislature was attempting to alleviate in enacting the statute requiring safe scaffolds.”

It is the opinion of this court that the facts in the instant case establish that the roof intended to be a permanent part of the structure was being put to a temporary use as a scaffold and thus within the Structural Work Act. The rationale of the Barenfanger case and the purpose of the Structural Work Act clearly support the findings of the trial court.

It is further the opinion of this court that the rationale of McGinnis and Crafton are not applicable to the facts in the instant case. Each of the said two cases involved injuries suffered in situations where neither the supports nor the mechanical contrivance were being used in the erection, repairing, alteration, removal or painting of any structure. Accordingly, the judgment of the trial court is hereby affirmed.

Judgment affirmed.

CRAVEN, P. J., concurs.