American National Bank & Trust Co. v. National Advertising Co.
562 N.E.2d 1057
Ill. App. Ct.
1990
Check Treatment

*1 disqualified because his specialty differed from that of Dr. Riordan. But Dr. Maher testified that over his medical 35-year career he had handled to20 25 trauma patients a year. Accordingly, find that the circuit court determination, erred in this and we need not determine whether, absent this experience, Dr. Maher would have qualified to testify.

For all the reasons set forth in this opinion, we find that the cir- cuit court erred in finding that of Dr. expert testimony Maher should have been barred. We therefore reverse circuit court and remand the cause for reinstatement penalties imposed upon Dr. Riordan.

Reversed and remanded with directions. FREEMAN,

RIZZI JJ., concur. CHICAGO, AMERICAN NATIONAL BANK AND TRUST COMPANY OF Lukas, Sr., Deceased, as Adm’r of the Estate of Raymond and as Guardian Lukas, Jr., Estate of John Plaintiff-Appellant, v. NA- COMPANY, (Commonwealth TIONAL ADVERTISING Defendant-Appellee al., Defendants). Company Edison et (3rd Division) First District No. 1 — 89—1538 Opinion filed October 1990.

RIZZI, J., concurring. specially Ltd., counsel), Chicago appel- A. of for

Doyle Ryan, (John Doyle, & of lant. Pierkarski, Resis, Querrey Szesny, and Michael all of

Henry C. Victor J. Harrow, Ltd., Chicago, appellee. of for &

JUSTICE court: opinion WHITE delivered the of the (American) Plaintiff American National Bank from an appeals or der of circuit County granting Cook for Advertising (National) defendant National on two counts Company for from the damages arising Ray American’s death Lukas, mond Sr. American this action as adminis (Raymond). brought trator estate of the guardian and as estate Ray child, Lukas, mond’s minor issue, Jr. The two counts at VI, based, counts were IV violations of respectively, (the Act) (Ill. par. Structural Work Act Rev. Stat. ch. et seq.) negligence. Wereverse remand. facts are as follows. pertinent February On Ray- a co-worker, Skoumal,

mond All Jeffrey employees Sign both assigned Corporation, paint a billboard located near Inter- state National, 55 in Will That County. billboard was leased with All for Sign painting. contracted was about 26 billboard feet high. Running along it, back two feet down from top, was a rail two-by-sixes which consisted of nailed the struc- ture. The in a billboard ran north south direction. At the north high end voltage power line, suspended eight was a from the inches end of the about 24 billboard and to 30 inches above the billboard. billboard, was the first to

Skoumal climb top placing *3 four hooks at the top they the aluminum used to support staging support painting. themselves while In his deposition Skoumal testified that he never saw power the line before the accident. In order to hooks, place ladder, the he mounted a which he at the north billboard, end of a height the two feet the the top below bill- board. He then over the climbed reach the walk rail. He did not top see the line while on the rail power because had concen- trate on footing, his as the of the walk rail boards were old rot- ten.

The proceeded paint men the north section billboard. Raymond the the up then climbed ladder and onto walk rail order to move the hooks farther south re- along the billboard. Skoumal mained some painting. below finish The last Skoumal saw of Ray- mond was accident back toward lad- coming billboard, der south from the end of the the walk As he along rail. paint, slight continued to Skoumal felt a shock and heard a buzz. He looked and saw It is that up Raymond falling. apparently undisputed Raymond’s death his with the by was caused line. line, on Wisps Raymond’s hair were found and burn marks on were found at Testimony inquest ladder. a coroner’s estab-

351 exited entered at forehead electricity lished that handmarks, by caused leg. apparently from his left hand and Two hands, at were observed passing through Raymond’s electricity of the billboard the ladder. top above on violations

Count IV of American’s was based in, alia, failing pro Act National inter by Structural Work line of Illi on a safe The trial court relied supports. vide scaffolds and level, that cases, holds appellate nois all decided at risks associ danger of electrocution is too far removed from the resulting ated with and ladders therefore that injuries scaffolds working from contact with lines while on or around such struc for a v. (Kochan tures could the basis Structural Work Act suit. 844, (1984), App. 123 Ill. 3d 463 N.E.2d Commonwealth Edison district, division); Smyrniotis fourth Brockob Construc (first district, 340, 3d 491 N.E.2d 1246 (1986), App. (first tion Co. 142 Ill. Exteriors, 182 Ill. division); Windy (1989), Barrera v. Inc. City first 936, district, (first division); 3d fourth Overbeck App. Construction, N.E.2d 969 v. Jon district, division); (first second O’Rourke Oehler (fourth district).) persuaded 543 N.E.2d 546 We are not Kochan, standing these cases. In was plaintiff injured while The court high ladder he contacted uninsulated tension lines. found that there no cause of action under Structural Work defective, though Act itself was not even the court because location positioning a ladder an unsafe acknowledged in could a violation of the Act. The Kochan court was apparently he had fluenced admissions that been warned about plaintiff’s lines and that he in the same high place tension Smy he to the same In again assignment. receive position rniotis, on a he stood plaintiff installing flashing roof when head, electri line with his severe up receiving contacted the roof construed dispute cal burns. court did could be of a But the court held that the hazards support to be or scaffold. the hazards are covered high-voltage wire were “distinct” from heavily language court relied Smyrniotis Chicago Tenenbaum v. City tripped against ladder, fell result a case which the *4 in a fall an unbarricaded a basement. ing through chamber court Tenenbaum: Smyrniotis quoted following language “The hazards of scaffold or ladder are that workmen obvious them- fall off the devices or materials such devices *** well have selves fall. the baffle area in a negligent manner and have con to plaintiff’s injury, tributed but the testimony shows no viola tion of the Structural Work Act. It is only when an has some connection with hazardous nature of one of the de vices named section 1 of the Act cause of action may be maintained under that (Tenenbaum, section of the Act.” Ill. 2d at 612-13.) N.E.2d at It was this by applying language that the Smyrniotis held that the hazards of wires high-voltage were distinct from the hazards cov- ered the Act. Similar logic was used in the later cases we have cited to find no cause of action under the Act where lines (Barrerra, involved in injuries. aluminum held siding by plaintiff scaffolding lines; Overbeck, while on contacted power electrician on ladder injured O’Rourke, while electrical installing wiring; painter contacted power working lines while on aluminum ladder.) But all of these decisions are upon faulty premise Act does this contemplate of hazard. type

It is axiomatic that the Act is to be liberally light construed purpose protecting its persons engaged extrahazardous activi construction, ties involving repair, alteration or removal of structures. (Innis v. Elmhurst Dodge,

709.) Utilizing construction, this liberal find to be evident that the hazards of contact with power lines are contemplated by nature, By their ladders and scaffolds are utilized to support workers ground. lines are of High power above course commonly elevated some distance It is ground. logical above therefore to anticipate that the use of scaffolds and ladders result in placing workers in close lines. proximity Accordingly, we find no basis for holding that accidents workers on involving scaffolds ladders who lines are not contemplated within hazards of the Act.

We would note in this that several regard Illinois courts have Act, found similar accidents actionable under the although they have Kochan, distinguished Smyrniotis, discussed or specifically their In progeny. Brazier Kontos (third district), upheld

N.E.2d 152 the court a verdict under the Act of man for the estate who contacted electric wire and fell to his a ladder. And in Burke v. descending death while Illinois Power Co. district, (first 373 N.E.2d 1354 third divi the Act sion), this division affirmed verdict under for a who injured when a crane under which was contacted elec working wires, trical a steel lifted sending electricity through pipe being *5 trial find that the Accordingly, guided by plaintiff. crane and un- that no cause action holding court in as a matter of law erred this the facts of case. possible der the Act was under that it was not suf trial National also contended In the court that under the Act. We find charge in of the work be liable ficiently for the trial denied contention as a basis correctly court this that in to establish tending There was the record judgment. evidence Katrenik, a em of the work. John National charge National was fulfilling for that he was ployee, by deposition responsible testified Fe, to main property, to Santa the lessor of the obligation National’s that tain the a safe condition. He also testified National property if the inspect had the and contractor right painting stop believed, This if following safety testimony, was not instructions. suffice to establish that National had the responsibility op work and therefore portunity prevent dangerous procedures was charge of the work for of the Act. Hausam v. Victor purposes Gruen 1051. &Associates N.E.2d us, VI, The second dismissed count was on before count negligence. common law in the trial argued National successfully court that this count appropriate was because danger lines The court re open was obvious. jected momentarily American’s claim that could have been way distracted the condition of the and therefore that Illi dangerous condition The recent was then obvious. open nois Court case of K mart Supreme Corp. Ward v.

132, 554 trial our conclusion that the directly supports court in its In Ward a con finding. plaintiff erred had walked into crete located to the defendant’s post immediately outside the entrance entering store. The admitted that he had seen the post store, as he the post but testified that store his view of purchased carry was blocked mirror that he had large out. had for ing appellate entry court affirmed defendant, finding duty plain that the defendant owed no to warn the tiff court reversed supreme of this obvious condition. Our open and reinstated the verdict. The court held: jury that duty the extent that rule have held

“[T]o care an occupier lawfully reasonable owed owner or those circumstances extend to premises his does under any entrants, are to such conditions which known or obvious (136 is not the law in this (Emphasis original.) rule State.” N.E.2d at 229.) Ill. 2d at The court of the Restatement of Torts adopted position (Second) provides of land possessor liable §343A for harm if arising invitees from known or obvious conditions the pos- knowledge sessor should the harm this anticipate despite obvious- to this ness. Comment section that such.reason to antici- specifies / the harm arise pate possessor “where the has reason to at- expect that invitee’s distracted, tention so that he will not discover what is obvious, discovered, or will what he forget has or fail to protect himself it.” against (Restatement (Second) §343A, of Torts com- ment/, at 220 (1965).) it,

In the case held there ample basis that the defendant store should support finding anticipated have *6 large, bulky risk that a customer collide carrying item-would with post leaving the when the store.

In this cause there evidence that shortly before the accident co-worker had himself been so dis tracted of care for his rotten by necessity footing on the boards the walk rail that he did not notice line over his head. was also physical suggesting There evidence was in the transferring walk rail act struck line his head. Summary judgment with is drastic measure evidence, is to granted though where the even con only movant, strued still the movant’s strictly against establishes clear (Purtill relief. Hess right court,

867.) Given this evidence before the trial we find that it grant for National on the negligence error count. strike requested disregard

National has or certain an speculative portions two affidavits and con- attorney’s summary tained the record. Suffice that our decision has not say on those of the record. portions judgment the trial court is reversed and the cause re- manded with directions that the trial court reinstate counts VI IV and of American’s complaint. second amended

Judgment reversed and remanded. P.J.,

CERDA, concurs. RIZZI, specially concurring: JUSTICE I the result As to the by concur in reached trial majority. however, count I court’s IV of complaint, of a placement be on whether (1) believe the focus should Act and Structural Work of action under the rise to a cause may give have been in this case of the ladder (2) placement whether the answer to both Since the cause of the decedent’s death. proximate erred in en- the trial court affirmative, it is plain is in the questions IV of on count of the defendant favor tering summary judgment the complaint. of a ladder placement I

As to the first believe question, is a if the placement of action under the Act give rise to a cause The Act or death. provides: cause of a worker’s proximate *** mechanical scaffolds, ladders, or other supports, “All firm or cor contrivances, person, or by any erected constructed erection, al repairing, in this for the use in the poration State *** structure, shall be teration, painting any removal constructed, safe, manner, proper suitable and erected and constructed, as placed operated and shall be so erected and and limb give proper adequate protection life thereon, or any person persons engaged passing employed same, under or such manner as to by prevent and in thereon.” falling any deposited material that be used or added.) 60(1).) Stat. ch. (Emphasis (Ill. par. Rev. intention of the Act must be ascertained from the lan legislative legislature used and from the evil to be remedied guage Milwaukee, (Gannon Chicago, obtained object Ry. St. Paul & Ill. Pacific 791.) legislature used mandates that all Plainly, language ladders shall be give proper adequate protection as to *7 the life reme engaged and limb of thereon. The evil any person injuries died and the the Act is to object prevent be obtained by occupations in extrahazardous so persons employed dangerous and might their work negligence part doing on their in the manner of 86 Ill. (Smith (1980), fatal. prove Georgia Corp. Pacific of a ladder 119.) Surely, placement 3d 408 N.E.2d extrahazardous occupa can cause persons employed dangerous killed, negligent or if are injured they tions to be especially legislative work. It that the intention is doing manner of their follows rise to a cause of action un give that the of a ladder placement injury der the if the is cause of a worker’s placement proximate Act line in the oc power or death. The fact that an electric was involved case is currence in each key question makes no difference. was a cause placement proximate whether the ladder worker’s death. here,

The remaining therefore, is whether question placement of the ladder may proximate have been a cause of the decedent’s death. Usually, whether a certain act dece proximate was a cause of a dent’s death is a question attending factual to be determined all fundamental, however, facts circumstances. It is that there than more one cause. attach if proximate will under the Act Liability a defendant’s violation contributed in or in so part whole the death Stores, as it was one of long proximate causes. Ewert Wieboldt Inc. 84 Ill. App. 1008,1014, 1283,1287.

Bearing mind, I above-stated believe that in this principles although case the decedent may negligent have been and a proximate electrocution, of his cause own placement the ladder have been a proximate cause made between the dece- being dent and the energized arcing electric line electrical current to the decedent. The ladder too negligently placed have been close line energized power safely to allow the decedent to do ladder, his work while on the ladder engaged or the may have too energized close to the so as not to give line proper adequate to the protection decedent if he was in the negligent Thus, manner in doing engaged which he was his work while thereon. me, placement of rise to a cause of may give action under the Act albeit an electric line involved in the occur- rence.

Also, conclusion, in reaching I my reject any contention that Act should be to mean li interpreted only basis for imposing ability with respect placement to the ladder is that the was not secure or properly Pep Carrillo v. (Compare supported. per Construction Overbeckv. Jon Construction, 918, 923-25, App. 3d Such a violence 969.) contrary legislative contention is and does Act, is intention violence to contrary long-estab does principles lished cause. proximate circumstances, I is

Under believe that there a factual issue this case as to cause of action in count whether the IV of is may be maintained. The factual issue whether the place- ment the ladder cause of the decedent’s proximate death. I concur in the reached Accordingly, although major- result I would on count com- ity, reverse IV of the for the I have plaint reasons that stated.