*1 legislature immunity provided by Given the full 107(a), gen- find no unambiguous language of section and since we (see Kirnbauer, 1017), uine issue of material fact Winnebago County. we affirm the of the circuit court of basis, determined Having affirm we need not address the arguments affirmance. defendants’ alternative Affirmed.
INGLIS, P.J., J„ McLAREN, concur. BEZAN, Plaintiff-Appellant, FRANK CHRYSLER MOTORS CORPORA- (J.S. TION, Defendant-Appellee Third-Party Alberici Construc- Inc., al., Company, Defendants-Appellees; Company, tion et Jervis B. Webb Intervenor).
Third-Party Defendant and 2—93—0248, Second District Nos. — 1165 cons. 2—93 Opinion filed June J., dissenting part. BOWMAN, concurring part *2 Dziedziak, Marcus, Chicago, appellant. & for John F. Williams Stulas, Hoffman, Robles, Timothy M. all of Sanchez Ed and Francine V. Corporation. Daniels, Chicago, Chrysler appellee & Motors for Schroeder, Geneva, Konicek, Connelly, & Daniel F. Mustes for appellees. other McKenzie, Morrissey, Chicago, Jervis D. of Baker & for B. Francis Company.
Webb opinion INGLIS of the court: PRESIDING JUSTICE delivered Bezan, plaintiff, Frank contests two appeal, this consolidated grant separate County of the circuit court of Boone sum- decisions mary defendant, each J.S. Alberici Construction (Alberici), Management Company, Company and J.S. and Alberici Chrysler Corporation (Chrysler). brought this Motors action damages personal he sustained while recover Chrysler’s plant. presented issues are whether The two (1) was not entitled properly the trial court found (Ill. Rev. ch. protection of the Structural Work Act Stat. (West (2) (now 1992)), defendants were par. 740 ILCS 150/1 appeal as common-law We dismiss the not liable for (No. 93—0248) (No. Chrysler Alberici and affirm the as to 2— 93—1165). (Webb) to Plaintiff, millwright, Jervis B. Webb hired Chrysler assembly plant. as- conveyor install lines at the new assembly sembly production equipment and changing Chrys- tools, "retooling,” automobile models. to manufacture new conveyor power and free inverted ler solicited Webb install throughout Alberici to oversee plant. body shop changeover the installation operation, which included equipment and robotics. rail, attempting to install at
the time of his is a approximately steel beam that to 5 high, wide, inches long, 2 inches weighs 18 feet approximately pounds. hung Such rails are from headers which extend from the ceiling, approximately 10 feet from the Previously, floor. rails were millwrights, installed rail, three one on each end of the one millwrights middle. The carry would rail up scaffolding, ladders or clamp headers, it to the and weld it once it was properly aligned.
Webb altered the just method of installation prior to the accident in order to process. accelerate the Rather than lifting individual rails, Webb instructed to weld two together or three rails and then elevate them with a fork lift. The placed rails were on top of a tool trunk which placed was then on the forks the forklift in order to raise the proper height. lifted, beams to the As the fork was apparently rails pinned plaintiff against shifted and a column in plant, causing injuries.
Plaintiff sued Alberici and for violation of the Structural (Ill. (now Work Rev. Stat. par. ch. 740 ILCS 150/1 (West 1992)))(count I) (count II). negligence and for Numerous claims were filed. sued a third-party defendant, Webb as and Webb Subsequently intervened. Webb was third-party dismissed as the de- against fendant. Alberici also counterclaimed Alberici filed *3 summary judgment, motion for 26, 1993, and on January the trial court sent a memorandum party explaining to each its decision to grant summary judgment on both counts to Alberici. Counsel was ad- prepare vised to a written order based on this decision. Plaintiff filed 25, appeal February 1993. The written order was filed on 10, March 1993. filed its motion for summary judgment in September timely appealed granting 1993. Plaintiff from the order Chrysler summary judgment on both counts. Pursuant motion, court appeals this ordered the two For the consolidated. reasons, following appeal we must dismiss the as to Alberici. appellate may only An hear appeals judg court from final ments, an exception specified by supreme unless the court rules (Hicks 650, 652; applies. Weaver Official (December 22, 1993), 301, Reports No. Advance Sheet R. eff. Feb 1994.) filed, ruary 1, judgment proceedings Until written is the (In 52, Marriage not finalized. re Black judgment of a final bare announcement cannot be attacked mo tion, Black, appealed, cannot and cannot be enforced. be 3d at 54.
Supreme requires that when a court rules on a Court Rule trial, attorney prevailing the of a the course motion outside or court an order party prepare present must to the (134 Ill. 2d R. entered, court otherwise. be directs unless clerk will make notation Supreme Court 272 states that the Rule signed order and that presented the record when a written order is 303(a)(1) (134 Rule Supreme Ill. 2d Court final when filed. R. days after the requires filed within 30 appeal that an must be (Official Reports final. Advance Sheet No. judgment has become (December 22, 1993), 303(a)(1), February The record R. eff. and entered as directed. prepared indicates an order Plaintiff, entry however, appeal prior filed the notice of after circuit appeal file notice of order. failed to An it is appealed order became final. order cannot be before court’s Therefore, entered. we must as to Alberici. dismiss regarding Chrysler threshold protection whether is entitled of the Structural Work (now (West (Ill. ch. ILCS par. Rev. Stat. 150/1 1992))). necessary for protection Such would if two elements result liability pertinent under the Act can attributed provide: sections of the Act scaffolds,hoists, cranes, ladders, stays, supports,
"1. All or other contrivances, by any person, or mechanical erected constructed erection, corporation firm or for the use in the this State alteration, any house, building, repairing, painting removal or viaduct, structure, bridge, or other shall be erected and con- structed, safe, proper manner ***. suitable Sji }|i by any any injury person property, For or occasioned wilful any comply failure with of its violations of this wilful *** injured party provisions, a action shall accrue to by reason wilful or wilful failure as aforesaid of such violation (now (Ill. 150/1, pars. 740 ILCS ***.” Rev. Stat. ch. (West 1992).) argues performed he Plaintiff first meaning of within the "alteration” a "structure” constituted upon plant’s this the fact that the Act. Plaintiff bases assertion installed, essentially gutted, per- were interior was miles of rails, plaintiff was removed, and the manent fixtures were *4 headers, which installing at the his were welded time of contends that the permanent parts structure. conveyor system a contemplate equipment installation of does not already argument its a built. focuses into structure conveyor system a structure. whether the agree
We with Chrysler’s argument that the con- veyor system was not a structure is unresponsive plaintiff’s contention that the plant was altered plaintiff’s construction activity. Whether a statutory structure is "altered” is a matter of and, therefore, (Compare of law. Innis v. Elmhurst Dodge, Inc. 107 Ill. 2d with Jackson v. Back of Neighborhood the Yards Council 240 Ill. Consequently, whether, law, we must ascertain aas matter of the in- stallation of the rails building constituted alteration of the within meaning of the Act. Press,
Plaintiff relies on Smith Excello support argument performed the work he consti- Smith, tuted an plant. plaintiff, fitter, alteration of the a pipe was hired to hang pipes printing connect and at a company. He slipped and fell on a metal glossy rod which was covered sheets of paper carrying pipe while from truck to a scaffold. The court concluded that merely transporting was materials to the workplace. using plant He was pathway floor as a and thus was engaged type activity not the Act was intended to (Smith, Although cover. 3d at activity was not within the the court found that because of the installation, permanence piping extent and its erection consti- building Smith, tuted an alteration of the structure.
at 1095-96.
By analogy, Chrysler’s the interior of plant internally had been demolished. Permanent fixtures were torn out and the inside of the plant reconfigured. 3,000 point, was At one close employees were changeover toward a multimillion dollar in which the instal conveyor lation of the one phase was total overhaul. The rails installing was at the time of his accident were permanently plant’s ceiling throughout building. welded to the would be unreasonable to contend that such work did not involve the Chrysler’s plant, "alteration” of which would be within the Act. Moreover, including beams, assembly, the welded could them, dismantling be moved without first and their erection was necessary permit plant produce desired use of the new automobile models. See McKanna v. Duo-Fast (immovable air-conditioning equipment, 3d 518 installed roof, building partly on the and whose duct work partly within "structure”); forming integral throughout building part, ran (repair v. Union Electric Co. 104 Ill. 2d Simmons ash temporary sump pump, repairs pit in context of of which structure, repair pit whether or not holding pump part,
863 integral part plant); the by a or an was itself considered structure (1982), 109 Chicago Sanitary Metropolitan District Greater Gall v. in necessary step first (cleaning sludge tank was Ill. 3d 502 App. structure). contractually specified repair and alteration plan Service, 3d (1987), 162 Ill. Parcel Inc. Kittleson v. United 966, although factually pres similar the upon by Chrysler, relied the case, addressed whether distinguishable. ent The court never existing altered conveyor system being was assembled the which building. apply, Act not because The court held that did (Kittleson, plaintiff’s injury tripped. was caused when co-worker 970-71.) Associates, Knight 3d In v. Lester B. & Ill. at Bitner (1974), 862, 3d was an electrician merely conveyor system performing who maintenance on was in a not year had been erected a earlier and was involved activity. engaged who are provides protection
The Act to those workers Ill. 2d (Lafata Village Lisle extrahazardous work. construed; however, liberally it was Act should 354; 2d at (Lafata, intended to cover all construction work. Ill. Vuletich v. United States Steel 2d engaged of a Though we find in the alteration that another element: structure terms of the he failed establish that violation of Act wilful. having only can occur when one wilful violation or, care, work exercise of reasonable could
charge of the knows (Simmons, have condition exists. discovered that a wilful 2d a defendant committed issue whether (Roedner ordinarily treated of fact v. Central violation is as 81, 84), unless Public Service Co. Ill. Illinois Associates, presented (Delgatto v. Brandon uncontroverted evidence 183, 193-94; (1989), 131 Bank v. Archer Daniels Ltd. Ill. 2d Marine 579-80). Midland site, Chrysler’s managers, had argues who were on Plaintiff that safety authority any contractor for reasons stop the work of However, safety evi- actively inspections. responsibility took by employed method dence was introduced injury done first when occurred for the time Thus, plaintiff’s the manner and method of work. never directed opportunity prevent did not have the of this being foreman. view plaintiff’s method evidence, Chrysler did not commit it is clear that uncontroverted Therefore, granted properly the trial court of the Act. wilful violation complaint. to count I of summary as The second issue to be considered is whether the trial court ordering summary judgment erred in plaintiffs claim of common- law nondelegable contends that owed a duty to employees of to provide place subcontractors a safe to work. duty no We find under the circumstances of this case. is true that one who independent entrusts work to an
contractor and retains control over the work can be liable for safety employer those for whose duty owes a rea exercise care, sonable which is caused his failure to exercise his control (Restatement (Second) with reasonable care. (1965); Torts § Fris v. Personal Products Co. Ill. App.
However, there must be such a supervision retention of a entirely the contractor is not way. free to do the work in his own (Restatement (Second) (1965).) c, of Torts Comment at 388 As § *6 stated, previously placement testified that the of the rails on the tool box which placed by on a forklift was conceived employer immediately prior accident. There is no testimony suggest or evidence to knew or had of notice the hazardous method within period. this restrictive time Furthermore, period the time duty inspect was too short to create a premises or before within reasonable time after the hazard had developed. See Cooperative Clarke v. Rural Electric Convenience Co. (1982), App. 3d
Summary judgment proper is parties agree upon when the facts, dispute but the correct of the applicable statute (American and whether the facts sustain a cause of action. National Bank & Trust Co. v. National Advertising Co. 149 Ill. 2d 22.) Accordingly, circumstances, summary judgment under these properly granted on both counts. above, dismiss
For the reasons stated we appeal No. 2—93—0248 and affirm No. 2—93—1165. 93—0248, No. Dismissed. 2— 93—1165,
No. Affirmed.
PECCARELLI, J., concurs. BOWMAN, dissenting concurring part part:
JUSTICE in and in respectfully part part. I concur in and dissent majority’s reasoning I that Alberi- concur in the and conclusion I majority’s opinion ci’s must be dismissed. concur reasoning Chrysler’s plant. the work an "alteration” of involved disagree majority’s reasoning finding I with the is
865 Act violation summary judgment on the Structural Work entitled to liability for a wilful negligence imposes action. The Act (Simmons (1984), Electric Co. v. Union provisions. violation of its having of the charge Ill. occurs when one 2d wilful violation scaffold, as exists work knows that condition the existence the exercise of reasonable care could have discovered Simmons, 2d at 453. condition. Ill. the Act question is wilful under whether violation (Zizzo jury. Ben Pekin ordinarily fact for the only question of Ill. 3d becomes a law no disputed when the are not and where there can be difference facts (Dick- judgment persons or inferences drawn. reasonable Ill. mann v. Co. Midwest Interstate Electrical Construction summary undisputed when Even the facts judgment persons could arrive inappropriate where fair-minded (In Kietrys undisputed different from the facts. re Estate inferences shown, As will be I believe different Ill. can drawn from facts of this case. inferences negligence on unsafe premised As for the action conditions, Village Sauget in Haberer v. genuine prevented fact the court held that a issue of material summary an entry against on behalf of owner an employee independent suing negligence. Applying of an contractor (Second) (Restatement section (Second) of the Restatement of Torts (1965)), employee that an hired of Torts the court held § may obtain independent contractor to do construction recovery in the course the work from sustained requisite had retained the premises where the owner owner properly. work and had failed to exercise that control control over the Haberer, 3d at 319-20. *7 Chrysler had a crew facts demonstrate that
The uncontroverted work. regularly supervise engineers managers site Alberici, designated safety engineer, agent, through its Chrysler’s Langford was on Langford, stop had a the work. John man, regularly on White, safety was also Chrysler’s daily. site Bill the site. it is uncontradicted that majority reasons that because for the first welding lifting beams was done the steel
method direction, as a it follows Chrysler’s concurrence or time without because commit a wilful violation law that did not matter of opportunity prevent Chrysler did not have the simi- Citing no cases with a by plaintiffs foreman. method ignores Chrysler’s result, essentially the fact that majority lar agents power had the to control work-safety procedures and that its agents were regularly on premises. majority ignores also following welding facts: the equipment equipment and hoist had to brought to the site to weld the 18-foot-long, beams, 300-pound steel and the welding act of two or three steel beams takes time and a finite space. amount of The amount of time and space specified is not During record. space exercise, this time and a fair-minded fact finder could infer agent should have become aware of welding the acts of making preparation lifting the beams and appropriate taken reasonable actions within the purposes context and principles Act and of common-law An owner who is charge may escape liability by closing eyes its to the defect at the moment of the if the evidence shows that ordinary care or inspection would have uncovered the defect. (Katz Builders, v. Home Shaf Chrysler, Whether agent, its should have known of the condition, under the us, facts of the case before should abe question for the Accordingly, fact finder. I would reverse the order the trial court granting summary judgment in favor of MAINTENANCE, Appellant, TEXTILE THE INDUSTRIAL COMMISSION (Farmers al.,
et Group al. Insurance Appellees). et (Industrial Division) Second District Commission No. 2 — 93—0524WC Opinion Rehearing July 28, filed March denied 1994.—