{ "id": 5294895, "name": "CHARLENE FRENCH, Indiv. and as Special Adm'r of the Estate of Jerome French, Deceased, Plaintiff-Appellant, v. BARBER-GREENE COMPANY et al., Defendants (The City of Chicago, Defendant-Appellee)", "name_abbreviation": "French v. Barber-Greene Co.", "decision_date": "1991-06-18", "docket_number": "Nos. 1\u201489\u20143014, 1\u201490\u20141507, 1\u201491\u20141183 cons.", "first_page": "1025", "last_page": "1029", "citations": [ { "type": "official", "cite": "215 Ill. App. 3d 1025" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "194 Ill. App. 3d 273", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498460 ], "pin_cites": [ { "page": "277-78" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/194/0273-01" ] }, { "cite": "195 Ill. App. 3d 393", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2494752 ], "pin_cites": [ { "page": "397" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0393-01" ] }, { "cite": "60 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5416119 ], "weight": 2, "pin_cites": [ { "page": "436" }, { "page": "436-37" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0432-01" ] }, { "cite": "107 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3135137 ], "weight": 3, "year": 1975, "pin_cites": [ { "page": "155" }, { "page": "155" }, { "page": "155-56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/107/0151-01" ] }, { "cite": "20 Ill. 2d 486", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2737470 ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0486-01" ] }, { "cite": "133 Ill. 2d 163", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3260487 ], "pin_cites": [ { "page": "165" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/133/0163-01" ] } ], "analysis": { "cardinality": 596, "char_count": 9509, "ocr_confidence": 0.797, "pagerank": { "raw": 4.4916476050659184e-08, "percentile": 0.28159460261968944 }, "sha256": "74f8059f30cde61eb906e6180de52775ea206cd8c9b6d9a44c46f60bb6b5f7c3", "simhash": "1:daf9c1284f075cd9", "word_count": 1550 }, "last_updated": "2023-07-14T22:48:50.210219+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLENE FRENCH, Indiv. and as Special Adm\u2019r of the Estate of Jerome French, Deceased, Plaintiff-Appellant, v. BARBER-GREENE COMPANY et al., Defendants (The City of Chicago, Defendant-Appellee)." ], "opinions": [ { "text": "PRESIDING JUSTICE SCARIANO\ndelivered the opinion of the court:\nJerome French was fatally injured after falling from a paving machine manufactured by defendant Barber-Greene Company (Barber-Greene), and while he was employed by Monarch Asphalt Company (Monarch). At the time of the incident, Monarch was performing under a contract with defendant City of Chicago (the City). When plaintiff sought to hold the City liable under the provisions of the Structural Work Act (Ill. Rev. Stat. 1987, ch. 48, par. 60 et seq.) and to recover also from Barber-Greene for manufacturing an allegedly defective product, Barber-Greene filed a third-party action against Monarch. The trial court upheld the City\u2019s motion for judgment on the pleadings, from which plaintiff appeals, and allowed Monarch\u2019s motion for summary judgment, which Barber-Greene appeals; the two appeals have been consolidated.\nGary Heinrich, French\u2019s fellow employee and the only witness to the occurrence, testified that on September 4, 1987, he was working with him on the paving machine when French stopped the machine in a normal manner by bringing both steering levers back to neutral. Immediately before the machine came to a stop, Heinrich was looking down at the asphalt, but after the machine stopped, he looked up at French and saw him getting up out of his seat. French began to stand up smoothly and his feet were on the deck, and when he was almost upright, his shoulders fell over and he fell directly to his right. He did nothing to prevent his fall and did not appear to have slipped. According to the testimony of decedent\u2019s wife, French had operated Barber-Greene pavers for 21 years prior to his death.\nPlaintiff\u2019s allegation that the City is liable under the Structural Work Act is based upon her contention that it failed to provide decedent a safe place to work while taking part in the paving of a stretch of Sacramento Avenue and on the following language of the statute:\n\u201cAll scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person, firm or corporation in this State 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.\u201d (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 48, par. 60.)\nThe trial court agreed with the City that a street is not a structure under the Act, granted its motion for judgment on the pleadings, and denied plaintiff leave to file a fourth amended complaint and a copy of the contract between Monarch and the City.\nFrench sought recovery against Barber-Greene on the grounds that:\n\u201ca. Said machine lacked handrails or metal guards at or near the operating station thereof.\nb. Said machine lacked seat belts or other restraining devices to protect the operator thereof in the event that he either slipped or fell from said machine.\nc. Said machine lacked warning labels or literature advising the operator thereof to obtain reasonably necessary restraints or other devices to inhibit his falling from said machine to the pavement.\nd. Said machine lacked corrugated steel flooring or other nonslip [sic] flooring devices at the position of the operator\u2019s station in order to prevent the operator from slipping and falling to the ground and the pavement, several feet below the operator\u2019s station.\u201d\nDefendant, Barber-Greene, denied the allegations of plaintiff\u2019s complaint and thereafter filed a third-party complaint seeking contribution against Monarch, alleging that Monarch participated in several negligent acts. The only allegation which is relevant to this appeal states that Monarch:\n\u201cFailed to properly instruct and supervise plaintiff\u2019s decedent regarding the safe operation of the Barber-Greene paver.\u201d\nThe trial court granted Monarch its motion for summary judgment against Barber-Greene, stating that \u201cHinrich [sic] testified that plaintiff did not take a step, and that he did not slip ***. Furthermore, the paver had come to a normal stop ***.\u201d\nPlaintiff and the City agree that whether the trial court properly granted judgment on the pleadings in favor of the City depends entirely upon its determination that a street is not a structure under the Act. Plaintiff contends that in arriving at his decision, the trial judge would have had to conclude that a street is a structure if he had given consideration to the contract between the City and Monarch, and plaintiff\u2019s proposed fourth amended complaint. Plaintiff argues that the City \u201cunderstood and contemplated that Monarch would be required to build or rebuild structures such as Sacramento Avenue under the terms of [its] contract.\u201d However, the trial court, as noted above, denied plaintiff leave to file a fourth amended complaint along with the contract, and plaintiff does not assign such denial as error. But even if we were to assume, arguendo, that plaintiff has not thereby waived this argument, \u201cin construing the Act we must ascertain and give effect to the legislature\u2019s intent in enacting the statute.\u201d (Kirwan v. Welch (1989), 133 Ill. 2d 163, 165.) Thus, whether the City and Monarch intended the street to be a structure for their own purposes is irrelevant to whether a street is a structure under the Structural Work Act, for we must determine the legislative intent behind the Act.\nThe City, citing People v. Capuzi (1960), 20 Ill. 2d 486, maintains that under the principle of ejusdem generis, when a general word follows an enumeration of specific things, the general term is held to apply only to things of the same kind as those specifically mentioned. As our supreme court has held, \u201cwhen a statutory clause specifically describes several classes of persons or things and then includes \u2018 \u201cother\u201d persons or things,\u2019 the word \u2018other\u2019 is interpreted as meaning \u2018other such like.\u2019 \u201d (Innis v. Elmhurst Dodge, Inc. (1985), 107 Ill. 2d 151, 155, quoting Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 436.) \u201cThus, the court in Farley concluded that the General Assembly intended to limit the application of the Act to \u2018structures of the general type specified therein,\u2019 i.e., houses, buildings, bridges and viaducts.\u201d Innis, 107 Ill. 2d at 155, quoting Farley, 60 Ill. 2d at 436-37.\nEven if we were to accept plaintiff\u2019s contention that we should examine the sufficiency of her proposed fourth amended complaint, the only fact alleged therein about the nature of the street on which the decedent was working is that the street was \u201cSacramento Avenue at or near the Kennedy Expressway in the City of Chicago, Cook County, Illinois.\u201d We therefore hold that a street as alleged in the fourth amended complaint proferred to the trial court is not \u201csufficiently akin to a \u2018house, building, bridge,\u2019 or \u2018viaduct\u2019 so as to constitute a \u2018structure\u2019 within the meaning of the Act.\u201d Innis, 107 Ill. 2d at 155-56.\nBarber-Greene charges that the trial court erred in awarding summary judgment in favor of Monarch because the trial court did not recognize Monarch\u2019s duty to warn decedent not to use the paving machine without safety restraints or that he should be admonished to sit down while operating the machine. While the trial judge did not directly address Barber-Greene\u2019s contention, the record reflects, as noted above, that plaintiff was sitting while the machine was moving, and it would be absurd to impose a duty upon Monarch to warn employees not to stand up after they stop their pavers.\nNumerous decisions have held that \u201cone supplying a chattel for another must warn of the dangerous conditions, \u2018if, but only if, he has no reason to expect that those for whose use the chattel is supplied will discover its condition and realize the danger involved.\u2019 \u201d (E.g., Kirkman v. Kirkman (1990), 195 Ill. App. 3d 393, 397, quoting Restatement (Second) of Torts \u00a7388, comment k, at 306 (1965).) Because any danger from the lack of restraints on the paver was open and obvious to decedent, and the employer did not have any more knowledge of that danger than did the employee, Monarch had no duty to warn him of the danger of falling off of it. (See Kutzler v. AMF Harley-Davidson (1990), 194 Ill. App. 3d 273, 277-78.) Accordingly, we conclude that the trial court properly awarded summary judgment in favor of Monarch.\nFor the foregoing reasons, the judgment of the circuit court is affirmed.\nAffirmed.\nDiVITO and COCCIA, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE SCARIANO" } ], "attorneys": [ "Craig S. Mielke and Robert A. Larsen, both of Murphy, Hupp, Foote, Mielke & Kinnally, of Chicago, for appellant Barber-Greene Company.", "Drumke & Patterson, Ltd., of Chicago (Ronald A. Drumke and Danielle M. Jaeschke, of counsel), for appellant Charlene French.", "Robert A. Chaney, of Purcell & War drope, Chartered, of Chicago, for appellee Monarch Asphalt Company.", "Gurion & Lewis, of Chicago (David W. Ott, of counsel), for appellee City of Chicago." ], "corrections": "", "head_matter": "CHARLENE FRENCH, Indiv. and as Special Adm\u2019r of the Estate of Jerome French, Deceased, Plaintiff-Appellant, v. BARBER-GREENE COMPANY et al., Defendants (The City of Chicago, Defendant-Appellee).\nFirst District (2nd Division)\nNos. 1\u201489\u20143014, 1\u201490\u20141507, 1\u201491\u20141183 cons.\nOpinion filed June 18, 1991.\nCraig S. Mielke and Robert A. Larsen, both of Murphy, Hupp, Foote, Mielke & Kinnally, of Chicago, for appellant Barber-Greene Company.\nDrumke & Patterson, Ltd., of Chicago (Ronald A. Drumke and Danielle M. Jaeschke, of counsel), for appellant Charlene French.\nRobert A. Chaney, of Purcell & War drope, Chartered, of Chicago, for appellee Monarch Asphalt Company.\nGurion & Lewis, of Chicago (David W. Ott, of counsel), for appellee City of Chicago." }, "file_name": "1025-01", "first_page_order": 1047, "last_page_order": 1051 }