
                               No. 5-95-0947



                                  IN THE



                        APPELLATE COURT OF ILLINOIS



                              FIFTH DISTRICT

_________________________________________________________________



CLAUDIE D. BURGESS,               )  Appeal from the

                                  )  Circuit Court of

     Plaintiff-Appellant,         )  Effingham County.

                                  )

v.                                )  No. 94-L-72

                                  )

MARK POCRNICH,                    )  Honorable   

                                  )  Richard H. Brummer,

     Defendant-Appellee.          )  Judge, presiding.

_________________________________________________________________



     JUSTICE CHAPMAN delivered the opinion of the court: 

     On October 24, 1992, Mark Pocrnich, defendant, asked Claudie

Burgess, plaintiff, to assist him in trimming a tree on defendant's

property because the tree's branches were in close proximity to the

utility line connected to defendant's house.  Plaintiff agreed. 

While using defendant's ladder to do the trimming, plaintiff fell

to the ground and was injured.  Plaintiff filed an action for

personal injury under the provisions of the Structural Work Act

(740 ILCS 150/1 et seq. (West 1994) (repealed by Pub. Act 89-2, §5,

effective February 14, 1995)).  The court granted defendant's

motion under section 2-615 of the Code of Civil Procedure (735 ILCS

5/2-615 (West 1994)).

     This appeal addresses three issues: (1) whether a volunteer is

a person protected by the Structural Work Act; (2) whether a

utility line servicing a residence is part of a "house" or "other

structure" within the purview of the Structural Work Act; and (3)

whether the trimming of trees to prevent damage to a utility line

is a covered activity within the meaning of the Structural Work

Act.  We reverse and remand.  

     Before addressing the substantive issues presented, we note

that the court granted defendant's motion to dismiss pursuant to

section 2-615 of the Code of Civil Procedure.  A motion to dismiss,

under section 2-615, attacks only the legal sufficiency of the

complaint.  Barber-Colman Co. v. A & K Midwest Insulation Co., 236

Ill. App. 3d 1065, 1068, 603 N.E.2d 1215, 1218 (1992).  A court

reviewing an order granting a section 2-615 motion takes all well-

pleaded facts as true.  Roehrborn v. Lambert, 277 Ill. App. 3d 181,

183, 660 N.E.2d 180, 182 (1995).  In reviewing orders on section 2-

615 motions to dismiss, appellate courts apply a de novo standard

of review.  Roehrborn, 277 Ill. App. 3d at 183, 660 N.E.2d at 182. 

     The first issue to be discussed is whether a volunteer is

within the class of people covered by the Structural Work Act

(Act).  Plaintiff argues that our decision in O'Brien v. Rogers,

198 Ill. App. 3d 341, 555 N.E.2d 1005 (1990), governs this case,

and that under O'Brien, a volunteer is a protected person under the

Act.  Defendant agrees that O'Brien governs this issue, but he

urges this court to reconsider its ruling in O'Brien.

     The plaintiff in O'Brien was seriously injured while assisting

the defendant in putting a new roof on defendant's house.  O'Brien,

198 Ill. App. 3d at 346, 555 N.E.2d at 1007.  Although the

plaintiff was not paid for his assistance, there was some dispute

as to whether the plaintiff was helping the defendant in order to

repay the defendant, who had earlier helped the plaintiff rebuild

the roof of his own house.  O'Brien, 198 Ill. App. 3d at 345-46,

555 N.E.2d at 1007-08.  O'Brien stated:

          "Even if we were to assume for the sake of argument

     that plaintiff was working for free, defendant's argument

     would still fail.  Nothing in the language of the

     Structural Work Act limits the statute's coverage to

     individuals who are being paid for their labor.  The Act

     requires that scaffolding and other support devices must

     be so erected and constructed, placed and operated so as

     to give proper and adequate protection not only to

     persons `employed' thereon, but also to persons `engaged'

     thereon.  [Citation.]  The word `engaged' has been

     defined as meaning `to be busied,' `to carry on,' `to

     devote attention and effort,' `to embark on,' or `to take

     part in.'  [Citation.]  None of these definitions implies

     payment for services.

          *** To hold otherwise would render the term

     `engaged' completely superfluous.  This would violate one

     of the basic rules of statutory construction, namely,

     that statutes should, if possible, be construed so that

     no term is rendered meaningless or superfluous." 

     O'Brien, 198 Ill. App. 3d at 347-48, 555 N.E.2d at 1009.

     The first district relied upon O'Brien's reasoning for its

decision in Coates v. W.W. Babcock Co., 203 Ill. App. 3d 165, 560

N.E.2d 1099 (1990).  The third district, in Price v. Victory

Baptist Church of Sunnyland, 205 Ill. App. 3d 604, 607, 563 N.E.2d

1244, 1247 (1990), also concluded that volunteers are not barred

from the Structural Work Act's protection simply because they are

volunteers.  In Warren v. Meeker, 55 Ill. 2d 108, 113, 302 N.E.2d

54, 57 (1973), the supreme court held that the Structural Work Act

applied to a farm hand who was injured by falling from a ladder

while repairing a structure.  Warren relied upon the Act's plain

language, "which extends protection to `any person' engaged on a

ladder while repairing a structure."  (Emphasis added.)  Warren, 55

Ill. 2d at 112-13, 302 N.E.2d at 57.  We decline to overrule

O'Brien, and we stand firmly behind O'Brien's holding that the

Structural Work Act applies to volunteers.

     The second issue to be addressed is whether the poles and

lines of a utility which services a residence are part of a "house"

or "other structure" within the meaning of the Structural Work Act. 

The Structural Work Act states in pertinent part:

     "All scaffolds, hoists, cranes, stays, ladders, supports,

     or other mechanical contrivances *** 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." 

     (Emphasis added.)  750 ILCS 150/1 (West 1994).  

Plaintiff argues that the utility line which serviced defendant's

house was an integral part of the house.  Plaintiff further argues

that the utility line, either by itself or in conjunction with

defendant's house, was a structure within the meaning of the

Structural Work Act.  Our conclusion is based on the second

contention.  

     The Illinois Supreme Court has never specifically addressed

whether a utility line is a structure within the meaning of the

Structural Work Act.  In Long v. City of New Boston, 91 Ill. 2d

456, 459, 440 N.E.2d 625, 626 (1982), the plaintiff was injured

while standing on a ladder which was leaning against a utility

pole.  The plaintiff was stringing Christmas lights along the main

street of the city.  The court assumed, for the sake of argument,

that the utility pole was a structure but concluded that, under the

facts of the case, the plaintiff had no cause of action under the

Structural Work Act.  Long, 91 Ill. 2d at 467, 440 N.E.2d at 630. 

The court did not base its holding on the fact that the utility

pole was not a structure but, instead, based its holding on the

fact that the plaintiff was not engaged in an alteration of the

structure.  Long, 91 Ill. 2d at 467, 440 N.E.2d at 630.  

     In Wood v. Commonwealth Edison Co., 343 F. Supp. 1270, 1271

(N.D. Ill. 1972), the court held that a utility pole, together with

its crossbeams and any wires strung from it, was a structure under

the Illinois Structural Work Act.  Gill v. Parcable, Inc., 138 Ill.

App. 3d 409, 412, 485 N.E.2d 1215, 1216 (1985), rejected what it

termed Wood's "broad statutory construction" and distinguished it

on its facts.  Specifically, Gill concluded that the plaintiff in

Wood was involved in an alteration of the utility pole itself,

while the plaintiff in Gill, who attached fasteners to utility

poles which were designed to hold a cable television line,

performed a task which was unrelated to the utility pole as part of

a structural system of electricity.  Gill, 138 Ill. App. 3d at 412,

485 N.E.2d at 1216-17.

     We hold that Gill's analysis of whether a plaintiff has a

cause of action under the Structural Work Act is incorrect.  The

first issue to be decided is whether the entity the plaintiff was

working on is a "structure" within the meaning of the Act.  The

second, and distinctly different, issue to address is whether the

plaintiff's activity is a covered activity under the Structural

Work Act.

     To assist in answering the first question, whether plaintiff

was working on a structure, we look at the Structural Work Act

itself.  The Act does not specifically define "structure", and we

are left with case law descriptions as to what constitutes a

structure.  Navlyt v. Kalinich, 125 Ill. App. 2d 290, 260 N.E.2d

855 (1970), aff'd, 53 Ill. 2d 137, 290 N.E.2d 219 (1972), involved

a worker killed during the construction of a sewer system when a

ditch collapsed on him.  The appellate court decision in Navlyt

provides insight on the meaning of the word "structure" in the

Structural Work Act:

     "We recognize limitations in importing definitions from

     other statutes, since the context in which a term is used

     obviously bears on its intended meaning.  However, in the

     context of a liberal construction universally given to

     the Structural Work Act, we do not conceive that the word

     `structure' was intended to have less than its commonly

     accepted broad meaning."  Navlyt, 125 Ill. App. 2d at

     295, 260 N.E.2d at 857.   

     The appellate court went on to rely upon Brown v. City of

Decatur, 188 Ill. App. 147 (1914), which defined a structure as

"anything that is built or constructed."  Navlyt, 125 Ill. App. 2d

at 295, 260 N.E.2d at 857.  

     The supreme court affirmed the appellate court's decision and

pointed out that whether the ditch was itself a structure was

unimportant because:

     "The plaintiffs' decedent was working upon a sewer system

     which we clearly conceive to be a `structure' under the

     Structural Work Act either considered by itself or as an

     integral part of the buildings being erected on a

     construction site."  Navlyt, 53 Ill. 2d at 138-39, 290

     N.E.2d at 220.                       

Turning from definitions found in cases to those found in dictio-

naries, Black's Law Dictionary defines "structure" as: 

     "Any construction, or any production or piece or work

     artificially built up or composed of parts joined

     together in some definite manner.  That which is built or

     constructed; an edifice or building of any kind." 

     (Emphasis added.)  Black's Law Dictionary 1424 (6th ed.

     1990).

Webster's Dictionary defines "structure" as:

     "1: the action of building: CONSTRUCTION 2 a: something

     (as a building) that is constructed ***."  (Emphasis

     added.)  Webster's Ninth New Collegiate Dictionary 1169

     (1988).

In this case, the utility line was constructed above defendant's

parcel of land to provide his house with electricity.  Relying on

the common usage of the word "structure", we hold that utility

poles and lines are structures under the Structural Work Act.  To

the extent that Gill v. Parcable, Inc., 138 Ill. App. 3d 409, 485

N.E.2d 1215, holds to the contrary, we overrule it.

     We now turn to the third issue: whether the trimming of trees

to prevent damage to a utility line is a covered activity within

the meaning of the Structural Work Act.  Plaintiff argues that the

complaint contains sufficient allegations to establish that he was

engaged in maintenance, or repair, of the utility line at the time

of his injury.  Defendant argues that even if the utility line is

a "structure" within the meaning of the Act, plaintiff's trimming

of a tree near the utility lines, rather than working on the poles

and lines themselves, is not an activity covered by the Act. 

     The title of the Structural Work Act suggests that the Act is

not limited to work performed directly on a structure:

     "An Act providing for the protection and safety of

     persons in and about the construction, repairing,

     alteration, or removal of buildings, bridges, viaducts,

     and other structures, and to provide for the enforcement

     thereof."  (Emphasis added.)  Laws 1907, p. 312, approved

     June 3, 1907, eff. July 1, 1907 (740 ILCS 150/1 et seq.

     (West 1994)).  

     In this case, the plaintiff was trimming a tree which

defendant feared would soon interfere with his house's utility

lines.  Plaintiff was not repairing the utility line itself, but he

was assisting defendant in preventative maintenance on them. 

According to the fact alleged in the complaint, the tree plaintiff

was trimming was close enough to the utility line to satisfy the

"in and about" language of the Structural Work Act.  See McNellis

v. Combustion Engineering, Inc., 58 Ill. 2d 146, 317 N.E.2d 573

(1974).  

     The next logical step is to consider whether "repairing" a

structure under the Act also includes maintenance of the structure. 

The supreme court brought maintenance within the provision of the

term "repairs" in Halberstadt v. Harris Trust & Savings Bank, 55

Ill. 2d 121, 302 N.E.2d 64 (1973).  Halberstadt held that the

Structural Work Act applied to a window washer who was killed when

he fell from a commercial office building while washing windows. 

Washing windows is quite clearly an act of maintenance rather than

one of repair.  The supreme court referred to the appellate court's

example of a window cleaner and window painter working on the same

scaffold and its conclusion that it would be absurd to afford the

protection of the Structural Work Act to one worker and not to the

other.  The supreme court agreed with the appellate court's

analysis and concluded that "the function of washing windows is

qualitatively comparable to that of repairing or painting a

structure."  Halberstadt, 55 Ill. 2d at 128, 302 N.E.2d at 68.  

     In Simmons v. Union Electric Co., 104 Ill. 2d 444, 473 N.E.2d

946 (1984), the plaintiff was an employee of Sachs Electric

Company, which had a contract with Union Electric to install and

maintain electrical power to Union Electric's Cahokia plant.  The

plaintiff was injured while descending into an ash pit to repair or

do maintenance work on a sump pump.  The supreme court held that

the plaintiff's activity was covered by the Structural Work Act. 

Finally, in Warren v. Meeker, 55 Ill. 2d 108, 302 N.E.2d 54 (1973),

the supreme court held that a complaint stated a cause of action

under the Structural Work Act when it charged that the plaintiff

was injured while repairing a "sweeping auger" in a silo.  

     The appellate court has also recognized the Structural Work

Act's coverage for what might be more strictly termed maintenance

activities, as opposed to repair activities.  For example, Duffin

v. Seibring, 154 Ill. App. 3d 821, 828, 507 N.E.2d 930, 934 (1987),

held that the plaintiff's spraying of insecticide into the

defendant's grain bin was an activity within the scope of the

Structural Work Act.  Duffin reasoned that although spraying

insecticide into a grain bin did not affect the structural

integrity of the bin, it did maintain the bin's usefulness for its

intended purpose.  Duffin, 154 Ill. App. 3d at 828, 507 N.E.2d at

934.  The court reasoned that unless insecticide was sprayed to

control corn weevils, a grain bin would be utterly useless for the

purpose of storing grain.  Duffin, 154 Ill. App. 3d at 828, 507

N.E.2d at 934. 

     Similarly, plaintiff's act of trimming the tree did not affect

the structural integrity of the utility line.  Plaintiff's act did,

however, maintain the utility line's usefulness for its intended

purpose of providing electricity to defendant's house.  Following

the language of the Structural Work Act to its logical extension,

we hold that maintenance of a structure is equivalent to "repair-

ing" a structure under the Act.  

     Clearly, if a tree branch had fallen against a utility line,

or a tree had been uprooted and was pushing against a pole, the

tree trimming would be necessary to maintain the regular use of the

line.  Therefore, as in Simmons, 104 Ill. 2d 444, 473 N.E.2d 946,

the trimming would be a necessary repair under the Structural Work

Act.  

     In the words of the Duffin court:

     "Like the washing of windows or the repair of a sump pump

     in order to remove water from a power plant ash pit, the

     spraying of insecticide into a grain bin does not affect

     the structural integrity of the bin.  It does, however,

     maintain the bin's usefulness for its intended purpose,

     for absent the spraying of insecticide to control corn

     weevils, a grain bin would be utterly useless for the

     purpose of storing grain."  Duffin, 154 Ill. App. 3d at

     828, 507 N.E.2d at 934.

     "[The plaintiff] suggests it would be absurd to hold that

     he could recover under the Act for damages sustained in

     a fall while painting a grain bin, but that he could not

     recover under the Act for injuries sustained in a fall

     from the same position while spraying the bin."  Duffin,

     154 Ill. App. 3d at 827, 507 N.E.2d at 933.    

We note again that the supreme court approved a similar analogy in

Halberstadt v. Harris Trust & Savings Bank, 55 Ill. 2d 121, 302

N.E.2d 64 (1973).

     Defendant argues that this case is very similar to the fourth

district case Burkhart v. Illinois Power Co., 9 Ill. App. 3d 139,

291 N.E.2d 673 (1973).  Burkhart affirmed the trial court's

dismissal of the portion of the complaint which charged the

defendant with violating the Structural Work Act, when the decedent

was killed trimming trees along the defendant's power lines. 

Burkhart, 9 Ill. App. 3d at 140-41, 291 N.E.2d at 674.  The court

does not specifically address whether a power line is a structure

under the Act.  Burkhart, 9 Ill. App. 3d at 141, 291 N.E.2d at 674. 

Instead, the court based its ruling on the fact that the decedent

was not working on the transmission line itself, and therefore,

according to the court, he was not engaged in the repairing of a

structure.  Burkhart, 9 Ill. App. 3d at 141, 291 N.E.2d at 674.  In

addition, Burkhart specifically rejected the plaintiff's argument

that the language of the title of the Act means that the Act is not

intended to be limited to work done directly on, or in, a struc-

ture.  Burkhart, 9 Ill. App. 3d at 141, 291 N.E.2d at 674.

     We acknowledge Burkhart's holding and the apparent factual

similarities to the present case.  However, we decline to follow

it.

     For the following reasons, we reverse the court's dismissal of

plaintiff's complaint and remand to the circuit court for proceed-

ings consistent with this opinion.



     Reversed and remanded.



     GOLDENHERSH, J., concurs.



     JUSTICE WELCH, dissenting:

     I dissent.  See Burkhart v. Illinois Power Co., 9 Ill. App. 3d

139 (1973).

                                      NO. 5-95-0947

                                     IN THE

                          APPELLATE COURT OF ILLINOIS

                                 FIFTH DISTRICT

___________________________________________________________________________

CLAUDIE D. BURGESS,               )  Appeal from the

                                  )  Circuit Court of

     Plaintiff-Appellant,         )  Effingham County.

                                  )

v.                                )  No. 94-L-72

                                  )

MARK POCRNICH,                    )  Honorable   

                                  )  Richard H. Brummer,

     Defendant-Appellee.          )  Judge, presiding.

___________________________________________________________________________



Opinion Filed:                 November 21, 1996

___________________________________________________________________________



Justices:      Honorable Charles W. Chapman, J.

                         

               Honorable Richard P. Goldenhersh, J., 

               Concurs



               Honorable Thomas M. Welch, J.,

               Dissents

___________________________________________________________________________

                         

Attorney       Michael J. Meyer, 212 East Jefferson Avenue, P.O. Box 129,

for            Effingham, IL 62401

Appellant      

___________________________________________________________________________



Attorneys      Brien J. O'Brien, Ryan, Bennett & Radloff, 300 Richmond

for            East, P.O. Box 629, Mattoon, IL 61938

Appellee       

___________________________________________________________________________





