
                                                   THIRD DIVISION
                                                   February 20, 2002




No. 1-01-1934


DAWN RADTKE,                                 )   Appeal from the
                                             )   Circuit Court of
      Plaintiff-Appellant,              )   Cook County.
                                             )
            v.                               )
                             )
SCHAL-BOVIS, INC.,                           )   Honorable
                                             )   Mary A. Mulhern,
      Defendant-Appellee.                    )   Judge Presiding.


     JUSTICE WOLFSON delivered the opinion of the court:
     Dawn Radtke filed suit against defendant Schal-Bovis after she tripped
and fell while working on a construction project at Navy Pier.  Defendant
was the general contractor in charge of the construction project.
Plaintiff's complaint alleged Structural Work Act violations and
negligence.  The trial court granted summary judgment in defendant's favor,
finding plaintiff could not establish a genuine issue of material fact as
to the cause of her fall.  On appeal, Radtke contends the trial court erred
in granting summary judgment.  We agree.  We reverse and remand for further
proceedings.
FACTS
     On October 5, 1994, plaintiff was working for L/C/B Tri-Venture as a
laborer on a construction site at Navy Pier.  L/C/B Tri-Venture was a
subcontractor on the project.  She was on scaffolding, carrying mortar to
bricklayers, when she tripped and fell.  Plaintiff filed suit against
defendant alleging violations
of the Structural Work Act (740 ILCS 150/1 et seq. (West 1994)).
Plaintiff's complaint alleged her injuries were caused by the scaffolding's
"improperly placed crank shaft handle."
     Several of plaintiff's co-workers were deposed.  During his
deposition, Kevin Zesch testified he was employed by defendant.   Zesch was
the senior field superintendent on the Navy Pier site.  He was responsible
for coordinating the schedule, for logistics, and for plans with all
subcontractors at that site.
     Zesch said a Morgan scaffold was a scaffold used by masons and
laborers.  A jack is used to elevate the scaffold as the laborers progress
up the wall.  The jack handle normally sits in an upright position, out of
the way of the path on the scaffold.  Morgan scaffolds were used in the
project site where plaintiff worked.  The laborers typically erected the
scaffolds.  Zesch testified defendant did not inspect the scaffolds after
they were erected.  However, if any of defendant's supervisors noticed
something unsafe about the scaffold, work would stop until the problem was
rectified.  Zesch agreed that Schal-Bovis was responsible for safety at the
job site.
     Norman Graves, who was Tri-Venture's foreman at the project on the day
plaintiff was injured, was deposed.  He testified plaintiff was working as
a laborer on the day she was injured.  She was putting out mortar for the
bricklayers at the job site.  Graves characterized Morgan scaffolding as
unsafe.  He said he complained about the scaffolding several times.  Graves
testified that there were problems with broken jack handles.  He complained
about it, but the problem never was fixed.  Graves said the jack handles
fell out of their upright position and into the walking path on the
scaffolding if they weren't working properly.
     John Kentgen, a laborer who was working with plaintiff on the day she
fell, was deposed.  Kentgen testified plaintiff was a member of his crew.
Kentgen said he was walking toward plaintiff when she fell.  He was about
10 to 12 feet away from her.  Kentgen said plaintiff was carrying a shovel
full of mortar when she tripped.  He did not see what plaintiff tripped on.

     Kentgen said plaintiff told him "right away" that she tripped on a
jack handle.  Kentgen said when he saw plaintiff fall, he knew she tripped
over the jack handle because "[t]hat's the only explanation."  Kentgen
testified he had tripped over defective jack handles several times during
the project.
     During her deposition, plaintiff testified there were problems with
the jack handles on the scaffolding for as long as she worked at the
project site.  Plaintiff said the jack handles would fall into the path
where the laborers walked.
     Before the accident occurred, plaintiff was shoveling mortar onto the
mortar boards for the bricklayers.  Plaintiff testified she used a shovel
to carry the mortar.  She had mortar in the shovel when the accident
occurred.  She was looking at the mortar in her shovel to make sure the
mortar wasn't falling out of it.  She did not remember being distracted by
anything before she fell.  She believed she tripped on the jack handle.
She believed this because she spoke to several people who saw the accident.
 The people she spoke with said she fell on the jack handle.  Plaintiff
also testified she had a red mark across her foot after the accident
occurred.
     Plaintiff said that at the time she fell, she wasn't sure whether she
fell as a result of uneven planking or because of a jack handle.  When she
fell, the handle of the shovel was shoved into her chest.
     During his deposition, Charles Franklin testified he worked on the
Navy Pier project with plaintiff.  He was working as a laborer.  Franklin
said he complained to the project supervisors about bad jacks on the
scaffolding.  A jack that was working properly would stand straight up and
would not extend over the walkway of the scaffolding.  When they were
broken, the jack handles would fall down onto the walkway.
     Franklin testified he had a clear, unobstructed view of plaintiff's
fall.  When she fell, Franklin was about 20 feet away from plaintiff.  He
was facing her.  Franklin was walking toward plaintiff when she fell.
Plaintiff was carrying a shovel.  Though Franklin did not see plaintiff's
foot come into contact with the jack handle before she fell, he assumed the
handle caused her fall because it was in the pathway and plaintiff fell
near the handle.  Franklin testified there wasn't any overlapping planking
in the area where plaintiff fell.  Franklin said, "[I]t couldn't have been
nothing but the jack handle.  There was nothing else out."  Franklin said
the jack handle was one of the damaged handles that constantly fell over
the walkway.  He said there was nothing else on the walkway that plaintiff
could have tripped over.
     Plaintiff's expert witness, Dennis Puchalski, said he believes
plaintiff tripped and fell on a defective jack handle.  He based this
opinion on plaintiff's description of the accident.
     Defendant brought a motion for summary judgment, in part arguing
plaintiff could not prove her injuries were proximately caused by any
unsafe condition of the scaffolding.  That is, none of the witnesses to the
accident could state, with certainty, that the fall was caused by a
defective jack handle.  The trial court granted the summary judgment
motion:
           "[P]laintiff cannot create a genuine issue of material fact as to
      the cause of her fall.  A review of all the evidence presented
      indicates that no one can say they saw what caused plaintiff to fall.
      *** [T]here is no rule against basing an inference on another
      inference, but reasonable inferences other than the jack handle
      causing plaintiff's fall can be drawn from plaintiff's and Charlie
      Franklin's testimony.  Hence, there is no circumstantial evidence that
      creates an issue of fact as to the jack handle causing the fall."
     Plaintiff filed a motion to reconsider, which the trial court denied.
DECISION
     Plaintiff contends a genuine issue of material fact exists as to
whether a fallen jack handle caused her fall.  Defendant responds by
asserting that while plaintiff established the possibility that the handle
may have caused the fall, she failed to establish the probability that it
did.  According to defendant, in order to establish sufficient proximate
cause to survive the summary judgment stage, plaintiff's evidence must
demonstrate with reasonable certainty that defendant's negligence caused
plaintiff's injury.
     Review of the trial court's ruling on a motion for summary judgment is
de novo.  Lajato v. AT&T, Inc., 283 Ill. App. 3d 126, 135, 669 N.E.2d 645
(1996).  Summary judgment is proper when the pleadings, depositions, and
affidavits on file, construed in the light most favorable to the nonmoving
party, establish there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law.  Lajato, 283 Ill. App. 3d
at 135.  The purpose of the summary judgment procedure is not to decide the
facts but to ascertain whether a factual dispute exists.  Barber - Colman
Co. v. A&K Midwest Insulation Co., 236 Ill. App. 3d 1065, 1070-71, 603
N.E.2d 1215 (1992).
     In pleading negligence, the plaintiff had to allege facts showing the
defendant (1) owed her a duty of due care; (2) breached that duty; and (3)
that this breach was the proximate cause of her injuries.  Turner v.
Roesner, 193 Ill. App. 3d 482, 488, 549 N.E.2d 1287 (1990).  The Structural
Work Act codifies the duty that the person who has charge or control of the
work site owes to workers:
           "All scaffolds *** erected or constructed by any person, firm, or
      corporation in this State for use in the erection, repairing,
      alteration, removal or painting of any house, building, bridge,
      viaduct, or other structure, shall be 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."  740 ILCS 150/1
      (West 1994).[1]
     Proximate cause ordinarily is a question of fact for the jury.  Bakkan
v. Vondran, 202 Ill. App. 3d 125, 128, 559 N.E.2d 815 (1990).  "It becomes
a question of law only where there can be no difference in the judgment of
reasonable men on inferences to be drawn."  Bakkan, 202 Ill. App. 3d at
128.  "Where inferences may be drawn from facts which are not in dispute,
and where reasonable minds would draw different inferences from the facts,
then a triable issue exists."  Block v. Lohan Associates, Inc., 269 Ill.
App. 3d 745, 756, 645 N.E.2d 207 (1993).
     Here, we find the evidence sufficient to create an issue of fact
concerning proximate cause.  The deposition testimony of Charles Franklin,
in which he says the jack handle was down and was the only thing blocking
plaintiff's path at the time of the fall, combined with Grave's and
Kentgen's testimony that defective jack handles had been a problem on the
scaffolding, is enough to defeat defendant's summary judgment motion.  Both
Franklin and Kentgen testified that while they did not see plaintiff's foot
make contact with the jack handle, they saw her fall and that nothing else
could have caused the fall.  Franklin said there was no other trip hazard
in plaintiff's path before she fell.
     Defendant cites several cases to support its claim that summary
judgment is appropriate.  However, in each of these cases the plaintiff
provided little more than the fact that an accident occurred.  See Bakkan,
202 Ill. App. 3d at 131 (no witness to plaintiff's fall and no evidence
that plaintiff was even on the scaffold/ladder when he fell); Monaghan v.
DiPaulo Construction Co., 140 Ill. App. 3d 921, 924, 489 N.E.2d 409
(1986)(plaintiff had no memory of accident and admitted he did not know how
it happened and the only witness did not know why accident occurred); Snell
v. Village of University Park, 185 Ill. App. 3d 973, 978, 542 N.E.2d 49
(1989)(witnesses who observed fall testified it did not appear plaintiff
came into contact with allegedly defective object); Gentile v. Kehe, 165
Ill. App. 3d 802, 808, 520 N.E.2d 827 (1988)(no evidence that any negligent
act was proximate cause of plaintiff's injury where no one knew cause of
accident).
     More on point is Block v. Lohan Associates, in which the court found
that while no one actually witnessed plaintiff's fall, the circumstantial
evidence was sufficient to preclude summary judgment.  In Block, the
plaintiff was the wife of an injured construction foreman.  Plaintiff
alleged that her husband was reaching for a crane line in order to attach a
"boatswain's chair" to it when he fell from the ladder he was standing on.
Plaintiff claimed the injury occurred when the ball and hook on the end of
the crane's line struck her husband, or somehow caused him to fall from the
ladder he was standing on.
     Defendants argued that because there were no witnesses who actually
saw plaintiff's husband fall from the ladder, there was insufficient
evidence of proximate cause.  The court disagreed:
           "The present case provides us with sufficient issues of fact as
      to proximate cause so as to avoid summary judgment.  The testimony of
      plaintiff's pre-occurrence and post-occurrence witnesses on the scene
      provides circumstantial evidence of proximate cause, although no
      witnesses saw Block fall.  The crane operator, testified that he knew
      Block was intending to attach the boatswain's chair to the hook so
      that a worker could weld the columns cover connections.  A co-worker
      saw Block going to retrieve the boatswain's chair and knew that it was
      intended that either he or Block would get into the chair.  Another
      worker saw Block start up the ladder, and later heard Block say 'hold
      it' before he saw him lying on the ground.  A third worker saw Block
      carrying the boatswain's chair immediately prior to the accident and
      heard Block's urgent words, 'hold it,' which sounded as if they came
      from a height level equal to the witness's when the witness was on his
      ladder."  Block, 269 Ill. App. 3d at 757.
     Here, the witnesses provided at least as much circumstantial evidence,
if not more.  Not only did the witnesses testify that the jack handle was
in the walkway immediately after plaintiff fell, they also testified that
the jack handles on that scaffolding presented problems throughout the
project.  Kentgen said he had tripped on defective jack handles on the same
scaffolding.  Two witnesses said they did not see anything else that could
have caused the fall.  In addition, the red mark across the plaintiff's
foot can be seen as an indication of contact with the jack handle.
     In McKanna v. Duo-Fast Corporation, 161 Ill. App. 3d 518, 515 N.E.2d
157 (1987), also a Structural Work Act case, defendant claimed it was
entitled to either a new trial or judgment n.o.v. because no one saw
plaintiff fall from the allegedly defective ladder, or even saw plaintiff
on the ladder.  The court found this interpretation of the facts "unduly
restrictive:"
           "The directly observed facts in the present instance were that
      McKanna's co-worker, Wollard, saw McKanna standing on the roof near
      the boiler room ladder hatchway, saw McKanna place his left hand on
      the hatchway cover, saw him turn around, apparently in preparation for
      his descent on the ladder, and he then peripherally perceived
      McKanna's fall.  Wollard did not see McKanna actually on the ladder or
      McKanna slip from the ladder due to one of the alleged defects in the
      ladder.  These omissions in his direct observations, however, do not
      automatically make plaintiffs' claims nonactionable. [Citation.]
      Wollard witnessed McKanna's actions immediately prior to the crucial
      instant, and those actions clearly permit a reasonable inference that
      McKanna intended to descend the ladder."  McKanna, 161 Ill. App. 3d at
      527.
     Here, as in McKanna, Franklin's and Kentgen's testimony concerning
plaintiff's actions just before she fell, along with their observations of
defective jack handles on the same scaffolding, permit a reasonable
inference that the jack handle caused plaintiff's fall.  This is enough to
avoid summary judgment.  Ordman v. Dacon Management Corp., 261 Ill. App. 3d
275, 285, 633 N.E.2d 1307 (1994)(summary judgment on issue of proximate
cause improper where witness heard decedent fall, seconds later saw
decedent laying on large patch of ice, and persons approaching decedent
slipped on same patch of ice).
CONCLUSION
     We find an issue of fact exists concerning proximate cause.  We
reverse the trial court's order and remand the case for further
proceedings.
     Reversed and cause remanded.
      HALL, P.J., and SOUTH, J., concur.
-----------------------

      [1]  Though the Act was repealed in 1995, it was in effect at the
time of plaintiff's injury and therefore applies to this case.  Atkins v.
Deere & Co., 177 Ill. 2d 222, 685 N.E.2d 342 (1997).

