Judicial Rulings

Electrocution not covered by Structural Work Act

Incidents of electrocution to workers are not covered by the Structural Work Act (see Illinois Revised Statutes 1981, ch. 48, sec. 60 et seq.), according to an Illinois Supreme Court decision handed down May 21.

The plaintiff was American National Bank and Trust of Chicago, representing the estate of the decedent, who was a worker painting a billboard. When he was climbing from a ladder to a walkway on the opposite side of the billboard, his head came into contact with power lines; he was electrocuted and died. The bank argued that the defendant, National Advertising Company, is liable under the Structural Work Act for failing to provide safe scaffolds and supports.

The circuit court granted summary judgment to the defendant, stating that the plaintiff did not have a case under the Structural Work Act. The appellate court reversed, and the Illinois Supreme Court was asked to make a final determination. The other issue to be resolved was negligence.

The court, strictly interpreting the legislation, found that electrocution is not covered. The court said: "The required protective measures are directed towards preventing hazards such as those of workers falling from a structure or being struck or crushed by materials due to insufficient support. There is no mention of potential injuries due to other causes." The court also suggested that the Structural Work Act does not apply because there are other remedies available.

To be found negligent the defendant must have a duty to the plaintiff, there must be a breach of that duty, and the breach must be the proximate cause of plaintiff s injury. The court found that National Advertising did have a duty to the decedent but stated that the other questions should be determined at trial. The case was remanded to the circuit court.

Justice Michael A. Bilandic, joined by Justice Charles E. Freeman, concurred in part and dissented in part. Bilandic concurred with the finding on negligence but dissented from the application of the Structural Work Act. Bilandic said that the act "unequivocally" includes the placement of structural equipment and not just its stability. The majority opinion thwarts "the legislature's intent to encourage safe working conditions," Bilandic said.

Justice Thomas J. Moran wrote the opinion in American National Bank & Trust Company of Chicago v National Advertising Company (Docket No. 71135).

Jennifer Smith

Misconduct by municipal employees not protected

The Illinois Supreme Court squelched efforts by the city of Chicago to reduce its amount of damages in a personal injury case in which city police officers were found to have used wilful and wanton conduct. A second defendant found negligent in the same injury had damages offset by the amount of negligence the plaintiff was found to have contributed to his injuries.

The court held that "a plaintiffs negligence cannot be compared with a defendant's wilful and wanton conduct" in order to reduce the amount of damages recoverable by the plaintiff. The court also stated that when one codefendant's liability is offset by the negligence of the plaintiff, the reduction does not automatically carry over to the second defendant.

In 1977 plaintiff Henry Burke, a shopper at 12 Rothschild's Liquor Mart, got into an altercation with store personnel. Burke was pushed to the floor, hitting his head on a steel panel. Upon regaining consciousness, he realized that he could not move his arms or legs. Chicago police officers arrived and told him to get up. Testimony was given by the plaintiff and other witnesses that plaintiff told police he could not get up. They picked him up and threw him into the paddy wagon, where his head hit an interior wall. When taking him out, they again caused him to hit his head and kicked him. He suffered irreversible damage to his spinal cord and was diagnosed as quadriplegic. Plaintiff testified at his 1988 trial but died in 1989. His mother was substituted as plaintiff and special executor.

At trial the jury awarded the plaintiff a verdict of almost $7.5 million, an amount to be paid by both defendants. That award was later reduced against the liquor store by 32 percent, the percentage of negligence for which the plaintiff was responsible in causing his own injuries. The jury was instructed that the plaintiff was not negligent toward the city and that the city remained accountable for the total amount. The appellate court affirmed the judgment, and the city appealed. The Supreme Court also affirmed the lower court May 21.

Both defendants were found jointly liable to the plaintiff but could not contribute between them to pay damages to the plaintiff because the Contribution Act (see Illinois Revised Statutes 1987, ch. 70, sec. 301 et seq.) does not apply to causes of action occurring before March 1, 1978. They were not successive tortfeasors because the injury was indivisible (there was no way to tell which defendant caused Burke's paralysis). The city argued that Burke's ordinary negligence should offset the city's wilful and wanton conduct. But after reviewing relevant material the court decided that there is "a qualitative difference" between the two because wilful and wanton conduct "carries a degree of opprobium not found in merely negligent behavior."

The opinion in Henry L. Burke v 12 Rothschild's Uquor Mart Inc. (Docket No. 71524) was written by Justice Thomas J. Moran; Justice Michael A. Bilandic did not participate. Jennifer Smith

Unemployment benefits upheld for aliens under amnesty

Undocumented aliens who held jobs in Illinois and applied for legalization under the 1986 Immigration Reform and Control Act (IRCA) are entitled to unemployment benefits if they were subsequently laid off. The Illinois Supreme Court ruled May 21 that the Illinois Department of Employment Security improperly denied unemployment benefits to plaintiffs Victorino Castillo and Alberto Jimenez.

IRCA provides that undocumented aliens who had lived in the United States since January 1, 1982, could apply for documented immigration status during a 12-month "amnesty" beginning May 5, 1987. Both plaintiffs applied. Both had jobs. Both received documentation and subsequently were laid off.

At issue was whether and when plaintiffs "were permanently residing in the United States under color of law" as required by the Illinois Unemployment Insurance Act (Ill Rev. Stat. 1987, ch 48, sec. 300 et seq.). Illinois unemployment compensation requires claimants to have earned sufficient wages within a four-quarter "base period." Plaintiffs' base periods occurred when working without documentation. The circuit court upheld the department's decision to withhold benefits; the appellate court reversed; the department appealed; the Supreme Court agreed with the appellate ruling.

The Supreme Court said both were permanent residents of the United States "at least" as far back as IRCA's effective date, November 6, 1986. Castillo had entered the United States in 1972 from Mexico. Jimenez had stayed in the United States after his tourist visa from Cuba expired in 1980. The court relied on a 1977 federal case, Holley v Lavine (533 F.2d 845), to rule that wages they earned while not documented workers did qualify them for Illinois unemployment benefits.

Justice William G. Clark wrote the opinion in Victorino Castillo v Sally Jackson (Docket No. 71412). Margaret S. Knoepfle

July 1992/Illinois Issues/27