dissenting:
The majority opinion is bottomed upon the Barenfanger case and concludes that its rationale and the purpose of the Structural Work Act clearly support the finding of the trial court. I am mandated by the decision in Barenfanger and in Spiezio v. Commonwealth Edison Co., 91 Ill.App.2d 392, 235 N.E.2d 323, to the proposition that a part of a permanent structure may be used as a scaffold. The hazards present in each of those cases as well as the structures temporarily used as a scaffold are poles apart from the facts in this case and do not mandate journeying farther down the legislative avenue.
Paragraph 9 of the complaint stated that “on the roof of said factory building there being constructed was a temporaiy platform erected over an opening in said roof designed to hold workmen and materials employed in the erection of said factory building, which said temporary platform was supported on all four sides by edges of said roof then in the process of construction”. It is this platform which the decedent was carrying when he fell through the hole in the roof. Its usefulness as a support or mechanical contrivance erected or constructed “for the use in the erection, repairing, alteration, removal or painting of any house, building, bridge, viaduct or other structure” was terminated. At the time of this accident, it was not then being used as a scaffold for any purpose. It was being removed from the premises. The decedent was neither in it or on it nor was he in any way injured by this instrumentality. Its days as a scaffold were over.
By an amendment to the complaint, the plaintiff charged that the “roof of the factory building there being constructed was, or was intended to be, a permanent part of the building and was then and there being put to a temporary use as a support for workmen, including said decedent at the time of the occurrence”. This hole in the roof was not even a part of the permanent construction nor was it intended to be. The runways over the hole were temporary and were to cover these openings while buggies of liquid gypsum were being transported across the roof. These openings were to accommodate heating, lighting, ventilation and light facilities to be later installed and would then be framed with a square wooden frame and skylight. It seems crystal clear that this hole was not being used as a scaffold nor could it be. Its intended purpose was wholly different and precluded any thought that it might be used as a temporary scaffold. How a hole in a floor can support or protect anybody escapes me. It just isn’t a scaffold.
This then leaves only the remainder of the roof which was apparently fully completed except for waterproofing. It is this other portion of the roof quite obviously which the decedent and his partner were using as a temporary scaffold. There was no defect, fault, failure or dangerous condition in this roof. That part of the roof contributed nothing to the injury or death of the decedent. Had he not stepped off it, he was in a perfectly safe place. It is likewise obvious that there could be no way to complete this roof without removing the runway nor was there any way to build a barrier around this hole without removing this runway and it was that removal in which the decedent was engaged. There are hazards necessarily present in construction work and unless you can say that as a matter of law that the contractor wilfully failed to provide a safe place to work, the Structural Work Act simply does not apply to this situation. To hold otherwise is to impose an absolute liability for every injury to any employee during the process of construction. It is difficult for me to understand how the hole in this roof was erected or constructed by anybody for use in the building of the structure.
The factual situation here is more nearly akin to our McGinnis than it is to either Barenfanger or Spiezio. The lifeblood of legal theories are facts and when you have no facts supporting a theory, the theory dies a natural death and so it is here. The majority opinion approaches an absolute liability in structural work cases and in my judgment extends the philosophy of Barenfanger and Spiezio beyond their factual limits and beyond the plain language of the statute. The injury here resulted from no wilful failure to comply with the Structural Work Act. Accordingly, I would reverse.