dissenting:
On petition for rehearing, Justice Linn would allow the petition and dissents from the majority opinion for the following reasons:
The purpose of the Structural Work Act (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) is to prevent injuries to (Halberstadt v. Harris Trust & Savings Bank (1972), 7 Ill. App. 3d 991, 996, 289 N.E.2d 90, 94, affirmed (1973), 55 Ill. 2d 121, 302 N.E.2d 64) and protect (Wright v. Synergistics, Inc. (1977), 52 Ill. App. 3d 233, 235, 367 N.E.2d 466, 467) workers engaged in dangerous and extrahazardous occupations (Crafton v. Lester B. Knight & Associates, Inc. (1970), 46 Ill. 2d 533, 536, 263 N.E.2d 817, 819) or activities from certain risks inherent in the nature of their jobs (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051, 1055) so as to secure for them a safe place to work and provide them with a remedy for personal injuries suffered at the hazardous construction site. Kelly v. Northwest Community Hospital (1978), 66 Ill. App. 3d 679, 683, 384 N.E.2d 102,105.
In order to fall within the ambit of the Act, the particular activity involved must be an integral part of the structural construction operation, as the Act is not intended to cover any and all construction activities whatsoever. (Allen v. Godar (S.D. Ill. 1979), 476 F. Supp. 172, 173.) Moreover, it is only when the injury has some connection with the hazardous nature of one of the devices named in the Act that a cause of action may be maintained under it. St. John v. City of Naperville (1982), 108 Ill. App. 3d 519, 524, 439 N.E.2d 12, 16.
The majority has concluded that no genuine issue of material fact exists as to whether the structure upon which plaintiff was standing at the time of the explosion was “erected in a safe, suitable and proper manner.” This conclusion is based on my colleagues’ reasoning that (1) “An explosion is not *** related to structural work” and (2) that the intent of the Structural Work Act is not to protect a worker against such an explosion. This antilogy is directly at odds with the purpose of the Structural Work Act and with the applicable law.
Here, the activity in which plaintiff was engaged at the time of the injury was clearly related to the structural conscruction operation. Equally clear is that plaintiff’s injury, allegedly occasioned by the movement of unsecured planking, has some connection with the scaffold upon which he stood, a device, as defendant acknowledges, within the purview of the Structural Work Act. The fact that the explosion was or was not related to the structural work is irrelevant to a determination of whether the activity and the injury fall within he scope of the Act, and thereby give rise to a cause of action.
The relevance of the explosion is that it was a hazardous condition created and maintained within the work area by defendant. One in charge who creates or maintains a hazardous condition within the work area becomes liable under the Act to those persons injured therein. (Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 509, 373 N.E.2d 1354, 1366.) Liability from such hazardous condition will arise, however, only if plaintiff can show that (1) defendant, by maintaining or creating this hazardous condition, violated the Act, and (2) that this violation was the proximate cause of plaintiff’s injury. (Urman v. Walter (1981), 101 Ill. App. 3d 1085, 1090, 428 N.E.2d 1051, 1055.) The majority addressed only the first of these prerequisites to liability. Having concluded that “it was not shown that the structure was not erected in a safe, suitable and proper manner,” my colleagues have resolved that defendant did not violate the Act and that, consequently, it is not necessary to consider the issue of proximate cause. Resolution of disputed facts, however, is not the purpose of a summary judgment proceeding. Summary judgment is not designed to try an issue of fact but rather to determine whether there is an issue of fact to be tried. (Bultman v. Bishop (1983), 120 Ill. App. 3d 138.) Because the Structural Work Act requires a safe, suitable and proper scaffold and does not specifically define what constitutes such a scaffold, this question is one of fact to be determined by the jury. Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 393, 398 N.E.2d 382, 387.
The majority’s assertion that the Act is not intended to protect a worker against such as the instant explosion also raises a question of fact. The real issue at bar is whether the presence of explosives in the pit beneath the scaffold upon which plaintiff stood, while engaging in an activity related to the structural work, rendered either the scaffold or the work area unsafe, unsuitable or improper so as to deny plaintiff adequate protection to his life and limb. This issue arises, as do all issues by definition, out of disputed facts. In light of the intent of the Act to protect workers, prevent injuries arising out of risks created by dangerous activities, and provide a safe work area, I cannot readily conclude, as have my able colleagues, that this particular explosion under these particular circumstances is not one of the dangers against which the Act was intended to protect.
The right to summary judgment must be clear beyond question. (Rubin v. City National Bank & Trust Co. (1980), 81 Ill. App. 3d 1020, 1022, 402 N.E.2d 281, 282.) Where, as here, doubt exists, the more prudent judicial policy is to allow the matter to proceed to trial. Johnson v. North Bank (1981), 99 Ill. App. 3d 320, 322, 426 N.E.2d 4, 5.
For these reasons, I respectfully dissent.