dissenting:
I respectfully dissent.
Defendant’s motion to dismiss does not designate the provision of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 1—101 et seq.) pursuant to which the motion was brought. On its face, the motion appears to fall under section 2—615 of the Code (Ill. Rev. Stat. 1985, ch. 110, par. 2—615), which allows for a motion to dismiss for failure to state a cause of action. However, because plaintiff admitted certain facts outside the allegations of the complaint and the court considered these admissions, the motion was before the trial court as if it were a motion for summary judgment. The parties do not contest the procedure employed to bring this matter to the attention of the trial court, which concluded that the oil drilling rig is portable, movable personal property and thus is not a structure under the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69). I do not accept the premise that simply because the rig here is portable or movable it cannot be a structure.
The record reveals few details regarding the characteristics of the oil rig. The complaint alleges plaintiff fell 55 feet, so the rig is at least that high while in use. The parties agree it is portable and that it must be disassembled in order to be moved, but the record does not indicate how long it takes to assemble or disassemble the rig or how the rig is affixed to the drilling site. However, plaintiff, as the party-opposing the motion, is entitled to all reasonable inferences from the record (McCarthy v. Johnson (1983), 122 Ill. App. 3d 104, 107, 460 N.E.2d 762, 765), and defendant can only be granted summary judgment if its right thereto is clear and free from doubt. (Motz v. Central National Bank (1983), 119 Ill. App. 3d 601, 605, 456 N.E.2d 958, 961.) I cannot conclude defendant has shown this burden has been met. There is nothing in the record to indicate the oil rig is not of the same general character as the structures enumerated in section 1 of the Act (Ill. Rev. Stat. 1985, ch. 48, par. 60). I do not agree with the majority that this case is analogous to Farley v. Marion Power Shovel Co. (1975), 60 Ill. 2d 432, 328 N.E.2d 318, or Bullistron v. Northern Builders, Inc. (1984), 127 Ill. App. 3d 242, 468 N.E.2d 1281. The self-propelled power shovel in Farley and the truck-mounted drilling rig in Bullistron were by their nature mobile and more easily movable than the oil rig in this case. The parties agree here that the rig must be “set up” and “taken down.” It is not part of a vehicle. Although the rig is movable, plaintiff is entitled to the inference that when it is not being moved but is in place at the site of an oil well it has the same general characteristics as the structures enumerated in section 1 of the Act. I believe the present case is more akin to Warren v. Meeker (1973), 55 Ill. 2d 108, 302 N.E.2d 54, where our supreme court held that a grain silo was a structure within the meaning of the Structural Work Act, even though the silo was movable and the lease labeled the silo as personal property. (55 Ill. 2d at 113, 302 N.E.2d at 57.) Furthermore, in Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 516-17, 373 N.E.2d 1354, 1371, the court held that sewer pipes constituted a structure even though the pipes were to be moved after the completion of a specific job. Thus, the fact the oil drilling rig in the present case is movable does not mean it is not a structure. I note that even some buildings designed for temporary use can be portable or movable in the sense that they can be fairly easily assembled and disassembled and moved from place to place, but would submit it cannot be argued that these buildings are not structures within the meaning of the Act simply because they are portable or movable. Furthermore, the majority’s reliance on Innis v. Elmhurst Dodge, Inc. (1985), 107 Ill. 2d 151, 156, 481 N.E.2d 709, 711, for the proposition that the Structural Work Act does not apply to movable personal property is also misplaced. In Innis, the alleged structure was an air compressor located on a platform inside a building. The oil rig here is not akin to the air compressor in Innis.
Finally, I also cannot concur in the majority’s conclusion that the oil well itself is not a “structure.” As the majority acknowledges, the decisions in Navlyt v. Kalinich (1972), 53 Ill. 2d 137, 138-39, 290 N.E.2d 219, 220, and Burke v. Illinois Power Co. (1978), 57 Ill. App. 3d 498, 516-17, 373 N.E.2d 1354, 1371, hold that a sewer system with pipes running underground does constitute a structure. An oil well is a system of pipes as well, and the fact this system is primarily vertical rather than horizontal does not affect its character as a structure.
For these reasons, I would reverse the order of the trial court and remand for further proceedings.