dissenting:
I must respectfully dissent from the majority’s opinion. I believe this is exactly the type of incident for which the Structural Work Act provides a remedy.
It is the desire to prevent injuries to workers engaged in structural work and place the full responsibility for the prevention of such injuries on contractors and their clients that animates the Structural Work Act (Act) (740 ILCS 150/1 et seq. (West 1992)). (Pozzi v. McGee Associates, Inc. (1992), 236 Ill. App. 3d 390, 602 N.E.2d 1302.) The majority’s narrow view of the Act’s reach runs contrary to the spirit and intent of the law as well as our obligation to liberally construe it in order to effectuate its clear legislative purpose. Ponziano v. K.R. Kleiner & Co. (1991), 216 Ill. App. 3d 22, 576 N.E.2d 158.
Under the Act, a plaintiff must show: (1) the device involved is one enumerated in the Act; (2) the device was used to complete a building or structure; (3) the device was unsafe, not safely placed or operated, or there was a failure to provide such a device; (4) those in charge of the work wilfully violated the Act; and (5) the violation of the Act proximately caused the plaintiff’s injury. Pozzi v. McGee Associates, Inc. (1992), 236 Ill. App. 3d 390, 602 N.E.2d 1302.
The Act applies to those instances where the resultant injury to the worker has a direct connection with the hazardous nature of the devices in the Act. (Tenenbaum v. City of Chicago (1975), 60 Ill. 2d 363, 371, 325 N.E.2d 607.) Clearly, the injury to the decedent in this case was a result of the hazards presented by the presence of methane gas at the construction site. The ground was impregnated with methane gas, the ignition of which proved to be the proximate cause of his death.
The majority advance two propositions which support their conclusion, both of which are flawed. First, they analogize the danger inherent in the presence of methane gas in this case to cases where the worker was injured by electrocution or explosions which were not covered by the Act. Second, the majority contend the Act is only applicable to those cases where the device failed to provide support for the worker causing his injuries to be sustained by a fall from that support.
The majority opinion recognizes that the ground upon which plaintiff stood at the time of the accident was in fact a support device as defined by the Act but then goes on to reject the logical conclusion that the presence of methane gas was an intrinsic part of this support which rendered that support unsafe. Instead, the majority conclude that "any gas present was an ambient hazard that surrounded the ground, not an integral part of the ground, which was the support.” 271 Ill. App. 3d at 1102.
A review of the record indicates that the structure in this case was being erected on property which at one time was a landfill. It is a scientifically proven fact that landfill sites secrete methane gas which is created by the natural decomposition of the waste buried under the ground; a fact which was known to all the parties in charge of this project. To deny that this gas was an intrinsic part of the chemical makeup of the ground is to deny the teachings of modern science and to deny the reality of this situation. The gas does not surround the ground nor is it near the ground; it is part of the essence of the ground at this site.
Charles Canali, the general superintendent on the jobsite, testified to the fact that the parties in charge of the construction were aware of the presence of methane gas and were concerned about the hazardous and potentially dangerous conditions which existed. In fact, STS Consultants, Ltd., was engaged by the owner of the property to perform engineering and consulting services including testing the soil for the presence and emission of methane gas at the construction site. Canali further testified that he was aware of gases escaping from the ground prior to the date of decedent’s accident. Additional testimony from one of decedent’s co-workers revealed that fires had burned in other holes on this very jobsite prior to this accident.
The majority cite Overbeck v. Jon Construction, Inc. (1989), 184 Ill. App. 3d 918, 540 N.E.2d 969, and Clow v. Metropolitan Sanitary District of Greater Chicago (1983), 120 Ill. App. 3d 712, 461 N.E.2d 40, for the general proposition that explosions are generally not related to structural work. While I agree with the result in both of those cases, I do not believe they are analogous to the facts of the case at bar. In both of those cases, the plaintiff was standing on a support mechanism as defined in the Act when a nearby explosion shook the support causing the plaintiff to fall and sustain injuries. The explosion was not in any way caused by a defect within or related to the unsafe condition of the support itself. In Clow, the explosion was caused by the ignition of propane gas or diesel fuel which was on the site for the purpose of heating and melting ice. The court in Clow stated, "[a] structure does not have to protect a workman from every hazard in the workplace, only hazards relating to structural work. An explosion is not, in our estimation, related to structural work.” (Clow, 120 Ill. App. 3d at 714.) Here, however, it was in fact a defect within the support, the methane gases permeating the ground, which ignited, causing the explosion and thereby proximately causing decedent’s injuries. This is exactly the type of injury the Act is intended to remedy — one where a plaintiff is directly injured by the hazardous nature of the support device utilized during the course of a construction project.
Similarly, in Overbeck, the support itself was not defective or unsafe; the explosion of nearby electrical equipment caused plaintiffs injuries. In fact, Overbeck did not even make a claim that the ladder he was utilizing was defective. Clearly, this is distinguishable from this instant case where the support, the ground upon which decedent was standing, was in an unsafe condition due to the presence of methane gas which did in fact ignite and cause decedent’s injuries.
The majority’s second premise, upon which they base their opinion, is as equally faulty as the first. The majority opinion concludes, "[t]he ground did not fail since it did not cave in or collapse. Instead, it continued to provide stable support.” (271 Ill. App. 3d 1102.) It is disingenuous to argue that the Act is only applicable to those situations where a worker’s injury is the result of the support failing to bear his weight yet hold the same remedy is not available where the support in some other way creates a hazard which results in injury to a worker. Plaintiff should not be precluded from recovery simply because the ground did not cave in or otherwise fail to hold the decedent. The statute clearly states the support shall be "placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon.” (740 ILCS 150/1 (West 1992).) It is clear in this case that the life and limb of the decedent were imperiled by the very support upon which he relied during the performance of his duties. A support that blows up clearly does not provide support. I do not believe decedent should now be denied a remedy under the Act because his injury was not the result of a fall from a scaffold.
In light of the foregoing, I would reverse and remand this case to the circuit court for further proceedings consistent with the view contained herein.