dissenting:
I respectfully dissent from the decision of my colleagues.
The Structural Work Act provides in pertinent part that
“[A]ll *** ladders *** shall be erected and constructed, in a safe, suitable and proper manner, and shall be so erected and constructed, placed and operated as to give proper and adequate protection to the life and limb of any person or persons employed or engaged thereon ***.” (Ill. Rev. Stat. 1981, ch. 48, par. 60.)
It is clear from the plain language of the statute that an unsafe erection, placement, or operation of a ladder, which gives improper and inadequate protection to the life and limb of an employee engaged thereon, may be a violation of the Act. (Smith v. Georgia Pacific Corp. (1980), 86 Ill. App. 3d 570, 574, 408 N.E.2d 117, 120.) To hold defendants liable under the Act, plaintiff must therefore prove, inter alia, that (1) the ladder upon which he was working was not erected in a safe, suitable and proper manner or was not placed or operated so as to give adequate protection to his life and limb, and (2) that the improper erection or placement of the ladder caused his injuries. (McInerney v. Hasbrook Construction Co. (1973), 16 Ill. App. 3d 464, 468, 306 N.E.2d 619, 622, affd in part & rev’d in part on other grounds (1975), 62 Ill. 2d 93, 338 N.E.2d 868.) Liability, therefore, hinges on issues of causation.
As the majority notes, the question of proximate cause under the Structural Work Act is ordinarily a question of fact for the jury and becomes a question of law only when facts are undisputed, and where there can be no difference in the judgment of reasonable men on the inferences to be drawn. (Wilson v. Illinois Bell Telephone Co. (1974), 19 Ill. App. 3d 47, 49, 310 N.E.2d 729, 731.) Based largely on plaintiff’s deposition testimony, the majority has found, as a matter of law, that (1) the ladder was not “defective,” (2) the ladder was not the proximate cause of plaintiff’s injuries, and that therefore (3) there was no violation of the Structural Work Act.
In order to affirm the trial court’s grant of summary judgment, the majority must also have found that no genuine issue as to any material fact exists between the parties (Kusiciel v. La Salle National Bank (1982), 106 Ill. App. 3d 333, 338, 435 N.E.2d 1217), and that the moving party is entitled to judgment as a matter of law. (Finance America Commercial Corp. v. Econo Coach, Inc. (1981), 95 Ill. App. 3d 185, 187, 419 N.E.2d 935, 938.) We cannot agree that, as a matter of law, no genuine issue as to the facts of causation exists between the parties:
“We cannot say as a matter of law that the evidence reveals no violation of the [Structural Work] Act. Although the defendant argues that the ladder was not defective, the purpose of the Act is not to protect the workmen from defective scaffolds. [Citation.] The Act provides that workmen must be provided with a safe, suitable and proper scaffold which will furnish them with proper and adequate protection. Because the statute does not define what constitutes a safe, suitable and proper scaffold, this question is one of fact to be determined by the jury. [Citations.] Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 393, 398 N.E.2d 382, 387.
The finding that the ladder was not in and of itself “defective” is not dispositive for, as plaintiff notes, the Act is not directed solely towards a “defective” scaffold. (Domena v. Prince (1977), 52 Ill. App. 3d 462, 466, 367 N.E.2d 717, 720.) Thus, plaintiff’s failure to allege an inherent, structural defect does not justify the conclusion either that the ladder was not the proximate cause of plaintiff’s injury or that the Act has not been violated.
The proximate cause of an injury is generally a question of fact for the jury. (Zizzo v. Ben Pekin Corp. (1979), 79 Ill. App. 3d 386, 394, 398 N.E.2d 382, 387.) The majority refers to several statements made by plaintiff in his deposition to support its finding that the ladder was not the proximate cause of plaintiff’s injury. Plaintiff, however, is not a safety expert (Kleeman v. Fragman Construction Co. (1980), 91 Ill. App. 3d 455, 458, 414 N.E.2d 1064, 1067); his deposition testimony is not conclusive and does not preclude him from offering additional evidence on this issue at trial. (Wood v. Commonwealth Edison Co. (N.D. Ill. 1972), 343 F. Supp. 1270, 1272.) Summary judgment cannot be granted on the basis of these statements by plaintiff. 343 F. Supp. 1270, 1272.
It therefore appears clear that (1) whether the placement and operation of the ladder was unsafe, and (2) whether this unsafe placement and operation caused or contributed to plaintiff’s injury are indeed genuine issues of material fact, and that reasonable men could differ in the inferences to be drawn from these facts.
Because proximate cause cannot, under these facts, be determined as a matter of law, and summary judgment cannot properly lie, I dissent from the majority opinion.