dissenting:
It is not disputed that plaintiff fell while walking along a series of metal girders known as long span steel joists and T-rails and that these formed a permanent and integral part of the building under construction. The opinion of a majority of my colleagues extending the scope of the Structural Work Act to impose a duty to erect scaffolding and to include as such the integral and permanent portions of buildings is a substantial departure from the heretofore consistent interpretations of that Act to the contrary.
The third amended complaint in this case was dismissed as failing to state a cause of action. The sole question before us is the correctness of this ruling. The complaint is clearly based upon the statute and alleges no common-law duties or breaches. Nor does it allege that defendant owed a statutory duty to plaintiff to erect scaffolding and it seems to me clear that no such duty is imposed by the Structural Work Act which the complaint quotes. Unless such duty is statutorily imposed or the permanent portions of the building are included within the term “scaffolds”, the trial court’s action was correct.
The court’s opinion holds the Act creates a statutory duty to erect scaffolds and relies upon general language in our decisions indicating the purpose of this legislation was to protect those engaged in structural work. Certainly that is its purpose, and the purpose is a laudable one, but quoting generalities to indicate that the result achieved by the majority opinion is a desirable one does little to resolve the specific questions presented: (i) Does our statute impose a duty to erect scaffolding in addition to the contractor’s common-law obligation to provide a reasonably safe place to work? (2) If so, does a permanent, integral part of the building under construction qualify as a “scaffold” within the statutory meaning ? To support its affirmative answer to the first of these, the majority cite, in addition to the generalities in Schultz and Gannon, only Larson v. Commonwealth Edison Co., 33 Ill.2d 316, which dealt with the question as to whether certain defendants were “in charge of” the work. The injured workman in Larson fell from the ordinary type of scaffold, and the problems presented by this case were not before us in Larson; it is not authority for the result here reached by the court. The A.L.R. annotation (20 A.L.R. 2d 873) deals with the common-law duty of the contractor and specifically refers the reader to the statutes of his State in order to determine whether this principle is embodied therein.
Section 1 of our statute provides: “All scaffolds, hoists, cranes, stays, ladders, supports, or other mechanical contrivances, erected or constructed by any person * * * for the use in the erection, repairing, alteration, removal or painting of any house, building * * * 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 * * * persons employed or engaged thereon, * * * as to prevent the falling of any material * * * used or deposited thereon.” (Ill. Rev. Stat. 1955, chap. 48, par. 60.) It has been uniformly held that “section 1 of the Act does not undertake to state when or under what conditions a scaffold is to be erected as a matter of statutory duty” (Parizon v. Granite City Steel Co. (4th dist.), 71 Ill. App. 2d 53, pp. 60-61, leave to appeal denied 35 Ill.2d 629; see, also, Schaffer v. Veach (4th dist.), 61 Ill. App. 2d 168; Bradley v. Metropolitan Sanitary District (1st dist.), 56 Ill. App. 2d 482), and as earlier noted the complaint before us does not allege that defendant owed plaintiffs such duty. Plaintiff now argues that the use of the word “placed” in the statute manifestly imposes a duty upon the contractor to erect scaffolds, but it seems to me clear that, when read in the context of the Act, “placed” is referring to the method of constructing the supports, stays or scaffolds rather then the necessity of providing them. The Act defines the standards for. constructing these mechanical contrivances but it does not purport to say when and where they must be furnished. This has, until now, been the uniform holding of the appellate courts. Parizon, pp. 60-61; Schaffer; Bradley.
Turning, then, to the question whether permanent, integral parts of the structure being built may qualify as a “scaffold” or “support”, the statutory language and decisions in this State are equally persuasive that they cannot. The pertinent portions of the statute are quoted above, and the Act does not further define scaffold or its other terms. However, the common definitions of a scaffold are unanimous in their reference to its temporary character. Webster’s Third New International Dictionary defines a scaffold as a “temporary or movable platform * * the Shorter Oxford English Dictionary says a scaffold is “a temporary platform * * and Webster’s New World Dictionary of American Language defines it as “a temporary wooden or metal framework * * *”.
As pointed out in Parizon v. Granite City Steel Co. (4th dist.), 71 Ill. App. 2d 53, 61, “The connotation of the operative words, * * erected or constructed * * * for the use in the erection, repairing * * *,’ is that of a temporary erection for the express specific purpose of construction. The concept of the erection for such specific purpose is substantiated in the provisions of section 4 of the Act (Ill. Rev. Stat. 1965, chap. 48, par. 63). It provides ■for inspection of scaffolding and the several items specified in the statute by the Director of Labor or the local authorities of municipalities charged with the duty of enforcing ‘Building Laws.’ This section provides that if upon inspection such scaffolding or the companion items are found dangerous to life or limb, the authorities should notify the person responsible for the erection or maintenance, prohibit the use thereof, and the person responsible is required to remove the scaffolding or platform.” Such statutory provisions are scarcely consonant with this court’s present extension of the statute to embrace permanent and integral portions of the buildings being worked upon.
The majority again quotes general language, this time in Schultz v. Ericsson Co., 264 Ill. 156, which, it seems to me, has no real relevance to the issues here. In Schultz the workman was injured while walking along a runway built upon temporary scaffolding alongside the building, and the court was in no way concerned with the questions now before' us. The majority also cite Skinner v. United States, 209 F. Supp. 424; Bounougias v. Republic Steel Corp. (7th cir.), 277 F.2d 726; Oldham v. Kubinski, 37 Ill. App. 2d 65; and Frick v. O’Hare-Chicago Corp., 70 Ill. App. 2d 303. Of these, the only case involving anything which could be thought to be a permanent part of the building under construction is Skinner. There the workman was killed when the ladder upon which he was standing was caused to fall by the movement of the airplane hangar door against which the ladder was placed. The court there specifically found that “placement of the ladder against a movable door constituted an unsafe condition” and that a “suitable scaffold was available and could have been used in lieu of the ladders.” Since the Act refers to “ladders” as one of the types of mechanical contrivances included therein, I do not understand how Skinner can be viewed as authority for extending the Act to embrace permanent, integral parts of the building.
Nor does the Wisconsin case, Koepp v. National Enameling and Stamping Co., 151 Wis. 302, 139 N.W. 179, quoted at length in the majority opinion, strengthen their position. In that case the injured employee was standing upon an 11-foot ladder placed on a raised platform some 20 feet above the floor and fell when the platform supports collapsed — obviously within the statutory reference to “ladders” and “supports”. It is noteworthy that the court there stated the scope of the terms “scaffolding” and “mechanical contrivance” would reasonably include “any temporary structure made up of parts * * * used for support while doing any kind of work mentioned in the law — any kind of an elevated platform for workmen to use in the performance of their duties.” (Emphasis added.)
The final authority relied on by the majority, 35 Am. Jur., par. 195, cites to 87 A.L.R. 2d 983 as its sourcé. That annotation refers to Carpenter v. Burmeister, 217 Mo. App. App. 104, 273 S.W. 418, and Ross v. Delaware, L. & W. R. Co., 231 N.Y. 335, 132 N.E. 108, as holding that permanent parts of buildings may be scaffolds. However, the facts in those cases were that workmen were injured while walking upon loose planks laid across joists so that employees could walk across them. While it was intended that such planks would ultimately be nailed down (to the roof in Carpenter) and become permanent parts of the structure, it was precisely the fact that they had not been permanently affixed that caused the courts in Ross and Carpenter to hold them a scaffold.
The reason for the majority’s inability to cite more persuasive authority is clear. The decisions of our appellate courts dealing with permanent parts of buildings are uniformly to the contrary.
A rather thorough review of the pertinent Illinois authorities, as well as some from other jurisdictions, appears in the majority and dissenting opinions of the 4th District Appellate Court members in Parizon v. Granite City Steel Co., 71 Ill. App. 2d 53. It would only prolong this dissent to restate them here. Shortly stated, that case turned squarely upon the court’s interpretation of the statute as excluding permanent and integral parts of the building from the term “scaffolds”, and as creating no duty to erect a scaffold. We denied leave to appeal at the January, 1967, term (35 Ill.2d 629), as we also did in Bohannon v. Joseph T. Ryerson & Son, Inc. (1st dist.), 72 Ill. App. 2d 397, which expressly chose to follow Parizon. The appellate courts, with the exception of the case before us, have been uniform in their interpretation of the Structural Work Act to exclude permanent and integral parts of the structure Parizon; Ryerson; Bradley v. Metropolitan Sanitary District, 56 Ill. App. 2d 482; Thon v. Johnson, 30 Ill. App. 2d 317; Miller v. DeWitt, 59 Ill. App. 2d 38, affd. 37 Ill.2d 273.
We have heretofore left undisturbed those cases in which the appellate courts have held that permanent integral parts of the structures being worked upon were not within the scope of the Structural Work Act and that no affirmative duty was thereby imposed to erect scaffolding in addition to such obligation as may have theretofore existed. This, it seems to me, is the plain meaning of the statutory language. It may be desirable to extend or enlarge the statutory duty, but, if so, that result should be accomplished by legislative amendment and not by judicial fiat.
Since the complaint did not, in my opinion, state a cause of action, I would reverse the appellate court and affirm the circuit court.
Mr. Justice House joins in this dissent.