CONSTRUCTION NEGLIGENCE CASES IN ILLINOIS A LOOK AT SECTIONS 414 AND 343 OF THE RESTATEMENT (2d) OF TORTS

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1 CONSTRUCTION NEGLIGENCE CASES IN ILLINOIS A LOOK AT SECTIONS 414 AND 343 OF THE RESTATEMENT (2d) OF TORTS Joseph F. Spitzzeri Genevieve M. LeFevour Johnson & Bell, Ltd. Johnson & Bell, Ltd. 33 W. Monroe Street 33 W. Monroe Street 27 th Floor 27 th Floor Chicago, Illinois Chicago, Illinois

2 CONSTRUCTION NEGLIGENCE CASES IN ILLINOIS A LOOK AT SECTIONS 414 AND 343 OF THE RESTATEMENT (2d) OF TORTS Prior to 1995, liability associated with construction-related injuries in Illinois was analyzed under the Illinois Structural Work Act, which co-existed with common law negligence principles. The Act was repealed, however, in 1995, leaving the common law negligence principles including those found in sections 343, 343(A), and 414 of the Restatement (Second) of Torts. These are not mutually exclusive and each one offers an independent basis for recovery. Kotecki v. Walsh Construction Co., 333 Ill.App.3d 583, 776 N.E.2d 774 (1 st Dist. 2002). To recover under a construction negligence theory, plaintiff has to present sufficient evidence to establish that the defendants owed him a duty. Wojdyla v. City of Park Ridge, 148 Ill. 2d 417, 592 N.E.2d (1 st Dist ) Whether a duty exists is a question of law to be decided by the court, and if none exists, plaintiff cannot recover. (Schoenbeck v. DuPage Water Commission, 240 Ill. App. 3d 1045, 607 N.E.2d 693 (1 st Dist. 1993). With regards to the allegations involving construction negligence, the general rule in Illinois is that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 276 N.E.2d 336 (1971). Section 414 of the Restatement reads as follows: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. See Restatement 2d of Torts 414 (1965). The retained control concept is explained in comment (c) to 414 below:

3 In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations that need not necessarily be followed, or to prescribe alternations and deviations. Such as general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Section 414 of the Restatement clearly sets forth the exceptions to the general rule of general contractors not being liable for actions of independent contractors. Under these exceptions, an employer of an independent contractor can nevertheless be subject to vicarious liability for the contractor s negligence if the employer retains control over the operative details of the contractor s work. Alternatively, even in the absence of such control, an employer may be subject to direct liability where it assumes supervisory duties on a construction project and fails to exercise them with reasonable care. Recio v. GR-MHA Corp., 361 Ill.App.3d 48, 851 N.E.2d 106 (1 st Dist. 2006). In either case, the scope of liability for the employer of an independent contractor is determined by the scope of its undertaking. Id. Moreover, such an employer cannot be held liable unless it knew or had reason to know of danger to the contractor s workers. Id. Important and Recent Positive Defense Cases under Section 414 A recent case out of the Appellate Court of Illinois for the First District, Madden v. F.H. Paschen, N (1 st Dist. 2009) is a good case for defendants because it clearly sets forth the requirements necessary to be found liable under 414. Madden involved a plaintiff who suffered severe injuries from falling into an open orchestra pit. The defendant design consulatant and construction manager in the case were dismissed on summary judgment. The plaintiff

4 appealed the trial court s granting of the defendants summary judgment stating that both defendants were vicariously and directly liable under 414. In affirming the trial court, the Appellate Court found that both defendants were not vicariously liable under 414 because they did not entrust work to an independent contractor, which is a necessary precondition to being vicariously liable under 414. Specifically, the court stated that the central issue under 414 is retained control of the independent contractor s work. Thus, if a party does not entrust work to an independent contractor allegedly responsible for causing injury to a plaintiff, then there is no vicarious liability under 414. Therefore, because the construction manager and the design consultant did not entrust work to anyone on the project where plaintiff was injured, no vicarious liability could be imposed under 414. Madden v. F.H. Paschen, No at It is important for construction defendants to keep in mind that the precondition and fundamental requirement of imposing vicarious liability on defendants under 414 is for the defendant to have entrusted work to an independent contractor. If a defendant has not entrusted work to an independent contractor, then the vicarious liability analysis under 414 stops there. Further, the Madden case highlights how neither the defendant design consultant and defendant construction manager could be directly liable under 414 because both defendants lacked knowledge, actual or constructive, of the dangerous way in which plaintiff was performing his work on the night in question. The court stated that, there can be no liability placed on a defendant where there is no evidence that the defendant knew or had notice of the hazardous method plaintiff employed in performing the activity that caused his injury. Madden v. F.H. Paschen, No at 32. Further, in Madden, neither defendant had decisional power

5 or authority with respect to the area in which plaintiff was injured. Therefore, they could not be found to have negligently performed their supervisory role. Id. This is positive decision for defense cases because if a defendant can prove it had no knowledge, whether it be actual or constructive, of the way in which plaintiff was performing his/her work at the time they were injured and/or prove that it did not have authority to make decisions about the area in which a plaintiff is hurt, a defendant can make a strong argument that it can not be found directly liable under Section 414. Although it is an older case, Connaghan v. Caplice, 325 Ill.App.3d 245, 757 N.E.2d 971, (2 nd Dist., 2001) is a very good defense case and must be noted and discussed. Connaghan involved an independent contractor who was injured after falling off a ladder at defendant owner s home. The defendant hired plaintiff to perform rough carpentry work on defendant s home and garage. Id. at 973. The plaintiff s complaint against defendant homeowner sounded in negligence stating that defendant owed plaintiff a duty pursuant to Section 414 of the Restatement Second of Torts. Id. The plaintiff and his partner met with defendant to go over the plans an architect had prepared for defendant. The plaintiff then told defendant what materials he and his partner would need to complete the job and defendant bought the materials. Id. The plaintiff and defendant had no conversations about who would supply the tools for the job or who would be responsible for safety. The plaintiff and his partner then proceeded to build the garage walls. The plaintiff testified that he knew how to do the work based on his thirty years of experience in carpentry. He never asked defendants for direction on how to perform any task and defendant never directed him how to perform his work. Id. Moreover, plaintiff and his partner decided their own work schedule and even though defendant did come around and check on the progress of the work, he

6 never criticized the work or told them they were doing something unsafe. Id. at 247. In addition, the plaintiff and his partner provided their own tools to perform their job, although at times, they would use defendant s ladders. Id. On the day of the accident, the plaintiff fell off one of defendant s ladders after trying to climb up to nail the rafters. Id. As a result of his fall off defendant s ladder, the plaintiff filed suit against defendant. Before trial, defendant homeowner moved for summary judgment stating that the plaintiff was an independent contractor and that defendant did not retain control over the incidental aspects of his work pursuant to Section 414 of the Restatement Second of Torts and therefore could not be liable to the plaintiff. Id. The plaintiff then attempted to defeat defendant s motion for summary judgment through attaching an affidavit of an engineering expert who had opined that the ladders were old, in disrepair, and violated OSHA safety standards as well as the fact that OSHA standards were violated by the failure to provide adequate scaffolding. Id. However, the trial court agreed that the defendant did not control the incidental aspects of the plaintiff s work and granted defendant s motion for summary judgment. On appeal, the Appellate Court for the Second District affirmed the trial court s granting of summary judgment, but stated that the trial court was incorrect to even do a Section 414 analysis. The Appellate Court held that there was no need to do a Section 414 analysis because Section 414 did not apply in the first place and that the defendant owed no duty to the plaintiff under Section 414. In short, the court explained that Section 414 of the Restatement does not apply to independent contractors and that plaintiff s reliance on 414 to try and hold the defendant liable was misplaced. Id. at 249, 975. Specifically, the court noted that, One essential element of a negligence action is the existence of a duty that the defendant owed the plaintiff. Plaintiff claimed that defendant owed plaintiff a duty of reasonable care pursuant to section 414 of the Restatement provides an exception to the general rule

7 that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Section 414 provides: One who entrusts work to an independent contractor, but who retains control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Thus, section 414 addresses the duty that an employer owes to others, for example, employees of the independent contractor and other third parties. Nothing in this section of the Restatement imposes a duty upon employers that inured to an independent contractor. The theory of recovery expresses in section 414 is based on a master/servant relationship or respondeat superior. Such a theory of liability does not encompass liability of the master inuring to the servant for acts or omissions of the servant. There is nothing in the record to establish that plaintiff was anything but an independent contractor. Because section 414 does not contemplate a duty an employer owes to an independent contractor, this section of the Restatement is not applicable. Thus, the trial court properly granted the defendant s motion for summary judgment. Id. Therefore, the court found that since the plaintiff was an independent contractor working for himself, was not an employee of an independent contractor and was not a third party, Section 414 was not applicable and Plaintiff s reliance on such was misplaced. Id. The Connaghan case is an important defense oriented case because if the plaintiff is the actual independent contractor themselves, Section 414 does not apply and a defendant cannot be liable. Another recent helpful defense case that should be highlighted is Gregory v. Exxon Mobil, No (1 st Dist., 2008) which was recently issued by the Illinois Appellate Court for the First District on May 23, Gregory involved a plaintiff who worked as an employee of a subcontractor at a Mobil refinery and while working for the subcontractor came in contact with asbestos. Prior to trial, Mobil moved for summary judgment on several grounds, one of

8 which being that Mobil owed no duty to the plaintiff as an employee of an independent contractor. The trial court granted Mobil s Motion for Summary Judgment stating that there was not enough evidence to impose liability against Mobil under Section 414. The court stated that there was no evidence that Mobil controlled the means or methods by which the plaintiff performed his work and further, it was not enough that Mobil had the general right to control the progress of the work, but rather, to impose a duty on it, Mobil must have retained the right to control the way the contractor did his work. The plaintiff appealed. On appeal, the Illinois Appellate Court for the First District affirmed the trial court s decision. The court found that Mobil did not retain the degree of control necessary to impose liability upon it. Mobil did not provide any direction and/or supervision to the plaintiff on how to do his work and moreover, the plaintiff did not look to Mobil for direction on how to do his work. Further, although the court noted that Mobil had the general right to stop work, monitor its completion and control access to the site, these were simply general rights and not mechanisms that triggered liability under Section 414 of the Restatement. Gregory represents a positive defense case under section 414 because the court highlights that the critical question in determining whether a defendant can be liable under section 414 is whether or not they directed the means and methods by which the plaintiff performed the work. Oftentimes, plaintiffs try and impose liability because a defendant supplied safety equipment and/or had the ability to stop work. However, this is not the crucial analysis under 414. The relevant question to be asked is whether the defendant controlled the means and methods by which plaintiff performed his/her work. It is also worth noting the Joyce v. Madison Services, Inc decision. In 2007, the First District of the Illinois Appellate Court decided Joyce v. Madison Services, Inc., a case involving

9 a plaintiff who was employed by an independent contractor. 371 Ill.App.3d 64, 861 N.E.2d 1102 (1 st Dist. 2007). There, the plaintiff was injured at a construction site on a United States Army Reserve Base. The defendant Madison Services, Inc. acted as the general contractor on the project to demolish and install air-handling systems. The defendant hired plaintiff s employer, Elk Grove Mechanical, Inc. (EGM) to work on the project. Pursuant to the contract between EGM and the defendant, EGM was to provide for all labor, materials, equipment, services, and other items required to complete the work. The contract also stated that EGM was to take reasonable safety precautions with respect to the performance of the subcontract. Madison Services (the general contractor) was not to give instructions or orders directly to EGM employees. EGM was also contractually obligated to keep the premises and areas surrounding the work area free from accumulations of waste materials. The plaintiff alleged that on the day of his accident, he was hurt when he fell off of a fifteen-foot ladder he was using to remove some ductwork. The ladder s locking mechanism did not operate properly, causing the plaintiff to fall down the ladder, injuring his wrist. The plaintiff also testified that no one told him to use the ladder but rather, that it was available so he used it. He spoke to his supervisor only once during the project to go over what needed to be done. The plaintiff never spoke to anyone from Madison Services, Inc. and Madison did not provide any of the equipment. Madison Services, Inc. s project manager was Michael Reinersman. Reinersman testified that his job was to learn what the scope of the job was for the government and then to pass that scope on to the subcontractor. On the project, Madison Services, Inc. had no tradesmen. He visited the work site approximately five times. He never observed work being done in violation of OSHA or in an unsafe manner. Madison Services, Inc. did have the right to stop work of a

10 subcontractor at the base if there was a safety hazard, although this was never done. Further, Reinersman was not present when the plaintiff was injured and no one did any accident investigation on behalf of the defendant. He also testified the contract with EGM did not mandate on-site daily supervision nor did Madison have a role in enforcing safety rules. Subcontractors were to comply with OSHA, based on their contract with Madison. Reinersman also testified that he never instructed anyone from EGM to use certain tools or equipment or how to go about their work. Madison did not direct EGM employees, nor did they give any job assignments to them. An EGM superintendent testified that he supervised the work done by the plaintiff, was responsible for the job from start to finish, and that he ran the job site. He testified that ladders were checked at safety meetings run by EGM and that the repair of a broken ladder would be something he would oversee. He also testified that EGM inspects their ladders, the locking mechanism on the ladders, and the ropes on the ladders. He further testified that there was only one employee of the defendants who would visit the site and that he did so on a very limited basis. It was also rumored, that the EGM superintendent reported that the ladder was backwards when the plaintiff tried to use it and that the ladder was at a bad angle. Others also testified that no one from the defendant Madison came to the work site to supervise EGM or any other workers. No one had any information that anyone from Madison ever directed any EGM work. The plaintiff alleged that the defendant, Madison, owed him a duty of care pursuant to section 414 of the Restatement (Second) of Torts, because Madison retained contractual and actual control over EGM s employees. Again, the court looked at the retained control exception to the rule in section 414 of the Restatement, just as the court had done in Cochran v. George Sollitt Construction Company. 358 Ill.App.3d 865, 832 N.E.355 (1 st Dist. 2005). The court found that Madison Services neither controlled the safety measures employed at the site nor retained

11 control over the incidental aspects of the work done by EGM. The court noted the sections in the contract, which required EGM to provide all labor, materials, and equipment, as well as the provision that stated Madison would not give orders or instructions to EGM employees. Madison employee Reinersman only looked at progress at the job site and Madison relied on EGM for safety compliance. EGM conducted its own safety training and equipment checks. As to whether the general contractor retained control over incidental aspects of the independent contractor s work (which could also create a duty to the subcontractor s employee), the court found that there was no evidence showing that Madison directed EGM s work or directed the operative details of the work. EGM s work was not supervised by Madison, nor did Madison participate in the work. The Madison employee did not direct EGM employees in any fashion. In addition, the Calderon v. Residential Homes of America case should be highlighted as it is another recent positive case for the defense under section 414. In 2008, the First District of the Illinois Appellate Court decided Calderon v. Residential Homes of America, 885 N.E.2d 1138, (1 st Dist. 2008) a case involving a plaintiff who was employed by an independent contractor. Calderon, 885 N.E.2d at In Calderon, the plaintiff was injured at a construction site while providing roofing services for the general contractor. The defendant, Residential Homes of America, acted as the general contractor on the project to build a housing development. The defendant hired plaintiff s employer, Kap Roofing to perform the roofing work for the project. Pursuant to the contract between Kap and the defendant, Kap was to inspect its own work for quality. The plaintiff alleged that on the day of his accident, he was hurt when he fell off of a ladder as he was carrying a 60-pound bundle of shingles to the roof-top. The plaintiff testified that the company who was responsible for delivering the shingles were supposed to lift the

12 shingles to the rooftop but failed to do so. Therefore, although no one instructed him to do so, the plaintiff carried the shingles to the rooftop via a ladder. On his fourth trip, he lost his balance and fell of the ladder. The plaintiff alleged that Residential Homes owed him a duty of care pursuant to section 414 of the Restatement (Second) of Torts because Residential Homes retained contractual and actual control over Kap s employees. The court ultimately found that Residential Services neither controlled the safety measures employed at the site nor retained control over the incidental aspects of the work done by Kap. The court noted that the sections in the contract, which required Kap to adhere to the safety manual provided by Residential Homes did not give rise to liability under 414. Specifically, the court stated that the existence of a safety program, safety manual and/or safety directors does not constitute retained control. Calderone 885 N.E.2d at The court made a special point to note that the reason behind not imposing liability on a general contractor under section 414 for having a safety program and or manual is because penalizing a general contractor s efforts to promote safety and coordinate a general safety program among various independent contractors does not serve to advance the goal of worksite safety. Id. The court further stated that Residential Homes did not exercise the requisite actual control over Kap to be liable under 414. The court found that Residential Homes merely maintained general supervisory rights over the plaintiff, but in no way retained control over the incidental aspects of the plaintiff s work; the aspect of control necessary to impose vicarious liability under section 414. The court also noted that Residential Homes could not be found directly liable to the plaintiff under section 414. Under section 414, a general contractor can be liable if it does not

13 exercise its supervisory role with reasonable care. A general contractor s knowledge, actual or constructive, of the unsafe work methods or a dangerous condition is a precondition to direct liability. When a general contractor has an insufficient opportunity to observe unsafe working conditions, knowledge will not be imputed and liability will not ensue. Id. at The plaintiff attempted to argue that Residential Homes had knowledge of the dangerous condition relating to the ladder and the shingles on the ground because its superintendent maintained a daily presence on the job site. The plaintiff also argued that he had traversed the ladder several times with the shingles prior to this accident and therefore Residential Homes would have had knowledge of the dangerous condition. However, the court stated that a daily presence does not equate constant monitoring and that there was no evidence that the superintendent ever actually saw the plaintiff traversing the ladder with the shingles. Further, the court noted that the plaintiff never told the general contractor or any of its employees that the shingle company had failed to lift the shingles to the roof and therefore, the general contractor would have had notice that a dangerous condition existed on the site. The court found that because the general contractor did not control the manner in which the plaintiff did his work and did not exercise its supervisory control in a negligent manner, the general contractor could not be liable under section 414 of the Restatement. Id. at The Calderon decision makes it very evident that a daily presence on the work site as well as having a safety manual and or program does not give rise to liability under 414 which is very helpful to the defense. The Recio case noted above is also important to a potential defendant in a construction related case. In Recio, plaintiff s decedent, an employee of a subcontractor, died after falling from a ladder while carrying shingles. Id. The plaintiff brought suit arguing that by obtaining a building

14 permit from the city where work was being performed, the general contractor became obligated to comply not only with that city s ordinances, rules, and regulations, but also with all other applicable laws regulating contractors, including federal OSHA regulations regarding ladder safety. Id. The applicable OSHA standard required that when using a ladder, employees shall not carry any object or load that could cause a fall. 29 CFR (b)(22) (2005). The plaintiff also cited the case of Kalata v. Anheuser-Busch Co., which found that a violation of a statute or ordinance designed to protect human life or property is prima facie evidence of negligence. Kalata v. Anheuser-Busch Co. 144 Ill.2d 425, , 581 N.E.2d 656 (1991). A party injured by such a violation then may recover by showing that the injury was proximately caused by the violation and that the statute was intended to protect a class of person to which he belongs from the kind of injury he suffered. Recio at 7. The court held that although a violation of OSHA regulations may be evidence of failure to exercise reasonable care, OSHA regulations do not create a duty of care. Recio at 7. Although Recio is important and a helpful defense case representing the fact that OSHA regulations do not create a duty of care, it is necessary to note the case of Pozzi v. McGee Associates, Inc. 236 Ill.App.3d 390, 602 N.E.2d 1302 (1 st Dist. 1992). Pozzi states that although an OSHA regulation may not create a duty, it can be used for the limited purpose of establishing a standard of care. In Pozzi, the plaintiff was injured after falling off a ladder. Id. The general contractor s contract included contract provisions that they would comply with the OSHA regulation related to ladders and scaffolds. Id. at 404. The court recognized that the general contractor had agreed and had included the OSHA regulations in their own contract and as such, the court allowed expert testimony about the OSHA provision at trial and whether it was violated. Id. This allowed the construction expert to use the violation of the OSHA regulation for the limited purpose of establishing a standard of care. Id.

15 Finally, the recent Federal Court case of Aguirre v. Turner Construction, 2009 U.S. App. LEXIS 21467, (7 th Cir. 2009) warrants discussion. Aguirre involved a plaintiff who was injured when he fell off a scaffold. The plaintiff was working for a masonry subcontractor who was employed by a general contractor to do renovations at Soldier Field. The plaintiff ultimately filed suit against the general contractor. The district court initially granted summary judgment in favor of the defendant general contractor on the ground that it did not owe a duty of care to the plaintiff because he was an employee of a subcontractor, and the plaintiff was unable to show that the defendant has exclusive control over the scaffold from which plaintiff fell. The 7 th Circuit reversed the summary judgment ruling finding that the defendant had assumed a duty of care and that exclusive control was not an element of res ipsa loquitor. The case then proceeded to trial where the jury rendered a verdict for the defendant. The plaintiff then appealed again to the 7 th Circuit. In affirming the verdict in favor of the defendant general contractor, the 7 th Circuit stated that if a general contractor maintains a contract with a subcontractor to maintain safety on the job, then a general contractor can be liable if it fails to fulfill that duty. The Court stated that the general contractor would not be derivatively liable, but rather would be liable for its own negligent acts or omissions. In Aguirre, although the general contractor had assumed responsibility for safety at the worksite, it did not require the defendant to make continuous inspections of the scaffold. Aguirre v. Turner, 2009 U.S. App. LEXIS at 14. The record indicated that the defendant was assiduous in inspecting scaffolds and even required safer scaffolds that OSHA required. The Court stated that to penalize the defendant for its preoccupation with safety by making it strictly liable for one scaffold that was not assembled properly would be perverse. Id. Thus, the Court found that the verdict in favor of the defendant was warranted and should be affirmed. This is an important decision for construction defendants because a general contractor now

16 can argue that even if it contracts with subcontractors to maintain control over the safety of a project, this in no way means they are automatically negligent or can be strictly liable. Rather, the Aguirre case requires a detailed look at the facts and if the general contractor complied with its duty to maintain safety, then it can be found not liable for injuries that may occur. Additional Older 414 Cases That Remain Positive For The Defense In Construction Related Incidents In the case of Bieruta v. Klein Creek, 331 Ill.App.3d 269, 770 N.E.2d 1175, (1 st Dist. 2002); the plaintiff, a worker employed by DuPage as a backhoe operator was injured in an alleged trench collapse. There, the plaintiff alleged that the owner retained such sufficient control over safety and the work site that a duty existed to provide the plaintiff with a safe place to work. The plaintiff contended that Klein Creek should have required a trench box or shoring to reinforce the trench thereby preventing its collapse and his injury. Bieruta, 331 Ill.App.3d 269 at 275. Summary judgment in favor of Klein was upheld in that case on the issue of control over the work in question. The court pointed out that there was no contract between the owner and the excavator; there was no evidence that Klein had done anything more than tell the subcontractor which lots to excavate and for what purpose; and there was no evidence to suggest that DuPage was not entirely free to perform the work in its own way. Id. at 276. The court further pointed out that Klein never directed the operative details of the work performed by the DuPage and that the subcontractor supplied all equipment and instruction on how to perform the work in question. Id. Due to the fact that the general contractor never directed the plaintiff on how to perform his work, it could not be held liable under section 414. Further, in 2005, the Illinois Appellate Court issued a ruling in Cochran v. George Sollitt Construction Company, 358 Ill.App.3d 865, 832 N.E.355 (1 st Dist. 2005). There, the plaintiff, an

17 employee of a subcontractor of Sollitt Construction (which was the general contractor) fell off of a ladder while performing work on his first day on the job. The plaintiff claimed he was ordered to begin work by his foreman (for the subcontractor employer of plaintiff) in a specific area on the job site. When he got to the area to begin, he saw a ladder owned by his own employer (the subcontractor) sitting on top of a piece of plywood, which was balanced on top of milk crates. After climbing to the top of the ladder, the ladder began to walk off of the plywood and Cochran eventually fell, suffering injury. The plaintiff alleged negligence against the general contractor Sollitt Construction, claiming that Sollitt failed to provide him with a safe place to work, failed to provide a safe, suitable, and proper support for his protection, and failed to properly manage, maintain, or control the premises and the support equipment used thereon. Id. Prior to the incident, the plaintiff never spoke to any employees of the general contractor and they had never provided him with directions or instruction regarding the work. The general contractor and the hospital where work was being performed entered into a standard American Institute of Architects contract. The contract provided that general contractor Sollitt was to supervise and direct the work, and be solely responsible for and have control over the construction means, methods, techniques, and procedures. The general contractor was also to be solely and fully responsible for the jobsite safety unless they gave timely written notice that such means or methods may not be safe. The contractor was also to take reasonable precautions for the safety of and shall provide protection to prevent damage, injury, or loss to employees on the project. Id. The President of the general contractor admitted that they had general control over the subcontractors work, but denied that Sollitt had specific control. Sollitt s job was primarily to

18 coordinate the work of various subcontractors. Sollitt s construction superintendent was not required to do daily walk-throughs of the job site but in the course of his job, he would have occasion to observe the work being done and conditions at the site. He also had the authority to stop work if work was being done in an unsafe manner. The primary responsibility for the safety of subcontractors employees was with the subcontractors themselves. The subcontractors controlled their own work and had their own means and methods of doing it. The plaintiff, Cochran, contended that Sollitt Construction owed him a duty of care under both the retained control theory via Restatement 414, and the premises liability theory of Section 343 of the Restatement. Id. The court in Cochran held that Sollitt Construction s state of knowledge and degree of control was insufficient to support a finding of liability under direct liability. A sufficient basis for imposition of direct liability would include if employees of the general contractor knew of unsafe conditions or inadequate equipment, and yet, took no step to stop the work or remedy the situation. There also was no basis within which to infer any vicarious liability, because no evidence was presented that Sollitt so controlled the operative details of the subcontractor s work that the subcontractor s employees were not entirely free to perform the work in their own way. The First District also decided Pestka v. Town of Fort Sheridan Company, L.L.C., et al. whereby the court once again looked at what level of control could lead to liability for a general contractor. 371 Ill.App3d 286, 862 N.E.2d 1044 (1 st Dist, 2007) In Petska, the plaintiff worked for a subcontractor charged with hauling away debris after demolition. He was seriously injured when a crane operator lost control of a load, causing the load to strike him. He sued the general contractor alleging the general was in charge of the work occurring at the site, failure to properly inspect and manage the premises, failure to provide adequate safeguards, and failure to supervise

19 the work. The court reflected back on their previous decision in Cochran and included such analysis in their opinion. They found that here, the general did provide oversight for the project. Construction supervisors for the general contractor had the authority to observe the work site and stop work of the contractors, if necessary. Further, although the subcontractors were responsible for safety, the general contractor s supervisors could intervene if they saw something unsafe. This never occurred. The work of the subcontractors was also inspected by employees of the general contractor to ensure it was compliant with specifications. Finally, weekly meetings were held with the subcontractors and general contractor to cover a number a number of items, including possibly safety concerns. Instructions were given to subcontractors about where to go and when to go to a specific area of the job but instructions were never given to the subcontractors telling them how to do their job. The court stated in their opinion that no evidence was presented that the general contractor controlled the operative details of the work of the subcontractors such that the subcontractors were not entirely free to perform the work in their own way. Thus, the general contractor could not be found liable for the injuries of the plaintiff. The court also found that the general was not directly liable for the injuries of plaintiff because the general did not have actual or constructive knowledge of the dangerous condition (as the time period surrounding plaintiff s accident was extremely small). Further, in December 2007, the Third District rendered an opinion in Moiseyev v. Rot s Building and Development, (a residential construction case) and determined that the defendant did not retain the requisite control over plaintiff and his work so as to give rise to a duty of reasonable care under Section Ill.App.3d 338, 860 N.E.2d 1128, (Ill.App.Ct. 3 rd Dist.,

20 2007) In that case, the plaintiff sued Rot s for construction negligence based on an injury arising from a fall from a scaffold on a house that plaintiff was working on. The plaintiff s employer was the subcontractor and Rot was the general contractor. The trial court granted summary judgment in favor of defendant ruling that plaintiff did not show that defendants retained the requisite control over plaintiff and his employer under Section 414. In issuing its ruling, the court considered the following: there existed no contract between Rot and plaintiff s employer; plaintiff s employer supplied all tools for work performed by plaintiff; plaintiff s employer exclusively instructed plaintiff and his co-workers as to the details of their work; and plaintiff testified that he had no contact with Rot employees on the job. Rot employees did testify that they did retain the right to halt plaintiff s work at any point for any reason, and went on site to inspect work progress. The court stated in its ruling that no liability could apply to Rot because it did not retain control over the incidental aspects of the independent contractor s work. It found that plaintiff s employer was free to do its work in its own way, and accordingly affirmed the trial court s ruling. Finally, in Downs v. Steel and Craft Builders, Inc., 358 Ill.App.3d 201, 831 N.E.2d 92 (2 nd Dist. 2005), an employee was injured when a trench collapsed at a construction site. The court refused to find control on the part of the general contractor. Under the general s contract with the subcontractor, the responsibility for safety measures fell with the subcontractor. Further, the general did not direct, supervise, or participate in any of the work, means, or methods used by the subcontractor. The contract also shifted responsibility for compliance with OSHA to the subcontractor. The court noted this was a proper shifting of OSHA duties and responsibilities in the context of a private action. Jury Instructions Relative to Section 414 of the Restatement

21 The recently approved Illinois Pattern Jury Instructions for construction negligence cases focuses on control of safety in determining whether a defendant was in control for Section 414 purposes. The jury instruction states that a defendant is in control of the work for 414 purposes if the defendant exercises control over any aspect of safety on the project. We believe the new I.P.I. instruction is inconsistent with Illinois law and should be objected to during jury instruction conferences. A non-i.p.i. instruction should be prepared and tendered to preserve the issue for appeal. A sample instruction is below: The employer of an independent contractor is not liable for the acts or omissions of the independent contractor unless the employer retains control over the means and methods of the independent contractor s work so that the independent contractor is not entirely free to do the work in his own way, or if the employer knows, or in the exercise of reasonable care should know, that the independent contractor s work is being done in an unreasonably dangerous way and has the opportunity to prevent it by exercising the control it has retained. Source: Restatement (Second) of Torts, 414; Joyce v. Madison Services, Inc., No (1 st Dist. 2007). An illustrative case on this issue is Shelden v. Kimball Hill. No (Ill.App.Ct, 1 st Dist., 2005). Shelden involved a plaintiff who brought a negligence action against defendant general contractor for injuries he sustained in a construction site accident after he was carrying a piece of drywall over a muddy driveway and injured his knee. The plaintiff specifically alleged that defendant was negligent because they retained control over plaintiff s work because they had a safety director, had safety policies in place, and should have had gravel instead of mud on the unpaved driveways to provide easier access for the workers. The jury awarded plaintiff $632, in damages. Defendant appealed arguing it was entitled to a new trial based on an erroneous 414 jury instruction. On appeal, the court noted that plaintiff both in the trial court and on appeal asserted that

22 his claim against defendant was premised on 414 of the restatement exclusively and does not concern section 343. Yet the court noted that the plaintiff s evidence focused on whether the defendant s failure to lay gravel created a dangerous condition on the premises. The plaintiff s instruction then read: The defendant retained some control over the safety of the work; Defendant acted or failed to act in one or more of the following ways; a. Failed to put stone or gravel on the driveway; b. Failed to provide safe access to the houses; And in so acting or failing to act was negligent in the manner in which it exercised or failed to exercise its control. Plaintiff was injured and the defendant s negligence was a proximate cause of plaintiff s injuries. The court held that the instruction includes the retention of control element necessary to find that defendant owed a duty under section 414 of the Restatement, but allows the jury to conclude a breach of duty by defendant s failure to protect against a dangerous condition on the land. The court agreed that plaintiff s instruction based on the IPI instructions under 414 incorrectly combined the retention and exercise of control over work with a condition on the premises. Therefore, they remanded the case back to the circuit court for a new trial. Justice Wolfson specially concurred with the opinion and stated that IPI No is wrong and ought to be re-written. He noted that it is fatally incomplete. He reasoned that addressing the issue of control, the instruction simply requires that the defendant retained some control over the safety of the work. Yet, Wolfson explained that this is not nearly enough to satisfy the requirement of Section 414. He indicates that it is not the safety of the work that the defendant must have retained control over, it is the degree of control over the manner in which the work is done there must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his won way. Justice Wolfson concludes by stating that IPI and should be sent back to the drawing board and that neither one accurately reflects

23 Section 414. This opinion is very important in cases involving construction litigation. It will be necessary for defendants to draft their own 414 instruction to tender to the jury until the 414 instructions are modified. It should be noted however, that despite rulings by judges that the 414 instruction is improper such as Shelden, courts are still finding that the IPI instructions on 414 are sufficient and that it is not error to refuse a defendant s modified 414 instruction. The Illinois Appellate Court for the First District recently affirmed a trial court s ruling that it was not improper to refuse the defendant s modified 414 instruction in the case of Jones v DHR Cambridge Homes, 381 Ill.App.3d 18, 885 N.E.2d 330, (1 st Dist., 2008). Jones involved a plaintiff who was injured while working for a subcontractor who had contracted with a general contractor to perform carpentry work. The plaintiff was injured after walking out on a wooden still plate that was mounted on a structural beam. Jones, 381 Ill.App.3d at 21, 885 N.E.2d at 334. At trial the general contractor via their safety expert argued that the subcontractor, plaintiff s employer, was responsible for the means and methods of performing the plaintiff s work and that injury resulted from the plaintiff s work methods. Further, the general contractor argued that even if the general contractor had maintained a supervisory role over safety, OSHA had never issued a citation for this type of incident and therefore, this established that the general contractor was not negligent. However, the court barred all evidence of the lack of OSHA citations. Id. at 27, 339. Throughout the tenure of the trial, the plaintiff maintained and provided evidence that the general contractor was responsible for safety on the job and that they had employees in place to make sure the subcontractors complied with the general contractor s safety manual and guidelines. The subcontractor then moved for a directed verdict at the close of evidence arguing

24 that none of the witnesses testified that the subcontractor had done anything wrong. The directed verdict was granted. The case was then sent to the jury solely to determine whether the general contractor was negligent. During the jury instruction conference, the general contractor tendered a non-ipi objection with respect to 414 stating that the IPI instruction was not sufficient. The plaintiff objected, and the trial court tendered the IPI construction negligence instructions to the jury. The general contractor then appealed arguing that the directed verdict was improper, the lack of OSHA citations should have come in, and the modified 414 instruction should have been tendered to the jury. On appeal, the Appellate Court for the First District reversed the trial court s ruling granting a directed verdict to the subcontractor stating that the plaintiff was injured as the result of walking on a sill plate without fall protection. The court noted that the responsibility for providing the fall protection was disputed at trial. The court noted that the plaintiff put on evidence that general contractor was responsible for all of the safety issues on the job. However, the court also noted that the general contractor s safety expert indicated that the subcontractor was responsible for the means and methods of performing the work which can give rise to liability under 414 and for this reason the directed verdict should be reversed. Id. at 30, 342. On appeal, the appellate court affirmed the trial court s ruling regarding OSHA citations and the refusal of defendant s modified jury instruction for Section 414. With respect to OSHA, the court found that it was not error to bar evidence that OSHA had not ever given a citation for a prior similar incident because this testimony was based purely on the expert s own knowledge, and not based on anything of an official or definitive nature. Id. With respect to the 414 jury instruction, the court found that despite the jury instructions for section 414 having been called into question by other decisions such as the Marten s

25 decision, this does not mean that the pattern instruction no longer reflects an accurate statement of the law. Further, the court noted that it is in the trial court s discretion to determine if a particular jury instruction is applicable. Id. at 35, 346. Based on the Jones ruling, in the event that a defendant wants to introduce evidence of lack of OSHA citations, a defendant should know that they must have hard evidence to support such and not simply an expert s limited knowledge that no such citation had been given in similar circumstance. Further, the Jones case should not deter a defendant from challenging the 414 instruction. It is in the trial court s discretion to determine if a particular instruction is applicable and based on the circumstances surrounding a case, the trial court may find that the 414 instruction as it is now, is not an accurate statement of the law and not applicable to that particular case. Finally, the Oldenstedt v. Marshall Erdman, 381 Ill.App.3d, 884 N.E.2d 830 (1 st Dist., 2008) decision should be noted for its discussion on section 414 jury instructions. In Oldenstedt, the defendant rejected the use of the IPI 55 series; the construction negligence series from being used. The court overruled the defendant s objections, but the parties came to an agreement regarding a modification to the 55 series. For example the IPI Instruction usually reads, A party who has retained control over the methods and/or means of the work has a duty to exercise that control with ordinary care to ensure workers safety. The parties tendered the following modified instruction in place of 55.01: A contractor who entrusts work to a subcontractor can be liable for injuries resulting from the work if the contractor retained control over the methods and/or means of the work and the injuries were proximately caused by the contractor s failure to exercise that control with ordinary care to ensure worker s safety. Oldenstedt 381 Ill.App.3d at 13.

26 Oldenstedt is an instructive decision from a defense aspect because it represents the proposition that even if a judge overrules an objection to tendering different instructions other than the 55 series for construction negligence, it is still possible to make an agreement with the other party that more accurately reflects the law. Recent Negative Defense Cases Under Section 414 Despite recent positive cases for the defense under Section 414, there have also been negative decisions that should be noted in order to determine how to avoid being liable under Section 414 in the future. Wilkerson v. Paul H. Schwendener, Inc., 379 Ill.App.3d 491, 884 N.E.2d 208 (1 st Dist. 2008) involved a defendant general contractor who was hired to construct a retirement home in Glenview, Illinois. Defendant subcontracted with Monarch Construction Co. to perform carpentry work at the site. On January 20, 2003, plaintiff, a Monarch employee, was installing second-floor floor joists at the site. It is undisputed that plaintiff was working without fall protection by balancing on top of wall frames that were less than six inches wide and about nine feet above the ground. The plaintiff worked with another Monarch carpenter, Erik Bergl, who would manually lift the joists to plaintiff from the ground floor. The plaintiff would then place the joists on the top of the walls to create the frame for the second-level floor. While performing this work, Bergl struck plaintiff with a floor joist, causing plaintiff to lose his balance and fall. Plaintiff sustained injury to his left foot. As a result of his injury, plaintiff brought suit against defendant general contractor alleging negligence pursuant to 414 and 343. Defendant then moved for summary judgment on the ground that plaintiff could not establish defendant owed him a duty of care. The trial judge granted defendant s motion for summary judgment, finding as a matter of law that defendant did not owe plaintiff a duty of care under either section 343 or 414.