Jose Aguirre v. Turner Construction Company ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3999
JOSE A NTONIO A GUIRRE and M ARIA L. A GUIRRE,
Plaintiffs-Appellants,
v.
T URNER C ONSTRUCTION C OMPANY, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 515—Sidney I. Schenkier, Magistrate Judge.
A RGUED JUNE 2, 2009—D ECIDED S EPTEMBER 30, 2009
Before P OSNER, R IPPLE, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. This is a tort suit brought in
federal district court under the diversity jurisdiction by
a bricklayer (and his wife, who is claiming loss of consor-
tium). It is governed, so far as the substantive issues are
concerned, by Illinois law. The plaintiff was seriously
injured when he fell off a scaffold while working on the
renovation of Soldier Field, the big Chicago athletic
2 No. 08-3999
stadium. His employer was the A.L.L. Masonry company,
but his suit is not against his employer—against which
he could seek a remedy only under workers’ compen-
sation law. It is against four corporations that, leagued in
a joint venture called TBMK, were the general contractors
for the renovation. A.L.L. Masonry was one of TBMK’s
subcontractors. For simplicity, we shall pretend that the
bricklayer is the only plaintiff and the joint venture the
only defendant.
The district court initially granted summary judgment
in favor of the defendant on the ground that the
defendant owed no duty of care to the plaintiff because
he was the employee of a subcontractor, and that in any
event the plaintiff could not use the doctrine of res ipsa
loquitur to prove the defendant’s negligence because
the defendant had lacked exclusive control over the
scaffold from which the plaintiff fell. This court reversed,
ruling that the defendant had assumed a duty of care to
the plaintiff and that exclusive control is not an element
of res ipsa loquitur. 501 F.3d 825 (7th Cir. 2007). The case
then went to trial. The jury rendered a verdict for the
defendant, and the plaintiff again appeals.
A general contractor ordinarily is not liable to
someone injured by the negligence of a subcontractor,
Gomien v. Wear-Ever Aluminum, Inc., 276 N.E.2d 336,
338 (Ill. 1971); Bieruta v. Klein Creek Corp., 770 N.E.2d 1175,
1180 (Ill. App. 2002); Anderson v. Marathon Petroleum Co.,
801 F.2d 936, 938 (7th Cir. 1986) (Illinois law); W. Page
Keeton et al., Prosser and Keeton on the Law of Torts § 71,
p. 509 (5th ed. 1984), though he is liable, by virtue of the
doctrine of respondeat superior, for injuries caused by the
No. 08-3999 3
negligence of his own employees. Because he hires, fires,
trains, and supervises them he ought to be able to do
something to prevent their being careless, and he will do
something if he is liable for their negligence, while they
themselves cannot be fully trusted to be careful because
as a practical matter they cannot be sued, being in most
cases judgment proof. See Hartmann v. Prudential Ins. Co.,
9 F.3d 1207, 1210 (7th Cir. 1993); Konradi v. United States,
919 F.2d 1207, 1210 (7th Cir. 1990); Alan O. Sykes, “The
Boundaries of Vicarious Liability: An Economic Analysis
of the Scope of Employment Rule and Related Legal
Doctrines,” 101 Harv. L. Rev. 563, 569-70 (1988); Sykes, “The
Economics of Vicarious Liability,” 93 Yale L.J. 1231,
1244, 1246-47 (1984).
But a general contractor usually is not in a good
position to assure that his subcontractors exercise due
care, since he does not hire, fire, train, or supervise their
employees. He merely contracts for the subcontractors’
output, leaving them to determine how and by whom
the output shall be produced. Anderson v. Marathon Petro-
leum Co., supra, 801 F.2d at 938-39; Keeton et al., supra, § 71,
p. 509; Clarence Morris, “The Torts of an Independent
Contractor,” 29 Ill. L. Rev. 339, 341-42 (1934).
But that is in general, and there are exceptions. The one
pertinent here, as explained in our previous decision,
see 501 F.3d at 829-30, is where the general contractor
assumes (or maybe has imposed on him by law) a degree
of responsibility for the safety with which the subcon-
tractor does its work. See Grillo v. Yeager Construction, 900
N.E.2d 1249, 1266-67 (Ill. App. 2008); Joyce v. Mastri, 861
4 No. 08-3999
N.E.2d 1102, 1110-11 (Ill. App. 2007); Restatement (Second)
of Torts § 414 (1977). Some cases discuss this rule under
the rubric of “retained control,” but that rather begs the
question: control of what? Better to say that if the
general contractor’s contract with the subcontractor, or
a law, requires him to take care for the safety of the sub-
contractor’s work, he has a duty of care enforceable
by tort law. A general contractor who fails to fulfill
that duty is liable if injury results—not derivatively
liable, as under respondeat superior, but liable for its
own negligent act or omission. The defendant in this
case took measures to monitor the care of its subcon-
tractors for the safety of the workers on the project, and
it could and on occasion did require a subcontractor to
take additional precautions. The exception for assump-
tion of responsibility is therefore applicable.
The question then becomes whether the defendant
breached its duty of care to the plaintiff, a subcontractor’s
employee. The plaintiff relies for an affirmative answer
on the doctrine of res ipsa loquitur (“the thing speaks
for itself”), which allows a plaintiff to prevail in a negli-
gence case by showing that even if there is no direct
evidence of negligence, the circumstances of the
accident indicate that it probably would not have
occurred had the defendant not been negligent. Dyback
v. Weber, 500 N.E.2d 8, 12 (Ill. 1986); Metz v. Central Illinois
Electric & Gas Co., 207 N.E.2d 305, 307 (Ill. 1965); Welge
v. Planters Lifesavers Co., 17 F.3d 209, 211 (7th Cir. 1994)
(Illinois law); Keeton et al., supra, § 39, p. 243; Restate-
ment, supra, § 328D.
No. 08-3999 5
As so often in tort law, an old case best illuminates the
doctrine. In Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299
(Ex. 1863), a barrel of flour rolled out of the window of
a warehouse and fell on a pedestrian, and the jury was
allowed to infer that the accident had been due to negli-
gence by the warehouse’s owner. The defendant
could have negated the inference by proving that a
stranger had (without fault on the defendant’s part)
entered the warehouse and rolled the barrel out of the
window in a spirit of malicious mischief, but he failed
to prove that.
The parties manage to avoid telling us what the effect
of the doctrine is in a lawsuit governed by Illinois law.
Does the doctrine merely allow the trier of fact to infer
negligence—is it in other words just an illustration of
the use of circumstantial evidence to create a prima
facie case? Or does it create a presumption of negligence
that entitles the plaintiff to judgment unless the
defendant presents evidence in rebuttal, or that even
shifts the burden of persuasion to the defendant? In
Illinois, as in most states, see Keeton et al., supra, § 40,
pp. 258-59; Restatement, supra, § 328D, comment b, it is
just a type of circumstantial evidence (which raises the
question, why treat it as a separate doctrine?). Dyback v.
Weber, supra, 500 N.E.2d at 12; Metz v. Central Illinois
Electric & Gas Co., supra, 207 N.E.2d at 307; Beasley v.
Pelmore, 631 N.E.2d 749, 751 (Ill. App. 1994). A contrary
intimation in Neace v. Laimans, 951 F.2d 139, 141 (7th Cir.
1991), cannot be considered authoritative in light of the
Illinois cases.
6 No. 08-3999
The black-letter statement of the doctrine is that the
thing that caused the plaintiff’s injury must at the time
of the accident have been under the defendant’s control.
But as the Prosser treatise points out, Keeton et al., supra,
§ 39, pp. 249-51, this formulation (like so many black-
letter statements of rules) should not be taken literally,
as it implies that the doctrine could not be invoked in
a case in which the brakes on a new car fail and the manu-
facturer is sued. Or imagine a duty to warn case in
which the duty is to warn about a dangerous activity of
someone else. (Suppose the dealer who had sold the
car knew the brakes were defective.)
Preoccupation with control derailed the district court’s
first decision and continues to confuse. The scaffold
was assembled by the subcontractor, but we know that
the general contractor, the defendant, had assumed
responsibility, jointly with its subcontractors, for the
safety of the work site. And anyway no one was “control-
ling” the scaffold when the accident occurred. But both
the subcontractor, who had assembled it, and the defen-
dant, who had assumed responsibility for the work site,
which included the scaffold, might have prevented the
accident. We described this is in our first decision as a
case of “joint control,” 501 F.3d at 832, equivalent to the
concept of nonexclusive control in Lynch v. Precision
Machine Shop, Ltd., 443 N.E.2d 569, 572-73 (Ill. 1982),
which cites approvingly the Prosser treatise’s disap-
proval (which we quoted) of requiring proof of literal
control. Id. at 572; see also Decatur & Macon County
Hospital Association v. Erie City Iron Works, 220 N.E.2d
590, 595-96, 598 (Ill. App. 1966).
No. 08-3999 7
Consistent with our earlier discussion, a simpler, more
perspicuous way to think about this case is in terms
of duty rather than control. Did the defendant have a
duty, dischargeable by inspection or otherwise, to make
sure that its subcontractors’ scaffolds didn’t collapse
unless the negligence of an employee who used (or
rather misused) the scaffold after it had been properly
assembled and inspected was responsible for the col-
lapse? When the case was tried on remand, the magistrate
judge, in instructing the jury, said that to find for
the plaintiff the jury would have to find “that the injury
was received from a scaffold which was under the defen-
dant’s control . . . [and] that in the normal course of
events, the injury would not have occurred if the
defendant had used ordinary care while the scaffold
was under its control.” An instruction in terms of duty
would have been clearer but is not what the plaintiff
sought or seeks; and the magistrate judge cannot be
criticized for instructing consistently with our previous
opinion. Rather, the plaintiff argues that a further in-
struction, making clear that the scaffold didn’t have to
be under the defendant’s exclusive control for the
doctrine of res ipsa loquitur to be applicable, should
have been given, consistent with our previous opinion,
and that in any event the verdict was so far against the
weight of the evidence that he is entitled to another trial.
A difficulty in understanding the evidence has arisen,
however, from the lawyers’ regrettable failure to include
in the record a diagram or photographs (other than
some unreadable copies of photographs) that would
have given us judges an intelligible picture of the scene
8 No. 08-3999
and circumstances of the accident. A duplicate of the
scaffold was exhibited at trial, but no photo or drawing
was made of it. We have pointed out that when the appear-
ance of something is material to a case—it could be a
copyrighted picture, a trademark, or, as in this case, the
scene and instrumentality of an accident—it is better
to show us a picture than to try to describe the object or
scene just in words. E.g., Torrez v. TGI Friday’s, Inc., 509
F.3d 808, 810 (7th Cir. 2007); Coffey v. Northeast Illinois
Regional Commuter R.R. Corp., 479 F.3d 472, 478 (7th Cir.
2007); United States v. Boyd, 475 F.3d 875, 878 (7th Cir.
2007); Publications Int’l, Ltd. v. Landoll, Inc., 164 F.3d 337,
343-44 (7th Cir. 1998). The lawyers at argument did
their best with words and hand gestures to depict the
scene of the accident for us, and we think we get it, but
they would have done better to honor the adage that
a picture is worth a thousand words.
The plaintiff was laying concrete blocks around the
frame of a 13- to 14-foot-high doorway in the stadium.
There were two scaffolds, one on each side of the door-
way. Both were 10 feet above the concrete floor and two or
three feet apart from each other. By laying planks across
the scaffolds through the doorway one could walk from
one scaffold to the other. And that is what the plaintiff
did. But when he reached the other scaffold he tripped
and fell off it. He has no clear recollection of the
accident, since he fell head first onto the concrete floor
beneath the scaffold. The only witness to the accident
testified to seeing the plaintiff standing on the
scaffold for a moment before it gave way beneath him
and then trying to “run up” the falling plank (a plank of
No. 08-3999 9
the scaffold, not the planks he had laid across the two
scaffolds) to avoid falling. What the witness seems to
have meant (his testimony is unclear) is that the plank
started to fall from one end of the scaffold, forming
momentarily an angle with the scaffold, and that the
plaintiff scrambled for a purchase on the plunging
plank before it fell all the way to the ground.
It’s unclear what caused the plank to give way. Maybe
the plaintiff jarred it loose when he laid his two planks
over it. Or maybe the planks that formed the floor of
the scaffold had not been laid properly on their sup-
porting crossbar and one gave way, and we’ll assume
that that’s what happened; if the plaintiff was
responsible for the fall of the plank that he was
standing on, he has no possible case.
The scaffold had been assembled by A.L.L. Masonry
several hours before the accident. The scaffold had no
middle rail, and the plaintiff speculates that had there
been one he might have grabbed it when he fell and by
doing so broken his fall. There is also some suggestion
that a middle rail would have blocked the plaintiff
from getting from one scaffold to the other by laying
planks.
If we ignore for the moment the absence of a middle
rail, it is apparent that the jury’s verdict was consistent
with and indeed compelled by the evidence and that
the error (if that is what it was) in instructing the jury
concerning the defendant’s control of the scaffold was
harmless.
Either the plaintiff caused the accident, or the accident
was caused by improper assembling of the scaffold—and
10 No. 08-3999
the assembler was the subcontractor, the plaintiff’s em-
ployer, rather than the defendant, the general contractor.
The defendant had assumed a duty to supervise the
measures taken by its subcontractors for the protection of
their workers, but as in suits against grocery stores com-
plaining of falls caused by debris on the grocery’s floor
the fulfillment of the duty did not require continuous
or repetitive inspections. See Tomczak v. Planetsphere, Inc.,
735 N.E.2d 662, 667-68 (Ill. App. 2000); Hresil v. Sears,
Roebuck & Co., 403 N.E.2d 678, 679-80 (Ill. App. 1980);
Reid v. Kohl’s Department Stores, Inc., 545 F.3d 479, 481-
82 (7th Cir. 2008) (Illinois law); Howard v. Wal-Mart Stores,
Inc., 160 F.3d 358, 359-61 (7th Cir. 1998) (same).
No evidence concerning the standard of care in a “dual
control” case, or the particular safety hazards or
accident experience in the Soldier Field renovation
project, was presented that would have enabled an in-
ference to be drawn that the defendant should have
inspected every newly assembled scaffold before it was
used for the first time. The defendant’s contract with
its subcontractors stated: “All scaffolds are to be built
under the supervision of a Competent Person. All
scaffolds shall be checked daily, and tagged or labeled
safe for use and before each use for safety compliance
by a competent person.” This was a reasonable
delegation of responsibility to the subcontractor, and so
the general contractor did not breach its duty of care
by not checking all the scaffolds when they were first
assembled. Cochran v. George Sollitt Construction Co., 832
N.E.2d 355, 365-66 (Ill. App. 2005); Rangel v. Brookhaven
Constructors, Inc., 719 N.E.2d 174, 176-78 (Ill. App. 1999); cf.
No. 08-3999 11
Occupational Safety and Health Administration, “Multi-
Employer Citation Policy,” CPL 2-0.124 (Dec. 10, 1999).
The record discloses that the defendant was assiduous
in inspecting scaffolds, including those of A.L.L. Masonry,
and on several occasions ordered A.L.L. to change the
scaffold because: “sometimes fall protection would be
missing or . . . cross bracing.” In fact the defendant re-
quired safer scaffolds than OSHA required. It would be
perverse to penalize it for its preoccupation with the
safety of scaffolds by making it strictly liable for any
misassembly of a particular scaffold by A.L.L. It is not
suggested that the defendant was negligent in hiring
A.L.L. or should have terminated it because of safety
problems involving its scaffolds.
The magistrate judge’s failure, of which the plaintiff
complains, to give a “joint control” instruction to the
jury was thus a harmless error, and for the additional
reason that, as has belatedly become apparent, the
doctrine of res ipsa loquitur is a red herring in this
case. The question is not whether and in what sense
the defendant “controlled” the scaffold but whether it
failed to make a timely inspection of it. Suppose a food
inspector negligently failed to discover contamination in
a chicken-processing plant, and as a result people who
ate chickens slaughtered at the plant contracted salmo-
nella. Would we say that the inspector had “controlled”
the plant? That would be an unnatural usage, which
could only confuse a jury. Maybe the plaintiff thinks
that if a case rests on circumstantial evidence it has to be
squeezed into the doctrine of res ipsa loquitur in order
12 No. 08-3999
to withstand a motion for summary judgment. That
is not true.
The plaintiff’s expert wanted to testify that an OSHA
policy statement indicated that the defendant was the
“controlling employer” of all the workers at the site of
the renovation project. The magistrate judge said “fine”
but that the defendant would be permitted on cross-
examination to cite a decision by the Occupational
Safety and Health Review Commission, Secretary of Labor
v. Summit Contractors, Inc., 2007 A.M.C. 1756, 2007 WL
2265137 (Apr. 27, 2007), vacated and remanded by Solis
v. Summit Contractors, Inc., 558 F.3d 815 (8th Cir. 2009),
even though the decision postdated the accident in this
case. The decision had rejected the OSHA policy state-
ment on which the expert had planned to rely. The Com-
mission’s decision was reversed, but too late to revisit
the district judge’s ruling that the decision could be
used to cross-examine the defendant’s expert.
The plaintiff decided not to ask the expert to testify
about the matter and now complains about the judge’s
ruling on the permissible scope of cross-examination.
That is the wrong approach, and would have been even
if using an expert witness to present or explain a reg-
ulation (the plaintiff treats the OSHA policy statement
as having the force of a regulation) to a jury were
proper. (It is not. “The meaning of federal regulations is
not a question of fact, to be resolved by the jury after a
battle of experts. It is a question of law, to be resolved by
the court.” Bammerlin v. Navistar Int’l Transportation Corp.,
30 F.3d 898, 900 (7th Cir. 1994).) When a judge makes a
No. 08-3999 13
conditional ruling on evidence, the party objecting to it
must satisfy the condition if he wants to preserve the issue
for appellate review. Ohler v. United States, 529 U.S. 753,
754-59 (2000); Luce v. United States, 469 U.S. 38 (1984);
Wilson v. Williams, 182 F.3d 562, 565-66 (7th Cir. 1999) (en
banc); United States v. Holmquist, 36 F.3d 154, 163-66 (1st
Cir. 1994). The plaintiff should thus have examined his
expert concerning the matter. Had he still lost at trial,
he could have complained on appeal about the judge’s
ruling on cross-examination. Had he won, it would
have mooted the issue, and had he lost, there would be
a basis for determining whether the judge’s ruling had
made a difference, as there is not now.
Anyway the OSHA policy statement couldn’t have
helped the plaintiff. It defines a controlling employer as
“an employer who has general supervisory authority
over the worksite, including the power to correct safety
and health violations itself or require others to correct
them,” but adds that such an employer “is not normally
required to inspect for hazards as frequently or to have
the same level of knowledge of the applicable
standards or of trade expertise as the employer it has
hired.” Under Illinois law, too, “even where the
employer or general contractor retains the right to
inspect the work done, orders changes to the specifica-
tions and plans, and ensures that safety precautions are
observed and the work is done in a safe manner, no
liability will be imposed on the employer or general
contractor unless the evidence shows the employer or
general contractor retained control over the ‘incidental
14 No. 08-3999
aspects’ of the independent contractor’s work.” Rangel v.
Brookhaven Constructors, Inc., supra, 719 N.E.2d at 178.
So there is no practical difference between the OSHA
standard and the standard of Illinois tort law, but if there
were the latter would control as this is not a suit to
enforce OSHA regulations, though Illinois courts some-
times do look to such regulations for evidence of what
due care should require. Sobczak v. Flaska, 706 N.E.2d 990,
999 (Ill. App. 1998); LePage v. Walsh Construction Co., 468
N.E.2d 509, 510-11 (Ill. App. 1984); cf. Putman v. Village
of Bensenville, 786 N.E.2d 203, 207-08 (Ill. App. 2003);
Pedraza v. Shell Oil Co., 942 F.2d 48, 52 (1st Cir. 1991). The
only effect of putting the OSHA policy statement before
the jury would have been to confuse it about the signifi-
cance of “control” by pasting the label “controlling em-
ployer” on the defendant.
We turn last to the issue of the middle railing. Con-
ceivably had there been one the plaintiff might have
broken his fall by grabbing it. Even so, this possibility
could not support a judgment of liability in tort. For the
purpose of a middle rail is not to provide something to
grab on to as one is falling off a scaffold; it is to prevent
one from falling off the scaffold by slipping between
the scaffold’s floor and the top railing. Even more obvi-
ously, it is not the purpose of a middle rail to prevent a
worker from crossing over from one scaffold to another.
To be actionable in a tort suit, an injury resulting from
the absence of a safety measure must be one that the
measure was intended to prevent, as we noted in
Shadday v. Omni Hotels Management Corp., 477 F.3d 511, 517
No. 08-3999 15
(7th Cir. 2007), citing such cases as De Haen v. Rockwood
Sprinkler Co., 179 N.E. 764, 766 (N.Y. 1932) (Cardozo, C.J.);
Gauger v. Hendle, 349 F.3d 354, 363 (7th Cir. 2003), over-
ruled on other grounds by Wallace v. City of Chicago, 440
F.3d 421 (7th Cir. 2006); Carter v. United States, 333 F.3d
791, 797 (7th Cir. 2003)—and especially (illustrating our
earlier point that the old tort cases are often the most
illuminating) Gorris v. Scott, 9 L.R.-Ex. 125 (1874).
Sheep owned by the plaintiff in that case were washed
overboard in a storm. The shipowner had failed to
install pens in which to hold the animals, as required by
statute. Had the pens been installed, the sheep would
have been saved. But the statute’s purpose was to
prevent contagion rather than to save animals from a
watery death. So the plaintiff lost. In deciding how
much care to take to comply with the statute, the ship-
owner was unlikely to foresee and therefore consider
the remote possibility that the pens would avert a
different and highly improbable harm to the animals.
This case is the same. A middle railing on a scaffold is
designed to make it less likely that an occupant of the
scaffold will fall off it; it is not to give him a chance, if
he does fall off, to save himself by a wild grab for the
railing.
The judgment for the defendant is
A FFIRMED.
9-30-09