LePretre v. Lend Lease Construction, Inc. , 2017 IL App (1st) 162320 ( 2017 )

FIRST DIVISION
June 26, 2017
No. 1-16-2320
2017 IL App (1st) 162320
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
)
WILLIAM LePRETRE, ) Appeal from the
) Circuit Court of
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 13 L 13896
LEND LEASE (US) CONSTRUCTION, INC., )
a Corporation, ) Honorable
) Kathy M. Flanagan,
Defendant-Appellee. ) Judge Presiding.
)
PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion.
Justices Simon and Mikva concurred in the judgment and opinion.
OPINION
¶1 Plaintiff William M. LePretre brought a cause of action against Lend Lease (US)
Construction, Inc. (Lend Lease) and other defendants for injuries he allegedly sustained while
working at a construction site at 515 North Clark Street in Chicago. Lend Lease filed a motion
for summary judgment, and the trial court granted it, finding that Lend Lease owed no duty to
plaintiff under which it could be subject to vicarious or direct liability. The trial court also denied
plaintiff’s motion to reconsider, and plaintiff now appeals. We affirm.
No. 1-16-2320
¶2 BACKGROUND
¶3 Plaintiff filed a nine-count complaint against Lend Lease and other defendants seeking
damages for injuries he sustained when he slipped and fell while installing iron rebar on
February 15, 2012. Count I was directed at Lend Lease, and it is the only count at issue in this
appeal. Lend Lease was the general contractor for the project, and it retained Adjustable Forms,
Inc. (Adjustable), as the concrete sub-contractor, which in turn retained plaintiff’s employer,
Bond Steel, to install and reinforce the iron rebar for the concrete pour.
¶4 Plaintiff alleged that Lend Lease failed to make a reasonable inspection of the premises;
improperly operated, managed, maintained, and controlled the premises; failed to provide
plaintiff with a safe place to work; failed to warn plaintiff of the dangerous conditions there
existing; failed to provide adequate safeguards; failed to supervise work being done on the
premises; failed to provide a safe and proper excavation; and failed to provide safe and proper
material to be placed within the excavation.
¶5 Lend Lease filed a motion for summary judgment contending that it owed no duty under
section 414 of the Restatement (Second) of Torts because, although it retained some general
supervisory powers, it did not control the incidental aspects of the work of Adjustable or Bond
Steel. Lend Lease noted that in plaintiff’s discovery deposition, plaintiff attributed his injury to
three factors: the rebar pieces that he was installing were too long, the workspace he was in was
too confined, and there was loose, falling dirt. Lend Lease argued that the contract between it
and Adjustable, and the one between Adjustable and Bond Steel, showed that it retained no
control over the rebar length, the work space, or debris removal and did not direct or control
plaintiff’s work.
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No. 1-16-2320
¶6 Lend Lease attached relevant portions of the contracts to its motion for summary
judgment. These attachments showed that Lend Lease entered into a contract with the owner of
the project, ClarGran, for the construction of Clark and Grand Hotels. Section 3.3.1 of the
General Conditions of that contract provided:
“The Contractor [Lend Lease] shall be solely responsible for and have control
over construction means, methods, techniques, sequences, and procedures and for
coordinating all portions of the Work under the Contract, unless the Contract
Documents give other specific instructions concerning these matters ***.”
¶7 Section 10.2.1 of the General Conditions provided:
“The Contractor shall take reasonable precautions for the safety of, and shall
provide reasonable protection to prevent damage, injury or loss to:
1. employees on the Work and other persons who may be affected thereby ***.”
¶8 Lend Lease then entered into a subcontract with Adjustable for the concrete work on the
project. Portions of this subcontract were attached to Lend Lease’s motion for summary
judgment. “Exhibit B—Scope of Work” in the subcontract provided:
“Subcontractor [Adjustable] shall provide all labor, material, equipment,
supervision as required to complete all scope-of-work items on this Concrete
Subcontract and related work, in accordance with the Drawings, Specifications
and the Contract Documents (‘Work’).”
¶9 Article 15 of the subcontract provided:
“Subcontractor agrees that the prevention of accidents to workers engaged upon
or in the vicinity of the work is its responsibility, even if the Contractor [Lend
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Lease] establishes a safety program for the entire Project. Subcontractor shall
establish and implement safety measures, policies and standards ***.”
¶ 10 Article 16 provided:
“Subcontractor shall, at its own expense: (a) keep the premises at all times free
from waste materials *** and other debris accumulated in connection with the
Work by collecting and removing such debris from the jobsite on a daily or other
basis ***.”
¶ 11 Adjustable then hired Bond Steel to perform the rebar reinforcement installation portion
of the concrete work. Lend Lease attached portions of that subcontract to its motion for summary
judgment, which indicated that the prevention of accidents and injuries shall be the primary
concern of Bond Steel and that it should maintain a safe and healthful work environment with its
safety program. The contract also noted that Bond Steel “shall submit a copy of [its] safety
program together with the name and experience of [its] on-site safety representative.” The
contract stated that Bond Steel agreed to comply with OSHA and all safety and health
requirements imposed by Adjustable and Adjustable’s “Subcontractor Safety Handbook” and
would conduct operations in a safe and healthy manner.
¶ 12 Lend Lease noted that Adjustable hired Gerdau Ameristeel to design and provide all the
reinforcing steel needed to complete the concrete work in accordance with the project
construction documents. The purchase order was attached to the motion for summary judgment.
¶ 13 Lend Lease also attached several deposition transcripts to its motion for summary
judgment. Plaintiff stated in his discovery deposition that he was Bond Steel’s foreman on the
project and was in charge of the Bond Steel crew. Plaintiff and his crew took directions with
respect to what they would do on a daily basis from Adjustable’s superintendent, Eric Blank.
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Plaintiff testified that he did not take any direction as to how to install steel, what materials to
use, or where to work from anyone employed by Lend Lease. Plaintiff testified in his deposition
that Lend Lease never stopped Bond Steel’s work for safety reasons, and did not provide safety
direction specifically relating to the installation of the rebar. He further testified that Lend Lease
conducted a site orientation for all new employees to discuss general safety.
¶ 14 Plaintiff also testified that at the time of his accident, he and his crew were installing a
27-foot long piece of rebar and that plaintiff believed the rebar was too long and the work space
was too tight because he had to leverage the bars into place. Plaintiff testified that he complained
to Blank about the length of the rebar and the size of the work space, and asked him to get
shorter bars. Plaintiff testified that Blank did not heed his request because Adjustable was
pouring the concrete the next day around the rebar. Plaintiff testified that he never had any
discussions with anyone from Lend Lease concerning any safety issues or construction methods.
¶ 15 Phil Schwarz, Lend Lease’s general superintendent, testified that he did not know
plaintiff and had not heard of the incident. He testified that Lend Lease’s primary function on the
project was to coordinate the various subcontractors and monitor progress.
¶ 16 Blank, Adjustable’s superintendent, testified that he was the top supervisory person on
site and that he did not recall plaintiff or anyone else complaining to him about the tight work
space or the length of the rebar used. Blank testified that he ordered the rebar for Bond Steel’s
work by communicating with Gerdau Ameristeel directly. Blank testified that he never had any
conversations with anyone from Lend Lease regarding rebar length, work space in the North
Core, or loose dirt on the floor.
¶ 17 Dan Bond, the head of safety for Bond Steel at the time of the incident, testified that
plaintiff did not mention any safety concerns to him and that Bond never spoke to anyone at
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No. 1-16-2320
Lend Lease as to concerns about Bond Steel’s work or the conditions. Bond testified that Bond
Steel had a “Site Specific Safety Manual” that required photographs to be taken at the scene of
any accident or injury on the project. Bond testified that he was not aware of any photographs of
the site of the incident or any report by plaintiff or anyone else of dirt on the floor.
¶ 18 Sean Bond, the field superintendent for Bond Steel, testified that Bond Steel had no
contractual relationship with Lend Lease and that for this project he dealt solely with Blank from
Adjustable. He testified that Adjustable was responsible for directing the work of Bond Steel and
where the Bond Steel crew was to work on any particular day.
¶ 19 Finally, Darvin Hidalgo and John Stacks, Bond Steel ironworkers, testified that plaintiff
provided them with instruction on a day-to-day basis and that no one from Lend Lease ever gave
Bond Steel any instructions as to how to perform its work on the project.
¶ 20 Plaintiff filed a response in opposition to Lend Lease’s motion for summary judgment,
maintaining that Lend Lease retained control over the work at the project. Plaintiff argued that
Lend Lease, as general contractor, retained control over the means and methods and operative
details of the work and that it was therefore vicariously liable for plaintiff’s injuries. Specifically,
plaintiff contended that Lend Lease’s safety professional was present on site full time and had
the authority to inspect the work being performed and had the power to stop the work from being
performed until he was satisfied that the means and methods used were safe.
¶ 21 The trial court found that there was no evidence that Lend Lease retained control over the
means and methods or operative details of the work of Bond Steel and plaintiff. It found that
there was also no evidence that Lend Lease retained control over the safety of the job. The trial
court noted that “having the authority to stop the work, a safety program, or a safety director,
without more, are merely the general responsibilities of a general contractor and are insufficient
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No. 1-16-2320
to establish retained control.” The trial court further found that there was no evidence that Lend
Lease engaged in the type of pervasive supervision that affects the means and methods of the
work and gives rise to liability. Plaintiff now appeals.
¶ 22 ANALYSIS
¶ 23 On appeal, plaintiff maintains that Lend Lease’s motion for summary judgment should
not have been granted where Lend Lease retained supervisory control of the safety of the work
being performed. Plaintiff contends that whether a general contractor retained sufficient
supervisory control over the work is a question of fact for the jury to decide. Lend Lease
responds that Lend Lease did not control the means and methods of the work and, therefore, is
not liable.
¶ 24 The purpose of summary judgment is to determine whether a genuine issue of material
fact exists. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). A trial court should grant
summary judgment where “ ‘the pleadings, depositions, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.’ ” Id. (quoting 735 ILCS 5/2-1005(c) (West
2002)). This court reviews a trial court’s grant of summary judgment de novo. Id.
¶ 25 Plaintiff’s lawsuit against defendants was based on common-law negligence. “In any
action for negligence, the plaintiff must present sufficient evidence to establish the defendant
owed a duty to the plaintiff.” Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 837
(1999). The court decides as a matter of law whether a duty exists, and if no duty exists, there
can be no recovery. Id. at 837-38.
¶ 26 The general rule in Illinois is that a party who entrusts an independent contractor will not
be held vicariously liable for tortious acts or omissions committed by the independent contractor.
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No. 1-16-2320
Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362, 381 (2009). Because the hiring
entity has no control over the details and methods of the independent contractor’s work, it is not
in a good position to prevent negligent performance, and liability, therefore, should not attach.
Rather, the party in control—the independent contractor—is the proper party to be charged with
that responsibility and bear the risk. Fonseca v. Clark Construction Group, LLC, 2014 IL App
(1st) 130308, ¶ 26; Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d 286, 300 (2007). This
does not mean that one who hires an independent contractor is absolutely immune from tort
liability for a plaintiff’s injuries. Rather, as section 414 of the Restatement (Second) of Torts
explains, a hiring entity may be liable for its own negligence where it retains some control over
the independent contractor:
“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.” Restatement
(Second) of Torts § 414 (1965).
¶ 27 Accordingly, if sufficient control is exercised over the independent contractor, then the
general rule no longer applies. Comment a of section 414 provides:
“a. If the employer of an independent contractor retains control over the
operative detail of doing any part of the work, he is subject to liability for the
negligence of the employees of the contractor engaged therein, under the rules of
that part of the law of Agency which deals with the relation of master and servant.
The employer may, however, retain a control less than that which is necessary to
subject him to liability as master. He may retain only the power to direct the order
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No. 1-16-2320
in which the work shall be done, or to forbid its being done in a manner likely to
be dangerous to himself or others. Such a supervisory control may not subject him
to liability under the principles of Agency, but he may be liable under the rule
stated in this Section unless he exercises his supervisory control with reasonable
care so as to prevent the work which he has ordered to be done from causing
injury to others.” Restatement (Second) of Torts §414 cmt. a (1965).
¶ 28 Many appellate court decisions, as well as the trial court decision in this case, have cited
section 414 of the Restatement to impose both vicarious liability and direct liability against the
employer of an independent contractor. E.g., Lederer v. Executive Construction, Inc., 2014 IL
App (1st) 123170, ¶ 49; Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, ¶ 123. As our
supreme court has recently held, however, the rule in section 414 only articulates a basis for
imposing direct liability. Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 36. Because an
employer of an independent contractor is typically not answerable for the contractor’s
negligence, “the employer’s liability must be based upon his own personal negligence.”
Restatement (Second) of Torts, ch. 15, topic 1, Introductory Note, at 371 (1965). Section 414
sets forth one way in which an employer of an independent contractor may be negligent and
therefore directly liable for physical harm to others. Restatement (Second) of Torts § 414 (1965).
¶ 29 Our supreme court in Carney stated that the first sentence of comment a above explains
when section 414 does not apply. Carney, 2016 IL 118984, ¶ 38 (citing Aguirre v. Turner
Construction Co., 501 F.3d 825, 829 (7th Cir. 2007)). If the control retained by the employer is
such that it gives rise to a master-servant relationship, the employer may be liable for the
negligence of the contractor’s employees under the laws of agency. Id. However, agency law,
under which an employer may be vicariously liable for the torts of its employees, is not the same
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as when an employer is directly liable for its own negligence. In other words, “ ‘section 414
takes over where agency law ends.’ ” Id. (quoting Aguirre, 501 F.3d at 829).
¶ 30 The issue of a defendant’s retained control may be decided as a matter of law where the
evidence is insufficient to create a factual question. Id. ¶ 41. “The best indicator of whether the
defendant retained control sufficient to trigger the potential for liability under section 414 is the
written agreement between the defendant and the contractor.” Id. (citing Cain v. Joe Contarino,
Inc., 2014 IL App (2d) 130482, ¶ 76). “But even if the agreement provides no evidence of
retained control by the defendant, such control may yet be demonstrated by evidence of the
defendant’s conduct at variance with the agreement.” Id.
¶ 31 In the case at bar, there was no contract between Lend Lease and Bond Steel, plaintiff’s
employer. Rather, there was a contract between Lend Lease and Adjustable for the concrete work
on the project. Adjustable then entered into a subcontract with Bond Steel to reinforce the iron
rebar before pouring concrete. Accordingly, plaintiff relies on the contract between Lend Lease
and the owner of the building, ClarGran, as well as the contract between Lend Lease and
Adjustable, to support his argument that Lend Lease retained control of the safety of the project.
Plaintiff points to the language in the ClarGran contract that states Lend Lease would be solely
responsible for and have control over construction means, methods, techniques, sequences, and
procedures and for coordinating all portions of the work under the contract. He also points to the
section that states Lend Lease “shall take reasonable precautions for the safety of, and shall
provide reasonable protection to prevent damage, injury, or loss to *** employees on the Work
and other persons who may be affected thereby.” The Safety Requirements of the contract
indicated that each subcontractor “shall establish a Site Specific Safety Program (SSSP) in detail
commensurate with the requirements of the project.” They also indicated that all employees were
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No. 1-16-2320
to attend a safety orientation. Plaintiff also notes that the contract between Lend Lease and
Adjustable states that Adjustable shall “stop any part of the Work that Contractor deems unsafe
until corrective measures satisfactory to Contractor have been taken,” and that “Contractor will
review the Safety and Health Program prior to the start of the work.”
¶ 32 Plaintiff maintains that based on these provisions, Lend Lease retained control over the
safety of the work. We disagree. These provisions cited by plaintiff are part of the general rights
reserved to someone, like Lend Lease, who employs a contractor, rather than evidence that Lend
Lease retained control over the manner in which work by Adjustable was performed. See id. ¶ 46
(provisions in the contract that allowed the defendant to terminate the contract if the defendant
deemed the independent contractor’s work to be unsatisfactory, requiring the work by the
independent contractor to be done in a workmanlike manner to the satisfaction of the defendant,
and giving the defendant the right to stop the work or make changes, as the interests of defendant
may require, were part of the “general rights reserved to someone, like defendant, who employs a
contractor, rather than evidence that defendant retained control over the manner in which work
by [an independent contractor] was performed”). “A general contractor’s rights to stop work and
order changes are general rights of supervision and not a retention of control over the incidental
aspects of the work.” Fonseca, 2014 IL App (1st) 130308, ¶ 28 (citing Calderon v. Residential
Homes of America, Inc., 381 Ill. App. 3d 333, 346 (2008)). As stated in comment c to section
414 of the Restatement (Second) of Torts:
“c. 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
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No. 1-16-2320
suggestions or recommendations which need not necessarily be followed, or to
prescribe alterations and deviations. Such a 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.”
Restatement (Second) of Torts § 414 cmt. c (1965).
¶ 33 Moreover, a general right to enforce safety does not amount to retained control under
section 414. Joyce v. Mastri, 371 Ill. App. 3d 64, 74 (2007). “The mere existence of a safety
program, safety manual, or safety director is insufficient to trigger [section 414].” Madden, 395
Ill. App. 3d at 382. “Even if the general contractor retains the right to inspect work, orders
changes to the plans, and ensures that safety precautions are observed and the work is done
safely, the general contractor will not be held liable unless the evidence shows that the general
contractor retained control over the incidental aspects of the independent contractor’s work.”
Fonseca, 2014 IL App (1st) 130308, ¶ 28 (citing Rangel, 307 Ill. App. 3d at 839).
¶ 34 Here, the contract placed control of job safety with Adjustable. Specifically, the contract
between Lend Lease and Adjustable indicated that Adjustable was to provide all labor, material,
equipment, and supervision as required to complete “all scope-of-work items on this Concrete
Subcontract and related work.” It also made clear that “the prevention of accidents to workers
engaged upon or in the vicinity of the work is its responsibility, even if the Contractor [Lend
Lease] establishes a safety program for the entire Project.” It further stated that Adjustable “shall
establish and implement safety measures, policies and standards,” and at its own expense keep
the premises at all times free from waste materials and “other debris accumulated in connection
with the Work by collecting and removing such debris from the jobsite on a daily or other basis.”
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No. 1-16-2320
Accordingly, we find nothing within the contracts indicating that Lend Lease retained control
such that Adjustable was not entirely free to do the work in its own way. See Carney, 2016 IL
118984, ¶ 46 (the contract placed control of job safety with independent contractor where
independent contractor was required to keep the job site free from safety and health hazards and
ensure that its employees were competent and adequately trained in all safety and health aspects
of the job).
¶ 35 We find the analysis in the recent case of Fonseca to be helpful. In Fonseca, the plaintiff
was the contractor for RG Construction, a drywall subcontractor of Clark Construction. After he
was injured at the building in question, he ultimately sued Clark Construction and Maron
Electric, another subcontractor, for negligence, alleging that Maron Electric failed to remove its
construction debris from the area where he was working, causing him to fall, and that Clark
Construction failed to properly supervise the work being done on the construction site. The trial
court granted Clark Construction’s motion for summary judgment, finding that Clark
Construction did not owe a duty under section 414 of the Restatement (Second) of Torts because
Clark Construction did not control the means and methods or operative details of Maron
Electric’s work.
¶ 36 On appeal, this court agreed, finding that although the Clark contract provided Clark
Construction with general supervisory authority, Clark Construction did not exercise this
authority and in no way altered or directly supervised the work of Maron Electric. Fonseca, 2014
IL App (1st) 130308, ¶ 29. This court looked in part at the language in the Maron subcontract
which stated that Maron Electric assumed the entire responsibility and liability for work,
supervision, labor, and materials used in conjunction with the construction of the building and
that Maron Electric was responsible for cleaning and removing all debris from its work area.
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No. 1-16-2320
This court also relied on deposition testimony that indicated it was Maron Electric’s
responsibility to inspect its own work and clean its own debris and that Clark Construction never
stopped Maron Electric’s work. Maron Electric controlled the means and methods of its own
work during construction of the building. Thus, this court found that Clark Construction did not
retain control over Maron Electric’s work. Id.
¶ 37 The contract provisions in Fonseca were similar to those of the case at bar. In Fonseca,
300 LaSalle LLC, the owner of the building, and Clark Construction executed a contract which
stated in part:
“ ‘[Clark Construction] shall be solely responsible for and have control
over construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under Contract Documents or otherwise
required by good construction practice or by any applicable code. Contactor
understands and acknowledges that although certain construction means, methods,
techniques, sequences and procedures necessary for the completion of the Project
may be referenced in the Contract Documents, it shall remain responsible for and
have control over the construction means, methods, and techniques necessary to
comply with such sequences and procedures.’ ” Id. ¶ 4.
¶ 38 Section 3.3.2 of the contract stated:
“ ‘[Clark Construction] shall be responsible to [300 LaSalle] for acts and
omissions of [Clark Construction’s] employees, suppliers, consultants,
Subcontractors and Sub-Subcontractors and their respective agents and
employees, and all other persons or entities performing portions of the Work.’ ”
Id. ¶ 5.
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No. 1-16-2320
¶ 39 Section 10.2.1 of the same contract stated:
“ ‘[Clark Construction] shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the Work,
including safety of all persons and property during performance of the Work. This
requirement shall apply continuously throughout the course of the Work and shall
not be limited by normal working hours. Clark Construction shall take all
reasonable precautions and safety measures, including those listed in the Contract
Documents (which are presumably deemed reasonable), for the safety of, and
shall provide reasonable protection to prevent damage, injury or loss to:
1. All employees on, and persons performing, the Work and all other
persons who may be affected thereby.’ ” Id. ¶ 6.
¶ 40 Clark Construction and Maron Electric also executed a subcontract, which stated in part:
“ ‘[Maron Electric] shall perform all work and shall furnish all
supervision, labor, materials, plant, scaffolding, tools, equipment, supplies and all
other things necessary for the construction and completion of the work described
in Exhibit B and work incidental thereto, in strict accordance and full compliance
with the terms of the Contract Documents (which are hereby incorporated by
reference) and this Subcontract and to the satisfaction of [Clark Construction] and
[300 LaSalle].’ ” Id. ¶ 7.
¶ 41 The Maron subcontract also stated:
“ ‘[Maron Electric] hereby assumes the entire responsibility and liability
for all work, supervision, labor and materials provided hereunder, whether or not
erected in place, and for all plant, scaffolding, tools, equipment, supplies and
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No. 1-16-2320
other things provided by [Maron Electric] until final acceptance of work by [300
LaSalle] as defined by the Contract Documents.’ ” Id. ¶ 8.
¶ 42 The Maron subcontract also stated that Maron Electric “ ‘shall clean its work and remove
all debris resulting from its work in a manner that will not impede either the progress of the
Project or of other trades.’ ” Id. ¶ 9. Exhibit D of the Maron subcontract stated that the contract
included daily cleanup of all trash and debris in its work area and that Clark Construction had the
right to reject the work of Maron Electric if it did not conform to the requirements of the Maron
subcontract. An 18-page safety and health manual was incorporated in the Maron subcontract,
which stated that “ ‘[a]ll subcontracting personnel are required to follow all of [Clark
Construction’s] safety and health policies, in addition to their own company program.’ ” Id. ¶ 10.
The safety manual established that Clark Construction had a safety manager for the project, and
that Maron Electric was required to attend a safety orientation conducted by Clark
Construction’s safety manager prior to starting work. The safety manual required “ ‘toolbox
talks’ ” with the site’s workers using forms provided by Clark Construction and that Maron
Electric was required to attend monthly safety meetings. Id.
¶ 43 Looking at these provisions, this court found that because the Maron subcontract stated
that Maron assumed the entire responsibility and liability for work, supervision, labor, and
materials used in conjunction with the project, Maron Electric was responsible for cleaning and
removing all debris from its work area, and Maron Electric was bound by all laws, codes,
ordinances and regulations applicable to the Maron subcontract through general law or the Clark
contract, the facts showed that Clark Construction did not have control over the way Maron
Electric conducted its work. This court further looked at the deposition of the senior safety
manager of Clark Construction, who stated she walked around the jobsite to make sure that
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No. 1-16-2320
people were working safely but did not recall ever stopping anyone work, and the deposition of
the senior superintendent of Clark Construction, who stated it was Maron Electric’s
responsibility to clean its own debris, Clark Construction never stopped Maron Electric’s work,
and Maron Electric controlled the means and methods of its own work during construction of the
building. Id. ¶ 29.
¶ 44 Similarly in the case at bar, Phil Schwarz, Lend Lease’s general superintendent, stated in
his deposition that the subcontractors determined their own means and methods by which they
performed their work and that Lend Lease delegated its trade-specific safety and workmanship to
the subcontractors. Eric Blank, Adjustable’s superintendent did not recall ever hearing anyone
from Lend Lease instructing anyone from Adjustable or Bond Steel how to do their work and
testified that if there was debris in the work area, Adjustable or Bond Steel workers were
responsible for cleaning up. Ironworkers for Bond Steel testified that the only time someone
from Lend Lease spoke to them was during the safety orientation on their first day. Plaintiff
testified that he and his crew took directions from Eric Blank, Adjustable’s superintendent, and
that they did not take any direction from anyone employed by Lend Lease as to how to install
steel, what materials to use, or where to work. He also testified that Lend Lease never stopped
Bond Steel’s work for safety reasons and did not provide safety direction specifically relating to
the installation of the rebar.
¶ 45 As in Fonseca, we find that the contract provisions, coupled with the various deposition
testimonies, confirm that Lend Lease’s conduct was insufficient as a matter of law to establish
that it retained supervisory control over the safety of the work such that it owed a duty to
plaintiff. We note, as did our supreme court in Carney, that “[t]o hold otherwise would penalize
a defendant’s safety efforts by creating, in effect, strict liability for personal injury to any job site
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No. 1-16-2320
employee.” Carney, 2016 IL 118984, ¶ 61. See Connaghan v. Caplice, 325 Ill. App. 3d 245, 250
(2001) (“the right to stop the work, tell the contractors to be careful, and change the way
something [is] being done if [the defendant] felt something was unsafe” does not establish
sufficient retention of control for purposes of section 414); Fris v. Personal Products Co., 255
Ill. App. 3d 916, 924-25 (1994) (imposing duty under section 414 where the defendant retained
only a general right to require that work be done in a safe manner would result in strict liability
for all injuries to employees of independent contractors).
¶ 46 Plaintiff’s reliance on Lederer, does not convince us otherwise. In Lederer, a case that
was called into question by our supreme court in Carney, the subcontracts required the
subcontractors to attend weekly coordination meetings with the general contractor, and the safety
manual specifically prohibited the use of “stilts” by the general contractor or the subcontractors.
Lederer, 2014 IL App (1st) 123170, ¶¶ 57-58. The court found that although the mere existence
of a safety program, safety manual, or safety director is insufficient, standing alone, to impose
liability under the retained control exception, the general contractor specifically prohibited one
means or method of performing the work, which was enough to subject it to liability. Evidence in
the record showed that laborers looked to the general contractor to remedy a safety hazard and
that the general contractor had a strong presence on the site inspecting safety precautions. Id.
These facts are not present in the case at bar. Rather, the facts show that Lend Lease did not
provide safety guidelines as to the installation of the rebar, did not communicate with Bond Steel
or its employees on how to install the rebar, and employees did not look to Lend Lease to
remedy any sort of alleged safety hazard. Accordingly, we reject plaintiff’s reliance on Lederer
and maintain that Lend Lease did not retain enough control over the work on this project to
subject it to liability under section 414 of the Restatement (Second) of Torts.
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¶ 47 In light of our holding, we need not consider plaintiff’s further arguments. Plaintiff’s
second argument, that Lend Lease failed to exercise its supervisory control with reasonable care,
is based on the fact that Lend Lease retained enough control to bring it within the purview of
section 414, which we have found it did not. Restatement (Second) of Torts § 414, cmt. c (1965)
(“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.”). And plaintiff’s third
argument is based on vicarious liability through the laws of agency. However, as we explained
above, section 414 takes over where agency law ends. Carney, 2016 IL 118984, ¶ 38 (if the
control retained by the employer is such that it gives rise to a master-servant relationship, the
employer may be liable for the negligence of the contractor’s employees under the laws of
agency, however, agency law is not the same as when an employer is directly liable for its own
negligence—so “ ‘section 414 takes over where agency law ends’ ” (quoting Aguirre, 501 F.3d
at 829)). Comment a of section 414 explains that if the employer of an independent contractor
retains control over the operative detail of doing any part of the work, he is subject to liability for
the negligence of the employees under the rules of that part of the law of agency that deals with
the relation of master and servant. Restatement (Second) of Torts § 414 cmt. a (1965). It further
states that the employer may, however, “retain a control less than that which is necessary to
subject him to liability as master,” which is supervisory control discussed in section 414. Id.
Since we have found there was not enough evidence to establish supervisory control under
section 414, it therefore follows that there was not enough evidence to establish control over the
operative details of the work such that there was a master-servant relationship under the laws of
agency.
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No. 1-16-2320
¶ 48 CONCLUSION
¶ 49 Accordingly, for the foregoing reasons, we affirm the judgment of the circuit court of
Cook County.
¶ 50 Affirmed.
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