Snow v. Power Construction Co., LLC , 2017 IL App (1st) 151226 ( 2017 )

2017 IL App (1st) 151226
FOURTH DIVISION
May 4, 2017
No. 1-15-1226
JOHN T. SNOW, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) Cook County.
)
v. )
) No. 12 L 3597
POWER CONSTRUCTION COMPANY, LLC, an Illinois )
Limited Liability Company, THORNE ASSOCIATES, )
INC., an Illinois Corporation, and POWER )
CONTRACTING AND ENGINEERING ) Honorable
CORPORATION, an Illinois Corporation, ) Eileen Brewer,
) Judge Presiding.
Defendants-Appellees. )
JUSTICE McBRIDE delivered the judgment of the court, with opinion.
Presiding Justice Ellis and Justice Burke concurred in the judgment and opinion.
OPINION
¶1 Plaintiff John T. Snow filed a negligence action against defendants Power Construction
Company, LLC (PCC), Power Engineering and Contracting Corporation (PCEC) (collectively
Power), and Thorne Associates, Inc. (Thorne), after he was injured when several sheets of
drywall fell on him while at a construction site. Plaintiff was employed by third-party defendant,
Professionals Associated Construction Layout & Survey Co., Ltd. (Professionals), as a surveyor
and was on the site in his professional capacity. The trial court granted summary judgment in
favor of PCC, PCEC, and Thorne.
¶2 Plaintiff appeals, arguing that the trial court erred in (1) granting summary judgment
because there was a material question of fact regarding the stacking of the drywall and the
responsibility for safety of persons on the jobsite, (2) ruling that reliance on an alleged custom
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and practice could make an injury unforeseeable as a matter of law; (3) striking portions of the
affidavits of plaintiff and Richard Hislop tendered in response to the motions for summary
judgment, and (4) quashing the notice of deposition for John Karp, president of PCC.
¶3 In May 2010, Alexian Brothers Health System (Alexian), as the owner, entered into a
contract with PCEC, as the construction manager, for the construction of the new children’s
hospital and bed tower (bed tower site) at St. Alexius Medical Center (St. Alexius) in Hoffman
Estates, Illinois. In May 2011, PCEC entered into a project specific agreement with Professionals
to perform surveying work at the bed tower site. A master subcontract agreement between PCC
and Professionals, from October 2004, governed the project specific agreement and was
incorporated by reference. Also in May 2011, PCEC entered into a project specific agreement
with Thorne to perform framing and drywall assembly at the bed tower site. A master
subcontract agreement between PCC and Thorne, dated November 2003, governed and was
incorporated by reference.
¶4 As part of Thorne’s subcontract, it was to construct a temporary corridor connecting the
emergency room of the hospital to the new construction. On June 29, 2011, Thorne completed its
installation of drywall in the temporary corridor. At the end of the work day, Thorne’s
employees vertically stacked approximately 14 sheets, 4 by 8 feet high, of leftover drywall near
the entrance to the corridor. The next morning, on June 30, 2011, plaintiff came to the bed tower
site to check his previously placed benchmarks in the corridor. Plaintiff believed one of his
benchmarks was behind the stacked drywall. He then moved the stack toward himself to check
for his benchmark, but the stack continued to move and fell forward. Plaintiff was struck on his
right leg and trapped under the drywall. He immediately sought care at St. Alexius.
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¶5 Plaintiff initially filed his negligence action in April 2012. In December 2012, plaintiff
filed his second amended complaint with one count directed at each of the defendants. The
allegations against PCC and PCEC are identical. The complaint asserts that both PCC and PCEC
were the general contractor for a project at the east pavilion of St. Alexius. Both PCC and PCEC
retained some control over the safety of the work on the project. PCC and PCEC each had a duty
to exercise that control with ordinary care. PCC and PCEC were individually guilty of one or
more negligent and careless acts or omissions: (1) caused drywall to be stacked or stored in such
a manner as to easily topple over; (2) allowed drywall to be stacked or stored in such a way and
in such a manner as to be easily tipped or toppled over; (3) failed to brace drywall stacked in a
vertical manner when it knew or should have known that drywall so stored or stacked could
easily tip over, causing injury; (4) failed to move, alter, or correct drywall stacked or stored in an
unsafe manner or direct that drywall so stacked or stored be moved, braced, or corrected; (5)
scheduled work of the subcontractor Professionals such that its employees would have to move
or disturb stacked or stored drywall, and (6) failed to assure that the drywall was stacked, racked,
blocked, interlocked, or otherwise secured to prevent sliding, falling, or collapse. As a result of
one or more of these acts or omissions, the vertically stacked drywall fell and struck plaintiff,
trapping him underneath and causing injury to his back and legs. As a direct and proximate result
of said accident, plaintiff has experienced and will continue to experience pain, suffering,
disability, loss of normal life, and lost income.
¶6 The third count of the complaint pled the following allegations against Thorne. Thorne
was a drywall subcontractor at the St. Alexius site, and it stacked, moved, and stored drywall,
specifically the drywall involved in the accident which injured plaintiff. Thorne had a duty to use
due care in its stacking, storage, and moving of drywall so as not to cause an unsafe condition
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which might injure plaintiff and other employees on the project. Thorne was guilty of one or
more negligent and careless acts or omissions: (1) stored or stacked drywall in an area that was
neither safe nor authorized; (2) caused drywall to be stacked or stored in a manner such that
plaintiff could move or dislodge it; (3) failed to brace, band, or secure the drywall in such a
manner that it would not tip or fall; (4) improperly stacked the drywall; and (5) was otherwise
careless and negligent. As a result of one or more of these acts or omissions, the vertically
stacked drywall fell and struck plaintiff, trapping him underneath and causing injury to his back
and legs. As a direct and proximate result of said accident, plaintiff has experienced and will
continue to experience pain, suffering, disability, loss of normal life, and lost income.
¶7 The parties engaged in lengthy discovery, which included all relevant contracts as well as
several depositions of employees of PCC, PCEC, Thorne, and Professionals. The contract
between Alexian and PCEC included the following provisions in the general conditions of the
contract for construction.
¶8 Article 1.1.3 detailed the work under the contract.
“The term ‘Work’ means the construction and services required by
the Contract Documents, whether completed or partially
completed, and included all other labor, materials, equipment and
services provided or to be provided by the Contractor to fulfill the
Contractor’s obligations. The Work may constitute the whole or a
part of the Project. The Work shall also consist of labor, materials,
equipment and services provided or to be provided by
Subcontractors, Sub-subcontractors, material suppliers or any other
entity for whom the Contractor is responsible under or pursuant to
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Contract documents, and specifically includes the duty to supply
all necessary supervision and coordination of all forces furnished
by and through Contractor.”
¶9 Article 3.3 governs the supervision and construction procedures. Article 3.3.1 stated, in
relevant part, as follows.
“The Contractor shall supervise and direct The Work, using
the Contractor’s best skill and attention. The Contractor 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 specific instructions concerning these
matters. If the Contract Documents give specific instructions
concerning construction means, methods, techniques, sequences or
procedures, the Contractor shall evaluate the jobsite safety thereof,
and except as stated below, shall be fully and solely responsible for
the jobsite safety of such means, methods, techniques, sequences
or procedures.”
¶ 10 Article 3.3.2 provided that:
“The Contractor shall be responsible to the Owner for acts
and omissions of the Contractor’s employees, Subcontractors and
their agents and employees, and other persons or entities
performing portions of the Work for or on behalf of the Contractor
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or any of its Subcontractors and for any damages, losses, costs or
expenses resulting from such acts or omissions.”
¶ 11 Article 5.3 concerned the subcontractual relations of the contract. Article 5.3.1 provided,
in relevant part, that:
“By appropriate agreement, written where legally required
for validity, the Contractor shall require each subcontractor, to the
extent of the Work to be performed by the Subcontractor, to be
bound to the Contractor by terms of the Contract Documents, and
to assume toward the Contractor all the obligations and
responsibilities, including the responsibility for safety of the
Subcontractor’s Work, which the Contractor, by these Documents,
assumes toward the Owner and Architect.”
¶ 12 Article 10.1 detailed the safety precautions and programs under the contract. Article
10.1.1 provided that, “The Contractor shall be responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the performance of the
Contract.”
¶ 13 Article 10.2 governed safety of persons and property. Article 10.2.1.1 provided, in
relevant part:
“The Contractor shall take all necessary precautions for
safety of, and shall provide all necessary protection to prevent
damage, injury or loss to *** all persons involved in or affected by
the Project.”
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¶ 14 The master subcontractor agreements between PCC and Professionals, and PCC and
Thorne, respectively, contain the following identical provisions.
¶ 15 Under Article 1,
“The Subcontractor shall provide and pay for all labor, materials,
tools, plan, supplies, scaffolding, transportation, insurance, taxes,
equipment, competent full-time supervision, and all other services
and do all things necessary for the proper and complete
performance, installation, and construction of all of the work
identified in the attached Project Specific Agreement.”
¶ 16 Under Article 27, subpart C, the master agreement stated:
“Subcontractor shall be and is fully responsible for
protection and condition of its materials, Work or equipment
installed or stored on Job Site or elsewhere until final acceptance
thereof by Owner and Architect.”
¶ 17 Article 28 of the master agreement provided the following policy on the use of
equipment.
“If, at any time during construction of Work covered by the
Contract, the Subcontractor, its agents, employees or supplies
should, either with or without permission of General Contractor,
use any tools, appliances, hoists, elevators, scaffolding, ladders,
falsework, shoring, materials, machinery or equipment which
belong to or are furnished by General Contractor, Subcontractor
assumes full responsibility for any injury to person or property
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which may result from or in connection with use of any such tools,
appliances, hoists, elevators, scaffolding, ladders, falsework,
shoring, materials, machinery or equipment by Subcontractor, its
agents, employees or suppliers.”
¶ 18 The project specific agreement between PCEC and Thorne included several general
provisions.
“The Scope of Work shall include, but is not necessarily
limited to, furnishing all labor supervision, safety, protection,
clean-up, insurance, materials, fixtures, equipment, tools, supplies,
transportation, other property and services to complete the
GYPSUM BOARD ASSEMBLY work as identified in the plans,
specifications, bid documents, and as listed herein.
***
This subcontractor is responsible for the protection of all
stored and installed materials until final acceptance by the owner
of this work.”
¶ 19 On September 25, 2013, the trial court entered a case management order setting the close
of discovery. The court ruled that plaintiff would be permitted to depose the Power employees
already noticed for depositions, but no further depositions would be allowed. On October 30,
2013, plaintiff issued a deposition notice for Jeffrey Karp, the president and CEO of PCC. On
November 4, 2013, PCC moved to quash the deposition notice as untimely and in violation of the
court’s order. The trial court granted PCC’s motion to quash in May 2014.
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¶ 20 Plaintiff testified at his deposition that he was 60 years old and had been working as
surveyor since 1975. He was employed by Professionals since 1996. Plaintiff had previously
used spray paint to denote his benchmarks on an existing brick wall that was used for the
corridor. Plaintiff had returned to the jobsite to check the benchmark to determine if the building
was settling. He generally came to the site once a week. Between June 20 and June 30, the
corridor was constructed at the jobsite. Plaintiff had previously checked the benchmarks from
outside, but now had to go into the corridor to view the benchmarks.
¶ 21 Plaintiff was directed to go to the bed tower site by his boss at Professionals, Larry
Nowlin. On June 30, 2011, Plaintiff arrived at the site shortly before 7 a.m. He did not check in
with anyone on site to indicate that he was there. He proceeded to the corridor, which had
temporary lighting with materials and equipment stored inside, including several sheets of
drywall leaning against the brick wall. Plaintiff did not bring his field notebook with him to show
the exact locations of the benchmarks. He identified an area where he believed one benchmark
was located, which was behind the drywall sheets. There were 14 sheets of 4 by 8 feet drywall
leaning against the wall. The drywall was stacked four feet high and eight feet across against the
wall. Plaintiff’s benchmark was four feet above the floor and he believed it was near the top of
the wall covered by the drywall. Plaintiff then “twisted” his fingers to move the drywall away
from the wall to locate the benchmark. As he moved the stack of drywall, the stack continued to
move forward and struck the middle of plaintiff’s right leg.
¶ 22 Plaintiff admitted that he did not ask anyone for help to move the drywall. He stated that
he did not know if it needed to be moved out of the way. If he had needed to move the drywall,
he had the phone number for Paul Meyer, PCC superintendent. Plaintiff admitted that “almost
every time” in prior instances if he arrived and something was in his way, he could call to have it
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moved. He also admitted that Professionals’ policy required him to ask for assistance from a
contractor whose material blocked his work. Plaintiff stated that he has never performed drywall
work on any job site, nor did he ever receive training in drywall work. Plaintiff further stated that
prior to this project, he had never attempted to move drywall to observe a benchmark and had
never handled drywall before the accident. Plaintiff conceded that a benchmark was not located
behind the drywall. He stated that he only moved the drywall approximately an inch before it
fell. Plaintiff testified that the drywall would not have fallen if he had not manipulated it with his
hand.
¶ 23 Paul Meyer testified that he was employed as a superintendent for PCC at the bed tower
jobsite. He stated that Thorne completed the drywall installation in the corridor at the end of the
day on June 29. He instructed Thorne employees to store their remaining drywall sheets in the
corridor, away from the points of ingress and egress to prevent a safety hazard. He testified that
he did not direct Thorne to store the drywall horizontally or vertically. He did not consider
storing drywall vertically on its edge leaning against a wall to be an unsafe practice. Meyer
agreed that PCC’s safety manual provides that “materials shall be stacked in a manner to prevent
tipping, falling, shifting or rolling.” He stated that subcontractors remain responsible for the
storage of their materials until final acceptance of their respective work by PCC. If he had
observed the drywall stacked in an unsafe position, he would have directed Thorne to correct its
storage.
¶ 24 Meyer testified that it is custom and practice that one subcontractor was not permitted to
move the materials of another subcontractor. The subcontractor was required to contact him to
coordinate the moving of the materials. He was not contacted by plaintiff to move the drywall.
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¶ 25 Shaun Rainey testified that he was employed by PCC as its safety director. As safety
director, he has the power to stop a subcontractor’s work if he observed danger. He stated that
the subcontractors are required to conduct weekly toolbox talks, but the content of the talks is
left to the discretion of the individual subcontractor. Rainey stated that it is industry custom and
practice for one subcontractor to refrain from moving another subcontractor’s materials.
¶ 26 On June 30, Rainey arrived at the bed tower site at 7 a.m. and did not have a chance to
walk through the jobsite prior to plaintiff’s accident at 7 a.m. Rainey went to the corridor after
being notified of the accident. He took photographs of the corridor after the accident but did not
have any photographs of the drywall before it fell. He did not know the angle at which the
drywall was stored prior to being moved by plaintiff. Rainey stated that the drywall belonged to
Thorne. He stated that the drywall was stored securely by leaning it vertically against the wall
and would not have fallen without plaintiff’s actions. He testified that Thorne chose the specific
location and method for storing the drywall.
¶ 27 David Glosson testified that he was employed as a foreman with PCC at the bed tower
site. At the time of the accident on June 30, he was in his office in the trailer at the site; Meyer
and Rainey were in their respective offices in the trailer. He responded to the accident site and
saw plaintiff on the ground, but the drywall was not on top of him. Glosson asked plaintiff what
happened, Glosson stated that plaintiff told him that he “did a stupid thing. I tried pulling the
drywall back and it fell on top of me.” Glosson completed a statement report about the accident.
In his report, he stated that the drywall was “stacked neat,” which he explained as “stacked
appropriately against the wall. *** [I]t was a proper stack.” Glosson did not observe the Thorne
employees stacking the drywall the previous night. He admitted that he had not observed the
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drywall prior to the accident. He could not state the angle the drywall was against the wall. He
stated that the sheets were ⅝-inch thick.
¶ 28 Glosson testified that leaning the drywall against the wall was safer than storing the
material on a drywall cart because the cart could tip over if someone who was not trained pushed
the cart. Glosson stated that in his experience, you did not move another entity’s materials. If he
had seen the drywall in the wrong spot, he would have contacted the drywallers to move it.
¶ 29 Michael Degnan testified that he was employed as Thorne’s superintendent and vice
president of operations. He stated that Thorne’s policy to store drywall was to stack it on its edge
and lean it against the wall; and it conforms with industry custom and practice. He said that when
the drywall is leaned against the wall at a proper angle, then no braces, clips, or other securing
mechanism is required. He stated that drywall leaned against a wall would tip “only if somebody
touched it and moved it.” He testified that Thorne was responsible for protecting all stored
material until final acceptance of finished work by Power. Degnan agreed that under the
contracts, Thorne was required to furnish all labor, supervision, protection, clean-up, insurance,
materials, fixtures, equipment, tools, supplies, and transportation. Thorne’s foreman David Pruitt
would have been responsible for getting approval from Power regarding storage locations for the
drywall and other material. Degnan stated that he would expect Thorne employees to ask Power
where to store excess drywall, but not how to stack and store it. Degnan testified that people are
“not supposed to touch anybody else’s material on the job.”
¶ 30 David Pruitt testified that he was employed by Thorne as a carpenter foreman at the bed
tower site. He stated that Thorne began installation of drywall in the corridor on June 24, 2011,
and completed installation on June 29, 2011, at around 3 p.m. Meyer directed him to have
Thorne employees place the leftover materials at the south end of the corridor. Pruitt stated that
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Thorne employees stacked the drywall against the brick wall in the corridor. He testified that
they did not leave the drywall on a cart because the drywall was going to be there for a while and
someone who did not know how to move it might have moved the cart during that time. Pruitt
said the drywall was leaned vertically against the wall rather than flat on the ground because it
was “such a tight area.” He said it was “more of a tripping hazard” on the ground. Pruitt did not
come to the site to restack the drywall after the accident and did not know how it was restacked.
He testified that it was “common sense” to “lean the drywall so the weight is against the wall that
you’re leaning against.” He indicated that he tried to lean it steeply enough so that it is difficult
to pull away from the wall but not so much that it would slide down. He did not stack the drywall
flat against the wall. Pruitt stated that he has never seen or used a brace or clip for drywall when
vertically stacked. He testified that when he left the project on June 29, the drywall was
vertically stacked against the wall in a safe and proper manner. Pruitt said the drywall was
stacked four feet high, and one would have seen the benchmark above the vertically stacked
drywall. He stated that it is common knowledge on a construction site not to move another
person’s materials. He agreed that someone who is not trained in handling drywall should not
attempt to move it.
¶ 31 Oscar Ron testified, through an interpreter, that he was employed as a carpenter for
Thorne. He was part of the crew that worked on the corridor at the bed tower site. He stated that
Pruitt did not do any drywall on the last day of drywall installation. Ron did not know what
Pruitt did that day. Ron testified that he spoke to Meyer regarding Thorne’s completion of the
drywall and asked where he wanted them to put everything. Meyer told him to “put it on the
edge, everything together, without blocking the hallway.” Ron stated that he spoke with Meyer
because Pruitt had left, but he could not recall when Pruitt left, if he left before or after lunch or
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after the afternoon break. Ron said he was in charge when Pruitt was not present. Ron stated that
if the drywall was going to obstruct the hallway, they could not lay it down. He said it was
normal to place it leaning, and he decided to place it that way because he did not want material
blocking the hallway. Ron did not use a brace for the drywall “because it was secure the way that
we had set it.” Ron described the drywall as “leaning at an angle to where it can’t fall over or
slide off.” He could not say the exact angle, but “as you’re putting the sheets one can feel that the
sheets aren’t going to fall.” He was “sure” that the sheets would not fall.
¶ 32 Larry Nowlin testified that he was employed as a superintendent with Professionals. He
stated that it was industry custom and practice, including the policy of Professionals, that a
surveyor was not to move materials that blocked a benchmark. The surveyor was to contact the
general contractor to coordinate the movement of the materials. Nowlin admitted that this was
not a written policy but said it had been communicated to his employees, which he believed
included plaintiff. If the surveyor is unable to read the benchmark, he should record it as
“blocked” or “obstructed” and move to the next benchmark. The surveyor can return the next
week and read the obstructed benchmark. Professionals would not take disciplinary action
against a surveyor who indicated a benchmark was obstructed. Nowlin stated that he directed
plaintiff to go to the bed tower site on June 30 to check the benchmarks. He said that plaintiff
generally worked with a partner, but the partner was on vacation that week.
¶ 33 Matthew Murtha testified that he was employed by Professionals as the project manager.
He does not work as a surveyor. He stated that when a surveyor could not read a benchmark
because of a blockage, then the surveyor should record it as “blocked” or “covered.” He did not
know of any surveyor moving material to view a blocked benchmark. Murtha agreed that
plaintiff’s action in moving the drywall violated Professionals’ rule not to move materials.
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¶ 34 In July 2014, PCC filed a motion for summary judgment. In its motion, PCC argued that
plaintiff cannot prove that PCC owed him a legal duty or that PCC breached any alleged duty.
PCC asserted that it did not enter any of the contracts in relation to the bed tower site, rather it
was PCEC, a separate entity, and thus, PCC had no retained control over Thorne’s work. Further,
PCC contended that it had no actual or constructive knowledge of a dangerous condition or
unsafe work practice prior to plaintiff’s accident because deposition testimony showed that
storing drywall on its edge against a wall is an industry custom and practice that is not dangerous
and complies with Occupational Safety and Health Administration (OSHA) standards. The
drywall was not a dangerous condition until plaintiff’s actions moving it. PCC maintained that
the record showed there was no genuine issue of material fact to preclude summary judgment.
¶ 35 Plaintiff filed his response to PCC’s motion for summary judgment. Plaintiff maintained
that there was a question of fact regarding PCC’s control over the means and methods of storage
of the drywall. Plaintiff included an affidavit from his expert Richard Hislop as an exhibit to his
response.
¶ 36 In his affidavit, Hislop stated that he was certified a safety professional with 40 years of
experience in construction. Hislop discussed Power’s safety program from its website, the
provisions of the contracts for the bed tower project, OSHA regulations, literature from the
Gypsum Association, and safety warnings from multiple versions of the US Gypsum
Corporation’s handbook. The OSHA regulation included in the affidavit stated, “All materials
stored in tiers shall be stacked, racked, blocked, interlocked, or otherwise secured to prevent
sliding, falling or collapse.” 29 C.F.R. § 1926.250(a)(1) (1996). He then included several
portions from US Gypsum Corporation guidelines from years 2000, 2003, 2007, and 2009. The
handbook guideline from 2000 indicated a recommendation that gypsum board “be stacked flat
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because stacking boards vertically against a wall poses a safety hazard.” Other provisions state
that boards “stacked on edge can easily become unstable and accidentally fall over.” The
provision from the 2009 handbook detailed how to appropriately store the drywall panels
vertically.
“While vertical stacking of panel material can be appropriate and
helpful it can also pose a falling hazard. When vertical stacking is
used, be sure to leave at least 4” to 6” of space between the bottom
of the first board in the stack and the wall. Leaving less than 4”
creates a risk that the stack could be pulled over; leaving more than
6” applies too much weight laterally against the wall. Warning tape
or signage should be used to alert people of the potential for
leaning wallboard to fall if disturbed.”
¶ 37 Hislop opined that PCC was wrong for contending that storing drywall on its edge was an
industry accepted custom and practice based on his cited sources. Hislop then states, “Storing
drywall on its edge against walls is common practice in residential construction and on occasion
in commercial construction, however, injury statistics and experience have demonstrated that it is
a dangerous practice to do so.” He asserts that storing drywall vertically does not comply with
his cited “OSHA regulations or the recommendations of the US Gypsum Association.”
¶ 38 Hislop concludes that PCC failed in two regards.
“1. Its first failure was to allow an unsafe condition identified
in both OSHA regulations and the US Gypsum Association safety
literature to remain unaddressed. Power failed to require that
Thorne secure its sheetrock from sliding or falling, as subsequently
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occurred in this matter. This failure was a direct cause of the
injuries sustained by [plaintiff].
2. Its second failure was that Power made no effort to assure
that individuals who came to perform work on their jobsite were
aware of the hazards that potentially existed there, specifically the
hazards inherent in unsecured drywall.”
¶ 39 Defendants filed a joint motion to strike Hislop’s affidavit as improper under Illinois
Supreme Court Rule 191(a) (eff. Jan. 4, 2013) because his affidavit contained numerous
conclusions unsupported by facts and referenced statistical facts without identifying the
information source.
¶ 40 In November 2014, the trial court granted PCC’s motion for summary judgment, finding
that PCC had no duty to protect plaintiff from the drywall. The court noted that plaintiff had
established questions of fact regarding whether PCC retained control over Thorne’s placement of
the drywall but concluded that “it would not be foreseeable by the general contractor that
[plaintiff], as a surveyor working for one subcontractor would move another subcontractor’s
drywall.” The court did not address PCC’s motion to strike Hislop’s affidavit because “the
plaintiff’s amended expert report fails to negate defendant’s undisputed fact that it is an industry
custom and practice that contractors will not move another contractor’s material or equipment,
and the plaintiff’s employers had procedures for surveyors to mark read sites as obstructed.”
¶ 41 In February 2015, both PCEC and Thorne, respectively, filed motions for summary
judgment. PCEC argued that summary judgment was proper because it owed no duty to plaintiff
because (1) it did not retain or exercise control over subcontractors Thorne or Professionals, (2)
it lacked notice of a dangerous condition because stacking drywall against a wall is not a
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dangerous condition, (3) it lacked notice of plaintiff’s dangerous work practice against industry
custom and practice to move the drywall, and (4) plaintiff’s injuries resulted from his unsafe
work practice and not from a condition of the land. Thorne asserted in its motion that it did not
owe plaintiff a duty because (1) it was not foreseeable that plaintiff would move its stacked
drywall, (2) it did not retain control over plaintiff’s work and lacked knowledge of plaintiff’s
unsafe work practice, and (3) plaintiff’s injuries were not caused by a dangerous condition of the
land.
¶ 42 Plaintiff filed responses to the motions, which included an amended affidavit from Hislop
and an affidavit from plaintiff. Hislop’s amended affidavit added two paragraphs in which he
stated that
“it was custom and practice in the construction industry that unless
specifically restricted contractors will regularly not only move
other contractors’ tools and materials, they will borrow ladders,
Baker scaffolds and other materials. Contractors will regularly
move material that is in their way in order to perform their job.
Even if specifically restricted, unless the general contractor
regularly enforces the restriction, contractors will borrow ladders
and other materials to perform their job.”
¶ 43 Plaintiff stated in his affidavit that there was no written policy or procedure by
Professionals that “its employees not touch or move materials or equipment in order to find or
uncover benchmarks or survey points.” He said “there was never a rule that prohibited us from
moving other company’s supplies or equipment to find or measure survey points.” He was never
told by his coworkers, nor did they tell anyone in his presence, about “said” rule. He was never
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told at previous PCC jobs that employees were not to move other subcontractors’ equipment or
supplies. He referenced previous jobs in which he moved boxes or propane tanks to measure
benchmarks. He stated that moving supplies was handled on a case-by-case basis, and if the
supplies could be moved by Professionals’ employees, then they moved it. Plaintiff said on the
morning of his accident, if he had located a benchmark behind the drywall, then he would have
requested assistance to relocate the drywall. At the time of the accident, he was “only trying to
see whether there was a mark behind the drywall.”
¶ 44 Both PCEC and Thorne moved to strike Hislop’s affidavit pursuant to Rule 191(a)
because the affidavit contained conclusions unsupported by facts, referenced statistical facts
without identifying sources, and stated scientific claims without providing facts to show how he
calculated his figures.
¶ 45 In April 2015, the trial court conducted a hearing on the motions. First, the court struck
plaintiff’s affidavit because it contradicted his prior sworn testimony from his deposition in
which he testified that if a benchmark was covered, then you get someone to move whatever
material was in the way. “Plaintiff’s new affidavit contradicts the statement attempting to negate
any knowledge of the procedure he needed to take if the material blocked the benchmark.” Next,
the court struck Hislop’s “conclusory statements made in his amended affidavit, specifically that
the industry standard does not require asking another subcontractor or general to move the other
subcontractor’s material. *** Hislop’s assertion is conclusory and provides no basis for his
opinion.” The court also struck conclusory statements regarding the force to pull the drywall, and
whether the drywall was stacked in a dangerous manner. Finally, the court granted both PCEC’s
and Thorne’s respective motions for summary judgment based on the same reasons as its ruling
on PCC’s motion.
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No. 1-15-1226
¶ 46 This appeal followed.
¶ 47 On appeal, plaintiff argues that the trial court erred in (1) granting summary judgment in
favor of each of the defendants because the evidence raised questions of material fact, (2)
quashing his notice to depose Karp, and (3) striking his affidavit and portions of Hislop’s
affidavit.
¶ 48 Summary judgment is appropriate where the pleadings, depositions, and admissions on
file, together with any affidavits and exhibits, when viewed in the light most favorable to the
nonmoving party, indicate that there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). “Although a plaintiff
is not required to prove his case at the summary judgment stage, in order to survive a motion for
summary judgment, the nonmoving party must present a factual basis that would arguably entitle
the party to a judgment.” Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002). We review cases
involving summary judgment de novo. Ragan v. Columbia Mutual Insurance Co., 183 Ill. 2d
342, 349 (1998).
¶ 49 “To state a cause of action for negligence, a complaint must allege facts that establish the
existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an
injury proximately caused by that breach.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 430
(2006). “The question of the existence of a duty is a question of law, and in determining whether
a duty exists, the trial court considers whether a relationship existed between the parties that
imposed a legal obligation upon one party for the benefit of the other party.” Sameer v. Butt, 343
Ill. App. 3d 78, 85 (2003). In contrast, “whether a defendant breached the duty and whether the
breach was the proximate cause of the plaintiff’s injuries are factual matters for the jury to
decide, provided there is a genuine issue of material fact regarding those issues.” Marshall, 222
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No. 1-15-1226
Ill. 2d at 430. “ ‘In the absence of a showing from which the court could infer the existence of a
duty, no recovery by the plaintiff is possible as a matter of law and summary judgment in favor
of the defendant is proper.’ ” Bruns v. City of Centralia, 2014 IL 116998, ¶ 13 (quoting Vesey v.
Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991)).
¶ 50 In the context of a construction-related injury, courts analyze whether there is common
law negligence under section 414 of the Restatement (Second) of Torts. Kotecki v. Walsh
Construction Co., 333 Ill. App. 3d 583, 587 (2002). Section 414 provides:
“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).
¶ 51 “Whether a duty exists under section 414 turns on whether the defendant controlled the
work in such a manner that he should be held liable.” Kotecki, 333 Ill. App. 3d at 587. “As a
general rule, one who entrusts work to an independent contractor will not be liable for the acts or
omissions of that independent contractor.” Calderon v. Residential Homes of America, Inc., 381
Ill. App. 3d 333, 340 (2008). “This is because the principal generally does not supervise the
details of the independent contractor’s work and, as a result, is not in a good position to prevent
negligent performance.” Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d 286, 300 (2007).
¶ 52 Section 414 “provides a ‘retained control’ exception to the general rule that an employer
of an independent contractor is not liable for the independent contractor’s acts or omissions.”
Cochran v. George Sollitt Construction Co., 358 Ill. App. 3d 865, 873-74 (2005). “The issue of a
21
No. 1-15-1226
defendant’s retained control may be decided as a matter of law where the evidence is insufficient
to create a factual question.” Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 41. Comment
c to section 414 explains the concept of retained control for liability under the Restatement.
“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 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, at 388 (1965).
¶ 53 The best indicator of whether the defendant retained control sufficient to trigger the
potential for liability under section 414 is the parties’ contract. Carney, 2016 IL 118984, ¶ 41.
“[T]he existence of a safety program, safety manual or safety director does not constitute
retained control per se; the court must still conduct an analysis pursuant to the section 414
retained control exception.” Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 318
(2004). The defendant’s safety program must sufficiently affect the means and methods of the
contractor’s work to fall within the ambit of retained control. Id. at 318-19.
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No. 1-15-1226
¶ 54 Under the contracts in this case, Power’s safety program included employing Rainey as a
safety director, a general safety manual, requiring each subcontractor to have competent
supervision, and requiring each subcontractor to conduct weekly toolbox talks. However, the
content of the respective toolbox talks was left to the subcontractor to determine.
¶ 55 Further, the contracts showed that each subcontractor was responsible for all labor,
materials, tools, equipment, and supervision and to do all things necessary for the proper and
complete performance of the work. “Subcontractor shall be and is fully responsible for protection
and condition of its materials, Work or equipment installed or stored on Job Site or elsewhere
until final acceptance thereof by Owner and Architect.” The contracts and deposition testimony
establish that Power reserved the general right to start, stop, and inspect the progress of the work,
but each subcontractor had control over the means and methods of the work performance.
¶ 56 Here, plaintiff has not shown that Power exerted any control over his work performance.
The evidence shows that Professionals was expected to check its measurements weekly. Nowlin
testified that he called plaintiff and directed him to go the bed tower site on June 30, 2011, and
check the benchmarks. Plaintiff arrived on the site shortly before 7 a.m. He was not required to
check in with Power employees, and he did not speak to anyone that morning. He proceeded to
the enclosed corridor to check the benchmarks. There was no evidence that Power had any
knowledge of plaintiff’s presence on the site, nor directed the manner in which he performed his
job. Plaintiff failed to establish that Power retained an amount of supervision such that plaintiff,
a surveyor employed by a subcontractor, was not free to complete the work either in his own way
or according to his employer’s instructions. See Shaughnessy v. Skender Construction Co., 342
Ill. App. 3d 730, 738 (2003).
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No. 1-15-1226
¶ 57 In Shaughnessy, the plaintiff was employed as an ironworker by a sub-subcontractor. The
plaintiff was injured on his first day on the job when he placed a wooden board over a gap in the
floor and fell several feet when the board broke. Id. at 732. Plaintiff alleged claims of negligence
under section 414 against the general contractor and the subcontractor that hired his employer.
Id.
¶ 58 The reviewing court found that summary judgment was appropriate because the plaintiff
failed to raise a question of fact as to whether the defendant exerted sufficient control over the
plaintiff’s employer. Id. at 737. The court concluded that the evidence established that the
plaintiff’s employer was “entirely free to perform the work in its own way” where the plaintiff’s
foreman “gave plaintiff all his work instructions.” Id. at 740. “[N]o one from [either defendant]
saw plaintiff engage in the unsafe practice that led to his injury or even had notice that plaintiff
intended to engage in such conduct. Plaintiff, who was injured on his first day at the jobsite,
admitted that he was only on the board for a ‘fraction of a second’ before the board broke and
that only his coworker was in the area.” Id. at 739-40. The court observed that “there was no
evidence that [either defendant] knew or had notice of the hazardous method plaintiff employed
to descend into the basement.” Id. at 740.
¶ 59 The Shaughnessy court relied on the earlier decision in Rangel v. Brookhaven
Constructors, Inc., 307 Ill. App. 3d 835 (1999), for support. In that case, the plaintiff was
employed by the drywall subcontractor. He was injured when he stepped on braces in the
scaffolding as he was attempting to hang drywall and one of the braces collapsed, causing him to
fall. The plaintiff was instructed to stand on the braces by his employer. Id. at 837.
¶ 60 Under the contract with the general contractor, the plaintiff’s employer “was to provide
all labor, materials, tools, plant, equipment, competent full-time supervision and services, and
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No. 1-15-1226
‘do all things necessary for the proper performance, installation, construction and completion of
all’ ” work. Id. at 836. The reviewing court found that the general contractor retained only a
general right of supervision, “[i]t does not refer, directly or indirectly, to a right to direct the
installation of drywall or the erection of the scaffold.” Id. at 839.
“There is no evidence to suggest Drywall [(the plaintiff’s
employer)] was not entirely free to perform the work in its own
way. The evidence showed Brookhaven [(the general contractor)]
never directed the ‘operative details’ of the work performed by
Drywall and Rangel. Drywall, not Brookhaven, supplied the
scaffold on which Rangel worked. A Drywall supervisor, not
Brookhaven, directed Rangel to utilize the braces when necessary
for positioning the drywall. This unsafe method of performing the
work, which led to Rangel’s injury, was proposed by Rangel’s
employer just hours before the accident. Here, as in Bezan v.
Chrysler Motors Corp., 263 Ill. App. 3d 858, 864 *** (1994), there
is nothing to suggest that the general contractor ‘knew or had
notice of the hazardous method employed within this restrictive
time period.’ ” Rangel, 307 Ill. App. 3d at 839.
¶ 61 Similarly, plaintiff has failed to raise a question of material fact that Power retained
control over his work method. Plaintiff was directed to go to bed towers site by his employer. He
had no contact with Power’s employees as to the manner in which he was to perform his job. The
evidence in the instant case fails to establish that Power retained any control over plaintiff’s
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No. 1-15-1226
work method or had any knowledge of plaintiff’s hazardous method used to check for the
benchmarks in the corridor.
¶ 62 We also conclude that plaintiff has failed to raise a question of material fact that Power
controlled Thorne’s work. The crux of plaintiff’s argument is that Meyer told Thorne employees
to leave the leftover drywall in the corridor for future needs, and the drywall should be stored
neat and should not block ingress and egress of the corridor. These instructions standing alone do
not demonstrate control of the manner and means of Thorne’s work by Power. As comment c to
section 414 stated, suggestions and recommendations are not sufficient to establish control.
Rather, “[t]here 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, at 388
(1965). The record does not raise a question of fact that such a retention of a right of supervision
existed. The basic instruction of where to store materials did not retain control over how Thorne
chose to stack the drywall. Because no question of material fact exists as to whether Power
retained sufficient control over its subcontractors’ work methods, summary judgment was proper
as to retained control under section 414 of the Restatement for both PCC and PCEC.
¶ 63 Next, we turn to plaintiff’s claims against Thorne for negligence. Plaintiff has alleged
that Thorne stored the drywall in an unsafe manner, such that it was improperly stacked without
any means to secure it. Here, we need not reach the question of whether the drywall was
improperly stacked because we find summary judgment was properly entered as a matter of law
for the reasons that follow.
¶ 64 There are four factors to consider in a duty analysis: “(1) the reasonable foreseeability of
the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against
the injury, and (4) the consequences of placing that burden on the defendant.” Bruns, 2014 IL
26 No. 1-15-1226
116998, ¶ 14. “A legal duty refers to a relationship between the defendant and the plaintiff such
that the law imposes on the defendant an obligation of reasonable conduct for the benefit of the
plaintiff.” Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22. We find that plaintiff
has not raised a question of material fact that Thorne owed him a duty because it was not
reasonably foreseeable that he would move the drywall.
¶ 65 The Illinois Supreme Court “has long recognized that ‘every person owes a duty of
ordinary care to all others to guard against injuries which naturally flow as a reasonably probable
and foreseeable consequence of an act, and such a duty does not depend upon contract, privity of
interest or the proximity of relationship, but extends to remote and unknown persons.’ ” Simpkins
v. CSX Transportation, Inc., 2012 IL 110662, ¶ 19 (quoting Widlowski v. Durkee Foods, 138 Ill.
2d 369, 373 (1990)). “Thus, if a course of action creates a foreseeable risk of injury, the
individual engaged in that course of action has a duty to protect others from such injury.”
(Emphasis omitted.) Id. “That something ‘might conceivably occur,’ does not make it
foreseeable. [Citation.] Rather, something is foreseeable only if it is ‘objectively reasonable to
expect.’ ” Bruns, 2014 IL 116998, ¶ 33 (quoting Hills v. Bridgeview Little League Ass’n, 195 Ill.
2d 210, 238 (2000)).
¶ 66 Here, plaintiff argues that it was reasonably foreseeable that an injury would have
occurred from the manner in which the drywall was stacked. However, the admissible evidence
in the record is unequivocal that tradespeople do not move the materials belonging to another
entity. Deposition testimony from employees of Power, Thorne, and Professionals definitively
established that it was a known custom not to move materials of another subcontractor.
¶ 67 Plaintiff, himself, admitted that it was Professionals’ policy that when materials
obstructed benchmarks the surveyor was to contact the general contractor to arrange for the
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No. 1-15-1226
materials to be moved. Nowlin, plaintiff’s supervisor, and Murtha, another Professionals
employee, confirmed this policy. Both Nowlin and Murtha testified that if the obstructed
benchmark is unable to be cleared after contacting the general contractor, then the surveyor
should record the benchmark as “blocked” in his notes and return on a later date. No disciplinary
action would be taken if a benchmark was listed as “blocked.” Further, plaintiff admits that the
benchmark was not behind the stacked drywall. Plaintiff also admits that the location of the
benchmark was recorded in his notebook, which he left in his vehicle, and did not use to
determine the benchmark’s location. He assumed that the benchmark was behind the drywall
based on his own recollection, but was in error. Plaintiff further admitted in his deposition that
the drywall would not have moved if he had not moved it. In his many years as a surveyor,
plaintiff had never moved drywall prior to the accident. There was no reason for plaintiff to have
moved the drywall.
¶ 68 Moreover, even if we consider the affidavit from plaintiff’s expert Hislop, Hislop does
not refute the custom and practice of not moving drywall. Hislop’s general statement, which we
consider the propriety of striking later in this decision, was that it was “custom and practice” to
move another contractor’s “tools and materials” unless specifically restricted. Hislop referenced
borrowing ladders and scaffolds but never stated it was a common practice to move another
contractor’s drywall. The testimony from the employees of all contactors on the site established
that it was not a custom and practice to move another contractor’s materials at bed tower site.
¶ 69 Given the unrefuted testimony, including from plaintiff himself and other Professionals
employees, that it is customary for a tradesperson not to move materials belonging to another
contractor, as well as plaintiff’s admission that the benchmark was not obstructed by the drywall,
it was not “objectively reasonable” for Thorne to foresee that plaintiff would attempt to move the
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No. 1-15-1226
stacked drywall. Since the drywall did not impede plaintiff’s ability to perform his work, it was
not foreseeable that plaintiff would engage with the drywall to any extent. Absent a reasonably
foreseeable risk of injury, no duty on the part of Thorne can exist as a matter of law. The lack of
any duty forecloses plaintiff’s negligence allegations. Accordingly, summary judgment was
properly granted in favor of Thorne.
¶ 70 Plaintiff additionally contends that all defendants are liable for premises liability under
section 343 of the Restatement. Section 343 states:
“A possessor of land is subject to liability for physical harm caused
to his invitees by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would
discover the condition, and should realize that it involves an
unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the
danger, or will fail to protect themselves against it, and
(c) fails to exercise reasonable care to protect them against
the danger.” Restatement (Second) of Torts § 343 (1965).
¶ 71 Under section 343, while “a possessor of land, including a general contractor, owes its
invitees a common law duty of reasonable care to maintain its premises in a reasonably safe
condition [citation], it is axiomatic that no legal duty arises unless the harm is reasonably
foreseeable [citation].” Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 42
(2004). Even if we were to presume both that the stacked drywall was a condition on the land
and it constituted a dangerous condition, we find that plaintiff has not raised a question of
material fact under premises liability because the danger of stacked drywall was open and
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No. 1-15-1226
obvious. We have already concluded that it was not objectively reasonable to foresee that
plaintiff would move the drywall because of the policy not to move other entities’ materials and
that plaintiff’s benchmark was not obstructed by the drywall.
¶ 72 Under the open and obvious rule, “ ‘a party who owns or controls land is not required to
foresee and protect against an injury if the potentially dangerous condition is open and
obvious.’ ” Bruns, 2014 IL 116998, ¶ 16 (quoting Rexroad v. City of Springfield, 207 Ill. 2d 33,
44 (2003)). “The open and obvious rule is also reflected in section 343A of the Restatement
(Second) of Torts, which this court has adopted.” Id. “Under section 343A, a ‘possessor of land
is not liable to his invitees for physical harm caused to them by any activity or condition on the
land whose danger is known or obvious to them.’ ” Id. (quoting Restatement (Second) of Torts
§ 343A, at 218 (1965)). “ ‘Obvious’ means that ‘both the condition and the risk are apparent to
and would be recognized by a reasonable [person], in the position of the visitor, exercising
ordinary perception, intelligence, and judgment.’ ” Id. (quoting Restatement (Second) of Torts
§ 343A cmt. b, at 219 (1965)).
¶ 73 “Whether a dangerous condition is open and obvious may present a question of fact,” but
“where no dispute exists as to the physical nature of the condition, whether the dangerous
condition is open and obvious is a question of law.” Id. ¶ 18. However, “[t]he existence of an
open and obvious danger is not an automatic or per se bar to the finding of a legal duty on the
part of a defendant.” Id. ¶ 19. To determine whether a duty exists, a court must still consider the
four factors of the duty analysis under the facts of the case at bar. Id. “Application of the open
and obvious rule affects the first two factors of the duty analysis: the foreseeability of injury, and
the likelihood of injury.” Id. “Where the condition is open and obvious, the foreseeability of
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No. 1-15-1226
harm and the likelihood of injury will be slight, thus weighing against the imposition of a duty.”
Id.
¶ 74 Plaintiff contends that the “deliberate encounter” exception to the open and obvious rule
is applicable here. We disagree. “The deliberate encounter exception applies ‘ “where the
possessor [of land] has reason to expect that the invitee will proceed to encounter the known or
obvious danger because to a reasonable [person] in his position the advantages of doing so would
outweigh the apparent risk.” ’ ” Id. ¶ 20 (quoting Sollami v. Eaton, 201 Ill. 2d 1, 15 (2002),
quoting Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)). “Where an exception to
the open and obvious rule applies, the outcome of the duty analysis with respect to the first two
factors is ‘reversed.’ ” Id. (quoting Belluomini v. Stratford Green Condominium Ass’n, 346 Ill.
App. 3d 687, 692 (2004)).
¶ 75 Plaintiff argues that he was “encountering the enclosed hallway for the first time in his
search for the benchmarks,” was trying to “peer behind the drywall, and was not paying attention
to how vertically it was stacked.” While it is accurate that this was the first time plaintiff had to
check the benchmarks since the hallway was enclosed, it was not reasonable that he would
proceed to “encounter” the drywall when his benchmarks were not obstructed by it. As
previously discussed, his ability to complete his task at the site did not require him to move the
drywall. Moreover, none of the testimony in the record supports plaintiff’s position that it was
reasonable for him to encounter the drywall. See Kotecki, 333 Ill. App. 3d at 591 (finding that
the plaintiff “offered no evidence or argument that he made a reasonable decision to deliberately
encounter an obvious danger”). The testimony from employees of Power, Thorne, and
Professionals, and plaintiff himself, consistently established that it was not a practice in the
industry to move another contractor’s materials. Further, plaintiff’s expert did not testify that
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No. 1-15-1226
moving another contractor’s drywall was customary or even appropriate. He never addressed
drywall at all. Accordingly, plaintiff has not raised a question of material fact to preclude a
finding that even if the drywall constituted an open and obvious condition, a reasonable person
would have proceeded to encounter that known or obvious condition. Therefore, summary
judgment was proper.
¶ 76 We next consider plaintiff’s argument that the trial court erred in quashing the deposition
of PCC’s president, Jeff Karp. On September 25, 2013, the trial court entered an order closing
discovery as to additional depositions, allowing plaintiff to depose witnesses noticed for
deposition as of that date. On October 30, 2013, plaintiff issued a notice for deposition for Karp,
the president of PCC. Subsequently, PCC filed a motion to quash the deposition, arguing that the
notice violates the court’s order and Karp was never at the bed tower site and could not offer any
testimony regarding the incident. PCC pointed out that plaintiff had previously deposed nine
Power employees during discovery. Plaintiff responded that Karp was the person who negotiated
the contracts and could interpret its terms. PCC offered to stipulate the contracts authenticity and
that the contracts speak for themselves. The trial court granted PCC’s motion.
¶ 77 “The trial court has freedom to determine the scope of discovery, and, as a reviewing
court, we will not disturb the trial court’s decision absent an abuse of discretion.” Storino,
Ramello & Durkin v. Rackow, 2015 IL App (1st) 142961, ¶ 40. Plaintiff maintains that Karp’s
deposition was relevant to explain changes made to the contract language via strikeouts and
added language in the agreement with St. Alexius as well as Power’s obligations under the
contract regarding safety procedures. Plaintiff has offered no explanation why the notice was
filed more than a month after the court ordered that no additional depositions would be allowed.
We find no abuse of discretion. The trial court allowed extensive discovery, including numerous
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No. 1-15-1226
depositions of Power, Thorne, and Professionals employees. All of the parties’ contracts were
disclosed and submitted. Under the four corners rule of contract interpretation, “ ‘[a]n agreement,
when reduced to writing, must be presumed to speak the intention of the parties who signed it. It
speaks for itself, and the intention with which it was executed must be determined from the
language used. It is not to be changed by extrinsic evidence.’ ” Air Safety, Inc. v. Teachers Realty
Corp., 185 Ill. 2d 457, 462 (1999) (quoting Western Illinois Oil Co. v. Thompson, 26 Ill. 2d 287,
291 (1962)). PCC did not dispute the authenticity of the contracts, nor has plaintiff pointed to
any specific provisions he found ambiguous as it related to his negligence action. Accordingly,
the trial court did not abuse its discretion in quashing plaintiff’s notice of deposition.
¶ 78 Finally, plaintiff contends that the trial court erred in striking portions of his affidavit and
Hislop’s affidavit. The sufficiency of an affidavit in support of a motion for summary judgment
is determined under Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013). The rule states that
affidavits:
“shall be made on the personal knowledge of the affiants; shall set
forth with particularity the facts upon which the claim,
counterclaim, or defense is based; shall have attached thereto
sworn or certified copies of all documents upon which the affiant
relies; shall not consist of conclusions but of facts admissible in
evidence; and shall affirmatively show that the affiant, if sworn as
a witness, can testify competently thereto.” Id.
¶ 79 Because affidavits submitted in the summary judgment context serve as a substitute for
testimony at trial, affidavits must strictly comply with Rule 191(a) to ensure that trial judges are
presented with valid evidentiary facts on which to base a decision. Robidoux, 201 Ill. 2d at 335­
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No. 1-15-1226
36 (2002). “In general, this court reviews a circuit court’s decision on a motion to strike an
affidavit for an abuse of discretion, but when the motion ‘was made in conjunction with the
court’s ruling on a motion for summary judgment,’ we employ a de novo standard of review with
respect to the motion to strike.” US Bank, National Ass’n v. Avdic, 2014 IL App (1st) 121759,
¶ 18 (quoting Jackson v. Graham, 323 Ill. App. 3d 766, 773 (2001)).
¶ 80 The trial court struck plaintiff’s affidavit filed in response to PCEC’s motion for
summary judgment because it contradicted statements made in his deposition. In his deposition,
plaintiff admitted that Professionals’ policy required him to ask for assistance from a contractor
whose material blocked his work. He testified that he customarily asked for assistance in
removing an obstruction and previously had never handled drywall sheets or attempted to move
drywall sheets. Plaintiff admitted that he knew that he had the right and authority to ask for
assistance to move items in order visualize a benchmark. In his affidavit, plaintiff stated that he
had never been advised of a policy not to move other trades’ equipment or supplies and
described job sites in which he previously had moved materials belonging to other entities.
¶ 81 “ ‘A judicial admission is a deliberate, clear, unequivocal statement of a party about a
concrete fact within that party’s peculiar knowledge.’ ” Caponi v. Larry’s 66, 236 Ill. App. 3d
660, 671 (1992) (quoting Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475, 480 (1987)).
“Although statements made during a discovery deposition are normally treated only as
evidentiary admissions, which may be contradicted, such statements may be ‘so deliberate,
detailed, and unequivocal, as to matters with the party’s personal knowledge’ that the statements
will be held to be judicial admissions.” Id. (quoting Lindenmier v. City of Rockford, 156 Ill. App.
3d 76, 87 (1987)). A party may not contradict a judicial admission either with his own contrary
testimony or that of other occurrence witnesses or experts. Id. To the extent that plaintiff’s
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No. 1-15-1226
affidavit contradicted his prior testimony, the trial court did not err in striking those portions of
the affidavit.
¶ 82 We now turn to Hislop’s affidavit. The trial court struck portions of Hislop’s amended
affidavit. Specifically, the court struck the statements regarding (1) the industry standard does
not require asking to move another’s materials as conclusory and lacking a basis for his opinion,
(2) the force to pull the drywall because Hislop did not discuss his calculations or methods in
reaching his conclusion or provide any foundation for his opinion, and (3) Hislop’s opinion that
the drywall was stacked in a dangerous manner because it was conclusory and did not rely on
admissible facts.
¶ 83 “Rule 191(a), however, does not bar legal conclusions per se.” Cain v. Joe Contarino,
Inc., 2014 IL App (2d) 130482, ¶ 62. “Rather, the rule simply bars any conclusion, legal or
otherwise, for which the affiant provides no specific factual support.” Id. “ ‘[W]hile an expert
witness at trial may give opinion testimony without disclosing the facts underlying his opinion
[citations], the same is not true of affidavits submitted in summary judgment proceedings.’ ”
Perona v. Volkswagen of America, Inc., 2014 IL App (1st) 130748, ¶ 51 (quoting Woolums v.
Huss, 323 Ill. App. 3d 628, 636 (2001)). “ ‘Affidavits in opposition to motions for summary
judgment must consist of facts admissible in evidence as opposed to conclusions and conclusory
matters may not be considered in opposition to motions for summary judgment.’ ” Id. (quoting
Woolums, 323 Ill. App. 3d at 636). “Additionally, ‘[a]n expert’s opinion is only as valid as the
reasons for the opinion.’ ” Id. (quoting Hudson v. City of Chicago, 378 Ill. App. 3d 373, 400
(2007)).
¶ 84 The first portion of Hislop’s affidavit struck by the trial court was the added paragraph of
the amended affidavit stating that
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No. 1-15-1226
“it was a custom and practice in the construction industry that
unless specifically restricted contractors will regularly not only
move other contractors’ tools and materials, they will borrow
ladders, Baker scaffolds and other materials. Contractors will
regularly move material that is in their way in order to perform
their job. Even if specifically restricted, unless the general
contractor regular enforces the restriction, contracts will borrow
ladders and other materials to perform their job.”
¶ 85 The trial court properly struck this paragraph of the affidavit as it is conclusory and offers
no facts or support for his conclusions. As an affidavit in summary judgment proceedings, Hislop
cannot state his opinion without providing the basis for the opinion. See id.
¶ 86 Next, the court struck portions in which Hislop discussed the force necessary to move the
drywall. He stated that,
“[o]nly 7 to 14 pounds of effort is required to pull a single piece of
drywall, 4 feet wide and 8 feet long that weighs 80 pounds, away
from the wall, which is placed 4 to 8 inches away from the wall at
the floor. When an unsuspecting individual pulls sheetrock [away]
from a wall, before they know it, they then have to restrain an
accumulating vector force as the sheetrock is tipped past ‘vertical.’
This load increases until the individual has to contend with the
entire accumulated weight of the sheetrock. *** The fourteen (14)
sheets that Mr. Snow pulled away from the wall in his matter
weighed approximately 1040 pounds. To have pulled the 14 sheets
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No. 1-15-1226
of the sheetrock, the edges of which were spaced 4 to 8 inches
away from the wall, would have required 87 to 173 pounds of
force. That is a substantial effort, not the casual effort Mr. Snow
indicated he exerted. The deponents in this matter were unable to
define the distance from the wall they set the edge of their
sheetrock. Had the sheetrock been set in a position that was more
vertical than recommended by the Gypsum Institute, even less
effort would have been required to pull over the stack of
sheetrock.”
¶ 87 The trial court struck this portion of the affidavit because Hislop failed to disclose how he
calculated the force required to move the drywall or his methods in reaching his conclusion, nor
did he provide any foundation for his opinion. We agree. Again, an expert’s affidavit in summary
judgment proceedings must be supported by a factual basis. No such basis was provided on how
the force calculations were reached and, accordingly, the court properly struck this portion of his
affidavit.
¶ 88 Finally, the trial court struck Hislop’s opinion as to whether the drywall was stacked in a
dangerous manner as conclusory and without reliance on admissible facts. As previously
discussed, Hislop included an OSHA regulation and several portions from different gypsum
handbooks in his affidavit. Hislop then stated that “tilting sheetrock against a wall does not
comply with OSHA regulations or the recommendation of the US Gypsum Association.”
However, as noted above, the cited OSHA regulation is silent about vertical stacking and
instructs for materials to be stacked to prevent sliding, falling, or collapse. Likewise, the
handbook guidelines provided instructions on how to properly stack drywall sheets vertically.
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No. 1-15-1226
Hislop then stated, “[t]he hazard of sheetrock stacked on edge has been recognized throughout
the world to extent that the construction industry is suggesting that edge stacked boards should
be labeled with ‘Caution’ signs.” Hislop offered no foundation for his opinion that this has been
“recognized throughout the world.” His support is a portion from the 2009 handbook with
instructions on how to vertically stack drywall and that warning tape should be used. Hislop
further stated “[t]he hazard of propping sheetrock against walls has been well established in the
drywall industry.” He offered no admissible facts to support his statement. Hislop also
referenced “statistics in sheetrock injury cases reflect that it is not drywall installers who get
crushed and injured by sheetrock stacked on edge, but individuals who do not regularly work
with the product and are not aware of the inherent safety hazard.” Hislop provided no foundation
for this conclusory statement.
¶ 89 After reviewing these portions of the affidavit, we find the statements were in violation of
Rule 191, and the trial court properly struck them as conclusory and lacking in foundation and
factual support.
¶ 90 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook
County.
¶ 91 Affirmed.
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