Lederer v. Executive Construction, Inc. , 2014 IL App (1st) 123170 ( 2014 )

Illinois Official Reports
Appellate Court
Lederer v. Executive Construction, Inc., 2014 IL App (1st) 123170
Appellate Court ROGER LEDERER, Plaintiff-Appellant, v. EXECUTIVE
Caption CONTRUCTION, INC., Defendant-Appellee and Third-Party
Plaintiff (Midwest Interstate Electrical Construction Company,
Defendants, and Alliance Drywall and Acoustical Company,
Third-Party Defendant).
District & No. First District, Fifth Division
Docket No. 1-12-3170
Filed August 29, 2014
Held In an action for the injuries suffered by a drywall taper employed by a
(Note: This syllabus subcontractor who tripped over some exposed and unprotected
constitutes no part of the conduit protruding from the floor of the room where he was using
opinion of the court but drywall stilts to work on the ceiling, the trial court’s entry of summary
has been prepared by the judgment for defendant general contractor was reversed and the cause
Reporter of Decisions was remanded, since there was sufficient evidence to show that
for the convenience of defendant had more than a general right of supervision and was
the reader.) potentially subject to liability under section 414 of the Restatement
(Second) of Torts, defendant’s safety manual specifically prohibited
the use of stilts by a subcontractor’s employees, and defendant had
authority to stop unsafe work and order it remedied.
Decision Under Appeal from the Circuit Court of Cook County, No. 09-L-221; the
Review Hon. Kathy M. Flanagan, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Keith L. Young, of Chicago, for appellant.
Appeal
Franco & Moroney, LLC, of Chicago (Robert J. Franco, Christopher
G. Beunik, and Christopher M. Cano, of counsel), for appellee.
Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice McBride concurred in the
judgment and opinion.
OPINION
¶1 Plaintiff, Roger Lederer, appeals the circuit court’s July 26, 2012, grant of summary
judgment in favor of defendant-appellee Executive Construction, Inc. (Executive). On appeal,
Lederer contends that the circuit court erred in granting summary judgment because
section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414
(1965)) established a duty of reasonable care in the present case. Plaintiff argues that the
undisputed facts established, as a matter of law, that the degree of control Executive exercised
over the construction project imposed a duty of reasonable care upon Executive. Plaintiff also
argues that, as a matter of law, a duty of reasonable care was imposed upon Executive as it had
notice of the dangerous condition. For the reasons that follow, we reverse the circuit court’s
ruling and remand for further proceedings.
¶2 I. BACKGROUND1
¶3 Executive was the general contractor for the construction of an office space on several
floors of an existing building located at 115 South LaSalle Street (the project) in Chicago,
Illinois, for BMO Capital Markets (BMO). Executive subcontracted with Midwest Interstate
Electrical Construction Company (Midwest) for the electrical work at the site. Executive also
subcontracted with third-party defendant, Alliance Drywall and Acoustical Company
(Alliance), for the drywall and acoustical ceiling work at the site. Plaintiff, a drywall taper
employed by Alliance at the site, was working on the ceiling of a conference room on the
thirty-seventh floor on July 22, 2008, which was his second day on the job. While performing
the work, plaintiff stood on stilts to reach the ceiling, and he fell after allegedly tripping over an
exposed and unguarded electrical conduit or pipe protruding from the floor in the conference
room.
¶4 Following the accident, plaintiff filed a personal injury action against Executive and
Midwest in 2009. Against Executive, plaintiff alleged negligence for failing to ensure that
warning cones were placed over the electrical conduit, failing to remove construction debris
1
The factual allegations are drawn from the complaint, discovery documents filed in the circuit
court, and briefing on the motion to dismiss and attached exhibits.
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from the area, failing to warn plaintiff about the conduit, allowing plaintiff to use stilts in
performing the drywall work, failing to require the use of a scaffold, and otherwise failing to
provide a safe workspace and follow job safety rules. Against Midwest, plaintiff alleged that it
failed to place warning cones over the conduit, failed to remove construction debris, failed to
warn plaintiff about the conduit, and failed to follow and enforce its own job safety rules.
Executive and Midwest both filed third-party complaints against Alliance and counterclaims
against plaintiff for contributory negligence. Executive filed a counterclaim for contribution
against Midwest.
¶5 Executive moved for summary judgment pursuant to section 2-1005 of the Illinois Code of
Civil Procedure (the Code) (735 ILCS 5/2-1005 (West 2010)) as to plaintiff’s complaint.
Executive argued that it owed no duty of care to plaintiff under section 414 of the Restatement
(Second) of Torts as it did not retain sufficient control over plaintiff’s methods of work or
operative details to impose such a duty, and it had no knowledge of the allegedly unsafe
conditions. Plaintiff countered that the evidence showed that Executive retained supervisory
control over the operative details of his work, had the authority to halt work being done in an
unsafe manner and had notice that he was using stilts and of the unsafe conditions, and the use
of stilts was prohibited by Executive’s safety manual. In connection with the motion,
Executive and plaintiff submitted the pertinent construction contracts, safety manuals, and
other documentation, along with the deposition testimony of plaintiff and several individuals
employed by the parties.
¶6 A. The Contracts and Safety Manuals Involved
¶7 Executive had a master contract with BMO that permitted Executive to subcontract
portions of the work it did not customarily perform. In a letter that was included with the
master contract attached to Executive’s motion for summary disposition, Executive vice
president Glenn Kamin set forth Executive’s proposal for the project and wrote that the
services that Executive would provide included “Project Control Coordination and
Supervision.” The letter indicated that Executive “controls construction activities closely.
These activities include subcontractor supervision, quality of workmanship, sequencing of
work, material deliveries, documentation of decisions, and adherence to the schedule.”
Further, the letter stated that the proposed cost the project included, among other things, “Full
time site supervision,” “Project Management,” “First aid supplies & equipment,” and “Safety
program & OSHA compliance.”
¶8 Executive and Alliance entered into a master subcontract agreement and a subcontract
work order. The master subcontract agreement provided that Alliance “shall perform all work
as authorized and described in Work Orders” and that “all work shall be performed in
accordance with all OSHA Standards, Subcontractors’ Safety Programs, [and] ECI’s
[Executive’s] Safety Program.” The subcontract further provided that Alliance “shall furnish
all supervision, materials, plant, scaffolding, hoisting, tools, equipment, supplies and all other
things necessary for the construction and completion of the work described in the specific
project Work Order.” Alliance agreed to assume all the obligations and responsibilities that
Executive had assumed toward BMO. Additionally, the subcontract required Alliance to
“coordinate with other work and shall carefully examine other work, determine whether it is in
fit, ready and suitable condition for the proper and accurate performance of the Work
hereunder, use all means necessary to discover any defects in such other work, and before
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proceeding with the Work hereunder, report promptly any such improper conditions and
defects to ECI in writing and allow ECI a reasonable time to have such improper conditions
and defects remedied.”
¶9 The subcontract work order between Executive and Alliance set forth Alliance’s scope of
work for the project and authorized Alliance to provide “all labor, materials, tools, equipment
and supervision required” to complete the work. The scope of work included providing for “all
access and scaffolding arrangements necessary to complete the work,” coordinating work with
the other subcontractors, attending weekly coordination meetings, and complying “with all
building rules and regulations.”
¶ 10 Attached to the Alliance/Executive contracts was a document entitled “contractor rules and
regulations” for the building, which included “EXHIBIT ‘G’ CONTRACTOR’S SAFETY
REQUIREMENTS.” This document provided that the contractor was required to prepare and
implement a project safety program, “shall require all Subcontractors at any tier to adhere to
the Project Safety Program as well, and shall ensure its Subcontractor’s actions, policies and
programs do not interfere with the Project Safety Program.” The document indicated that the
contractor would have a project superintendent responsible for implementing and enforcing
the safety program, while the subcontractors would have a safety representative who would
also ensure compliance with the project safety program, train their employees, conduct weekly
“tool box” meetings, and submit written minutes to the project safety coordinator. It also
provided that project employees were required to comply with the project safety program and
the subcontractor’s safety program, safely utilize tools and equipment, and alert supervisors of
hazards and dangerous conditions.
¶ 11 Executive and Midwest also entered into a master subcontract agreement and subcontract
work order for the project, which, with the exception of the type of work, were identical to
those entered into between Executive and Alliance.
¶ 12 In addition, Executive’s own safety manual provided that the “supervisor and management
are to enforce all safety rules” and the supervisor, project manager, and safety coordinator
were “responsible for inspecting the jobsite on a regular basis” for unsafe conditions. It
provided that subcontractor employees “should be properly warned when in a dangerous
situation,” and should warn others when they are aware of such a situation and “report any
dangerous or unsafe condition to his supervisor or a safety representative.” Additionally, the
manual provided that “[t]he use of stilts is not permitted by an ECI or subcontracted employee
on ECI job sites.”
¶ 13 B. Deposition Testimony
¶ 14 Executive’s superintendent for the project, Anthony Urso, testified in his deposition that
there was a safety preplanning and coordination meeting with the subcontractors before
construction began on the project. Executive had a safety coordinator, Melissa Kamin, who
reviewed safety policies and ran the safety coordination meeting. She was not on-site on a
daily basis, but visited occasionally.
¶ 15 Urso explained that his role as superintendent was to “oversee the project as a whole [and]
to oversee the schedule” and report back to his office regarding “manpower, job site duties,
scheduling, [and] job coordination.” He did not specifically coordinate the work being done
between Alliance and other contractors as far as instructing them which rooms they had to
work in. Urso testified that he would not say that he had “overall control” of the work done at
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the jobsite, but he “would give opinions and/or reiterate our schedules.” When asked if
Executive scheduled the drywall workers to work in the same room as the electricians at the
same time, Urso responded that this would be “micromanaging, which we didn’t micromanage
the project.” Urso gave subcontractors general date guidelines based on the master schedule
for the project, which Executive created. The foremen from the subcontractors reported to him
on a regular basis and Executive had weekly coordination meetings with the subcontractors.
Safety was one of the topics discussed, in addition to the course and schedule of the work. At
the weekly meetings, Urso “reiterate[d] that we want everybody to abide by ECI’s safety
policies. If you were to put a potential hazard there, that you’re responsible for protecting that.”
¶ 16 Urso testified that he was familiar with Executive’s safety manual and indicated that it
should have been sent to all subcontractors. However, Urso testified that Executive did not
have a specific policy regarding stilts and he did not instruct any subcontractors not to use
them; he did not recall seeing anyone use stilts at the project and if he had, he would not have
instructed them to stop using stilts. He affirmed that part of his responsibility as superintendent
was to ensure “the subcontractors are abiding by what’s in the safety policy,” and ensure the
subcontractors complied with their contractual obligations and the building’s safety policies.
¶ 17 Urso was at the jobsite on a day-to-day basis. He did weekly safety inspection
walk-throughs of the jobsite, where he inspected the work of Executive and the subcontractors,
the conditions of the jobsite, and looked for any unsafe or hazardous conditions created by
Executive or a subcontractor. If he noticed a potential safety hazard, such as the accumulation
of debris, he or someone from Executive would talk to the subcontractor about addressing it. If
he “noticed any potential hazards due to a specific subcontractor, [he] would approach them
and have them follow up with the proper safety procedures to draw attention to or protect these
hazards.” He affirmed that hazards included electrical conduit feeds protruding from the floor,
which were installed by the electrical subcontractor. He testified that for one or two instances
of an electrical conduit feed being left unguarded, he would “follow up with a verbal to their
foreman.” If it was a persistent problem, then he would make a written report or note and call
Executive’s safety coordinator.
¶ 18 When asked if he felt he had the right to stop subcontractors working with inadequate
lighting, Urso answered, “I don’t feel I have the right to stop their work.” When asked if he had
the right to stop work that was being done in an unsafe manner where it needed “immediate
attention for somebody’s personal welfare,” Urso responded, “[i]f I feel there is an urge to
safety, I would generally pull them away from that task until it’s corrected.” When asked
whether he would have to go through the workers’ foreman or if he could address the workers
directly, Urso explained that, “[i]t really depends on the safety situation. If I see immediate
danger, then I would address the immediate instance and then go to their site foreman.” He
testified that “if it was something critical where I saw somebody was going to potentially get
hurt immediately, I may step in and say, hey, step away from what you’re doing, just out of
avoiding any injuries. If it was not something critical, it would probably be brought up to their
site foreman.” Urso testified that he had never stopped a subcontractor’s work for safety
reasons. He testified that subcontractors were expected to report any unsafe conditions they
observed.
¶ 19 Urso testified that it was Midwest’s responsibility to protect any hazards it created and
Midwest used three-foot-high orange safety cones to cover protruding electrical conduit. He
did not expect other subcontractors besides Midwest to cover an exposed conduit if they saw
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one. It was not “100 percent expected” that an Executive employee would cover an exposed
conduit, but Urso explained “these were topics that we discussed at our safety coordination
meetings to protect–as a whole, protect.”
¶ 20 Urso testified that on July 21, 2008, he encountered plaintiff for the first time during Urso’s
walk-through of the jobsite that morning, and plaintiff remarked to him that the site was
“congested.” According to Urso, plaintiff made this comment when they were near the freight
elevator and lobby area on the thirty-seventh floor, and not in the conference room specifically
(where the accident later occurred). Urso responded, “we will look into it.” Urso testified that
there were construction materials in the vicinity which probably belonged to a variety of
subcontractors. Urso did not recall whether he went into the conference room at issue that day,
but he explained that the conference room was directly off the entrance by the freight elevator
and “[e]verybody that walked onto the site through the freight looked directly into that room.”
The conference room was missing one wall, so Urso did not need to physically walk into the
room to see into it. Urso observed that there were boxes pushed up against the conference room
walls; he did not recall the boxes being a tripping hazard as they were stacked neatly against
the walls and “you could walk through the center of the room.” He did not recall any other
materials being stored in that room. With regard to the piece of electrical conduit which
protruded from the floor in the conference room, he testified that he never observed it being left
uncovered or unguarded. Urso also did not receive any complaints about insufficient lighting
at the jobsite and he believed that there were temporary strands of lighting in the hallway
starting by the freight elevator area and down the hallway, and light would enter the conference
room from the hallway.
¶ 21 He did not talk to plaintiff on the day of the accident on July 22, 2008. Urso testified that,
following the accident, he “didn’t give any subcontractors any different specific directions.”
He generally “reiterate[d] our safety policies.” He testified that “[w]e follow up weekly with
our safety policies with all subs irregardless [sic] of incidents.” However, when asked whether
Executive took any remedial action after the accident, Urso testified that “[g]enerally, ECI has
a policy. They will no longer allow stilts on projects.” He did not know the specific date that
the policy went into effect.
¶ 22 Plaintiff testified in his deposition that he worked for Alliance for almost three years before
the accident, and had worked as a drywall taper and finisher for over 20 years. He testified that
it was common for drywall finishers to work close to other contractors and he was aware that
potential safety hazards could arise. He had used stilts since he was 14 years old; he was 57
years old at the time of the deposition. He affirmed that it was customary in his industry to use
stilts to do his job, he used them in approximately 50% to 60% of his work, and he felt
knowledgeable and qualified to use them.
¶ 23 Plaintiff began working at the project on July 21, 2008, and the accident occurred the next
day on July 22. He denied receiving a safety manual from Alliance, Executive, or any other
contractor for the project. He used stilts at the project, which were made of aluminum and were
strapped to his legs and could be adjusted in height. Plaintiff testified that Alliance provided
him with the stilts and he was issued stilts when he began working for Alliance. He testified
that Alliance provided him with several tools in addition to stilts, but he was responsible for
bringing them to the jobsite. Alliance provided scaffolds at the site.
¶ 24 Plaintiff testified that on July 21, 2008, there were hazardous conditions everywhere at the
jobsite because of various construction materials on the floor. Plaintiff complained to Urso, the
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superintendent for Executive, to Alliance’s foreman, John Alonzo, and to the electrical
foreman. He testified that he first complained to Urso that “this has got a whole bunch of stuff
in here. It’s very dangerous.” Plaintiff asked if Urso could have some workers clean it up, but
Urso “looked at me [plaintiff] and smiled and said I’ll see what I can do about it and then he
left.” He testified that he spoke with Urso for 5 to 10 minutes on July 21. Plaintiff testified that
he then went to Alonzo and told him that “[t]here’s a lot of stuff in here,” and Alonzo
instructed two Alliance carpenters to clean up Alliance’s materials. Plaintiff also asked the
electrical foreman if he could “clean his stuff up,” but he told plaintiff to talk to the general
contractor. Plaintiff testified that even though the Alliance workers cleaned up, he did not feel
that his complaints were fully remedied, but if he refused to keep working, he would lose his
job. However, he conceded that no one at Alliance or Executive specifically told him that he
would be laid off if he refused to work in potentially hazardous conditions.
¶ 25 While at the jobsite, plaintiff observed electrical conduit protruding from the floors in
several rooms where electricians were working. He observed that the electricians would place
safety cones on the conduit, take the cones off to pull wires, and then replace the cones. He also
observed that the electricians would take the cones and place them outside the rooms where
they were working. Although he observed that some cones were removed from the conduits, he
did not complain to anyone. He had used stilts around conduit protrusions before.
¶ 26 Plaintiff testified that on July 21, he “jumped all over” while working that day on the
thirty-seventh floor, which had several conference rooms and a lobby by the elevator. He
worked on stilts for a little bit of the time. He did not observe an electrical conduit protruding
from the floor in the conference room (in which the accident occurred the next day) because
there were no lights on in the room. He did not believe that room had an electrical conduit
protruding from the floor, unlike the other conference rooms on the thirty-seventh floor,
because the room was smaller. He did not observe any orange cones on the floor in the
conference room. He worked in there for about one hour.
¶ 27 Plaintiff testified that on the day of the accident, July 22, 2008, he worked for two to three
hours before the accident occurred. Plaintiff testified that, before he took his break that day, he
noticed a safety cone outside the conference room where the accident later occurred. He saw it
a couple hours before the accident occurred. Plaintiff did not speak to Urso or make any
complaints to the electricians on July 22. Plaintiff testified that the other Alliance drywall
taper, Miguel Sandoval, told him he was going to use the scaffold in the lobby area and told
plaintiff to use the stilts. Plaintiff indicated that Alonzo and David Ferrarini, Alliance’s
superintendent, saw him using stilts, and they did not instruct him to stop using them. Plaintiff
never complained about using stilts instead of a scaffold.
¶ 28 He did not walk through the conference room at issue beforehand to ensure it was safe.
According to plaintiff, he did not observe a scaffold in the room. He testified that he did not
move or restack boxes in the conference room before beginning work there, but he later
conceded that it was possible that he moved or stacked boxes or other items in that room: “It
could have been possible because I did that after break. So I could have been down off my stilts
and looked in that room.” He testified that he asked Alonzo to check the conference room at
issue before he began working in there. He testified that Alonzo was “cleaning a room here and
there, and he’d say, yeah, this one’s cleaned out,” and Alonzo would direct plaintiff to the next
room in which he was to start working. When Alonzo “pointed that was the next room,”
plaintiff construed this to mean it was safe to go in the conference room.
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¶ 29 Plaintiff testified that he worked in the conference room for approximately five minutes
before he tripped over the protruding electrical conduit with his right foot and fell. He
explained that he knew that was what he tripped over because there were boxes hiding it, and it
was “the only thing in the room that would have tripped me like that.” After he fell, Ferrarini
came in the room and unstrapped the stilts. Plaintiff testified that the conduit was in the center
of the conference room, but he did not see the conduit before the accident because there was no
safety cone on it and there were “all kinds of cabinets around it” and “all kinds of stuff” in the
way, including boxes. He believed there were two or three other people in the room at the time,
and he knew that there were at least “two [people] because the electricians were working on
that, had the cone off.” He did not observe them remove the cone and he did not know how
long the conduit was uncovered. He testified that there was a safety cone outside of the room.
According to plaintiff, there was no lighting in the conference room and the only light came
from outside the room, but he did not complain to anyone about the lack of lighting.
¶ 30 Sandoval, the drywall taper working with plaintiff, testified that he received a safety
manual from Alliance. He received instructions from Alonzo and he never spoke with any
Executive employees about his work. Sandoval also used stilts at the project “[n]early every
day.” Alliance provided scaffolds and stilts, but the workers brought the stilts with them. He
indicated that no one from Alliance directed him to use stilts; it was his own choice. He was
familiar with electrical conduits protruding from the floor and he tried to avoid them; he
expected an orange cone to be placed over an exposed conduit.
¶ 31 According to Sandoval, on the day of the accident, Alonzo instructed Alliance employees
that morning regarding that day’s work. Sandoval and plaintiff worked in the conference room
at some point. Sandoval indicated that there were boxes and other items in the room, and he
and plaintiff stacked them against the wall. He indicated that there was a big light in the room
and he had no difficulty seeing. Sandoval saw the electrical conduit protruding from the floor.
When asked if plaintiff also saw it, Sandoval testified, “Oh, yeah, he saw it,” and indicated that
he and plaintiff gestured to each other regarding the conduit. Sandoval testified that they
placed a scaffold over the conduit. Sandoval complained to Alonzo regarding the unguarded
conduit, and he testified that plaintiff also told Alonzo. Sandoval testified that Alonzo
responded that “he was going to talk to either the electricians or the foreman.” Alonzo did not
instruct them to stop working because of the conduit, but Alonzo advised them “to make sure
that it was safe, that we weren’t going to fall or anything” and to “stay away from it.” Sandoval
testified that they worked on the ceiling in the conference room for about one hour and he
worked on stilts while plaintiff used the scaffold. He indicated that other workers were in and
out of the room during that time to get supplies, but he did not know if anyone from Executive
was there and there were no electricians working on the conduit. Alonzo then told Sandoval to
go work on a different floor; when Sandoval left, the scaffold was no longer over the conduit.
The accident occurred sometime after Sandoval left.
¶ 32 Alliance’s foreman Alonzo2 testified that he first observed the conduit in the conference
room about one week before the accident. There was no safety cone over it, so he found a
safety cone and placed it over the conduit because “we were going to be having to go in there in
the next day or so.” He believed that the cone was still there the day before the accident.
Plaintiff or Sandoval, or both, complained to him about the conference room because of all the
2
John Alonzo’s deposition was not included in the lower court record in its entirety.
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materials in the room on the day before the accident and the day of the accident. The room
contained boxes, cinderblock, and woodworking materials. He, Sandoval, and plaintiff had to
move the materials out of the way. He testified that he did not “know if I specifically gave them
instructions to do it or not, but *** it would have been implied. But, yes, they were–they had to
work in that room, so, yes, they had to clear out the area.” He indicated that the condition of the
conference room was “inconvenient but it wasn’t unworkable.” Alonzo testified that none of
the materials were blocking, hiding, or obstructing access to the electrical conduit protrusion.
¶ 33 According to Alonzo, on the day of the accident, he passed by the conference room at
5:50 a.m. and observed no cone over the conduit. He observed the conduit again shortly after
6 a.m. when Alliance had its morning meeting. “Miguel [Sandoval] and I were standing in the
room. I don’t remember if Roger [Lederer] was there or not. But since I–the cone was not there
and I looked around, I did not see the cone anywhere, I told Miguel to be careful of the conduit
when they were working in there.” He instructed plaintiff and Sandoval to work in that room
that day, but did not specify whether to use scaffolds or stilts. He did not instruct them to
protect the conduit because “as soon as I left that room, I went to find either a–either ECI
[Executive] or Midwest to b*** about what–about removal of the cone and/or not having
something there.” However, while on his way to alert someone from Executive or Midwest,
Alonzo “ran into my supervisor [John Becker], b*** at him, and we were both on our way to
go find somebody when the accident occurred.” Alonzo was not present when plaintiff’s
accident occurred.
¶ 34 Alonzo testified that he had previously spoken with Urso, who “kept telling me to get in
that room and tape it, and I told him when he cleared out his unneeded or unused materials out
of this room that we would go in there and work.” He testified that he spoke to Urso at “the
Monday job meeting prior to that week and then the job meeting” of the week of the accident.
¶ 35 Alliance’s superintendent of the project, Ferrarini, testified that it was his responsibility to
regularly inspect the jobsite, coordinate Alliance’s work with other contractors, ensure
Alliance completed the scope of work, and ensure Alliance employees complied with
Alliance’s safety manual. He never saw Executive’s safety manual. He testified that Alliance
conducted weekly “toolbox talks,” Alonzo instructed Alliance employees at the beginning of
every workday, and Alliance was responsible to take precautions for its workers’ safety, post
warning signs and protect unsafe areas of its own work, and notify someone of a dangerous
condition if created by another contractor. Ferrarini indicated that Alliance and its employees
had the expertise to perform the drywall work and use the required tools, they did not need
instructions, and no one from Executive instructed him how to perform the work. Stilts were
commonly used on construction projects and no one from Executive indicated that they were
not permitted.
¶ 36 Ferrarini did not believe that Alliance provided stilts, but workers brought their own, and
Alliance supplied scaffolds, ladders, and roll-and-folds at the project. He indicated that it was
“up to the taper” whether to use stilts or a scaffold. He affirmed that if an Alliance employee
observed an unguarded conduit protruding from the floor, the employee should not use stilts
until the condition was remedied. He had the authority to stop the employee and remedy the
issue.
¶ 37 The day before the accident, Ferrarini did not recall observing any unkempt conditions in
the conference room. He also did not observe an orange cone in the room.
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¶ 38 The day of the accident, Ferrarini was near the area outside the conference room doing a
walk-through approximately five to ten minutes before the accident occurred. Plaintiff was
working on stilts and taping ceilings in the area adjacent to the conference room. Ferrarini saw
the electrical conduit protruding from the floor in the conference room that day. He believed he
mentioned something to plaintiff and said “[t]here was something coming out of the floor, for
him to look out for it if he was going in there.” Plaintiff responded, “okay.”
¶ 39 Ferrarini testified that he was “on his way” to tell electricians about the exposed conduit,
but he “didn’t see anyone at the time before [the accident] happened.” He heard a “big boom”
and then entered the conference room to find plaintiff lying on some boxes. Ferrarini
unstrapped plaintiff’s stilts. Plaintiff told Ferrarini that he tripped on the electrical conduit that
was protruding from the floor. Ferrarini observed a piece of conduit protruding about six
inches up from the floor in the middle of the room. It was about six feet from boxes that were
stacked along one wall. There were also two dumpsters and a stack of cinderblocks against
another wall, and a scaffold in the room. The lighting conditions in the room were “fair” as
there was temporary lighting in the room and the hallway. Nothing obstructed Ferrarini’s view
of the conduit. Ferrarini testified that either he or Alonzo reported the accident to Executive.
¶ 40 The superintendent for Midwest, John Shannon, testified that Midwest was responsible for
completing all electrical construction for the project, including installation of the electrical
conduit in the floors, and it did not need instructions in how to perform work. Midwest
customarily placed safety cones over protruding conduit. Had he observed an unguarded
conduit during his daily walk-throughs of the project, he would have “flagged that right away.”
¶ 41 C. Circuit Court Decision
¶ 42 The circuit court granted summary judgment in favor of Executive, holding that Executive
did not owe a duty of care to plaintiff and was not vicariously or directly liable under
section 414 of the Restatement (Second) of Torts. The circuit court reasoned that the evidence
showed that Executive only had a general right to order work stopped, to inspect its progress,
and to make suggestions, and retained no control over the operative details or methods of the
work of plaintiff or Alliance, which was insufficient to impose liability under section 414. The
court also held that the evidence failed to show that Executive had notice of the alleged
dangerous conditions (the use of stilts and/or the unprotected conduit). Thus, plaintiff failed to
raise a genuine issue of fact as to control or notice.
¶ 43 Plaintiff moved for reconsideration. The circuit court denied the motion, finding that
plaintiff was merely reasserting his previous arguments. This appeal followed.
¶ 44 II. ANALYSIS
¶ 45 A. Standard of Review
¶ 46 “[S]ummary judgment is proper only 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.” Mashal v. City of
Chicago, 2012 IL 112341, ¶ 49 (citing 735 ILCS 5/2-1005(c) (West 2000)). The court strictly
construes the pleadings, depositions, admissions, and affidavits against the movant and
liberally in favor of the opponent. Id. We review the circuit court’s decision de novo. Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). In reviewing a
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circuit court’s decision on a motion for reconsideration, we employ an abuse of discretion
standard, unless the motion only asked the circuit court to reexamine its application of the law
to the particular case as it existed at the time of judgment, in which case the standard of review
is de novo. Belluomini v. Zaryczny, 2014 IL App (1st) 122664, ¶ 20.
¶ 47 B. Section 414 of the Restatement (Second) of Torts
¶ 48 Plaintiff’s personal injury claim is based in negligence, which requires plaintiff to prove
“the existence of a duty owed by the defendant to the plaintiff, the breach of that duty, and the
injury proximately caused by that breach.” Cochran v. George Sollitt Construction Co., 358
Ill. App. 3d 865, 873 (2005). “Whether a duty exists is a question of law to be determined by
the court.” Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1069 (2003).
¶ 49 Although a general contractor is usually not liable for the negligence of an independent
contractor that it employs (Joyce v. Mastri, 371 Ill. App. 3d 64, 73 (2007)), section 414 of the
Restatement (Second) of Torts has carved out a “retained control” exception which “provides
for both vicarious and direct liability, depending on the degree of control that the defendant
retains over its independent contractor.” Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill.
App. 3d 362, 380-81 (2009) (citing Restatement (Second) of Torts § 414, at 387 (1965)).
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).
¶ 50 The comments following this section further clarify the distinction between vicarious and
direct liability. Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 44. As explained
in comment 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 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).
¶ 51 Thus, a general contractor may be held vicariously liable for a subcontractor’s negligence
“under the principles of agency where the employer retains control over the operative detail of
any part of the contractor’s work.” Martens v. MCL Construction Corp., 347 Ill. App. 3d 303,
314 (2004). Alternatively, it may be found directly liable “[i]f the employer retains only
supervisory control, i.e., power to direct the order in which work is done, or to forbid its being
done in a dangerous manner, *** unless he exercised supervisory control with reasonable
care.” Id. at 314. Comment b further explains the concept of direct liability:
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“The rule stated in this Section is usually, though not exclusively, applicable when a
principal contractor entrusts a part of the work to subcontractors, but himself or
through a foreman superintends the entire job. In such a situation, the principal
contractor is subject to liability if he fails to prevent the subcontractors from doing even
the details of the work in a way unreasonably dangerous to others, if he knows or by the
exercise of reasonable care should know that the subcontractors’ work is being so done,
and has the opportunity to prevent it by exercising the power of control which he has
retained in himself. So too, he is subject to liability if he knows or should know that the
subcontractors have carelessly done their work in such a way as to create a dangerous
condition, and fails to exercise reasonable care either to remedy it himself or by the
exercise of his control cause the subcontractor to do so.” Restatement (Second) of Torts
§ 414 cmt. b (1965).
¶ 52 However, comment c provides that a general contractor is not liable where:
“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 (1965).
¶ 53 By way of example, in Martens, the court affirmed summary judgment for the defendant
construction manager because the contract’s reservation of a general right of control was
insufficient, standing alone, to subject the general contractor to liability. Martens, 347 Ill. App.
3d at 316. The contract between the owner and the defendant gave the latter control over the
construction means, methods, and coordination of the work, and the defendant was responsible
for initiating and maintaining a safety program, which included appointing a safety director,
maintaining safeguards, and citing subcontractors for violations. Id. at 307. However, the
sub-subcontractor maintained control over the steel erection work and safety of its workers,
and its safety manual indicated that the sub-subcontractor’s foreman was responsible for
enforcing the safety rules. Id. at 316. The plaintiff, an ironworker employed by the
sub-subcontractor, was injured after falling from a steel beam. Id. at 306, 320.
¶ 54 The Martens court held that the defendant did not have control over the
sub-subcontractor’s method of operation because the parties had agreed that the
sub-subcontractor would not comply with the defendant’s general tie-off safety rule, and
instead would follow a different rule and retain the authority to order when its workers would
tie off. Id. at 318. Further, the defendant did not maintain an extensive work site presence and
neither its safety director nor its project manager had the right to stop unsafe work or instruct or
supervise the sub-subcontractors’ workers. Id. at 317. No one from the defendant company
was present when the accident occurred, whereas the sub-subcontractor’s foremen were
present and supervising the work. Id. at 317-18. Thus, the Martens court held that the
sub-subcontractor was free to perform the work its own way and only the sub-subcontractor
exercised control over the plaintiff’s work. Id. at 319. See also Cochran, 358 Ill. App. 3d at
868-80 (finding no genuine issue of material fact as to liability where the general contractor
was contractually responsible for construction methods and creating and implementing a
safety program, its superintendent coordinated the subcontractors’ work and had the right to
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halt unsafe work and have it corrected, but otherwise did not actively inspect for safety
violations or control the operative details of the subcontractor’s work, and the unsafe condition
was created by the subcontractor, was in a remote location of the jobsite, was not viewed by the
general contractor, and it existed only for a short time before the accident); Diaz v. Legat
Architects, Inc., 397 Ill. App. 3d 13, 34-35 (2009) (holding that the general contractor could be
directly liable because it retained sufficient control over the project’s safety where it was
contractually responsible for safety, for designating a competent superintendent and a person
responsible for preventing accidents, for construction methods and procedures, and for
coordinating the work. Also, the subcontractor was required to follow the general contractor’s
safety directions, the general contractor had the authority to stop unsafe work and have the
problem remedied.).
¶ 55 Turning to the facts of the case at bar, we disagree with the circuit court’s conclusion that
Executive did not retain sufficient control to be held liable under section 414. We hold that
there was sufficient evidence based on the undisputed facts for the circuit court to find as a
matter of law that Executive had more than merely a general right of supervision, and was
therefore potentially subject to liability under section 414.
¶ 56 A general contractor may retain control over the independent contractor’s work by
contract, “supervisory, operational, or some mix thereof. *** A party who retains some control
over the safety of the work has a duty to exercise that control with ordinary care.” Martens, 347
Ill. App. 3d at 318. Thus, we first examine the relevant contracts involved. “ ‘[T]he best
indicator of whether a contractor has retained control over the subcontractor’s work is the
parties’ contract, if one exists.’ ” Calderon v. Residential Homes of America, Inc., 381 Ill. App.
3d 333, 343 (2008) (quoting Joyce, 371 Ill. App. 3d at 74). In terms of contractual control, the
subcontracts between Alliance and Executive, and Midwest and Executive, required the
subcontractors to “report promptly any such improper conditions and defects to ECI in
writing.” They were obligated to perform the work in accordance with Executive’s safety
program and attend weekly coordination meetings. The rules and regulations attached to the
contracts required Executive to create and implement a safety program, required all
subcontractors to adhere to it, and required Executive to appoint a project superintendent who
was responsible for implementing and enforcing the program. Subcontractors were required to
have a safety representative to ensure compliance and train employees, and also hold weekly
“tool box” meetings. All project employees were required to advise supervisors or a safety
representative of any hazards or dangerous conditions.
¶ 57 As further evidence of Executive’s involvement, its own safety manual provided that the
supervisor and management were required to follow all safety rules, inspect the jobsite
regularly for unsafe conditions, and warn subcontractor employees of a dangerous situation.
Significantly, the manual specifically prohibited the use of stilts by Executive or subcontractor
employees. Although “[t]he mere existence of a safety program, safety manual, or safety
director is insufficient,” standing alone, to impose liability under the “retained control”
exception (Madden, 395 Ill. App. 3d at 382), the manual demonstrates that Executive
specifically prohibited one means or method of performing the work. A general contractor
“need only retain control over any part of the work in order to be subject to liability for a failure
to exercise his control with reasonable care.” Diaz, 397 Ill. App. 3d at 34. Moreover, “[t]he
power to forbid work from being done in a manner likely to be dangerous to himself or others
is given as an illustration of the type of power retained by an employer which could subject
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him to liability.” (Internal quotation marks omitted.) Bokodi v. Foster Wheeler Robbins, Inc.,
312 Ill. App. 3d 1051, 1063-64 (2000).
¶ 58 Additionally, other indicia of control are present in this case. Besides Executive’s
contractual responsibility to create and implement a safety program and require the
subcontractors’ compliance, Executive also retained the authority to stop unsafe work and
order it remedied. Urso testified that he had the authority to stop unsafe work if he felt there
was an immediate threat to safety. In addition to managing the overall coordination of the
work, Urso was responsible for ensuring that the subcontractors complied with Executive’s
safety policies. He had the authority to follow up with a subcontractor if he observed any safety
hazards and bring it into compliance. He maintained a strong worksite presence and conducted
weekly safety inspections of the jobsite. Further, during Executive’s weekly coordination
meetings, Urso discussed safety topics and reiterated that the subcontractors were to abide by
Executive’s safety policies. Executive also had a safety coordinator who visited the jobsite
occasionally. We also note that, according to Urso, Executive’s own laborers had the authority
to cover an unguarded conduit if they saw one. Further, we find it significant that, immediately
before the accident, Alliance’s foreman, Alonzo, was “on his way” to inform someone from
Executive of the unprotected conduit when the accident happened. That Alonzo looked to
Executive to remedy the safety hazard is further demonstration of the level of supervisory
control which Executive retained over the jobsite. And, according to Urso (and despite the fact
that Executive’s safety manual already indicated that the use of stilts was not permitted),
Executive began prohibiting the use of stilts sometime after the accident occurred.3
¶ 59 Analogizing our case to Martens helps illustrate why we find that Executive had sufficient
control to be subject to liability under section 414. In contrast to Martens, where the
sub-subcontractor obtained a specific exception to the defendant’s general tie-off rule,
Alliance was not entirely free to perform the work its own way. Alliance agreed to be bound by
Executive’s safety policies and the parties did not contractually agree that Alliance would be
exempt from a specific policy (such as the prohibition on using stilts). The parties here did not
agree that Alliance would follow its own rule instead, or would retain sole control over a
specific safety issue. Also, Executive maintained a larger jobsite presence than the defendant
in Martens, which included regular inspections for safety hazards and weekly meetings where
safety issues were addressed. Further, unlike in Martens, Executive had the right to stop unsafe
work if there was an immediate threat to safety, or otherwise notify the subcontractor of a
hazard and bring it into compliance with its safety manual. And as noted, the Alliance foreman
was on his way to inform Executive about the unguarded conduit when the accident occurred.
¶ 60 In sum, we find that plaintiff presented sufficient undisputed evidence to establish as a
matter of law that Executive retained sufficient supervisory control such that it had a duty to
exercise this control with reasonable care, and it could therefore be held liable pursuant to
section 414.
¶ 61 Plaintiff also contends on appeal that the circuit court erred in concluding that Executive
lacked notice of the unsafe conditions.
3
While this evidence would probably be considered to be a subsequent remedial measure, an
exception to that evidentiary bar is found when it is offered to show control. See Larson v.
Commonwealth Edison Co., 33 Ill. 2d 316, 323-24 (1965); Maggi v. RAS Development, Inc., 2011 IL
App (1st) 091955, ¶ 72.
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¶ 62 As previously set forth, comment b to section 414 provides that a general contractor is
liable if “he knows or by the exercise of reasonable care should know” that the subcontractors
are performing their work in an unreasonably dangerous way and he has the opportunity to
prevent it, or if he “knows or should know that the subcontractors have carelessly done their
work in such a way as to create a dangerous condition, and fails to exercise reasonable care” in
remedying it or having the subcontractor remedy it. Restatement (Second) of Torts § 414
cmt. b (1965). As such, “the general contractor’s knowledge, actual or constructive, of the
unsafe work methods or a dangerous condition is a precondition to direct liability.” Cochran,
358 Ill. App. 3d at 879-80.
¶ 63 In Cochran, for example, the court found that the general contractor did not have notice of
an unsafe ladder setup as it existed only for an hour before the accident, it was located in a
remote area of the jobsite, and none of the general contractor’s “competent persons” had
observed it during that time period. Cochran, 358 Ill. App. 3d at 880. On the other hand, in
Diaz, the court held that the plaintiff established a prima facie case as to notice of a dangerous
condition where the prime contractor’s superintendent inspected the scaffold twice on the day
of the accident, but lacked the training and experience to recognize a problem with the
scaffold, and the prime contractor was contractually obligated to furnish a “competent
superintendent.” Diaz, 397 Ill. App. 3d at 35-36.
¶ 64 In the present case, we conclude that plaintiff provided sufficient evidence to establish as a
matter of law that Executive knew or should have known of the dangerous conditions. Unlike
in Cochran, and contrary to Executive’s assertion, the evidence indicated that the alleged
conditions (the unprotected conduit and general congestion or clutter in the area) existed for
longer than an hour. According to plaintiff, it was the presence of not only the unguarded
electrical conduit, but also the general congestion and clutter of the space and the lack of
lighting that contributed to his accident. According to plaintiff’s deposition testimony, the
congested conditions existed the day before and the day of the accident. Further, plaintiff
complained to Urso about the conditions the day before the accident. Urso noted that there
were construction materials in the vicinity, but apparently took no further action. Sandoval
indicated that the conduit was unguarded as he and plaintiff were cleaning the conference room
before doing drywall work on the morning of the accident, and then they worked on the
drywall for about one hour before Sandoval moved to a different floor. Plaintiff testified that
he worked for about two or three hours before the accident happened. According to Alonzo, the
conduit did not have a cone over it as of 5:50 a.m. on the day of the accident. Alonzo’s
testimony also shows that Urso was made aware of the congested condition of the conference
room a week or two before the accident when Urso urged Alliance to complete the drywall
work in that room but Alonzo told him that they would not complete the work until the room
was cleaned out.
¶ 65 In further distinction from the circumstances in Cochran, the dangerous conditions here
were not located in a remote location of the building that was unfrequented by others. Rather, it
was in a highly trafficked, visible area of the jobsite because the conference room was located
near the freight elevator. Although Executive contends that plaintiff’s comment to Urso
referred only to the area near the freight elevator, the evidence, including Urso’s testimony,
reflects that the conference room was located directly off the freight elevator entrance and was
missing one wall, so one could see into the room without having to enter it. Additionally,
unlike in Diaz, where the supervisor was not knowledgeable about scaffolds, Urso possessed
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the knowledge that the accumulation of debris or an unguarded conduit protruding from the
floor could constitute potential safety hazards.
¶ 66 III. CONCLUSION
¶ 67 For the reasons stated above, we reverse the circuit court’s order granting defendant’s
motion for summary judgment, and remand to the circuit court for further proceedings
consistent with this opinion.
¶ 68 Reversed and remanded.
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