Ellis v. ICC Group, Inc. , 2022 IL App (1st) 211581-U ( 2022 )

2022 IL App (1st) 211581-UNOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
SECOND DIVISION
December 13, 2022
No. 1-21-1581
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
JOSEPH ELLIS, )
) Appeal from the
Plaintiff-Appellant, ) Circuit Court of
) Cook County
v. )
) No. 17 L 10936
ICC GROUP, INC. d/b/a ILLINOIS CONSTRUCTORS )
CORPORATION and WBK ENGINEERING, LLC, ) The Honorable
) Rena Van Tine,
Defendants ) Judge Presiding.
)
(ICC Group, Inc., Defendant-Appellee). )
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Ellis and Cobbs concurred in the judgment.
ORDER
¶1 Held: Trial court’s granting of summary judgment in favor of defendant is reversed, where
defendant owed a duty of care to the plaintiff under a negligence theory of premises liability
and a genuine issue of material fact existed as to proximate cause.
¶2 The plaintiff, Joseph Ellis, appeals from the trial court’s granting of summary judgment in
favor of the defendant, ICC Group, Inc. d/b/a Illinois Constructors Corporation, on all counts of
his complaint for negligence. The basis of the trial court’s ruling was that the defendant, a general
contractor, owed no duty of care to the plaintiff, an employee of a subcontractor. The trial court
No. 1-21-1581
also found that the element of proximate cause was not satisfied. We reverse and remand.
¶3 I. BACKGROUND
¶4 The summary judgment record discloses the following facts, which we set forth in the light
most favorable to the plaintiff, as the party opposing summary judgment. In 2015, the defendant
served as the general contractor on a project to modify a dam at the Busse Woods Reservoir, which
was part of a flood control project undertaken by the Village of Elk Grove Village (Village). This
project involved modification of the dam to install two new dam “gates” that could be operated
hydraulically via remote control. The work was divided into two stages, with a gate for the west
half of the dam being installed first, followed by the gate for the east half of the dam. To hold back
water and create a dry area where work could be performed, the defendant first built a temporary
cofferdam around the west side of the dam. A new concrete platform was built next, which was
approximately eight feet wide, and the dam gate was then installed on top of that platform. The
plaintiff’s fall occurred in the final days of the project’s first stage, when the west side cofferdam
was in place, the west platform was built, and the west gate had been installed.
¶5 The plaintiff was a commercial electrician employed by the electrical subcontractor on the
project, Lyons & Pinner (Lyons). On October 28, 2015, Lyons had assigned the plaintiff to help
Kevin McLaughlin, the Lyons electrician primarily working on the dam project, run electrical
wires through conduit to reach the dam. This was the plaintiff’s first day working at this site, and
the plan was for it to be his only day working there. The two men spent the morning pulling the
wires through the conduit, from the shed where it was stored toward the dam itself. They reached
the dam in mid-afternoon. There, wires had to be run to reach equipment on both the north and
south sides of the gate platform.
¶6 As stated, by this time the gate was in place atop the concrete platform. It had been installed
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eight days earlier, on October 20-21. From the evidence, we would describe the gate as a curved
steel structure, approximately five feet in height. Horizontally, it extends the full length of the
concrete platform, between vertical pillars on both sides that run to the bridge above. Neither of
the gate’s sides are flat. The gate’s north side (i.e., the side facing the reservoir) curves in a convex
fashion, while its south side is concave. Also, when upright, the gate is not fully perpendicular to
the platform below, but instead it rises at a southward angle.
¶7 The platform was accessible by a ramp that ran from the road above to the platform’s north
side, and this was how the plaintiff and McLaughlin first accessed the area. Once there, the plaintiff
found no evident method of access to reach the platform’s south side. He testified that he did not
ask McLaughlin for a method to cross over the gate but that McLaughlin told him that he had
simply been jumping across the gate and sliding down. McLaughlin testified that this was the
method he had seen other tradesman use to get back and forth over the gate since it had been
installed eight days earlier, although he had also seen workers use a ladder to climb up one of the
sides. The plaintiff saw McLaughlin grab the top of the rail, swing himself up, and flip over to the
other side. The plaintiff, then age 59, said that he was “too old for that” and did not believe it was
safe to jump over the gate. He saw that an extension ladder was on the south side of the gate, and
he asked McLaughlin if they needed a second ladder to get across it. McLaughlin answered yes,
that one was by the road. The plaintiff then went to the road and retrieved a second ladder. He
positioned it against the north side of the gate, adjacent to the ladder that was already positioned
against its south side. He then tied the two ladders together with mule tape, which is a heavy nylon
cord that the electricians used on the job site. He testified that the reason he tied the two ladders
together was because he thought this would make it safer for him to cross the gate using the two
ladders. McLaughlin did not help him do this, but he said that it was fine after seeing what the
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plaintiff was doing.
¶8 After that, the plaintiff successfully used the ladders to climb across the gate to the south side
of the platform, and he and McLaughin did work there for approximately one hour. After
completing his work, the plaintiff attempted to return to the north side by climbing the ladders to
cross the gate. As he was in the process of pivoting to transfer from the south-side ladder to the
north-side ladder, he lost his balance and fell backwards onto the concrete ledge and water below.
He sustained injuries, which apparently included a lumbar spine fracture requiring surgery,
impingement syndrome in his left rotator cuff, and a concussion.
¶9 Following this incident, the plaintiff filed a three-count complaint against the defendant.
Count I was a for general negligence. It alleged that the defendant had a duty to exercise reasonable
care in ensuring that the project site was a safe workplace for the plaintiff and others, and the
defendant breached that duty, inter alia, by allowing workers to use unsecured ladders to cross the
gate. Count II pled a claim under section 414 of the Restatement (Second) of Torts, alleging that
the defendant was negligent, inter alia, by failing to exercise control over job site activities with
reasonable care so as to provide the plaintiff and others with a safe place to work. Finally, count
III plead a claim of premises liability. It alleged that the defendant was negligent, inter alia, in
allowing an unsecured ladder to exist on the project site as the presumptive method of scaling the
dam gate while working on it, failing to ensure that the ladder was secure, allowing workers
including the plaintiff to work on an unsecured ladder, failing to warn, and failing to discover and
remedy the dangerous condition.
¶ 10 Following discovery, the defendant filed a motion for summary judgment. It argued that the
evidence was insufficient to show that it had “retained control” over the work done by the Lyons
electricians on the job site sufficient to impose on it a duty under section 414 of the Restatement
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(Second) of Torts. The defendant argued that its subcontract with Lyons showed that Lyons had
full control over the means and methods of its own work, and there was no evidence of conduct
by the defendant’s employees retaining control over the safety or the details of the subcontractors’
work. It also argued that the evidence did not support a claim of premises liability, because the
undisputed evidence showed that the defendant was not the possessor of the premises, that the
incident did not involve a condition of the land, that it did not have notice of any unsafe condition,
and that the plaintiff’s ladder set-up was itself an open and obvious danger. The defendant further
argued that there was no evidence to satisfy the element of proximate cause.
¶ 11 In response, the plaintiff argued that as general contractor, the defendant was responsible for
creating a safe means of access to both sides of the dam gate for all tradesman who needed to work
there, and the defendant breached this duty by leaving it up to each trade to fashion its own way
over the gate to do its work. He relied on the knowledge that the defendant should have had from
constructing the dam gate, its being on site to recognize that tradesmen were working on both sides
of the gate, and its responsibility to coordinate the work of the various subcontractors. He relied
on contractual provisions concerning the defendant’s responsibilities. As evidence of control, he
cited evidence that the defendant’s carpenters did in fact construct a wooden platform over the
gate after his injury and had also constructed a safety rail down the ramp to the dam. He also cited
the affidavit of Frank Burg, his expert in construction matters and safety, attesting that the
defendant had violated OSHA regulations and that the duty to create safe access within a jobsite
is understood to be the role of the general contractor. He further cited additional deposition
testimony by occurrence witnesses concerning their expectation that the general contractor, not an
electrical subcontractor, would have the responsibility of providing a temporary structure to enable
workers to cross a dam gate. He cited deposition testimony from the defendant’s superintendent
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on the project, Scott Lampson, who was not on site that afternoon, that he would have stopped the
plaintiff and removed him from the job if he had seen him using two ladders to cross over the gate.
¶ 12 The trial court granted the defendant’s motion for summary judgment. It found that the
defendant did not owe a duty of care to the plaintiff under either a “retained control” or premises
liability theory of negligence. It found that the defendant had no actual or constructive notice of
any dangerous condition. It found no facts supporting an inference that the defendant retained the
degree of control, supervision, or monitoring of the jobsite comparable to cases in which a duty
has been imposed under section 414. It further found no proximate cause between any alleged
negligence and the plaintiff’s injuries. It found that the dam gate was a “condition” rather than the
“cause” of injury, with the cause being the plaintiff’s own conduct in using the ladders to transfer
across the dam gate. It also found no evidence of foreseeability to satisfy the “legal cause” aspect
of the proximate causation analysis. The trial court later denied a motion to reconsider filed by the
plaintiff. This appeal then followed.
¶ 13 II. ANALYSIS
¶ 14 This appeal involves the trial court’s granting of a motion for summary judgment, which we
review de novo. Johnson v. Armstrong, 2022 IL 127942, ¶ 31. For the granting of a motion for
summary judgment to be proper, the pleadings, depositions, and admissions on file, together with
the affidavits, if any, must 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. 735 ILCS 5/2-1005(c) (West 2020). A
genuine issue of material fact exists where the material facts are disputed or, if they are undisputed,
where reasonable persons might draw different inferences from them. Johnson, 2022 IL 127942,
¶ 31. In evaluating whether a genuine issue of material fact exists, a court construes the evidence
in the light most favorable to the nonmoving party and strictly against the movant. Id.-6-
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¶ 15 A. Duty
¶ 16 In any negligence case, the plaintiff must 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. Carney v. United Pacific R.R. Co., 2016 IL 118984, ¶ 26. Whether a duty exists is a
question of law appropriate for summary judgment. Id. Absent a showing from which the court
could infer the existence of a duty, a plaintiff may not recover as a matter of law and summary
judgment in favor of the defendant is properly granted. Id.¶ 17 Every person owes a duty of ordinary care to all others to guard against injuries that naturally
flow as a reasonably probable and foreseeable consequence of an act, and such duty does not
depend upon contract, privity of interest, or the proximity of relationship. Bogenberger v. Pi Kappa
Alpha Corp., 2018 IL 120951, ¶ 22. Accordingly, where a party’s course of action creates a
foreseeable risk of injury, that party has a duty to protect others from such injury. Id. The duty
inquiry asks whether the defendant and the plaintiff stood in such a relationship to one another that
the law imposed upon the defendant an obligation of reasonable conduct for the benefit of the
plaintiff. Id. (citing Ward v. K Mart Corp., 136 Ill. 2d 132, 140 (1990)). Whether a duty exists is
also an inquiry shaped by public policy. Bogenberger, 2018 IL 120951, ¶ 22 (citing LaFever v.
Kemlite Co., 185 Ill. 2d 380, 388 (1988)). The traditional duty test involves four factors: (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. Bogenberger, 2018 IL 120951, ¶ 22.
¶ 18 On appeal, the plaintiff argues that the defendant owed him a duty of care under two separate
theories of negligence. The first involves the duty owed by a party who has “retained control” over
work entrusted to an independent contractor, governed by section 414 of the Restatement (Second)
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of Torts. The second involves the duty owed by a possessor of land for dangerous conditions on
the land under a theory of premises liability. Whether a duty exists under the latter theory is
governed by the principles of sections 343 and 343A of the Restatement (Second) of Torts. These
are independent duties and theories of negligence, and a defendant can be found to owe a duty
under one but not the other. Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 41
(2004). As explained below, we find that to be the case here. We conclude that the defendant owed
a duty to the plaintiff as a possessor of land under a theory of premises liability, but that the
defendant did not sufficiently retain control of the work of a subcontractor such that it owed a duty
under section 414.
¶ 19 1. Premises Liability
¶ 20 We choose to begin with the theory under which we find a duty to exist, which is that the
defendant owed the plaintiff a duty of care under a premises liability theory of negligence. In such
a claim, the foreseeability-of-injury prong of the duty test is determined with reference to section
343 of the Restatement (Second) of Torts. LaFever, 185 Ill. 2d at 389. That section provides that
a “possessor” of land is subject to liability for harm caused by a “condition on the land” if he:
knows or by the exercise of reasonable care would discover the condition, and should realize that
it involves an unreasonable risk of harm; should expect that invitees will not discover or realize
the danger, or will fail to protect themselves against it; and fails to exercise reasonable care to
protect invitees against the danger. Restatement (Second) of Torts § 343, at 215-16 (1965).
¶ 21 The foreseeability of an injury and its likelihood of occurring from a condition on the land is
also affected by whether the danger posed by the condition is open and obvious to an invitee. The
“open and obvious rule” is reflected in section 343A of the Restatement (Second) of Torts and has
been adopted into Illinois law. See Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430,
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434-36 (1990). 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, unless the possessor should anticipate the harm despite such knowledge or obviousness.”
(Emphasis added). Restatement (Second) of Torts § 343A(1), at 218 (1965). The rule impacts the
foreseeability and likelihood of injury prongs of the duty test because it stems from the
presumption that it is not foreseeable that a person will intentionally encounter the risk of an open
and obvious danger, thereby making injury less likely. See Bruns v. City of Centralia, 2014 IL
116998, ¶ 19. However, exceptions exist to the open and obvious rule. The exception relevant to
this case is the “deliberate encounter” exception, which provides that a possessor of land should
anticipate harm when the possessor “ ‘has reason to expect that the invitee will proceed to
encounter the known or obvious danger because to a reasonable man in his position the advantages
of doing so would outweigh the apparent risk.’ ” Id. ¶ 20 (quoting Restatement (Second) of Torts
§ 343A, cmt. f, at 220 (1965)); LaFever, 185 Ill. 2d at 391. In instances where this exception is
applicable, an injury is considered more foreseeable to a defendant and more likely to occur, thus
weighing in favor of the imposition of a duty. Bruns, 2014 IL 116998, ¶ 20.
¶ 22 We first address the threshold argument raised by the defendant that it owes no duty under
section 343 because it was not a “possessor” of the land where the plaintiff’s injury occurred. It
argues that the dam where the plaintiff was injured was owned and operated by the Village and by
the Forest Preserve District of Cook County, and there is no evidence that the defendant had any
power to exclude anyone from the land, to control what was built there, or to take any other action
indicating dominion over the property. We find no merit to this argument. This court has defined
a possessor of land as “ ‘a person who is in occupation of the land with intent to control it.’ ”
Madden v. Paschen, 395 Ill. App. 3d 362, 375 (2009) (quoting Restatement (Second) of Torts
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§ 328E, at 170 (1965)); O’Connell v. Turner Construction Co., 409 Ill. App. 3d 819, 824 (2011).
Although a general contractor is not always considered a possessor of a site under construction,
the evidence in this case shows that the defendant was the possessor of the dam platform where
the plaintiff’s injury occurred. The defendant was hired as a general contractor to install a
cofferdam and thereby create a dry construction site within the reservoir, upon which it erected a
concreate platform and installed the dam gate. By doing this and acting as general contractor to
oversee completion of the work to install the dam gates, the defendant effectively created the site
where the plaintiff’s injury occurred and exercised control over it during the time construction was
ongoing. Accordingly, the defendant is a possessor of the land at issue for purposes of section 343.
¶ 23 Next, we address the defendant’s argument that it owed no duty to the plaintiff under section
343 because his injury was not caused by a “condition on the land.” The defendant characterizes
the plaintiff’s injury as being caused by his own conduct “in creating an unsafe ladder set-up for
himself,” which it contends is an unsafe work practice, not a condition on the land. By contrast,
the plaintiff argues that the condition on the land that caused his injury was the existence of the
dam gate on the platform without a safe means of access over it for workers required to perform
work on the platform’s south side. The plaintiff has the correct argument here. The defendant’s
argument about whether the plaintiff’s injury was caused solely by his own conduct is effectively
one of proximate cause or comparative fault, not duty. Here, we are dealing with the legal issue of
whether the defendant owed a duty, and more specifically whether an injury like the one that the
plaintiff suffered was reasonably foreseeable to the defendant. If we were to accept the defendant’s
argument, then effectively we would be evaluating the defendant’s duty based upon the conduct
of the plaintiff, which is improper. Instead, the proper subject of our focus is the defendant and
whether it could reasonably have foreseen an injury like the one the plaintiff suffered. See Ward,
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136 Ill. 2d at 148 (“The scope of defendant’s duty is not defined by reference to plaintiff’s
negligence or lack thereof. The focus must be on defendant. A major concern is whether defendant
could reasonably have foreseen injury to the plaintiff.” (Emphasis in original)). Accordingly, we
see the question as being whether the defendant could reasonably have foreseen that a tradesman
in the plaintiff’s position would attempt to use ladders set on each side of the dam gate to cross
over it and fall in the process of doing so. We believe that an injury of this nature was reasonably
foreseeable to the defendant due to the gate’s blocking of land access to the entire south side of
the platform despite the fact that tradesmen had work to perform there.
¶ 24 The record contains direct and circumstantial evidence from which a trier of fact could
reasonably conclude that the defendant had actual or constructive knowledge of various facts
bearing on its ability to reasonably foresee that workers would use ladders in an attempt to cross
the dam gate and fall in the process. Constructive knowledge may be proven by demonstrating that
a condition existed for a sufficient period of time such that the defendant could have discovered it
through the exercise of reasonable care. Heider v. DJG Pizza, Inc., 2019 IL App (1st) 181173,
¶ 34. Generally, whether a defendant is deemed to have constructive knowledge of the existence
of a dangerous condition on its land is a question of fact. Id.¶ 25 There is no dispute that the defendant had knowledge of the dam gate itself and that its
presence blocked access by land to the south side of the platform. As we described it above, the
gate is a curved steel structure, approximately five feet in height. When upright, it is angled rather
than perpendicular to the platform below. It runs the full length of the concrete platform between
the vertical pillars on each side holding up the bridge above. The gate had been in place for seven
to eight days prior to the plaintiff’s injury.
¶ 26 The evidence indicates that that the defendant’s employees were aware that, once the dam
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No. 1-21-1581
platform was installed, no easy method of access existed to reach the south side of the dam
platform. Apart from the gate itself, access to the other sides of the platform were impeded by
water from the reservoir and creek, the vertical pillars, and the walls of the cofferdam. Scott
Lampson, who served as the defendant’s superintendent on the job, testified that after the gate was
installed, he did not believe that workers should have had to get to the south side of the platform;
but if they did, they should “come in by boat on the south side of the dam,” put boots on and walk
through the water if it was low enough, or “use scaffolding.” David Krueger, the defendant’s
project manager for this project, testified that after the gate’s installation, someone needing to
access the platform’s south side could “take a boat,” “put waders on and walk[ ] through the gate
[sic] depending on the river level,” “set up a scaffolding system,” or “request[ ] that the gate be
lowered.” Lampson testified that the defendant’s own employees used a boat to get to and from
the south side, but that the defendant’s boat was not available for use by the subcontractors.
Krueger similarly testified that the subcontractors would have had to provide their own boats.
¶ 27 If the undisputed evidence showed how the defendant communicated these expectations to
the subcontractors, we would be more likely to agree that an injury from a subcontractor’s
employee attempting to cross the gate using ladders was unforeseeable. However, neither party
draws our attention to any evidence on this point. Instead, a trier of fact could reasonably draw the
inference from the evidence that nothing was ever communicated between the defendant and
Lyons about accessing the south side of the platform. Both Lampson and Krueger testified that the
defendant left it to the subcontractors to determine the means and methods by which they would
access the platform’s south side. McLaughlin testified that the defendant did not provide him with
any direction or instruction about how to transfer over the gate. Lampson testified that nobody
ever asked him for a way to access one side of the dam from the other. Lampson testified that if
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he had been asked (specifically by the plaintiff or McLaughlin), he would have told them that the
defendant could not provide them with ladders or a boat for liability reasons but instead that “they
have to have *** their own people figure out what they need and okay it with us.”
¶ 28 We recognize that the plaintiff is unable to cite direct evidence that the defendants were aware
that the Lyons electricians had work to perform on the south side of the platform once the gate was
installed and thus had reason to cross the gate. Nevertheless, we find that the circumstantial
evidence is sufficient to show an issue of fact concerning the defendant’s actual or constructive
knowledge that following the gate’s installation, tradesman had work to perform on the south side
of the platform and were accessing it by jumping over the gate or using ladders to cross it.
McLaughlin testified that following the gate’s installation, he observed workers from the various
trades crossing the gate by hopping over it or by using a ladder to climb over it. McLaughlin
testified that he never saw the gate in a lowered or down position after it was installed. The record
contains various photographs taken between the time of the gate’s installation and the plaintiff’s
injury showing workers on both sides of the gate, as well as various ladders on the ground and
propped against the sides of the gate. Workers in vests with the defendant’s logo are shown in
some of these photographs. Also, Lampson testified that he was at the site every day overseeing
what was going on there (although he had left in the morning on the day of the plaintiff’s injury).
Furthermore, there is evidence from the affidavit of Frank Burg, the plaintiff’s expert in
construction matters and construction site safety, that the defendant was required by OSHA
regulations to conduct frequent and regular inspections of the job site. See 29 C.F.R.
§ 1926.20(b)(1), (2) (2012).
¶ 29 Further bearing on the issue of whether an injury like the plaintiff’s was reasonably
foreseeable to the defendant is evidence of the custom and practice of general contractors
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concerning safeguards within a job site and the expectations of invitees that come onto the
premises. See Restatement (Second) of Torts § 343, cmt. d, at 217 (1965). John Ott, who was the
project manager for Lyons on this project, testified that in his 32 years of professional experience,
“it is the obligation of the general contractor to provide a structure, a platform, temporary safe
condition platform over a structural non-electrical portion item to work over. To me it’s not Lyons
and Pinner’s obligation to provide a temporary structure over a dam.” McLaughlin also testified
that he believed that a general contractor was “supposed to provide the means of how to navigate
their job site.” Burg’s affidavit states that on multi-employer worksites such as this, the custom
and practice is that a general contractor will implement a program to assure proper access,
coordination of work activities, communication of specific work rules, job site monitoring, and
enforcement when rules are violated. Burg states that any reasonable safety program would have
assured the general contractor will make certain that subcontractors will have proper access to their
work area. All of this evidence supports the conclusion that it was reasonably foreseeable to the
defendant that workers might fail to appreciate the need to bring equipment such as a boat, waders,
or a scaffold to reach the south side of the platform and instead proceed to cross the gate by using
ladders, which could result in a fall.
¶ 30 Notwithstanding the evidence discussed above, we must also consider whether the open and
obvious nature of the condition negated the foreseeability of injury to the defendant, as well as the
plaintiff’s argument that the “deliberate encounter” exception to the open and obvious rule applies.
The plaintiff acknowledges in his brief that the gate over which he needed to traverse was open
and obvious. He argues, however, that the obviousness of the danger does not make an injury like
his unforeseeable, because the defendant should have anticipated that he or other workers would
cross over the gate in order to complete the work that had to be done on the south side of the
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platform. As stated, this is the “deliberate encounter” exception to the open-and-obvious rule,
which provides that a possessor of land should anticipate harm when the possessor “ ‘has reason
to expect that the invitee will proceed to encounter the known or obvious danger because to a
reasonable man in his position the advantages of doing so would outweigh the apparent risks.’ ”
LaFever, 185 Ill. 2d at 391 (quoting Restatement (Second) of Torts § 343A, cmt. f, at 220 (1965)).
This exception recognizes that individuals will make deliberate decisions to encounter hazards
when faced with employment concerns, and those encounters are reasonably foreseeable to
possessors of land. Grillo v. Yeager Construction, 387 Ill. App. 3d 577, 596 (2008) (citing
LaFever, 185 Ill. 2d at 394-95). The focus of the deliberate-encounter analysis remains on what
the possessor of land anticipates or should anticipate that the entrant will do. Grillo, 387 Ill. App.
3d at 596.
¶ 31 In arguing that this exception applies, the plaintiff relies on evidence showing that on the day
he fell, he had electrical work to perform on the south side of the platform. To access the south
side to complete that work, he had to encounter and traverse the dam gate. To return, he had to
traverse the gate again. The plaintiff further cites the following statement in Burg’s affidavit
concerning what the defendant should have anticipated a tradesman in his position would do:
“Human factors should be considered in this case. Mr. Ellis and all workers expect
controlling employers to provide safe access and egress. Once they are on the job working
on the coffer dam, it would be unusual to stop the project and demand an access ladder.
Most workers like Mr. Ellis will figure out a way to get the job done.”
¶ 32 For its part, the defendant does not refute the plaintiff’s assertion that it should have
anticipated that he would have attempted to cross the dam gate to complete his work. Instead, it
argues that the plaintiff’s use of the two ladders tied together was itself an open and obvious
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danger. The defendant argues that the “deliberate encounter” exception involves reasonableness,
that there is no evidence that it was reasonable for the plaintiff to use “his self-made, unsafe
condition,” and that he could have asked his employer for a different method to reach his work.
¶ 33 Mindful that we are addressing the foreseeability prong of the duty test, we agree with the
plaintiff’s argument that the deliberate encounter exception applies. We find that the defendant
should reasonably have anticipated that a worker in the plaintiff’s position would have proceeded
to encounter the hazard posed by crossing over the dam gate in order to complete the work he was
required to do on the south side. Although other ways may have existed to reach the platform’s
south side, we believe the defendant should have anticipated that a tradesman would find procuring
a boat, waders, or scaffolding far more onerous than simply attempting to cross the gate with
ladders. This is especially true if the tradesman only had to work on the south side of the platform
for a brief time. The defendant cannot escape owing a duty merely by asserting that the plaintiff’s
use of ladders was itself unreasonable or unsafe. Rather, we find it reasonably foreseeable to the
defendant that workers needing to work on the south side of the platform would deliberately
attempt to cross the gate in some fashion. This includes attempting to do so by propping ladders
against each side and attempting to pivot from one to the other. The plaintiff’s own conduct or
method of crossing the gate may later affect the ultimate issue of liability or the parties’
comparative fault, but it does not affect the existence of a duty. LaFever, 185 Ill. 2d at 396-97;
Preze v. Borden Chemical, Inc., 336 Ill. App. 3d 52, 59 (2002).
¶ 34 Turning to the remaining factors of the duty test, we find that they also weigh in favor of
imposing a duty in this case. While we find that the likelihood of injury here is lessened by the
open and obvious danger posed by the dam gate, this is offset by the recognition that workers
would be likely to proceed to deliberately encounter that risk in order to complete their job duties
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on the south side of the platform via one of the most evident methods of doing so, using ladders to
climb over it. Further, we find that injuries from falling off a ladder are a likely result of attempting
to cross the curved, angled dam gate by use of such ladders.
¶ 35 The final two factors of the duty test involve the magnitude of the burden of guarding against
the injury and the consequences of placing that burden on the defendant. Bogenberger, 2018 IL
120951, ¶ 22. We find the magnitude of guarding against the injury to be slight and thus the
consequences of placing that burden on the defendant to be unsubstantial. It may well be that the
injury could have been guarded against by clearer warnings or direction to the subcontractors about
the appropriate methods for their employees to cross the gate or access the platform’s south side.
Also, the evidence suggests that the gate could simply be lowered from its upright position to
enable easier passage. The evidence also shows that the defendant employed carpenters on its staff
who were capable of constructing a structure to enable workers to safely cross over the gate.
¶ 36 For these reasons, we hold that application of the four factors of the duty test weigh in favor
of the conclusion that the defendant owed the plaintiff a duty of care under a premises liability
theory of negligence.
¶ 37 2. Section 414 of the Restatement (Second) of Torts
¶ 38 In addition to any duty owed under a premises liability theory, the plaintiff argues that a duty
should also be imposed on the defendant based on its “retained control” over the job site under
section 414 of the Restatement (Second) of Torts. Section 414, which has been recognized as an
accurate statement of Illinois law (see Carney, 2016 IL 118984, ¶ 35), provides as follows:
“One who entrusts work to an independent contractor, but who retains control of any
part of the work, is subject to liability for physical harm to others for whose safety the
employer owes a duty to exercise reasonable care, which is caused by his failure to exercise
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his control with reasonable care.” Restatement (Second) of Torts § 414, at 387 (1965).
This rule serves as a basis only for imposing direct liability on the party employing an independent
contractor for its own negligence, not for imposing vicarious liability for the negligence of an
independent contractor. Carney, 2016 IL 118984, ¶ 36.
¶ 39 In determining whether section 414 applies, the inquiry involves the level of a defendant’s
“retained control” over the work of an independent contractor. Comment a to section 414 indicates
that a defendant can be subject to liability under this section if it retains “supervisory control,” i.e.,
“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.” Restatement (Second) of Torts § 414, cmt. a,
at 387 (1965). Comment c to section 414 explains further:
“ 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).
¶ 40 Consistent with these provisions, a general right to enforce safety does not amount to retained
control under section 414. Carney, 2016 IL 118984, ¶ 47. Further, the existence of a safety
program, safety manual, or safety director is insufficient to trigger liability. Madden, 395 Ill. App.
3d at 382. Rather, the evidence must show such a retention of the right of supervision that the
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independent contractor is “ ‘not entirely free to do the work in his own way.’ ” Id. (quoting
Restatement (Second) of Torts § 414, cmt. c, at 388 (1965)). Whether an employing defendant has
retained sufficient control over an independent contractor’s work may be decided as a matter of
law where the evidence is insufficient to create a fact question. Carney, 2016 IL 118984, ¶ 41. The
best indicator of whether the employing defendant retained control sufficient to trigger liability
under section 414 is the written contract between the employing defendant and the independent
contractor. Id. However, even if the contract does not provide evidence of retained control, such
control may still be demonstrated by evidence of the employing defendant’s conduct at variance
with the agreement. Id.¶ 41 The plaintiff argues first that the subcontract between the defendant and Lyons, which
incorporates the prime contract between the defendant and the Village, contains sufficient evidence
that defendant retained control over Lyons’ work on the project. The plaintiff then goes on to cite
and discuss many provisions of the subcontract and prime contract which, according to the
plaintiff, amount to retained control. We need not belabor these provisions at length, as we have
reviewed them and agree with the defendant that they do not rise to the level of showing retained
control by the defendant over Lyons’ work. Most of the provisions cited by the plaintiff are
completely inapposite to the issue of retained control. Importantly, no provision appears to address
whether the defendant retained control over the aspect of Lyons’ work at issue, that being the
ability of Lyons’ employees to access the areas of the job site where electrical work was to be
performed. Instead, the subcontract provisions most closely on point place the responsibility on
Lyons to furnish whatever equipment, services, tools, scaffolds, or other facilities were necessary
to ensure its work could be fully performed. Specifically, the subcontract obligates Lyons to
“furnish all of the *** equipment and services, including, but not limited to, *** tools and
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No. 1-21-1581
scaffoldings as are necessary for the proper performance of the Subcontractor’s Work.” It also
obligates Lyons to “furnish all temporary services and/or facilities necessary to perform its work.”
It provides that Lyons’ employees may not use the defendant’s equipment without express written
permission from a representative of the defendant. Nothing about these provisions shows that the
defendant retained control over Lyons’ work or that it was not free to do the work in its own way.
¶ 42 The plaintiff cites contract provisions requiring the defendant to conform to the standards of
OSHA, requiring compliance by Lyons with the defendant’s safety program, and requiring Lyons’
involvement in a pre-activity meeting to identify issues such as safety procedures and scaffolding.
However, the plaintiff cites no evidence concerning the defendant’s safety program or what the
defendant discussed at any pre-activity meeting. In any event, contract provisions requiring
compliance with OSHA regulations do not create a duty of care under section 414, and the
existence of a safety program, safety manual, or safety director also does not constitute retained
control. Lee v. Six Flags Theme Parks, Inc., 2014 IL App (1st) 130771, ¶ 77; Madden, 395 Ill.
App. 3d at 382. The plaintiff also cites provisions pertaining to the defendant’s coordination of
Lyons’ work with that of the other subcontractors and requiring Lyons to follow the defendant’s
instructions, orders, and directions. However, our review of these provisions again indicates that
they involve only “general rights reserved to someone, like defendant, who employs a contractor,
rather than evidence that defendant retained control over the manner in which work by [Lyons]
was performed.” Carney, 2016 IL 118984, ¶ 46. Accordingly, we find no evidence of retained
control within the contracts.
¶ 43 The plaintiff also argues that, apart from the contract language, the defendant’s retained
control over the work of its subcontractors can be shown by the defendant’s conduct on the jobsite.
Specifically, the plaintiff argues, the defendant’s conduct shows that it was responsible for safe
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access on the jobsite, particularly across the dam gate. First, the plaintiff cites evidence that the
defendant had constructed a wooden handrail to assist workers on the site with negotiating the
steep slope of the gravel ramp running from the road above to the platform where the dam gate
was located. Second, the plaintiff cites the fact that, on the day after the plaintiff’s fall, the
defendant’s carpenters constructed a wooden platform over the dam gate. McLaughlin testified
that he thereafter used the platform to cross the gate, but he could not recall if the defendant had
told him that he could use it.
¶ 44 Even assuming that the defendant’s post-occurrence construction of the platform is
admissible evidence, we find that the defendant’s conduct on which the plaintiff relies is
insufficient to demonstrate that it “retained control” of independent contractors’ work. We see no
evidence of any conduct by the defendant that prevented the Lyons employees from being entirely
free to do the work on their own way. This includes accessing the south side of the platform. The
evidence indicates that the defendant retained no control over how the Lyons’ electricians reached
the south side of the platform, and instead it placed all responsibility for accessing it on Lyons.
Although we find that this hands-off approach by the defendant is part of what made an injury like
the plaintiff’s reasonably foreseeable, it does not demonstrate retained control for purposes of
section 414. Accordingly, the trial court properly determined that the defendant did not owe a duty
of care under section 414 of the Restatement (Second) of Torts.
¶ 45 B. Proximate causation
¶ 46 The trial court also found no evidence of proximate cause between any alleged negligence by
the defendant and the injuries suffered by the plaintiff. It found that the gate was a “condition”
rather than the “cause” of the incident in which the plaintiff was injured, with the cause being “his
decision to create and implement his ladder set-up idea to transfer himself to and from side to side
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No. 1-21-1581
of the dam gate.” The court also found no evidence of foreseeability to satisfy the “legal cause”
aspect of proximate cause.
¶ 47 The plaintiff argues that the trial court erred in its analysis and conclusion. The plaintiff
argues that the analysis of whether a defendant’s alleged negligence is a “condition” and not a
“cause” of a plaintiff’s injury is inapplicable because this case does not involve evidence of an
intervening act by a third party. The plaintiff also argues that his conduct in using ladders to cross
the dam gate was foreseeable to the defendant and that the extent to which he was at fault for
causing his own injuries is a question of fact about which reasonable minds could differ.
¶ 48 It is a fundamental principle of law that an injury may have more than one proximate cause.
Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 118 (1995). A defendant is liable for
its negligent conduct whether it contributed in whole or in part to the plaintiff’s injury, as long as
proximate cause exists. Guo v. Kamal, 2020 IL App (1st) 190090, ¶ 23. To establish proximate
cause, the defendant’s conduct must be shown to be an actual cause of the plaintiff’s injury, as
well as a legal cause of it. Simmons v. Garces, 198 Ill. 2d 541, 558 (2002). Actual cause (also
referred to as cause in fact) is established where “there is a reasonable certainty that a defendant’s
acts caused the injury or damage.” Id. (quoting Lee v. Chicago Transit Authority, 152 Ill. 2d 432,
455 (1992)). A defendant’s conduct is a cause in fact of the plaintiff’s injury only if that conduct
is a material element and a substantial factor in bringing about the injury. First Springfield Bank
& Trust v. Galman, 188 Ill. 2d 252, 258 (1999) (citing Lee, 152 Ill. 2d at 455). A defendant’s
conduct is a material element and a substantial factor in bringing about an injury if, absent that
conduct, the injury would not have occurred. Id. Legal cause, by contrast, involves an assessment
of foreseeability. Steed v. Rezin Orthopedics & Sports Medicine, S.C., 2021 IL 125150, ¶ 37. Legal
cause is established where the injury is the type of injury that a reasonable person would see as a
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No. 1-21-1581
“likely result” of his conduct and is not established where the injury is so “highly extraordinary”
that imposing liability is not justified. Id. Proximate cause is generally a question of fact, but its
absence may be determined as a matter of law where the evidence fails to sufficiently demonstrate
both cause in fact and legal cause. Young v. Bryco Arms, 213 Ill. 2d 433, 447 (2004).
¶ 49 As the trial court’s ruling indicates, courts analyzing proximate cause have also used the
vocabulary of asking “whether the defendant’s conduct was a cause of the injury or simply
furnished a condition by which the injury was made possible.” (Emphases added). See Galman,
188 Ill. 2d at 259. In Galman, the supreme court clarified that an inquiry using these terms is “in
effect asking whether the defendant’s conduct was a material and substantial element in bringing
about the injury.” Id. Thus, the trial court’s ruling was effectively a finding that the dam gate was
not a material and substantial element in bringing about the plaintiff’s injury. We agree with the
plaintiff that the trial court erred in this ruling. Reasonable minds could differ about whether the
plaintiff’s injuries would have occurred absent the gate being in place with no means of access to
the south side of the platform, as the plaintiff would have had no reason to use ladders to reach the
area where he needed to work. By determining that the sole cause of the plaintiff’s injury was his
own conduct in using ladders to cross the gate, the trial court essentially resolved a disputed issue
of fact. As stated above, an injury may have more than one proximate cause, and whether the
defendant’s negligence was a proximate cause of the plaintiff’s injury here is a question for the
trier of fact. Accordingly, the trial court erred in its analysis of actual cause.
¶ 50 We also find that legal cause is present in this case. Our discussion on duty above illustrates
that the plaintiff was the type of person to whom the defendant should reasonably have foreseen
injury, i.e., a worker injured attempting to cross the dam gate using ladders. We similarly find that
the injuries the plaintiff apparently suffered are a likely result of falling while attempting to cross
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No. 1-21-1581
the gate and thus also foreseeable as a result of the defendant’s conduct. Nothing about the
concussion and orthopedic-type injuries apparently suffered by the plaintiff is so “highly
extraordinary” that imposing liability would be unjustified.
¶ 51 We reject the defendant’s comparison of this case to Cannon v. Commonwealth Edison Co.,
250 Ill. App. 3d 379 (1993). There, the plaintiff was seriously injured during a power outage when
he fell while descending stairs to his basement in an attempt to ascertain the cause of the loss of
power to his home. Id. at 380. He then sued Commonwealth Edison, alleging that its failure to
maintain its equipment was a proximate cause of his injuries. Id. at 380-81. This court affirmed
dismissal of the plaintiff’s complaint on the grounds that no facts could be established showing
proximate cause. The court found that it would impose an “insuperable burden” on Commonwealth
Edison to “foresee every accident that may arise every time electric power is lost,” as no amount
of foresight would have permitted it to take reasonable steps to prevent what occurred in that case.
Id. at 385. It held as a matter of law that the blackout occasioned by the defendant’s conduct was
condition that made the plaintiff’s fall possible, but it was not a proximate cause where the
plaintiff’s own actions of walking down the stairs served as a superseding cause. Id.¶ 52 Cannon is simply inapposite. In Cannon, the plaintiff’s injuries from falling down the stairs
during a power outage bore only a tenuous connection to Commonwealth Edison’s alleged
negligence in failing to maintain its equipment. In this case, the connection between the
defendant’s alleged negligence and the plaintiff’s injuries is far closer. Thus, unlike in Cannon,
we cannot say as a matter of law that the plaintiff’s injury was unforeseeable or that the that dam
was a condition and not a proximate cause of the plaintiff’s injury. A genuine issue of material fact
exists as to proximate causation in this case, and we therefore reverse the trial court’s ruling on the
element of proximate cause.
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¶ 53 III. CONCLUSION
¶ 54 For the foregoing reasons, we reverse the trial court’s granting of summary judgment in favor
of the defendant and remand the cause for further proceedings.
¶ 55 Reversed and remanded.
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