In its first decision on construction site negligence under the Restatement of Torts Second Section 414 since the Illinois Supreme Court's recent decision in Carney v. Union Pacific R. R. Co., 2016 IL 118984 the First District has, once again, bought into the notion of rewarding general contractors who take a "do nothing" approach toward safety.
In LePretre v. Lend Lease, 2017 Ill.App (1st) 162320, the Court upheld a grant of summary judgement in favor of a general contractor and against a construction worker injured during the construction of a downtown high-rise. The plaintiff, an ironworker, was injured during the installation of iron rebar when he slipped on accumulated dirt in an excavation.
The Court rejected the plaintiff’s argument that the defendant was vicariously liable for the acts of its various subcontractors, much in keeping with the Carney decision. In Carney the Supreme Court held that a general contractor's negligence is direct rather than vicarious stating that the latter is an agency principle rather than one based on negligence. The Court there found that in analyzing whether or not the defendant retained control over the work it would look first to the contracts applicable to the work and, secondly, to the defendant’s conduct on the work site in deciding whether the defendant had a duty.
LePretre quoted the language of our Supreme Court on that point, but, nonetheless, went on to find no duty based on the lack of any evidence of defendant’s actions supporting control. In so doing this, it is this author’s opinion, the Appellate Court gave insufficient weight to the contracts. Further, the Court gave too much weight to the fact that the limited evidence presented at summary judgment showed no actions demonstrating control.
The Trial Court found that there was no evidence that defendant retained control of the means and methods or operative details of the work of the plaintiff’s employer. It found also that there was no evidence that the defendant retained control over the safety of the job. Analogy was drawn to Fonseca v. Clark Construction, 2014 Ill.App. (1st) 130308, a decision which presented a similar situation of the plaintiff being employed by a subcontractor of a subcontractor. In both cases the contracts attempted to shift responsibility to the direct subcontractor. Earlier case law suggested that the responsibilities under Section 414 were non-delegable duties, a concept that has been lost in recent discussions. Similarly in both the present case and Fonseca, neither defendant took any actions during the course of the job to effectuate job site safety or to stop the work for safety hazards. The Court said either action would have been evidence of defendant's control and preempted summary judgment.
The LePretre Court distinguished plaintiff’s reliance on Lederer v. Executive Construction, Inc., 2014 Ill.App.(1st) 123170, because there the general contractor had specifically prohibited a specific means or method of performing the work the Court found was sufficient subject it to liability. Further, evidence in that record showed that the workers looked to the general contractor to remedy a safety hazard and that the general contractor had a strong presence on the site inspecting safety precautions. The LePretre Court went on to say that those facts were not present in the case at bar and rejected plaintiff’s argument.
It would seem that where a defendant retains control by contractually promising to effectuate job safety, and is in a position to do just that, that they should not be rewarded with summary judgement because they took no actions to live up to their agreement. LePretre, like Carney, really add little to the law concerning Section 414 negligence developed over the last 20 years. Rather, it is clear that the courts will closely examine the defendant’s actions on the jobsite and its direct negligence. It is suggested though that greater weight be placed upon the contractual obligations undertaken by the defendant and whether the defendant lived up to those obligations.
James J. Morici, Jr. is a partner in the firm of MORICI, FIGLIOLI & ASSOCIATES, and represents Plaintiffs in personal injury, workers’ compensation, and construction site related injury suits.