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CONSTRUCTION NEGLIGENCE CASES IN ILLINOIS
A LOOK AT SECTIONS 414 AND 343 OF THE RESTATEMENT (2d) OF TORTS
Joseph F. Spitzzeri
Genevieve M. LeFevour Johnson & Bell, Ltd.
Prior to 1995, liability associated with construction-related injuries in Illinois was
analyzed under the Illinois Structural Work Act, which co-existed with common law negligence
principles. The Act was repealed, however, in 1995, leaving the common law negligence
principles including those found in sections 343, 343(A), and 414 of the Restatement (Second) of
Torts. These are not mutually exclusive and each one offers an independent basis for recovery.
Kotecki v. Walsh Construction Co., 333 Ill.App.3d 583, 776 N.E.2d 774 (1st Dist. 2002).
To recover under a construction negligence theory, plaintiff has to present sufficient
evidence to establish that the defendants owed him a duty. Wojdyla v. City of Park Ridge, 148 Ill.
2d 417, 592 N.E.2d. 1098 (1st Dist. 1992.) Whether a duty exists is a question of law to be decided
by the court, and if none exists, plaintiff cannot recover. (Schoenbeck v. DuPage Water
Commission, 240 Ill. App. 3d 1045, 607 N.E.2d 693 (1st Dist. 1993).
With regards to the allegations involving construction negligence, the general rule in Illinois
is that one who employs an independent contractor is not liable for the acts or omissions of the
independent contractor. Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 276 N.E.2d 336
(1971). Section 414 of the Restatement reads as follows:
“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.”
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See Restatement 2d of Torts § 414 (1965).
The “retained control” concept is explained in comment (c) to § 414 below:
“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 that need not necessarily be followed, or to prescribe alternations and deviations. Such as 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.”
Section 414 of the Restatement clearly sets forth the exceptions to the general rule of
general contractors not being liable for actions of independent contractors. Under these exceptions,
an employer of an independent contractor can nevertheless be subject to vicarious liability for the
contractor’s negligence if the employer retains control over the operative details of the contractor’s
work. Alternatively, even in the absence of such control, an employer may be subject to direct
liability where it assumes supervisory duties on a construction project and fails to exercise them
with reasonable care. Recio v. GR-MHA Corp., 361 Ill.App.3d 48, 851 N.E.2d 106 (1st Dist. 2006).
In either case, the scope of liability for the employer of an independent contractor is determined by
the scope of its undertaking. Id. Moreover, such an employer cannot be held liable unless it knew
or had reason to know of danger to the contractor’s workers. Id.
Important and Recent Positive Defense Cases under Section 414
Although it is an older case, Connaghan v. Caplice, 325 Ill.App.3d 245, 757 N.E.2d 971,
(2nd Dist., 2001) is a very good defense case and must be noted and discussed. Connaghan
involved an independent contractor who was injured after falling off a ladder at defendant
owner’s home. The defendant hired plaintiff to perform rough carpentry work on defendant’s
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home and garage. Id. at 973. The plaintiff’s complaint against defendant homeowner sounded in
negligence stating that defendant owed plaintiff a duty pursuant to Section 414 of the
Restatement Second of Torts. Id. The plaintiff and his partner met with defendant to go over the
plans an architect had prepared for defendant. The plaintiff then told defendant what materials he
and his partner would need to complete the job and defendant bought the materials. Id. The
plaintiff and defendant had no conversations about who would supply the tools for the job or who
would be responsible for safety.
The plaintiff and his partner then proceeded to build the garage walls. The plaintiff
testified that he knew how to do the work based on his thirty years of experience in carpentry. He
never asked defendants for direction on how to perform any task and defendant never directed
him how to perform his work. Id. Moreover, plaintiff and his partner decided their own work
schedule and even though defendant did come around and check on the progress of the work, he
never criticized the work or told them they were doing something unsafe. Id. at 247.
In addition, the plaintiff and his partner provided their own tools to perform their job,
although at times, they would use defendant’s ladders. Id. On the day of the accident, the
plaintiff fell off one of defendant’s ladders after trying to climb up to nail the rafters. Id. As a
result of his fall off defendant’s ladder, the plaintiff filed suit against defendant.
Before trial, defendant homeowner moved for summary judgment stating that the plaintiff
was an independent contractor and that defendant did not retain control over the incidental
aspects of his work pursuant to Section 414 of the Restatement Second of Torts and therefore
could not be liable to the plaintiff. Id. The plaintiff then attempted to defeat defendant’s motion
for summary judgment through attaching an affidavit of an engineering expert who had opined
that the ladders were old, in disrepair, and violated OSHA safety standards as well as the fact that
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OSHA standards were violated by the failure to provide adequate scaffolding. Id. However, the
trial court agreed that the defendant did not control the incidental aspects of the plaintiff’s work
and granted defendant’s motion for summary judgment.
On appeal, the Appellate Court for the Second District affirmed the trial court’s granting
of summary judgment, but stated that the trial court was incorrect to even do a Section 414
analysis. The Appellate Court held that there was no need to do a Section 414 analysis because
Section 414 did not apply in the first place and that the defendant owed no duty to the plaintiff
under Section 414. In short, the court explained that Section 414 of the Restatement does not
apply to independent contractors and that plaintiff’s reliance on 414 to try and hold the defendant
liable was misplaced. Id. at 249, 975. Specifically, the court noted that,
One essential element of a negligence action is the existence of a duty that the defendant owed the plaintiff. Plaintiff claimed that defendant owed plaintiff a duty of reasonable care pursuant to section 414 of the Restatement provides an exception to the general rule that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Section 414 provides:
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 his control with reasonable care.
Thus, section 414 addresses the duty that an employer owes “to others,” for example, employees of the independent contractor and other third parties. Nothing in this section of the Restatement imposes a duty upon employers that inured to an independent contractor. The theory of recovery expresses in section 414 is based on a master/servant relationship or respondeat superior. Such a theory of liability does not encompass liability of the master inuring to the servant for acts or omissions of the servant. There is nothing in the record to establish that plaintiff was anything but an independent contractor. Because section 414 does not contemplate a duty an employer owes to an independent contractor, this section of the Restatement is not applicable. Thus, the trial court properly granted the defendant’s motion for summary judgment. Id.
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Therefore, the court found that since the plaintiff was an independent contractor working for
himself, was not an employee of an independent contractor and was not a third party, Section 414
was not applicable and Plaintiff’s reliance on such was misplaced. Id.
The Connaghan case is an important defense oriented case because if the plaintiff is the
actual independent contractor themselves, Section 414 does not apply and a defendant cannot be
liable.
Another recent helpful defense case that should be highlighted is Gregory v. Exxon
Mobil, No. 1-06-3597 (1st Dist., 2008) which was recently issued by the Illinois Appellate Court
for the First District on May 23, 2008. Gregory involved a plaintiff who worked as an employee
of a subcontractor at a Mobil refinery and while working for the subcontractor came in contact
with asbestos. Prior to trial, Mobil moved for summary judgment on several grounds, one of
which being that Mobil owed no duty to the plaintiff as an employee of an independent
contractor. The trial court granted Mobil’s Motion for Summary Judgment stating that there was
not enough evidence to impose liability against Mobil under Section 414. The court stated that
there was no evidence that Mobil controlled the means or methods by which the plaintiff
performed his work and further, it was not enough that Mobil had the general right to control the
progress of the work, but rather, to impose a duty on it, Mobil must have retained the right to
control the way the contractor did his work. The plaintiff appealed.
On appeal, the Illinois Appellate Court for the First District affirmed the trial court’s
decision. The court found that Mobil did not retain the degree of control necessary to impose
liability upon it. Mobil did not provide any direction and/or supervision to the plaintiff on how to
do his work and moreover, the plaintiff did not look to Mobil for direction on how to do his
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work. Further, although the court noted that Mobil had the general right to stop work, monitor its
completion and control access to the site, these were simply general rights and not mechanisms
that triggered liability under Section 414 of the Restatement.
Gregory represents a positive defense case under section 414 because the court highlights
that the critical question in determining whether a defendant can be liable under section 414 is
whether or not they directed the means and methods by which the plaintiff performed the work.
Oftentimes, plaintiffs try and impose liability because a defendant supplied safety equipment
and/or had the ability to stop work. However, this is not the crucial analysis under 414. The
relevant question to be asked is whether the defendant controlled the means and methods by
which plaintiff performed his/her work.
It is also worth noting the Joyce v. Madison Services, Inc decision. In 2007, the First
District of the Illinois Appellate Court decided Joyce v. Madison Services, Inc., a case involving
a plaintiff who was employed by an independent contractor. 371 Ill.App.3d 64, 861 N.E.2d 1102
(1st Dist. 2007). There, the plaintiff was injured at a construction site on a United States Army
Reserve Base. The defendant Madison Services, Inc. acted as the general contractor on the
project to demolish and install air-handling systems. The defendant hired plaintiff’s employer,
Elk Grove Mechanical, Inc. (EGM) to work on the project. Pursuant to the contract between
EGM and the defendant, EGM was to provide for all labor, materials, equipment, services, and
other items required to complete the work. The contract also stated that EGM was to take
reasonable safety precautions with respect to the performance of the subcontract. Madison
Services (the general contractor) was not to give instructions or orders directly to EGM
employees. EGM was also contractually obligated to keep the premises and areas surrounding the
work area free from accumulations of waste materials.
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The plaintiff alleged that on the day of his accident, he was hurt when he fell off of a
fifteen-foot ladder he was using to remove some ductwork. The ladder’s locking mechanism did
not operate properly, causing the plaintiff to fall down the ladder, injuring his wrist. The plaintiff
also testified that no one told him to use the ladder but rather, that it was available so he used it.
He spoke to his supervisor only once during the project to go over what needed to be done. The
plaintiff never spoke to anyone from Madison Services, Inc. and Madison did not provide any of
the equipment.
Madison Services, Inc.’s project manager was Michael Reinersman. Reinersman testified
that his job was to learn what the scope of the job was for the government and then to pass that
scope on to the subcontractor. On the project, Madison Services, Inc. had no tradesmen. He
visited the work site approximately five times. He never observed work being done in violation
of OSHA or in an unsafe manner. Madison Services, Inc. did have the right to stop work of a
subcontractor at the base if there was a safety hazard, although this was never done. Further,
Reinersman was not present when the plaintiff was injured and no one did any accident
investigation on behalf of the defendant. He also testified the contract with EGM did not mandate
on-site daily supervision nor did Madison have a role in enforcing safety rules. Subcontractors
were to comply with OSHA, based on their contract with Madison. Reinersman also testified that
he never instructed anyone from EGM to use certain tools or equipment or how to go about their
work. Madison did not direct EGM employees, nor did they give any job assignments to them.
An EGM superintendent testified that he supervised the work done by the plaintiff, was
responsible for the job from start to finish, and that he ran the job site. He testified that ladders
were checked at safety meetings run by EGM and that the repair of a broken ladder would be
something he would oversee. He also testified that EGM inspects their ladders, the locking
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mechanism on the ladders, and the ropes on the ladders. He further testified that there was only
one employee of the defendants who would visit the site and that he did so on a very limited
basis. It was also rumored, that the EGM superintendent reported that the ladder was backwards
when the plaintiff tried to use it and that the ladder was at a bad angle. Others also testified that
no one from the defendant Madison came to the work site to supervise EGM or any other
workers. No one had any information that anyone from Madison ever directed any EGM work.
The plaintiff alleged that the defendant, Madison, owed him a duty of care pursuant to
section 414 of the Restatement (Second) of Torts, because Madison retained contractual and
actual control over EGM’s employees. Again, the court looked at the retained control exception
to the rule in section 414 of the Restatement, just as the court had done in Cochran v. George
Sollitt Construction Company. 358 Ill.App.3d 865, 832 N.E.355 (1st Dist. 2005). The court found
that Madison Services neither controlled the safety measures employed at the site nor retained
control over the incidental aspects of the work done by EGM. The court noted the sections in the
contract, which required EGM to provide all labor, materials, and equipment, as well as the
provision that stated Madison would not give orders or instructions to EGM employees. Madison
employee Reinersman only looked at progress at the job site and Madison relied on EGM for
safety compliance. EGM conducted its own safety training and equipment checks. As to whether
the general contractor retained control over incidental aspects of the independent contractor’s
work (which could also create a duty to the subcontractor’s employee), the court found that there
was no evidence showing that Madison directed EGM’s work or directed the operative details of
the work. EGM’s work was not supervised by Madison, nor did Madison participate in the work.
The Madison employee did not direct EGM employees in any fashion.
In addition, the Calderon v. Residential Homes of America case should be highlighted as
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it is another recent positive case for the defense under section 414. In 2008, the First District of
the Illinois Appellate Court decided Calderon v. Residential Homes of America, 885 N.E.2d
1138, (1st Dist. 2008) a case involving a plaintiff who was employed by an independent
contractor. Calderon, 885 N.E.2d at 1140. In Calderon, the plaintiff was injured at a
construction site while providing roofing services for the general contractor. The defendant,
Residential Homes of America, acted as the general contractor on the project to build a housing
development. The defendant hired plaintiff’s employer, Kap Roofing to perform the roofing work
for the project. Pursuant to the contract between Kap and the defendant, Kap was to inspect its
own work for quality.
The plaintiff alleged that on the day of his accident, he was hurt when he fell off of a
ladder as he was carrying a 60-pound bundle of shingles to the roof-top. The plaintiff testified
that the company who was responsible for delivering the shingles were supposed to lift the
shingles to the rooftop but failed to do so. Therefore, although no one instructed him to do so, the
plaintiff carried the shingles to the rooftop via a ladder. On his fourth trip, he lost his balance and
fell of the ladder.
The plaintiff alleged that Residential Homes owed him a duty of care pursuant to section
414 of the Restatement (Second) of Torts because Residential Homes retained contractual and
actual control over Kap’s employees. The court ultimately found that Residential Services neither
controlled the safety measures employed at the site nor retained control over the incidental
aspects of the work done by Kap. The court noted that the sections in the contract, which
required Kap to adhere to the safety manual provided by Residential Homes did not give rise to
liability under 414. Specifically, the court stated that the existence of a safety program, safety
manual and/or safety directors does not constitute retained control. Calderone 885 N.E.2d at
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1147. The court made a special point to note that the reason behind not imposing liability on a
general contractor under section 414 for having a safety program and or manual is because
penalizing a general contractor’s efforts to promote safety and coordinate a general safety
program among various independent contractors does not serve to advance the goal of worksite
safety. Id.
The court further stated that Residential Homes did not exercise the requisite actual
control over Kap to be liable under 414. The court found that Residential Homes merely
maintained general supervisory rights over the plaintiff, but in no way retained control over the
incidental aspects of the plaintiff’s work; the aspect of control necessary to impose vicarious
liability under section 414.
The court also noted that Residential Homes could not be found directly liable to the
plaintiff under section 414. Under section 414, a general contractor can be liable if it does not
exercise its supervisory role with reasonable care. A general contractor’s knowledge, actual or
constructive, of the unsafe work methods or a dangerous condition is a precondition to direct
liability. When a general contractor has an insufficient opportunity to observe unsafe working
conditions, knowledge will not be imputed and liability will not ensue. Id. at 1151. The plaintiff
attempted to argue that Residential Homes had knowledge of the dangerous condition relating to
the ladder and the shingles on the ground because its superintendent maintained a daily presence
on the job site. The plaintiff also argued that he had traversed the ladder several times with the
shingles prior to this accident and therefore Residential Homes would have had knowledge of the
dangerous condition. However, the court stated that a daily presence does not equate constant
monitoring and that there was no evidence that the superintendent ever actually saw the plaintiff
traversing the ladder with the shingles. Further, the court noted that the plaintiff never told the
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general contractor or any of its employees that the shingle company had failed to lift the shingles
to the roof and therefore, the general contractor would have had notice that a dangerous condition
existed on the site. The court found that because the general contractor did not control the
manner in which the plaintiff did his work and did not exercise its supervisory control in a
negligent manner, the general contractor could not be liable under section 414 of the
Restatement. Id. at 1152.
The Calderon decision makes it very evident that a daily presence on the work site as
well as having a safety manual and or program does not give rise to liability under 414 which is
very helpful to the defense.
The Recio case noted above is also important to a potential defendant in a construction
related case. In Recio, plaintiff’s decedent, an employee of a subcontractor, died after falling from a
ladder while carrying shingles. Id. The plaintiff brought suit arguing that by obtaining a building
permit from the city where work was being performed, the general contractor became obligated to
comply not only with that city’s ordinances, rules, and regulations, but also with all other applicable
laws regulating contractors, including federal OSHA regulations regarding ladder safety. Id. The
applicable OSHA standard required that when using a ladder, employees shall not carry any object
or load that could cause a fall. 29 CFR 1926.1053(b)(22) (2005). The plaintiff also cited the case of
Kalata v. Anheuser-Busch Co., which found that a violation of a statute or ordinance designed to
protect human life or property is prima facie evidence of negligence. Kalata v. Anheuser-Busch
Co. 144 Ill.2d 425, 434-35, 581 N.E.2d 656 (1991). A party injured by such a violation then may
recover by showing that the injury was proximately caused by the violation and that the statute was
intended to protect a class of person to which he belongs from the kind of injury he suffered. Recio
at 7. The court held that although a violation of OSHA regulations may be evidence of failure to
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exercise reasonable care, OSHA regulations do not create a duty of care. Recio at 7.
Although Recio is important and a helpful defense case representing the fact that OSHA
regulations do not create a duty of care, it is necessary to note the case of Pozzi v. McGee
Associates, Inc. 236 Ill.App.3d 390, 602 N.E.2d 1302 (1st Dist. 1992). Pozzi states that although an
OSHA regulation may not create a duty, it can be used for the limited purpose of establishing a
standard of care. In Pozzi, the plaintiff was injured after falling off a ladder. Id. The general
contractor’s contract included contract provisions that they would comply with the OSHA
regulation related to ladders and scaffolds. Id. at 404. The court recognized that the general
contractor had agreed and had included the OSHA regulations in their own contract and as such, the
court allowed expert testimony about the OSHA provision at trial and whether it was violated. Id.
This allowed the construction expert to use the violation of the OSHA regulation for the limited
purpose of establishing a standard of care. Id.
Additional Older 414 Cases That Remain Positive For The Defense In Construction
Related Incidents
In the case of Bieruta v. Klein Creek, 331 Ill.App.3d 269, 770 N.E.2d 1175, (1st Dist.
2002); the plaintiff, a worker employed by DuPage as a backhoe operator was injured in an alleged
trench collapse. There, the plaintiff alleged that the owner retained such sufficient control over
safety and the work site that a duty existed to provide the plaintiff with a safe place to work. The
plaintiff contended that Klein Creek should have required a trench box or shoring to reinforce the
trench thereby preventing its collapse and his injury. Bieruta, 331 Ill.App.3d 269 at 275. Summary
judgment in favor of Klein was upheld in that case on the issue of control over the work in
question. The court pointed out that there was no contract between the owner and the excavator;
there was no evidence that Klein had done anything more than tell the subcontractor which lots to
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excavate and for what purpose; and there was no evidence to suggest that DuPage was not entirely
free to perform the work in its own way. Id. at 276. The court further pointed out that Klein never
directed the operative details of the work performed by the DuPage and that the subcontractor
supplied all equipment and instruction on how to perform the work in question. Id. Due to the fact
that the general contractor never directed the plaintiff on how to perform his work, it could not be
held liable under section 414.
Further, in 2005, the Illinois Appellate Court issued a ruling in Cochran v. George Sollitt
Construction Company, 358 Ill.App.3d 865, 832 N.E.355 (1st Dist. 2005). There, the plaintiff, an
employee of a subcontractor of Sollitt Construction (which was the general contractor) fell off of a
ladder while performing work on his first day on the job. The plaintiff claimed he was ordered to
begin work by his foreman (for the subcontractor employer of plaintiff) in a specific area on the job
site. When he got to the area to begin, he saw a ladder owned by his own employer (the
subcontractor) sitting on top of a piece of plywood, which was balanced on top of milk crates. After
climbing to the top of the ladder, the ladder began to “walk” off of the plywood and Cochran
eventually fell, suffering injury.
The plaintiff alleged negligence against the general contractor Sollitt Construction, claiming
that Sollitt failed to provide him with a safe place to work, failed to provide a safe, suitable, and
proper support for his protection, and failed to properly manage, maintain, or control the premises
and the support equipment used thereon. Id. Prior to the incident, the plaintiff never spoke to any
employees of the general contractor and they had never provided him with directions or instruction
regarding the work.
The general contractor and the hospital where work was being performed entered into a
standard American Institute of Architects’ contract. The contract provided that general contractor
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Sollitt was to supervise and direct the work, and be solely responsible for and have control over the
construction means, methods, techniques, and procedures. The general contractor was also to be
solely and fully responsible for the jobsite safety unless they gave timely written notice that such
means or methods may not be safe. The contractor was also to take reasonable precautions for the
safety of and shall provide protection to prevent damage, injury, or loss to employees on the project.
Id.
The President of the general contractor admitted that they had “general control” over the
subcontractors’ work, but denied that Sollitt had “specific control”. Sollitt’s job was primarily to
coordinate the work of various subcontractors. Sollitt’s construction superintendent was not
required to do daily walk-throughs of the job site but in the course of his job, he would have
occasion to observe the work being done and conditions at the site. He also had the authority to
stop work if work was being done in an unsafe manner. The primary responsibility for the safety of
subcontractors’ employees was with the subcontractors themselves. The subcontractors controlled
their own work and had their own means and methods of doing it.
The plaintiff, Cochran, contended that Sollitt Construction owed him a duty of care under
both the retained control theory via Restatement 414, and the premises liability theory of Section
343 of the Restatement. Id. The court in Cochran held that Sollitt Construction’s state of
knowledge and degree of control was insufficient to support a finding of liability under direct
liability. A sufficient basis for imposition of direct liability would include if employees of the
general contractor knew of unsafe conditions or inadequate equipment, and yet, took no step to stop
the work or remedy the situation. There also was no basis within which to infer any vicarious
liability, because no evidence was presented that Sollitt so controlled the operative details of the
subcontractor’s work that the subcontractor’s employees were not entirely free to perform the work
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in their own way.
The First District also decided Pestka v. Town of Fort Sheridan Company, L.L.C., et al.
whereby the court once again looked at what level of control could lead to liability for a general
contractor. 371 Ill.App3d 286, 862 N.E.2d 1044 (1st Dist, 2007) In Petska, the plaintiff worked
for a subcontractor charged with hauling away debris after demolition. He was seriously injured
when a crane operator lost control of a load, causing the load to strike him. He sued the general
contractor alleging the general was in charge of the work occurring at the site, failure to properly
inspect and manage the premises, failure to provide adequate safeguards, and failure to supervise
the work.
The court reflected back on their previous decision in Cochran and included such analysis
in their opinion. They found that here, the general did provide oversight for the project.
Construction supervisors for the general contractor had the authority to observe the work site and
stop work of the contractors, if necessary. Further, although the subcontractors were responsible
for safety, the general contractor’s supervisors could intervene if they saw something unsafe.
This never occurred. The work of the subcontractors was also inspected by employees of the
general contractor to ensure it was compliant with specifications. Finally, weekly meetings were
held with the subcontractors and general contractor to cover a number a number of items,
including possibly safety concerns. Instructions were given to subcontractors about where to go
and when to go to a specific area of the job but instructions were never given to the
subcontractors telling them how to do their job.
The court stated in their opinion that no evidence was presented that the general
contractor controlled the operative details of the work of the subcontractors such that the
subcontractors were not entirely free to perform the work in their own way. Thus, the general
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contractor could not be found liable for the injuries of the plaintiff. The court also found that the
general was not directly liable for the injuries of plaintiff because the general did not have actual
or constructive knowledge of the dangerous condition (as the time period surrounding plaintiff’s
accident was extremely small).
Further, in December 2007, the Third District rendered an opinion in Moiseyev v. Rot’s
Building and Development, (a residential construction case) and determined that the defendant
did not retain the requisite control over plaintiff and his work so as to give rise to a duty of
reasonable care under Section 414. 369 Ill.App.3d 338, 860 N.E.2d 1128, (Ill.App.Ct. 3rd Dist.,
2007) In that case, the plaintiff sued Rot’s for construction negligence based on an injury arising
from a fall from a scaffold on a house that plaintiff was working on. The plaintiff’s employer
was the subcontractor and Rot was the general contractor. The trial court granted summary
judgment in favor of defendant ruling that plaintiff did not show that defendants retained the
requisite control over plaintiff and his employer under Section 414. In issuing its ruling, the
court considered the following: there existed no contract between Rot and plaintiff’s employer;
plaintiff’s employer supplied all tools for work performed by plaintiff; plaintiff’s employer
exclusively instructed plaintiff and his co-workers as to the details of their work; and plaintiff
testified that he had no contact with Rot employees on the job. Rot employees did testify that
they did retain the right to halt plaintiff’s work at any point for any reason, and went on site to
inspect work progress. The court stated in its ruling that no liability could apply to Rot because it
did not retain control over the incidental aspects of the independent contractor’s work. It found
that plaintiff’s employer was free to do its work in its own way, and accordingly affirmed the trial
court’s ruling.
Finally, in Downs v. Steel and Craft Builders, Inc., 358 Ill.App.3d 201, 831 N.E.2d 92
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(2nd Dist. 2005), an employee was injured when a trench collapsed at a construction site. The
court refused to find control on the part of the general contractor. Under the general’s contract
with the subcontractor, the responsibility for safety measures fell with the subcontractor. Further,
the general did not direct, supervise, or participate in any of the work, means, or methods used by
the subcontractor. The contract also shifted responsibility for compliance with OSHA to the
subcontractor. The court noted this was a proper shifting of OSHA duties and responsibilities in
the context of a private action.
Jury Instructions Relative to Section 414 of the Restatement
The recently approved Illinois Pattern Jury Instructions for construction negligence cases
focuses on control of safety in determining whether a defendant was in control for Section 414
purposes. The jury instruction states that a defendant is in control of the work for 414 purposes if
the defendant exercises control over any aspect of safety on the project. We believe the new
I.P.I. instruction is inconsistent with Illinois law and should be objected to during jury instruction
conferences. A non-I.P.I. instruction should be prepared and tendered to preserve the issue for
appeal. A sample instruction is below:
“The employer of an independent contractor is not liable for the acts or omissions of the independent contractor unless the employer retains control over the means and methods of the independent contractor’s work so that the independent contractor is not entirely free to do the work in his own way, or if the employer knows, or in the exercise of reasonable care should know, that the independent contractor’s work is being done in an unreasonably dangerous way and has the opportunity to prevent it by exercising the control it has retained.”
Source: Restatement (Second) of Torts, §414; Joyce v. Madison Services, Inc., No. 1-06-0086 (1st Dist. 2007).
An illustrative case on this issue is Shelden v. Kimball Hill. No 1-02-3693 (Ill.App.Ct,
1st Dist., 2005). Shelden involved a plaintiff who brought a negligence action against defendant
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general contractor for injuries he sustained in a construction site accident after he was carrying a
piece of drywall over a muddy driveway and injured his knee. The plaintiff specifically alleged
that defendant was negligent because they retained control over plaintiff’s work because they had
a safety director, had safety policies in place, and should have had gravel instead of mud on the
unpaved driveways to provide easier access for the workers. The jury awarded plaintiff
$632,530.69 in damages. Defendant appealed arguing it was entitled to a new trial based on an
erroneous 414 jury instruction.
On appeal, the court noted that plaintiff both in the trial court and on appeal asserted that
his claim against defendant was premised on 414 of the restatement exclusively and does not
concern section 343. Yet the court noted that the plaintiff’s evidence focused on whether the
defendant’s failure to lay gravel created a dangerous condition on the premises. The plaintiff’s
instruction then read:
The defendant retained some control over the safety of the work; Defendant acted or failed to act in one or more of the following ways;
a. Failed to put stone or gravel on the driveway; b. Failed to provide safe access to the houses; And in so acting or failing to act was negligent in the manner in which it exercised or failed to exercise its control. Plaintiff was injured and the defendant’s negligence was a proximate cause of plaintiff’s injuries. The court held that the instruction includes the retention of control element necessary to
find that defendant owed a duty under section 414 of the Restatement, but allows the jury to
conclude a breach of duty by defendant’s failure to protect against a dangerous condition on the
land. The court agreed that plaintiff’s instruction based on the IPI instructions under 414
incorrectly combined the retention and exercise of control over work with a condition on the
premises. Therefore, they remanded the case back to the circuit court for a new trial.
Justice Wolfson specially concurred with the opinion and stated that IPI No. 55.03 is
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wrong and ought to be re-written. He noted that it is fatally incomplete. He reasoned that
addressing the issue of control, the instruction simply requires that the defendant retained some
control over the safety of the work. Yet, Wolfson explained that this is not nearly enough to
satisfy the requirement of Section 414. He indicates that it is not the “safety” of the work that the
defendant must have retained control over, it is “the degree of control over the manner in which
the work is done…there must be such a retention of a right of supervision that the contractor is
not entirely free to do the work in his won way. Justice Wolfson concludes by stating that IPI
55.03 and 55.02 should be sent back to the drawing board and that neither one accurately reflects
Section 414.
This opinion is very important in cases involving construction litigation. It will be
necessary for defendants to draft their own 414 instruction to tender to the jury until the 414
instructions are modified.
It should be noted however, that despite rulings by judges that the 414 instruction is
improper such as Shelden, courts are still finding that the IPI instructions on 414 are sufficient
and that it is not error to refuse a defendant’s modified 414 instruction. The Illinois Appellate
Court for the First District recently affirmed a trial court’s ruling that it was not improper to
refuse the defendant’s modified 414 instruction in the case of Jones v DHR Cambridge Homes,
381 Ill.App.3d 18, 885 N.E.2d 330, (1st Dist., 2008). Jones involved a plaintiff who was injured
while working for a subcontractor who had contracted with a general contractor to perform
carpentry work. The plaintiff was injured after walking out on a wooden still plate that was
mounted on a structural beam. Jones, 381 Ill.App.3d at 21, 885 N.E.2d at 334. At trial the general
contractor via their safety expert argued that the subcontractor, plaintiff’s employer, was
responsible for the means and methods of performing the plaintiff’s work and that injury resulted
20
from the plaintiff’s work methods. Further, the general contractor argued that even if the general
contractor had maintained a supervisory role over safety, OSHA had never issued a citation for
this type of incident and therefore, this established that the general contractor was not negligent.
However, the court barred all evidence of the lack of OSHA citations. Id. at 27, 339.
Throughout the tenure of the trial, the plaintiff maintained and provided evidence that the
general contractor was responsible for safety on the job and that they had employees in place to
make sure the subcontractors complied with the general contractor’s safety manual and
guidelines. The subcontractor then moved for a directed verdict at the close of evidence arguing
that none of the witnesses testified that the subcontractor had done anything wrong. The directed
verdict was granted.
The case was then sent to the jury solely to determine whether the general contractor was
negligent. During the jury instruction conference, the general contractor tendered a non-IPI
objection with respect to 414 stating that the IPI instruction was not sufficient. The plaintiff
objected, and the trial court tendered the IPI construction negligence instructions to the jury.
The general contractor then appealed arguing that the directed verdict was improper, the
lack of OSHA citations should have come in, and the modified 414 instruction should have been
tendered to the jury. On appeal, the Appellate Court for the First District reversed the trial court’s
ruling granting a directed verdict to the subcontractor stating that the plaintiff was injured as the
result of walking on a sill plate without fall protection. The court noted that the responsibility for
providing the fall protection was disputed at trial. The court noted that the plaintiff put on
evidence that general contractor was responsible for all of the safety issues on the job. However,
the court also noted that the general contractor’s safety expert indicated that the subcontractor
was responsible for the means and methods of performing the work which can give rise to
21
liability under 414 and for this reason the directed verdict should be reversed. Id. at 30, 342.
On appeal, the appellate court affirmed the trial court’s ruling regarding OSHA citations
and the refusal of defendant’s modified jury instruction for Section 414. With respect to OSHA,
the court found that it was not error to bar evidence that OSHA had not ever given a citation for a
prior similar incident because this testimony was based purely on the expert’s own knowledge,
and not based on anything of an official or definitive nature. Id.
With respect to the 414 jury instruction, the court found that despite the jury instructions
for section 414 having been called into question by other decisions such as the Marten’s
decision, this does not mean that the pattern instruction no longer reflects an accurate statement
of the law. Further, the court noted that it is in the trial court’s discretion to determine if a
particular jury instruction is applicable. Id. at 35, 346.
Based on the Jones ruling, in the event that a defendant wants to introduce evidence of
lack of OSHA citations, a defendant should know that they must have hard evidence to support
such and not simply an expert’s limited knowledge that no such citation had been given in
similar circumstance. Further, the Jones case should not deter a defendant from challenging the
414 instruction. It is in the trial court’s discretion to determine if a particular instruction is
applicable and based on the circumstances surrounding a case, the trial court may find that the
414 instruction as it is now, is not an accurate statement of the law and not applicable to that
particular case.
Finally, the Oldenstedt v. Marshall Erdman, 381 Ill.App.3d, 884 N.E.2d 830 (1st Dist.,
2008) decision should be noted for its discussion on section 414 jury instructions. In Oldenstedt,
the defendant rejected the use of the IPI 55 series; the construction negligence series from being
used. The court overruled the defendant’s objections, but the parties came to an agreement
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regarding a modification to the 55 series. For example the IPI Instruction 55.01 usually reads,
“A party who has retained control over the methods and/or means of the work has a duty to exercise that control with ordinary care to ensure workers’ safety.”
The parties tendered the following modified instruction in place of 55.01:
“A contractor who entrusts work to a subcontractor can be liable for injuries resulting from the work if the contractor retained control over the methods and/or means of the work and the injuries were proximately caused by the contractor’s failure to exercise that control with ordinary care to ensure worker’s safety.” Oldenstedt 381 Ill.App.3d at 13.
Oldenstedt is an instructive decision from a defense aspect because it represents the proposition
that even if a judge overrules an objection to tendering different instructions other than the 55
series for construction negligence, it is still possible to make an agreement with the other party
that more accurately reflects the law.
Recent Negative Defense Cases Under Section 414
Despite recent positive cases for the defense under Section 414, there have also been
negative decisions that should be noted in order to determine how to avoid being liable under
Section 414 in the future. Wilkerson v. Paul H. Schwendener, Inc., 379 Ill.App.3d 491, 884
N.E.2d 208 (1st Dist. 2008) involved a defendant general contractor who was hired to construct a
retirement home in Glenview, Illinois. Defendant subcontracted with Monarch Construction Co.
to perform carpentry work at the site. On January 20, 2003, plaintiff, a Monarch employee, was
installing second-floor floor joists at the site. It is undisputed that plaintiff was working without
fall protection by balancing on top of wall frames that were less than six inches wide and about
nine feet above the ground. The plaintiff worked with another Monarch carpenter, Erik Bergl,
who would manually lift the joists to plaintiff from the ground floor. The plaintiff would then
23
place the joists on the top of the walls to create the frame for the second-level floor. While
performing this work, Bergl struck plaintiff with a floor joist, causing plaintiff to lose his balance
and fall. Plaintiff sustained injury to his left foot. As a result of his injury, plaintiff brought suit
against defendant general contractor alleging negligence pursuant to 414 and 343. Defendant then
moved for summary judgment on the ground that plaintiff could not establish defendant owed
him a duty of care. The trial judge granted defendant’s motion for summary judgment, finding as
a matter of law that defendant did not owe plaintiff a duty of care under either section 343 or 414.
Plaintiff appealed this ruling.
On appeal, the Appellate Court of Illinois for the First District reversed the trial court’s
ruling finding that there was a genuine issue of material fact that should have precluded summary
judgment for defendant on both the 343 and 414 issues. Specifically, with regard to the 414 issue,
the court noted that Section 414 commonly arises when a general contractor entrusts work to a
subcontractor but superintends the job himself or through a foreman. Citing to Restatement
(Second of Torts) Section 414 (1965). Under these circumstances, the general contractor is
subject to liability if he knows or reasonably should know that the subcontractor work is being
performed in a dangerous manner and fails to exercise his power of control to stop the work.
Citing to Restatement (Second of Torts) Section 414 (1965) The court noted that for this rule to
apply, the general contractor:
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 recommendation which need not necessarily be followed, or to prescribe alterations or deviations. Such a general right is usually reserved to general contractors, but it does not mean that the subcontractor 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 [sub] contractor is not entirely free to do the work in his own way. Restatement (Second of Torts) Section
24
414, Comment C (1965)
The court stressed that they recognize that a general contractor retaining a general right of
supervision of supervision over the subcontractor for safety issues does not rise to liability under
414. However, they found that there was at least a genuine issue of material fact as to whether
defendant general contractor controlled plaintiff pursuant to 414 because defendant did way more
than retain a general right of supervision over plaintiff. The defendant entered into a contract
with the subcontractor that required the subcontractor to: 1) comply with a list of 21 safety
regulations prepared by defendant; 2) hold weekly safety meetings and submit minutes of those
meetings to defendant; 3 prepare and submit for approval a “site specific safety plan”; and 4)
attend defendant’s weekly safety-related meetings. In addition, the plaintiff produced several
letters from the general contractor to the subcontractor that indicated that the general contractor
was upset with the subcontractor because of the lack of safety on the job. The letters also
referenced specific incidents where the subcontractor had not followed proper safety procedures.
In addition, the letters stated the manner in which the general contractor wanted the subcontractor
to change his work practices in order to comply with the general contractor’s safety regulations.
The court stated in their opinion, that because defendant went above simply retaining the
control to stop unsafe work practices and required the subcontractor to perform their work in a
manner pursuant to 21 safety regulations that did not allow them to do their job freely, there was
a question of fact for the jury to decide regarding the 414 issue.
The Wilkerson decision makes it apparent that requiring an independent contractor to
comply with specific safety requirements and regulations can give rise to liability under Section
414.
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Section 343 of the Restatement
As noted earlier, plaintiffs include premises liability claims along with their construction
negligence claims. Plaintiff’s allegations of premises liability are premised on the Restatement
(2d) of Torts, Section 343, titled “Liability of general contractor as the owner of a premises”,
which states:
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:
(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
(c) Fails to exercise reasonable care to protect them against the danger.
Restatement (2d) of Torts, §343 (1965).
This Restatement has been adopted by the Illinois Supreme Court in LaFever v. Kemlite
Co., in which it was stated that to determine whether a defendant owes a plaintiff a duty of care,
the court is to consider the following factors: (1) foreseeability, (2) the likelihood of injury, (3)
the magnitude of the burden on the defendant to guard against the injury, and (4) the
consequences of placing the burden on the defendant. LaFever v. Kemlite Co., 185 Ill.2d 380,
389, 706 N.E.2d 441, 446 (1998).
In Deibert v. Bauer Brothers Construction Co., the Illinois Supreme Court found that a
duty existed between a general contractor as the possessor of land and the employee of a
subcontractor. 141 Ill.2d 430, 566 N.E.2d 239 (1990). There, the plaintiff electrician, an
employee of a subcontractor, stepped out of a portable bathroom. The bathroom had been placed
26
directly underneath an area where debris was routinely thrown from higher floors to the ground.
While exiting the bathroom, the plaintiff looked up to ensure no debris was being thrown.
However, he stepped into a large tire rut in the ground, injuring his back. He sued the general
contractor alleging negligence. The electrician admitted the tire rut was open and obvious but
that looking to see if debris was being thrown down distracted him.
In determining whether a defendant owes a plaintiff a duty of care, the Diebert Court
considered the following factors: (1) foreseeability, (2) the likelihood of injury, (3) the magnitude
of the burden on the defendant to guard against the injury, and (4) the consequences of placing
the burden on the defendant. LaFever v. Kemlite Co., 185 Ill.2d 380, 389, 706 N.E.2d 441, 446
(1998). The Court found that the plaintiff’s injury was reasonably foreseeable. They commented
that the plaintiff had an obligation himself to be aware for his own safety and that ruts are a
normal hazard on a construction site. However, a defendant’s duty does not end if the defendant
had reason to believe the plaintiff’s attention could be distracted. As the general contractor’s duty
did not end, the court had to then assess whether the general contractor exercised reasonable care
to protect the plaintiff. There, the general contractor knew that debris was routinely thrown down
in that area, and as such, the court found that they should not have placed a bathroom in the
vicinity as the plaintiff’s attention would not be focused on obvious items, such as a tire rut in the
ground.
The plaintiffs rely on the premises liability doctrine enunciated in Restatement Section
343 as a theory of recovery, arguing that the defendants are liable for a breach of the duty of care
as a possessor of the premises where the plaintiffs were injured. The duty of reasonable care
imposed on a general contractor as the owner or possessor of the premises is independent of its
27
duty to exercise reasonable care where it retains control of work entrusted to an independent
contractor. Clifford v. Wharton Business Group, LLC., 353 Ill.App.3d 34, 817 N.E.2d 1207 (1st
Dist. 2004). With regards to the premises liability theory, the plaintiffs will have to present
evidence of an unsafe condition that could subject the plaintiffs to physical harm. For liability to
be imposed, there must be actual or constructive knowledge of the unsafe condition on the part of
the defendants. Restatement (2nd
) of Torts, §343, 215-16 (1965).
We argue that defendants did not have knowledge, either actual or constructive, as to the
defect in the premises. In determining whether a legal duty exists, the occurrence involved in the
incident complained of must not have been simply foreseeable, but must have been reasonably
foreseeable. See Cunis v. Brennan, 56 Ill.2d 372, 374-76, 308 N.E.2d 617 (1974), cited by
Hoffman v. Vernon Township, 97 Ill.App.3d 721, 724, 423 N.E.2d 519 (2nd
Dist. 1981); see also
Kotecki, 333 Ill.App.3d at 590-91, 776 N.E.2d at 780-81, also citing Cunis.
The Cunis court held that “the creation of a legal duty requires more than a mere
possibility of occurrence. The Prosser Handbook of the Law of Torts (4th Edition 1971, Section
31 at 146) comments: “no man can be expected to guard against harm for events that are not
reasonably to be anticipated at all or are so unlikely to occur that the risk, although recognizable,
would commonly be disregarded. In judging whether harm was legally foreseeable we consider
what was apparent to the defendant at the time of his now complained of conduct, not what may
appear through existent exercise of hindsight.” Cunis, 56 Ill.2d at 375-376, 308 N.E.2d at 619.
The Recio v. GR-MHA Corp, 366 Ill.App.3d 48, 851 N.E.2d 106, (1st Dist., 2006) case is
a noteworthy decision for defendants under Section 343 of the Restatement. Recio involved a
plaintiff who was employed as a roofer by a subcontractor working on a remodeling project
28
for a general contractor. Recio 366 Ill.App.3d at 50, 851 N.E.2d at 109. While carrying a
bundle of shingles to the roof of a two-story apartment building via a ladder provided by the
general contractor, plaintiff lost his balance and fell to the ground and was severely injured
and ultimately died. Id. The plaintiff’s estate proceeded with many theories against the
defendant general contractor, including a theory of premises liability articulated in section
343 of the Restatement Second of Torts. Id. at 55, 114.
Section 343 provides,
A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:
a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
c) fails to exercise reasonable care to protect them against the danger.
Section 343 will impose liability when there is a defect that is a part of the land and the
owner/general contractor knew of such defect, should expect that someone will not realize
the danger associated with such defect and failed to exercise reasonable care to protect them
against such danger.
In Recio, the plaintiff tried to argue that the dangerous condition on the general
contractor’s property was that the general contractor placed the ladder on the land and allowed
the plaintiff to climb to the roof via the ladder with shingles in his hand. The trial court did not
agree and ruled that the ladder and plaintiff’s unsafe work practice of carrying the shingles up the
ladder did not amount to a defect on the premises as required by Section 343. Moreover, the trial
29
court noted that there was no evidence to suggest that the general contractor knew the plaintiff
was carrying the shingles up the ladder, which is a critical requirement under 343 for liability to
be imposed. Id. at 56, 114. The plaintiff appealed.
On appeal, the Appellate Court for the First District affirmed the trial court’s ruling. The
court noted that the plaintiff was trying to argue that the defendant, as owner and possessor of the
premises where construction work took place, was obligated to exercise reasonable care to
protect against the danger of the plaintiff climbing up a ladder to the roof with shingles in his
hand, which the court essentially found was a unsafe work practice, not a defect on the land. Id.
at 62, 119. The court agreed with the circuit court that section 343 is ill-suited for application to
such facts.
The court also made special note of the Haberer v. Village of Sauget, 158 Ill.App.3d 313,
511 N.E.2d 805, (5th Dist.1987) case where Plaintiff tried to allege that the failure of his
employer to provide him with protective gloves before mixing grout was a 343 claim. The court
states that the plaintiff’s claim against his employer was not a defect or dangerous condition that
was a part of the land. A ladder placed on the land by the general contractor either by itself or
used by the plaintiff in an unsafe manner is not a condition that is a part of the land. Ultimately,
the court found that liability can only be imposed under 343 when there is a dangerous condition
that is a part of the land.
Moreover, the court states that no liability can be imposed unless the owner or possessor
of the land had actual or constructive knowledge of the unsafe/dangerous condition of the land.
Id. at 63, 120. The court found that the general contractor/owner of the land had no reason to
know that the plaintiff would carry the shingles up the ladder causing him to lose his balance and
30
fall when at all other times, the shingles would be carried up to the roof via a lift. Therefore, the
court found that there was no liability under section 343 because first, the plaintiff climbing up a
ladder placed on the land by the general contractor with shingles in his hand is not a defect on the
land and second, because the general contractor/owner would have no reason to know that
plaintiff would use the ladder to carry the shingles up to the roof causing him to lose his balance.
Id.
As demonstrated by the Recio case, without knowledge that the condition existed on the
land, liability cannot be imposed under Section 343 of the Restatement.
The Gregory decision cited above and discussed in conjunction with Section 414 also
discussed section 343 of the Restatement and promulgates positive case law for defendants under
section 343. The plaintiff in Gregory attempted to present an alternate theory of liability against
Mobil pursuant to section 343 of the Restatement. Under section 343, an owner or possessor of
land owes its invitees a common law duty of reasonable care to maintain its premises in a
reasonably safe condition, but no legal duty arises unless the harm is reasonably foreseeable.
Gregory, No. 1-06-3597, (1st Dist., 2008). The court found that the plaintiff’s premise liability
argument failed for several reasons. First and foremost, the sources of the plaintiff’s
mesothelioma were the asbestos blankets and gloves. The court found that the blankets and
gloves could not be considered a condition on the land in order for section 343 to be applicable.
Second, the court stated that even if they were to find asbestos blankets and gloves a condition on
the land, there was no evidence that Mobil knew or should have known that the blankets and
gloves contained asbestos. There was no evidence that any of Mobil’s employees observed any
unsafe condition, had control or even regular access to the construction site, or received any
31
complaint that would indicate that Mobil knew or should have known that the blankets and
gloves were being used and contained asbestos. Therefore, based on the evidence, the court
found as a matter of law that no Mobil owed no duty to the plaintiff under section 343 because
first; the gloves and blanket did not constitute a condition on the land and second; Mobil was not
aware of the alleged unsafe condition. Just as in Recio, without knowledge that the condition
existed on the land, liability cannot be imposed under Section 343 of the Restatement.
Negation of the Multi-Employer Worksite Doctrine- a Critical Decision for Defendants
When OSHA was originally implemented, neither the Secretary of Labor nor the OSH
Review Commission thought that the Act imposed a duty on general contractors to ensure
compliance by independent contractors as evidenced by regulation 29 C.F.R 1910.12(a). It was
after the inception of OSHA, that the Review Commission created what is known as the multi-
employer worksite doctrine. This doctrine was founded on an expansive definition of
“employer” in the OSH Act. The term ”employer” was not limited to a common law, master-
servant relationship, but rather was defined to include “controlling” employers, “creating
employers”, “exposing” employers, and “correcting” employers. This expansive definition of
employer and therefore, the duties owed by employers under the Act was justified on the theory
that it would allegedly advance the social purpose of the Act, which is employee safety.
However, the Supreme Court of the United States in Nationwide Mutual Insurance v.
Darden, 503 U.S. 318 (1992) held that it is no longer acceptable and/or permissible to interpret
“employer” or “employee” beyond their common-law meaning in order to advance the purpose of
a particular statute. Despite such a ruling by the Supreme Court changing the law, courts
continued to allow the multi-employer doctrine to apply until a recent ruling by the OSH Review
32
Commission. In Secretary of Labor v. Summit Contractors, OSHRC Docket No. 03-1622,
(2007)the OSH Review Commission held that the multi-employer worksite doctrine no longer
applies and that only the direct employer can be liable under OSHA.
Summit involved a general contractor who was cited by OSHA for lack of fall protection.
Summit argued before the Commission that the multi-employer worksite is invalid as to a general
contractor who neither created, nor had employees exposed to, the alleged and cited hazard.
Summit argued that the multi-employer citation policy was not enforceable because it is contrary
to 29 C.F.R Section 1910.12(a) which states as follows:
Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the
employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph. 29 C.F.R
Section 1910.12(a)
Summit reasoned that the multi-employer doctrine was invalid because as 29 C.F.R.
Section 1910.12(a) clearly indicates, an employer only owes a duty to his employees. Summit v.
Secretary of Labor, OSHRC Docket No. 03-1622 at page 3.
The Review Commission agreed with Summit’s position and ruled that only a
direct employer can be liable for injuries suffered by his employee and therefore, invalidated the
multi-employer worksite doctrine. Id. at 10. The Review Commission held that the language of
29 C.F.R Section 1910.12(a) was clear that an employer can only be liable to his own employees
and therefore, the Commission must give effect to the plain language of the regulation. Id. at 9.
The Commission even went as far to criticize the Secretary of Labor for having known
this discrepancy between 29 C.F.R Section 1910.12(a) and the multi-employer worksite doctrine
33
existed for over ten years via rulings such as the Darden and failed to act. Moreover, the
Commission criticized the Secretary for blatantly ignoring the language of “each of his
employees” contained in 29 C.F.R Section 1910.12(a) and concluded that such an interpretation
by the Secretary was not only incorrect and indefensible, but was untenable. Id. at 9.
The Summit decision is important because an expert can no longer criticize a defendant
based on the multi-employer worksite doctrine and limits the use of the term “employer”.
Johnson & Bell, Ltd.
Johnson & Bell, Ltd. was considered a leader in the defense of Structural Work Act
claims by the plaintiff’s bar, a reputation it continues to hold in the defense of construction
negligence and premises liability claims. We present seminars for risk managers,
superintendents and other supervisory personnel to assist companies in their operations to be
better positioned when the inevitable accident occurs. We also assist in the preparation and
review of contract and risk transfer documents to place our clients in the best possible risk
management position when suit is initiated.
Feel free to contact Joseph F. Spitzzeri, co-chair of Johnson & Bell, Ltd.’s construction
practice group, at 312/984-6683, any time you have questions or need assistance in your
construction risk management efforts.