This diversity case is before the court on defendant Austin Company's ("Austin") motion for summary judgment on Count II of the amended complaint. As explained below, the court grants the motion.
Plaintiff Richard A. Kurfess was injured while employed as a carpenter by Terstep Company, Inc. ("Terstep"), a subcontractor at a post office construction site in Carol Stream, Illinois. It was Kurfess's job to help fabricate and install lookout galleries, or LOG's, which are completely enclosed walkways suspended from the ceiling and used by post office supervisors to observe their workers. In assisting with the installation of the LOG's, Kurfess used a scissors lift, a mobile platform raised and lowered by criss-crossing arms. The lift can elevate a worker to a height of approximately thirty feet, and its platform, four feet wide and twelve feet long, is surrounded by a steel railing roughly four feet high.
On August 27, 1991, after using the scissors lift to help install a LOG, Kurfess and his partner brought the lift down to its lowest position, about six feet from the ground, and while still on the platform used the lift as a vehicle to return to the fabrication shop. As the lift passed under a different LOG, which was ten and one half feet from the floor, Kurfess was injured when he was pinned between the LOG and the railing surrounding the lift's platform. At the time of the accident, the lift was travelling at about four to five miles per hour.
Kurfess brought this diversity action against Austin, the general contractor at the post office, for compensatory damages relating to his injuries. (Presumably, he has already filed a workers' compensation claim against his employer.) A few months ago, the court granted summary judgment in favor of Austin on Count I of the amended complaint, which alleged a violation of the Illinois Structural Work Act, 740 ILCS 150 et seq. See Memorandum Opinion of Sept. 27, 1993. The court ruled that Kurfess's injuries were not caused by a violation of the Act.
Austin now moves for summary judgment on Count II, a common law negligence claim. Kurfess alleges that Austin monitored the work of Terstep employees and had the right to stop unsafe work practices but nonetheless failed (1) to prevent plaintiff from using the scissors lift as a vehicle; (2) to train plaintiff how to use the scissors lift; (3) to provide carts for the transportation of people and materials; (4) to warn plaintiff of the location of the LOG's; (5) to provide sufficient lighting throughout the construction site; (6) to develop safety rules; and (7) to supervise plaintiff more closely to ensure safe work practices. Austin argues it is entitled to summary judgment because the LOG under which Kurfess was pinned was open and obvious, and because Kurfess's conduct was the proximate cause of his injuries.
To succeed on his negligence claim, Kurfess must prove the existence of a duty owed to him by Austin, a breach of that duty, and an injury proximately resulting from the breach. Deibert v. Bauer Bros. Constr. Co., 141 Ill. 2d 430, 566 N.E.2d 239, 241, 152 Ill. Dec. 552 (1990). Whether or not a duty of care exists is a question of law for the court. Mason v. Ashland Exploration, Inc., 965 F.2d 1421, 1426 (7th Cir. 1992). In determining the existence of a duty, the court generally considers whether defendant should have reasonably foreseen plaintiff's injury, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant. Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 598 N.E.2d 337, 344, 174 Ill. Dec. 140 (2d Dist. 1992).
Illinois has adopted the rules set forth in Restatement (Second) of Torts § 343A regarding the duty of care owed by possessors of land, including a general contractor on a construction site, to their invitees, including the employee of a subcontractor. See Deibert, 141 Ill. 2d 430, 566 N.E.2d at 241. Section 343A(1) provides as follows:
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.