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Bokodi v. Foster Wheeler Robbins

March 31, 2000

KENNETH J. BOKODI, PLAINTIFF-APPELLANT,
V.
FOSTER WHEELER ROBBINS, INC.; FOSTER WHEELER CORPORATION; FOSTER WHEELER U.S.A. CORPORATION; AND FOSTER WHEELER CONSTRUCTORS, INC., DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County Honorable William Maddux, Judge Presiding.

This is an appeal from an order of the circuit court granting summary judgment in favor of defendants. Plaintiff argues that the circuit court erred in granting defendants' motion for summary judgment because section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts §414 (1965)) established a duty of care owed by general contractors to employees of subcontractors and plaintiff provided sufficient evidence showing that defendants assumed and breached that duty of care. Defendants argue that section 414 does not apply to this case, and, even if it does, plaintiff has not shown a duty of care owed to him by defendants. Defendants further argue that they are not liable for plaintiff's injuries because a safer hoisting device was available to plaintiff at the time of his injury.

For the following reasons, the order of the circuit court granting summary judgment in favor of defendants is reversed and the cause is remanded for further proceedings.

Foster Wheeler Corporation (FWC) consists of many entities, divisions, and subsidiaries. Foster Wheeler Illinois, Incorporated (FWI), a subsidiary of FWC, entered into a contract with Robbins Resource Recovery Partners, L.P., to construct a waste incineration facility in Robbins, Illinois (the Robbins project). Under the contract, it was FWI's responsibility to perform and prosecute all of the necessary work for the Robbins project as the general contractor. To that end, the engineering division of FWC, Foster Wheeler U.S.A. Corporation (USA Corp.), entered into a subcontract with Pangere Corporation (Pangere) for the performance of the siding and roofing work on the Robbins project. At the time of the incident in question, plaintiff was employed by Pangere as an ironworker on the Robbins project.

Foster Wheeler Constructors, Incorporated (Constructors Inc.), is the construction management subdivision of FWC. Constructors Inc. provided construction management and direct hire work on the Robbins project. Constructors Inc.'s management team administered all contracts involving the construction aspects of the Robbins project, regardless of the FWC entities that signed the contracts. Constructors Inc. also appointed a site manager for the Robbins project, Steve Kokosa. Kokosa then designated a field superintendent, Gary Segelke, and a safety manager, Ruben Compean, for the Robbins project.

Constructors Inc.'s management team was responsible for the overall construction schedule and for subcontract coordination. Meetings between the management team and the subcontractors' forepersons were held every week to discuss construction plans for the upcoming three weeks. These "look-ahead" meetings were chaired by Kokosa.

At first, safety was also discussed at the "look-ahead" meetings, but eventually separate weekly meetings were necessary to discuss on-site safety matters. Additional safety meetings were also held if there was an injury or near-injury at the site. All of the safety meetings were chaired by Compean. Compean also walked throughout the jobsite to ensure that safety guidelines were being followed by the various subcontractors and their employees. For example, as he walked through the site, Compean would correct violations of safety regulations by instructing workers to put on hard hats, harnesses, or lanyards.

As a rule, any employee of FWC or its subsidiaries could stop the work of any subcontractor at any time if he witnessed a safety hazard posing an immediate threat to human life or limb. However, if the danger was not imminent, Compean or Segelke would discuss the matter with the particular subcontractor's foreperson or safety manager and instruct him to make the situation safe. The details of how the situation would be made safe was left to the discretion of the subcontractor. However, if appropriate safety measures were not taken, or if defendants were not satisfied with the measures taken, defendants retained the authority to stop the work until they were satisfied that the jobsite was safe. *fn1

On November 1, 1995, plaintiff injured his back while using a manual well wheel and handline to lift sheets of metal siding. A well wheel is a simple pulley device, and a handline is the rope that goes around the pulley and attaches to the object to be lifted. Plaintiff was standing in a snorkel manlift approximately 30 feet above the ground. There was a crew member in a platform lift below plaintiff and Pangere's foreman was standing on the ground. Pangere's foreman had set up the well wheel so that the pulley was hanging above plaintiff's head from a piece of angle wired to the basket of the manlift. At the time of the incident, the metal sheet being lifted was approximately 12 feet long and 3 feet wide, weighing around 30 to 40 pounds.

In order to assist in lifting the metal sheet, Pangere's foreman was pulling on the handline from his position on the ground. Pangere's foreman was having difficulty pulling the handline in the position that it was in, so he instructed plaintiff to wrap the line over the back of the basket. With the handline in this position, plaintiff was forced to stand sideways in the basket to pull on the line. After a few sheets of siding had been lifted and installed, plaintiff felt a knotting pain in his lower back. Plaintiff told Pangere's foreman that he was in pain, explained what happened, and ceased the lifting activity.

Plaintiff then went to the hospital for examination. The doctor gave plaintiff a muscle relaxant shot and prescribed Darvocet and Anaprox to him. Plaintiff resumed work two days later but did not participate in any heavy lifting. A week later, plaintiff saw Dr. Schlueter, who gave him two shots to relieve pain in his back. Dr. Schlueter also referred plaintiff to Dr. Earman. Dr. Earman told plaintiff that there was no herniation of his disc but that there were signs of the beginnings of arthritis or some other degenerative disc disease.

According to plaintiff's deposition testimony, he had seen at least two electric rope tuggers in Pangere's equipment shed at or around the time that this particular job began. An electric rope tugger is an electric motor with a drum around it that is mounted on the ground. A rope is run around the drum, through a raised pulley, and attached to the object to be lifted. The object can then be lifted by pushing a button on the rope tugger. A week before, when plaintiff began this particular siding project, plaintiff asked Pangere's foreman if the siding crew could use the electric rope tuggers for lifting the metal sheets. Pangere's foreman told plaintiff to lift the sheets by using manual well wheels and hand lines. Plaintiff then asked the union steward if the crew could use the electric tuggers. The steward told him that he would look into it, but plaintiff never received a further response from the steward.

When plaintiff returned to work on November 3, 1995, he received two separate instructions on lifting safety. First, FWC directed plaintiff to view a film presentation illustrating proper lifting techniques. Second, Pangere distributed a memorandum suggesting that the workers spend 20 minutes performing stretching exercises prior to starting work. In addition, either electric or pneumatic rope tuggers were being used to complete the siding project.

Plaintiff filed his initial complaint against Foster Wheeler Robbins, Incorporated, and FWC on June 27, 1996. On March 21, 1997, plaintiff filed the first amended complaint against Foster Wheeler Robbins, Incorporated, FWC, U.S.A. Corp., and Constructors Inc., which is the complaint relevant to this appeal.

In his amended complaint, plaintiff alleged that defendants were negligent in (1) failing to provide a safe, suitable and proper hoisting device, (2) failing to make a reasonable inspection of the premises and the work being done thereon, (3) improperly operating, managing, maintaining, and controlling the premises such that plaintiff would not have been injured, (4) failing to provide plaintiff with a safe working environment, (5) failing to warn plaintiff of the dangerous conditions when defendants should have known that it was necessary to prevent injury to plaintiff, (6) failing to provide adequate safeguards to prevent injury, and (7) failing to supervise the work done on the premises. Plaintiff claimed that, as a result of defendants' negligence, he suffered severe and permanent injuries and accrued medical expenses for the treatment of those injuries.

Defendants denied the claims in plaintiff's complaint and filed a motion for summary judgment in the circuit court. Defendants argued that a general contractor's duty to ensure that work is performed in a safe manner does not require that the contractor prevent a subcontractor from performing its routine duties in its own way. Defendants asserted that a general contractor's liability based on simply hiring a subcontractor ended with the abolition of the Structural Work Act, and whether a general contractor owes a duty of care is a question of law appropriately decided on a summary judgment motion. Defendants also claimed that the only question of fact raised by the complaint was whether an appropriate hoisting device was available to plaintiff, and by plaintiff's own admission there was a safer device available that the subcontractor simply chose not to use.

In plaintiff's response to defendants' motion for summary judgment, plaintiff argued that defendants had a duty to provide a safe working environment to the employees of an independent contractor under the common law of negligence as set forth in Section 414 of the Restatement (Second) of Torts. Plaintiff asserted that defendants retained adequate control over the work done by the subcontractors to be held liable for a failure to exercise that control with reasonable care.

Plaintiff claimed that the safety requirements laid out by defendants in the subcontracts were illustrative of their control over the safety of the site. Also, plaintiff highlighted the fact that Compean walked around the site to make certain that the safety guidelines were complied with. Finally, plaintiff pointed to the ability of any individual associated with FWC, or its subsidiary entities, to stop the work at any time due to a perception of an unsafe working ...


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