Appeal from the Circuit Court of Cook County No. 98 L 00733 The Honorable Sophia H. Hall, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
The plaintiff, John Bieruta, was injured at work on May 29, 1996, when he fell into an open trench. He filed a complaint at law on January 21, 1998, against R.A. Faganel Builders, Inc., Savoy-Faganel, Inc., and R. Russell Builders, Inc. On March 23, 1998, Bieruta amended his complaint to add Klein Creek Corporation (Klein Creek) as a party defendant. Savoy-Faganel, Inc., was voluntarily dismissed on August 19, 1998, and R.A. Faganel and R. Russell Builders, Inc., were voluntarily dismissed on November 17, 1999. Klein Creek is the sole defendant remaining in this action. On March 7, 2001, Judge Sophia Hall granted Klein Creek's motion for summary judgment. Bieruta appeals.
On the morning of Wednesday May 29, 1996, John Bieruta suffered a back injury as a result of falling into a construction trench at building 22 of the Klein Creek townhouse development project. Klein Creek was the owner of the site and the general contractor for the development. Klein Creek, through its agents, hired all the subcontractors, including DuPage Topsoil (DuPage), the employer of the plaintiff, for whom Bieruta operated a backhoe.
DuPage was directed by Klein Creek to excavate a trench for purposes of connecting water and sewer lines at building 22 of the Klein Creek townhouses. The trench was excavated on May 25, 1996, and was left open from that time to the date of Bieruta's accident on May 29, 1996. During that time, it had rained and work was suspended on May 28, 1996. Also, May 27, 1996, was Memorial Day and no work was done.
Bieruta testified that when he went back to work on May 29, 1996, he had to "dewater" the trench before he could begin work. He observed a clump of clay near the sewer hookup, went down into the trench and removed the clay and exited the trench. As he was exiting, a co-worker called his name from behind him. As Bieruta turned to look over his shoulder in the direction of the co-worker, a portion of the edge gave way and he fell into the trench. Bieruta claims that he was two feet from the edge of the trench when the ledge gave way, but all those present at the site did not recall seeing any indication that the trench gave way in any manner. Estimates of the trench range from 6 to 10 feet in depth at its deepest part.
One of the agents for Klein Creek was Michael Beaulieu. Beaulieu was hired in February 1993 to oversee the Klein Creek development, consisting of 245 acres of land, 308 single-family homes, 108 townhouses and a golf course. Beaulieu was acting as an owner's representative and he was present at the site on a daily basis. Beaulieu would advise the subcontractors, including DuPage, as to what work Klein Creek desired. He would also give change orders to the subcontractors in the event that a homeowner requested a change in the specifications of his unit.
DuPage employed Milton Dostal as a foreman who was present at the Klein Creek development during the time of the incident. DuPage also employed Michael Wojciechowski as superintendent at the Klein Creek development. Dostal testified that he spoke to Bieruta minutes before the accident. He stated that Bieruta was standing on the tracks of his backhoe when he saw him. Dostal told him to "get back in his machine before [he] he slipped or had an accident" and that "there was enough help so that [he] did not have to get out of [his] machine."
Wojciechowski testified that he was also present at the site on the day of the accident. He stated that he was called after the accident occurred. He testified that he told the employees of DuPage what their duties were going to be on a daily basis. He also testified that he would receive orders from Klein Creek and Beaulieu regarding the excavating to be done.
Louis Huggins and Paul Bentley, employees of DuPage, were also present at the site on the day of the accident. Huggins testified that he found Bieruta curled up at the bottom of the trench. He did not, however, see Bieruta fall into the trench. Huggins also testified that he received his orders from DuPage alone. Bentley testified that he was present but did not see Bieruta fall into the trench. He also stated that his orders came from DuPage and no other.
Joe Kleim is an owner of DuPage. He testified in a deposition that DuPage made the decisions regarding whether reinforcements were to be used in the excavating process, including trench boxes or shoring. Kleim also stated that DuPage was responsible for the means, methods and safety of the DuPage employees. He further testified that an independent safety coordinator was hired through his insurance company to inspect and train DuPage employees on issues regarding safety. All DuPage employees, including Bieruta, testified that DuPage controlled the means, methods and techniques of the excavating and that the general contractor had no part of the excavating process.
Bieruta claims that Klein Creek had a duty to exercise reasonable care under the circumstances for his safety because it owned the premises. Plaintiff relies on section 343 the Restatement (Second) of Torts (Restatement (Second) of Torts §343 (1965)) (hereinafter Restatement), 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 (Second) ...