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Binz v. Brandt Construction Co.

August 19, 2002

PAMELA BINZ, INDIVIDUALLY AND AS SPECIAL ADMINISTRATOR OF THE ESTATE OF JOHN BINZ, DECEASED, PLAINTIFF-APPELLANT,
v.
BRANDT CONSTRUCTION CO., INC., DEFENDANT-APPELLEE.



Appeal from the United States District Court for the Central District of Illinois. No. 99 C 4017--Michael M. Mihm, Judge.

Before Fairchild, Coffey, and Kanne, Circuit Judges.

The opinion of the court was delivered by: Kanne, Circuit Judge

ARGUED FEBRUARY 26, 2002

Pamela Binz ("appellant") appeals from the district court's grant of summary judgment in favor of Brandt Construction Co., Inc., finding that Brandt Construction owed no duty of care to John Binz, Pamela's deceased husband, under Illinois negligence law. We affirm.

I. History

Iowa Interstate Railroad Ltd. is an interstate rail freight carrier. In October 1998, Iowa Interstate was conducting a tie installation construction project ("construction project") on the Sylvan Slough Bridge. Terry Benton, an Iowa Interstate engineering superintendent, was responsible for planning and overseeing the construction project. After determining that Iowa Interstate lacked sufficient labor and equipment to efficiently complete the construction project, Benton contacted Brandt Construction and entered into an oral contract with Brandt Construction, whereby Brandt Construction agreed to lease to Iowa Interstate a specified number of workers and equipment. Brandt Construction provided Iowa Interstate with six laborers, including one "foreman," and equipment. Brandt Construction did not, however, provide expertise with respect to any aspect of the construction project.

John Binz ("decedent") was an employee of Iowa Interstate. On October 8, 1998, he was performing tie replacement work on the Sylvan Slough Bridge. As he stood up after completing his work on the bridge, the decedent turned to give a "thumbs-up" signal to one of his co-workers, and he stumbled backwards and fell. He temporarily clung to the bottom of the bridge, but before help arrived, he fell into the water below. The water was approximately 15 feet deep, and the decedent, being fully dressed and wearing heavy work boots, drowned.

Immediately prior to his accident, the decedent and Roger Bassett, an Iowa Interstate employee and the working foreman at the construction site, had been operating a piece of equipment that had been loaned to Iowa Interstate by Brandt Construction. No one from Brandt Construction was helping to operate the equipment, and no evidence was presented suggesting that the equipment malfunctioned or was unreasonably unsafe for its intended purpose. Unfortunately, at the time of the accident there was no fall protection or safety equipment on the bridge. Neither Iowa Interstate nor Brandt Construction had made a boat or skiff, life vests, lifelines, lanyards, or safety nets available at the construction site.

On October 13, 1998, the appellant filed a complaint against Iowa Interstate pursuant to the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51, et seq. On April 3, 2000, she amended her complaint, adding Brandt Construction as an additional defendant, alleging that Brandt Construction breached common law duties owed to her husband, and violated certain statutory regulations, thereby proximately causing the decedent's fall and death.

Subsequently, the district court approved a settlement agreement between the appellant and Iowa Interstate valued at $1,328,000.00 and dismissed her claims against Iowa Interstate with prejudice. The district court then granted summary judgment in favor of Brandt Construction and against the appellant, finding that Brandt Construction did not owe the decedent a statutory duty, a common law duty, or a contractual duty.

In making its summary judgment determination, the district court considered the following evidence: At his deposition, Benton explained that the six Brandt Construction laborers were not permitted to direct Iowa Interstate employees in the performance of their duties at the construction site. Rather, Benton stated, Henry Musgrave, an Iowa Interstate employee, was responsible for the dayto-day scheduling of the work to be performed on the bridge, and for determining the manner, means, and methods to be used in completing the construction project.

Roger Bassett's brother, Terry Bassett, was also a foreman on the construction project. Roger explained at his deposition that although Brandt Construction supplied Iowa Interstate with one foreman, this laborer reported directly to Terry Bassett and to Henry Musgrave. Finally, in a sworn affidavit, Terrance L. Brandt, corporate secretary of Brandt Construction, stated "[t]hat Brandt Construction Company could not, and did not, exercise supervision, direction, or control over the workers it supplied to Iowa Interstate while on the Sylvan Slough Bridge job site," and "[t]hat Brandt Construction Company could not, and did not, exercise supervision, direction, or control over any workers or any of the activities on the Sylvan Slough Bridge job site."

The appellant argues that the district court erred when it concluded that Brandt Construction owed no duty of care to the decedent and granted summary judgment in Brandt Construction's favor. She contends that the Federal Railroad Administration's ("F.R.A.") Bridge Worker Safety Standards required Brandt Construction to provide safety equipment at the construction site and therefore imposed a duty of care on Brandt Construction. Additionally, she contends that Illinois common law imposes a duty of reasonable care on contractors that runs to the employees of other contractors who are working on the same construction project. Thirdly, the appellant argues that Brandt Construction contractually assumed ...


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