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Ross v. Dae Julie

June 19, 2003


Appeal from the Circuit Court of Cook County. No. 98 L 4031 Honorable David G. Lichtenstein, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Theis


Plaintiff Robert Ross brought a negligence action against defendant Dae Julie, Inc. (Dae Julie), following a construction site accident in which Ross was injured. The trial court granted summary judgment to Dae Julie, finding that it did not owe Ross a duty of care. Ross appeals, contending that at least a question of material fact remains whether section 414 of the Restatement (Second) of Torts established a duty of care in this case. For the following reasons, we affirm the judgment of the circuit court.


In 1996, Dae Julie was in the process of expanding and remodeling its candy manufacturing plant. As part of the construction project, Dae Julie hired Hill Mechanical Group (Hill Mechanical) to perform mechanical, sheet metal, and pipefitting work on the project. Other contractors were hired for other aspects of the project. No formal written contract was ever entered into between the parties. Farhad Behrouz was the manager of engineering at the Dae Julie plant, and served as the project manager for the entire expansion. His role was to make sure that the project was completed on time, that the specifications were met, to answer questions should they arise, and make decisions regarding field conditions that may require additional time or funds.

Behrouz had the authority on behalf of Dae Julie to stop Hill Mechanical's work if he found it to be unsafe, but he also stated that 99% of his time was spent in other areas of the project. "My main concern was mostly the concentration on the kitchen which was a more critical area." Prior to retaining Hill Mechanical for the job, Behrouz inquired and was told that the company conducted their own safety meetings. Hill Mechanical had weekly safety meetings or "toolbox talks" conducted by its foreman. About one month before the accident, Behrouz had a conversation with Hill Mechanical regarding the need for fall protection, and was told that they would handle it. He relied upon the expertise of Hill Mechanical to do their job correctly. Hill Mechanical was responsible for the safety of its employees on the job site.

Ross was hired as an employee of Hill Mechanical to perform pipefitting work for the expansion. He had 38 years of experience and was eventually promoted to foreman of the project. As foreman, he was responsible for the safety of himself and his workers on the job site. Hill Mechanical provided him will all of the tools and equipment to do his work, including the ladder he was using at the time of his fall, and any fall protection. No Dae Julie personnel told him or his co-workers how to do his job or what type of equipment to use in facilitating their work. Ross testified that he only saw Behrouz around the plant about twice a week and only dealt with him to turn in his time sheets.

Towards the end of the project, Ross and his co-worker, Brian Mandziara ,were working on the mezzanine level of the premises about 10 feet above ground-level. They were completing the pipe installation and welding for a compressor and refrigerated dryer supplied by Dae Julie. There was a two-pipe railing that fenced off the mezzanine level. Ross was aware that the railing had been removed sometime prior to his injury to accommodate the placement of the compressor and dryer on the mezzanine level, and was aware that it had not yet been replaced. Behrouz could not recollect whether he had seen Ross and his co-worker working on the mezzanine at any time before the accident, but was aware that the railing had been taken down from the mezzanine.

On the day of the accident, Ross was welding a pipe about 6 to 8 feet above the floor of the mezzanine level. To access the area needed to be welded, Ross stated that he needed to use a six-foot wooden step ladder supplied by Hill Mechanical to accomplish his task. He chose to use a ladder instead of an enclosed lift which was also available to him. He was not using fall protection. According to Ross, he placed the ladder six to twelve inches from the edge of the mezzanine level with the ladder feet parallel to the wall. He took a step with his left leg onto the ladder and fell along with the ladder to the floor below from the mezzanine level. He does not know what caused him to fall off the mezzanine.

Thereafter, Ross brought suit against Dae Julie alleging that it "had a duty to exercise reasonable care in the scheduling and ordering of the construction work to be done," and that Dae Julie breached that duty by failing to maintain a safe work environment. Dae Julie moved for summary judgment, arguing that it owed no duty to Ross pursuant to section 414 of the Restatement (Second) of Torts because it did not control the manner in which Ross's work was being done. The trial court granted the motion and Ross timely appealed.


Ross contends on appeal that the trial court erred in granting summary judgment because sufficient evidence was presented to establish that Dae Julie owed a duty of care to Ross pursuant to section 414 of the Restatement (Second) of Torts. Restatement (Second) of Torts §414 (1965). Summary judgment is appropriate when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c)(West 2002); Sollami v. Eaton, 201 Ill. 2d 1, 6, 772 N.E.2d 215, 218 (2002). While a plaintiff need not prove his case during a summary judgment proceeding, he must present some evidence to support each element of his cause of action. Finch v. Illinois Community College Board, 315 Ill. App. 3d 831, 835, 734 N.E.2d 106, 109 (2001). Our review of the circuit court's judgment is de novo. Sollami, 201 Ill. 2d at 7, 772 N.E.2d at 218.

The central issue before us concerns the element of duty. In any action for common-law negligence, the plaintiff must plead and prove that defendant owed a duty of care to the plaintiff. Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 186, 766 N.E.2d 1118, 1123 (2002). Whether a duty exists is a question of law to be determined by the court. Happel, 199 Ill. 2d at 186, 766 N.E.2d at 1123.

Here, Ross initially argues on appeal that a duty of care arose when Dae Julie removed the pipe railing from the mezzanine, had the power and ability to replace the railing, and failed to replace it, thereby creating an unreasonably dangerous condition on the premises. An owner of land may subject himself to liability to invitees based upon a condition on the ...

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