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Shawghnessy v. Skender Construction Co.

July 21, 2003


Appeal from the Circuit Court of Cook County. 98 L 1610 Honorable Martin S. Agran, Judge Presiding.

The opinion of the court was delivered by: Justice Smith


Plaintiff James Shaughnessy appeals orders granting summary judgment for defendants Skender Construction Company (Skender) and Garbe Iron Works, Inc. (Garbe). Plaintiff argues that the trial court erred in granting summary judgment because section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts §414 (1965)) and "direct negligence" established a duty of care in this case. We disagree and affirm the summary judgment orders of the trial court.

This litigation arose after plaintiff was injured while working at a construction site at the Oak Brook Racquet Club. The racquet club hired Skender as the general contractor for renovations, and Skender subcontracted with Garbe for the fabrication and erection of a structural steel and metal deck. Garbe then subcontracted with F.K. Ketler Company(Ketler) *fn1 for the erection of the steel. Ketler, an independent contractor, employed plaintiff as an ironworker. On October 30, 1997, plaintiff placed a wooden board over a gap and tried to use the board as a bridge, but the board broke. Plaintiff fell several feet to the basement floor of the racquet club and was injured.

Plaintiff filed an amended complaint alleging negligence against defendants. *fn2 Defendants Skender and Garbe filed motions for summary judgment, arguing that they lacked a duty to plaintiff because they did not retain sufficient control over Ketler's work. The record before the trial court included the parties' contracts and subcontracts.

The contract between the racquet club and Skender was a standard form agreement approved by the Associated General Contractors of America. The contract provided that Skender would supervise and direct the work and be responsible for and control the construction means, methods, techniques, sequences and procedures for coordinating all portions of the work, unless the contract provided otherwise. Skender also agreed to be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the contract and to employ a superintendent whose duties included the prevention of accidents.

The subcontract between Skender and Garbe indicates that the scope of Garbe's work was to furnish all labor, equipment, material and supervision necessary to install the structural steel and metal deck. The subcontract between Garbe and Ketler indicates that the scope of Ketler's work was to furnish all labor, equipment and supervision to unload and erect at the jobsite the structural steel and metal deck.

Discovery depositions of several witnesses revealed the following information.

William Guinea, a Skender project manager, testified that he served as a liaison between Skender and the architects, owners and various subcontractors. Guinea spent about 75% of his time in the office and visited Skender's smaller projects, like the racquet club construction site, either weekly or biweekly. Skender employed Larry Williams, a superintendent assigned to the racquet club project, to schedule and coordinate the trades on the site and ensure that the project was built to plans, on time and within budget. Superintendent Williams was at the site on a daily basis. Guinea had no personal dealings with anyone from Ketler.

Guinea acknowledged that, contractually, superintendent Williams had the authority to stop the work if he detected unsafe practices or conditions, but Skender did not employ a safety person for the project. Guinea also acknowledged that, pursuant to the contract between Skender and Garbe, Skender had discretionary authority to provide equipment to a subcontractor if requested, but Guinea had no knowledge that Skender provided any equipment to any subcontractor at the racquet club project.

Guinea explained that the racquet club remained open to patrons during the renovation project, but construction workers were told to use a separate service entrance on the east side of the building to access the work area in the basement of the club. The east entrance led to an interior stairwell that led to the basement. However, because it was not feasible to move structural steel into the basement through that east entrance, an opening was cut into the south wall of the building at grade level. Guinea testified that the means and methods of moving the structural steel into the basement were not in the plans and specifications of the project but, rather, were the "responsibility" of "Skender and their subcontractors." Guinea did not know how any equipment was moved in or out of the south wall opening.

Alfredo Vasquez, a Skender laborer, testified that the dual purpose of the south wall opening was to let light in and to bring large material and equipment into the work area. Vasquez's duties included opening the south wall in the morning and then closing it at the end of the work day. Vasquez secured the opening by nailing a plywood board over it and placing barricades with caution tape in front of the plywood. The day before the incident, Vasquez placed a ladder in the basement and used it to remove dirt from the work area. According to Vasquez, Skender superintendent Williams was not at the project site prior to plaintiff's fall.

Gerald Erskine testified that he was employed by Ketler for 10 years and, as a foreman, was responsible for instructing Ketler employees on their duties and overseeing the placement of materials and equipment. Erskine was the foreman of Ketler's four-person crew at the racquet club project, and plaintiff was injured on Ketler's first day at that site. Prior to arriving at the site, Erskine's Ketler supervisor told him to use the south wall opening to bring the steel into the basement.

Erskine testified that when he arrived at the site, Skender superintendent Williams showed him where to store steel after it was unloaded from a truck and which areas of the parking lot not to block. Superintendent Williams also told Erskine that all construction workers must use the east entrance to access the stairway to the basement. Thereafter, Erskine instructed his crew to use that east entrance and told them to unload the truck and where to store the steel. Meanwhile, Erskine went inside the basement and determined where to hang his rigging, which included lifting devices and needed to be moved into the basement before ...

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