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Moss v. Rowe Construction Co.

December 18, 2003

JOHN L. MOSS, INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JOHN E. MOSS, DECEASED, PLAINTIFF-APPELLANT,
v.
ROWE CONSTRUCTION COMPANY, A/K/A CULLINAN & SON, INC., A DELAWARE CORPORATION, DEFENDANT-APPELLEE, AND LAESCH ELECTRIC, INC., THIRD-PARTY DEFENDANT.



Appeal from Circuit Court of McLean County No. 00L195 Honorable G. Michael Prall, Judge Presiding.

The opinion of the court was delivered by: Justice Myerscough

UNPUBLISHED

In December 2002, the trial court entered summary judgment for defendant on plaintiff's single-count complaint in negligence. Plaintiff appeals. We reverse and remand.

I. BACKGROUND

On February 15, 1999, plaintiff's decedent, John E. Moss, was killed while working as an employee for subcontractor Laesch Electric, Inc. (Laesch). Laesch was under contract to Rowe Construction Company (Rowe) to remove traffic control devices and foundations and install new ones as part of Rowe's contract with the State of Illinois, Department of Transportation (IDOT) for improvements to Veterans Parkway in Normal.

Under the general contract between IDOT and Rowe, Rowe was required to maintain control of safety on the project:

"Article VIII. Safety: Accident Prevention:

1. In the performance of this contract the contractor shall comply with all applicable [f]ederal, [s]tate, and local laws governing safety, health, and sanitation (23 CFR [§]635). The contractor shall provide all safeguards, safety devices[,] and protective equipment and take any other needed actions as it determines, or as the SHA [State Highway Agency] contracting officer may determine to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract.
2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surroundings or under conditions which are unsanitary, hazardous[,] or dangerous to his/her health or safety, as determined under construction safety and health standards (29 CFR [§]1926) promulgated by the Secretary of Labor, in accordance with [s]section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. [§]333)."

Further, the general contract required:

"The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract requirements, and is in charge of all construction operations (regardless of who performs the work) ***."

Additionally:

"No portion of the contract shall be sublet, assigned[,] or otherwise disposed of except with the written consent of the SHA contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract."

These elements of the general contract are incorporated in their entirety, including the IDOT standard specifications, into the subcontract between Rowe and Laesch.

The subcontract additionally stated in article XVI:

"The [s]ubcontractor shall follow the [c]ontractor's directions regarding safety, clean-up[,] and storage of materials on the work site."

The death of Moss occurred on February 15, 1999, at the intersection of Veterans Parkway and Fort Jesse Road. Al Ruhrup, Jr., Rowe's superintendent for the project, who was on the site on a daily basis, was not present at the time of the accident.

Decedent Moss, Michael Laesch (vice-president of the subcontractor), and two other Laesch employees were removing 7,000-pound concrete foundations upon which traffic control devices are installed. Laesch was operating a truck-mounted derrick, another employee was operating a dump truck to receive the concrete, Moss and the fourth employee were the "ground men" designated to steady the load as it was lifted by the truck-mounted derrick and guide it into the dump truck. Rather than using "tag lines" to guide the concrete, at the direction of Laesch, Moss and the other man were standing next to the foundation guiding it with their hands due to the tight circumstances caused by an adjacent light pole and guy wires. Those obstructions prevented Michael Laesch from placing the dump truck closer to the concrete foundation. Contractual terms prohibited Laesch from placing its equipment on the roadway during certain times of day, limiting placement options. Additionally, the ground upon which the derrick was placed was muddy, one of the outrigger supports for the truck-mounted derrick was not properly padded for the muddy conditions, and the derrick was improperly placed on a downward five-degree slope.

On the first attempted lift, the concrete began to spin and had to be set down. The second attempt was halted when the hydraulic overload protective system (HOPS) activated. HOPS is a warning system on the truck-mounted derrick indicating that something was not proper in the lift attempt. As a result, the dump truck was repositioned. On the third attempt, the derrick began to tip, and Laesch yelled for everyone to clear the area. Moss backed away into several guy wires. As he moved again, he was struck by the boom of the derrick and killed. Moss's estate sued defendant Rowe, the general contractor for the Veterans Parkway project (Project), alleging defendant retained control of the work and was negligent, causing Moss's death.

Rowe moved for summary judgment on the basis that Rowe did not retain or exercise control over the work being done by Laesch sufficient to impose liability on Rowe. The trial court granted the motion and entered judgment for Rowe and against Moss on plaintiff's complaint. Plaintiff appeals, framing the issues as follows:

"(1) Whether the Restatement (Second) of Torts, Section 414 ('Section 414'), requires a defendant to have actually exercised control over the 'means and methods' of a subcontractor's work to be subject to liability to a subcontractor's injured employee, or whether the retention of a right to control safety is sufficient to create at least a question of fact as to liability; and (2) Whether [d]efendant in the present case exercised and/or retained the right to exercise control over the work in a manner sufficient for it to be subject to liability pursuant to [s]section 414." (Emphasis in original.)

This appeal followed.

II. ANALYSIS

The issue before the court is more specifically framed under section 414 of the Restatement (Restatement (Second) of Torts ยง414 (1965)): Did defendant retain some degree of duty to control safety on the project? Further, if defendant did retain that duty to control safety, did defendant negligently exercise or fail to exercise that duty to control safety? In this case, the retention of the duty to control safety is answered directly by the contracts. Further, the exercise of that duty or the failure to exercise that duty ...


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