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Martens v. MCL Construction Corporation

February 27, 2004


[6] Cook County. Nos. 01 L 1467 98 L 8631 Honorable David G. Lichtenstein, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Fitzgerald Smith

[8]  Plaintiff John Martens appeals the trial court's order granting summary judgment for defendants MCL Construction Corporation (MCL) and Shelco Steel Works, Inc. (Shelco). Based on the dismissal of all plaintiff's claims, the trial court deemed moot Shelco's motions for partial summary judgment, and to strike and dismiss plaintiff's strict products liability claim. Plaintiff argues the trial court erred in granting MCL and Shelco summary judgment, contending there was a genuine issue of material fact regarding whether those defendants owed plaintiff, an employee of an independent contractor, a duty of care pursuant to section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts §414 (1965)). Plaintiff also seeks reinstatement of his strict products liability claim against Shelco. We affirm the judgment of the trial court.


[10]   The following facts are taken from the pleadings, depositions and affidavits. Plaintiff filed an amended complaint alleging (count I) defendants breached their duty to provide plaintiff a safe place to work by failing to provide fall protection. Plaintiff also alleged (count II) a strict products liability claim against Shelco, contending Shelco fabricated an unreasonably dangerous steel beam by adding stiffeners and failing to mark the beams to warn users of the presence of the stiffeners.

[11]   Plaintiff was an ironworker employed by F.K. Ketler Company (Ketler), an independent contractor, which was hired as part of a project to construct condominiums and single-family homes. MCL was the construction manager and hired Shelco to fabricate and erect steel for a multistory building. Shelco subcontracted Ketler to perform the actual steel erection work. On July 10, 1997, plaintiff fell from a steel beam and sustained injuries.

[12]   MCL president Dan McLean testified that MCL did not perform any construction work but, rather, hired qualified, union-licensed contractors who were in charge of how they performed their own work. MCL supervised only its own work-not the work of the subcontractors. The purpose of the contract between the owner and MCL was to satisfy the requirements of a lender, and the contract primarily addressed overhead costs MCL received from the owners. The contract between the owner and MCL consisted of multiple documents, including a 14-page agreement, a 24-page 14-article general conditions document, and the drawings, specifications and addenda.

[13]   Only a few provisions of the general conditions document between the owner and MCL are relevant to the matters raised on appeal. Specifically, MCL was responsible for and had control "over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless Contract Documents give other specific instructions concerning these matters." MCL required subcontractors to be bound by the terms of the contract documents and to assume toward MCL all the obligations and responsibilities MCL assumed toward the owner and architect. MCL was "responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract." Regarding safety, MCL would give notices and comply with applicable laws, ordinances, rules and regulations bearing on the safety of persons or property or their protection from damage, injury or loss; erect and maintain, as required by existing conditions and performance of the contract, reasonable safeguards for safety and protection; and designate a member of MCL at the site whose duty was to prevent accidents.

[14]   According to the contract between MCL and Shelco, Shelco was responsible for providing materials, equipment and labor with proper supervision of the steel fabrication and erection. Shelco warranted that it was familiar with and in compliance with all applicable laws, regulations and rulings, including Occupational Safety and Health Administration (OSHA) and workers' compensation. Shelco agreed to abide by MCL's directives, policies and procedures, including safety procedures. Shelco excluded from the contract responsibility for OSHA safety cables at the perimeter of mechanical openings in the floors and roofs and for maintaining such safety cables.

[15]   According to the subcontract between Shelco and Ketler, Ketler was responsible for furnishing the required field labor and facilities to unload and erect the structural steel in accord with the architect's plans and specifications. Ketler was also responsible for OSHA safety cables at the floors and roofs. All applicable OSHA requirements were part of the subcontract, and the American Institute of Steel Construction (AISC) Code of Standard Practice applied except where overridden by project plans or specifications. The AISC, an association that sets forth guidelines for steel erection, is recognized in the industry as authoritative. According to the AISC Code, the fabricator was not responsible for erection safety if the structure was erected by others.

[16]   Ketler furnished a safety manual to MCL in accordance with the safety plan as part of the contract between MCL and Shelco. Ketler's safety manual provided that those "working aloft on skeleton steel shall tie off their safety lines except when moving from one point to another." Ketler's safety manual also provided that the foreman has the greatest burden of responsibility for putting the safety rules into practice.

[17]   Plaintiff had been an ironworker since 1975 and had been on the job in question for about two months before he fell. He exclusively took his directions from Ketler foremen Bill Gaynor and John Kirincich. On the morning he fell, plaintiff was teamed up with Kirincich to land, position and connect steel bar joists to steel beams to form the decking between the ceilings and floors. They were at the top of the erected structural steel, which was the seventh floor, and decking was in place on the fifth floor. Plaintiff had attached a safety line or lanyard to his personal tool belt but was not tied off because he had to move freely as part of the job. Plaintiff was working in an interior bay of beams as opposed to the perimeter of the structural steel.

[18]   Penetrations in the webs of steel beams were common at a jobsite and allowed other trades to install utilities and ductwork through the penetrations. Because penetrations compromised the strength of a beam, pieces of steel called stiffeners were welded around the penetrations for reinforcement. Stiffeners surrounded the penetrations like a box and protruded about four inches beyond each side of the beam web and about one inch beyond each side of the beam flanges. Shelco shipped the beams to the jobsite with the penetrations and stiffeners prefabricated. There were no regulations or industry standards concerning marking the beams to indicate the presence of penetrations or stiffeners. Plaintiff knew penetrations and stiffeners were prevalent on beams throughout the job.

[19]   Plaintiff was standing on a beam that was bolted to columns and part of the structural skeleton of the building. As he waited for the next load of bar joists, he attempted to sit down and straddle the beam. However, when he lowered one foot onto the lower flange of the beam, his foot apparently hit a stiffener, which allegedly caused him to lose his balance. Plaintiff fell onto a beam on the sixth floor and then slid down a column to the fifth floor.

[20]   Ketler foreman Bill Gaynor testified he was in charge of all Ketler's operations on site, gave all the orders to the Ketler crew and was in charge of all the means and methods used. Gaynor did not consult with anyone from MCL or Shelco regarding the operative details of Ketler's work. Gaynor determined when a Ketler crew member needed to tie off. Ketler had no tie-off requirement of its own; it simply followed the OSHA and union rules regarding ironworkers tying off at heights more than 2 floors or 25 feet above a deck. On the day plaintiff fell, Gaynor directly supervised the raising crew while Kirincich supervised the decking crew. Because plaintiff was working 2 floors and less than 25 feet above the fifth-floor decking, there was neither a requirement nor a need for him to tie off. In Gaynor's 20 years in the iron-erecting business, he never saw beams marked to indicate the presence of stiffeners, and it was not industry custom and practice to make such marks.

[21]   Ketler foreman John Kirincich was an ironworker for 17 years and testified consistently with Gaynor regarding Ketler's supervision of its crew. Kirincich added that he and plaintiff never tied off while working in an interior bay because it was not necessary and they were not higher than 2 floors or 25 feet above a deck. Kirincich explained that ironworkers use the lanyard on their tool belts to tie off at various points, like the perimeter cable. Here, however, plaintiff and Kirincich were doing interior joist work, and it would have been unsafe to tie the lanyard under a beam because they would not have enough time to move out of the way of a swinging beam or to respond if something failed. In addition, it was possible on that job to look down and see a stiffener prior to stepping down onto the lower flange of a beam.

[22]   Ketler employee and union steward John Hoyne testified that Ketler foreman Gaynor gave the crew daily directions. When plaintiff fell, Hoyne was on the ground working with the crane under Gaynor's direction. Hoyne assisted in taking plaintiff to the ground after he fell. There was decking on the fifth floor immediately below where plaintiff fell, and any openings in the deck, such as stairwells or elevator shafts, were more than 10 feet away.

[23]   MCL safety director Leon Williams testified that OSHA regulations distinguished between ironworkers and other trades, requiring fall protection at a six-foot height for most trades except ironworkers and a few other trades. Ironworkers did not need to tie off while working on the interior of the building if they were no higher than 2 floors or 25 feet above decking. MCL's safety manual incorporated the OSHA 2-floor/25-foot standard for ironworkers. Plaintiff was only 2 floors and less than 25 feet above the fifth floor decking.

[24]   Williams acknowledged that MCL's safety manual, in a section titled "Fall Protection: General," provided that if fall protection was deemed necessary, the subcontractor must develop a fall protection program and submit it to MCL for approval. At a minimum, workers must be protected from falls greater than six feet. However, a separate section of that manual, titled "Fall Protection and Steel Erection," incorporated the OSHA 2-floor/25-foot standard for ironworkers. Williams explained that MCL wrote the 6-foot tie-off rule before it held any meetings with ironworkers, who insisted on following the OSHA 2-floor/25-foot standard because MCL's 6-foot rule was not feasible. Before steel erection work began, a Shelco representative said the six-foot rule was not feasible for structural steel erection, and Ketler foreman Gaynor said the ironworkers could not tie off at six feet 100% of the time. Accordingly, the parties agreed that the six-foot rule would apply to ironworkers when it was feasible, which would be determined by the subcontractors.

[25]   Williams testified that Ketler was in charge of the means, methods and operative detail of erecting the steel. Williams visited the jobsite about twice a week and addressed safety observations at meetings or to a foreman. If Williams saw an unsafe condition or act at the jobsite, he wrote a citation and notified the foreman of the crew. For example, MCL sent Ketler and Shelco two safety warnings regarding a problem with the manner in which Ketler attached its perimeter ...

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