Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 515-Sidney I. Schenkier, Magistrate Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, RIPPLE, and KANNE, Circuit Judges.
This is a tort suit brought in federal district court under the diversity jurisdiction by a bricklayer (and his wife, who is claiming loss of consortium). It is governed, so far as the substantive issues are concerned, by Illinois law. The plaintiff was seriously injured when he fell off a scaffold while working on the renovation of Soldier Field, the big Chicago athletic stadium. His employer was the A.L.L. Masonry company, but his suit is not against his employer-against which he could seek a remedy only under workers' compensation law. It is against four corporations that, leagued in a joint venture called TBMK, were the general contractors for the renovation. A.L.L. Masonry was one of TBMK's subcontractors. For simplicity, we shall pretend that the bricklayer is the only plaintiff and the joint venture the only defendant.
The district court initially granted summary judgment in favor of the defendant on the ground that the defendant owed no duty of care to the plaintiff because he was the employee of a subcontractor, and that in any event the plaintiff could not use the doctrine of res ipsa loquitur to prove the defendant's negligence because the defendant had lacked exclusive control over the scaffold from which the plaintiff fell. This court reversed, ruling that the defendant had assumed a duty of care to the plaintiff and that exclusive control is not an element of res ipsa loquitur. 501 F.3d 825 (7th Cir. 2007). The case then went to trial. The jury rendered a verdict for the defendant, and the plaintiff again appeals.
A general contractor ordinarily is not liable to someone injured by the negligence of a subcontractor, Gomien v. Wear-Ever Aluminum, Inc., 276 N.E.2d 336, 338 (Ill. 1971); Bieruta v. Klein Creek Corp., 770 N.E.2d 1175, 1180 (Ill. App. 2002); Anderson v. Marathon Petroleum Co., 801 F.2d 936, 938 (7th Cir. 1986) (Illinois law); W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 71, p. 509 (5th ed. 1984), though he is liable, by virtue of the doctrine of respondeat superior, for injuries caused by the negligence of his own employees. Because he hires, fires, trains, and supervises them he ought to be able to do something to prevent their being careless, and he will do something if he is liable for their negligence, while they themselves cannot be fully trusted to be careful because as a practical matter they cannot be sued, being in most cases judgment proof. See Hartmann v. Prudential Ins. Co., 9 F.3d 1207, 1210 (7th Cir. 1993); Konradi v. United States, 919 F.2d 1207, 1210 (7th Cir. 1990); Alan O. Sykes, "The Boundaries of Vicarious Liability: An Economic Analysis of the Scope of Employment Rule and Related Legal Doctrines," 101 Harv. L. Rev. 563, 569-70 (1988); Sykes, "The Economics of Vicarious Liability," 93 Yale L.J. 1231, 1244, 1246-47 (1984).
But a general contractor usually is not in a good position to assure that his subcontractors exercise due care, since he does not hire, fire, train, or supervise their employees. He merely contracts for the subcontractors' output, leaving them to determine how and by whom the output shall be produced. Anderson v. Marathon Petroleum Co., supra, 801 F.2d at 938-39; Keeton et al., supra, § 71, p. 509; Clarence Morris, "The Torts of an Independent Contractor," 29 Ill. L. Rev. 339, 341-42 (1934).
But that is in general, and there are exceptions. The one pertinent here, as explained in our previous decision, see 501 F.3d at 829-30, is where the general contractor assumes (or maybe has imposed on him by law) a degree of responsibility for the safety with which the subcon-tractor does its work. See Grillo v. Yeager Construction, 900 N.E.2d 1249, 1266-67 (Ill. App. 2008); Joyce v. Mastri, 861 N.E.2d 1102, 1110-11 (Ill. App. 2007); Restatement (Second) of Torts § 414 (1977). Some cases discuss this rule under the rubric of "retained control," but that rather begs the question: control of what? Better to say that if the general contractor's contract with the subcontractor, or a law, requires him to take care for the safety of the subcontractor's work, he has a duty of care enforceable by tort law. A general contractor who fails to fulfill that duty is liable if injury results-not derivatively liable, as under respondeat superior, but liable for its own negligent act or omission. The defendant in this case took measures to monitor the care of its subcon-tractors for the safety of the workers on the project, and it could and on occasion did require a subcontractor to take additional precautions. The exception for assumption of responsibility is therefore applicable.
The question then becomes whether the defendant breached its duty of care to the plaintiff, a subcontractor's employee. The plaintiff relies for an affirmative answer on the doctrine of res ipsa loquitur ("the thing speaks for itself"), which allows a plaintiff to prevail in a negligence case by showing that even if there is no direct evidence of negligence, the circumstances of the accident indicate that it probably would not have occurred had the defendant not been negligent. Dyback v. Weber, 500 N.E.2d 8, 12 (Ill. 1986); Metz v. Central Illinois Electric & Gas Co., 207 N.E.2d 305, 307 (Ill. 1965); Welge v. Planters Lifesavers Co., 17 F.3d 209, 211 (7th Cir. 1994) (Illinois law); Keeton et al., supra, § 39, p. 243; Restatement, supra, § 328D.
As so often in tort law, an old case best illuminates the doctrine. In Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (Ex. 1863), a barrel of flour rolled out of the window of a warehouse and fell on a pedestrian, and the jury was allowed to infer that the accident had been due to negligence by the warehouse's owner. The defendant could have negated the inference by proving that a stranger had (without fault on the defendant's part) entered the warehouse and rolled the barrel out of the window in a spirit of malicious mischief, but he failed to prove that.
The parties manage to avoid telling us what the effect of the doctrine is in a lawsuit governed by Illinois law. Does the doctrine merely allow the trier of fact to infer negligence-is it in other words just an illustration of the use of circumstantial evidence to create a prima facie case? Or does it create a presumption of negligence that entitles the plaintiff to judgment unless the defendant presents evidence in rebuttal, or that even shifts the burden of persuasion to the defendant? In Illinois, as in most states, see Keeton et al., supra, § 40, pp. 258-59; Restatement, supra, § 328D, comment b, it is just a type of circumstantial evidence (which raises the question, why treat it as a separate doctrine?). Dyback v. Weber, supra, 500 N.E.2d at 12; Metz v. Central Illinois Electric & Gas Co., supra, 207 N.E.2d at 307; Beasley v. Pelmore, 631 N.E.2d 749, 751 (Ill. App. 1994). A contrary intimation in Neace v. Laimans, 951 F.2d 139, 141 (7th Cir. 1991), cannot be considered authoritative in light of the Illinois cases.
The black-letter statement of the doctrine is that the thing that caused the plaintiff's injury must at the time of the accident have been under the defendant's control. But as the Prosser treatise points out, Keeton et al., supra, § 39, pp. 249-51, this formulation (like so many black-letter statements of rules) should not be taken literally, as it implies that the doctrine could not be invoked in a case in which the brakes on a new car fail and the manufacturer is sued. Or imagine a duty to warn case in which the duty is to warn about a dangerous activity of someone else. (Suppose the dealer who had sold the car knew the brakes were defective.)
Preoccupation with control derailed the district court's first decision and continues to confuse. The scaffold was assembled by the subcontractor, but we know that the general contractor, the defendant, had assumed responsibility, jointly with its subcontractors, for the safety of the work site. And anyway no one was "controlling" the scaffold when the accident occurred. But both the subcontractor, who had assembled it, and the defendant, who had assumed responsibility for the work site, which included the scaffold, might have prevented the accident. We described this is in our first decision as a case of "joint control," 501 F.3d at 832, equivalent to the concept of nonexclusive control in Lynch v. Precision Machine Shop, Ltd., 443 N.E.2d 569, 572-73 (Ill. 1982), which cites approvingly the Prosser treatise's disapproval (which we quoted) of requiring proof of literal control. Id. at 572; see also Decatur & Macon County Hospital Association v. Erie City Iron Works, 220 N.E.2d 590, 595-96, 598 (Ill. App. 1966).
Consistent with our earlier discussion, a simpler, more perspicuous way to think about this case is in terms of duty rather than control. Did the defendant have a duty, dischargeable by inspection or otherwise, to make sure that its subcontractors' scaffolds didn't collapse unless the negligence of an employee who used (or rather misused) the scaffold after it had been properly assembled and inspected was responsible for the collapse? When the case was tried on remand, the magistrate judge, in instructing the jury, said that to find for the plaintiff the jury would have to find "that the injury was received from a scaffold which was under the defendant's control . . . [and] that in the normal course of events, the injury would not have occurred if the defendant had used ordinary care while the scaffold was under its control." An instruction in terms of duty would have been clearer but is not what the plaintiff sought or seeks; and the magistrate judge cannot be criticized for instructing consistently with our previous opinion. Rather, the plaintiff argues that a further instruction, making clear that the scaffold didn't ...