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Lawrence O'connell v. Turner Construction Company

March 25, 2011

LAWRENCE O'CONNELL,
PLAINTIFF-APPELLANT,
v.
TURNER CONSTRUCTION COMPANY, A CORPORATION
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County 05 L 6746 Honorable Marcia Maras, Judge Presiding.

The opinion of the court was delivered by: Judge Epstein

JUDGE EPSTEIN delivered the judgment of the court, with opinion.

Justices Joseph Gordon and Howse concurred in the judgment and opinion.

OPINION

Plaintiff, Lawrence O'Connell, was injured while working on a construction site. He appeals the trial court's grant of summary judgment in favor of Turner Construction Company, the construction manager, claiming triable issues of fact on all of his claims, which are premised on sections 414 and 343 of the Restatement. Restatement (Second) of Torts §§414, 343 (1965). For the reasons below, we affirm.

BACKGROUND

In 2002 Grayslake Community High School District 127 (School District) hired Turner Construction Company (Turner) as the construction manager for building a new high school campus. Turner's contract with the School District provided, inter alia:

"2.2.19 The Construction Manager shall receive bids, prepare bid analyses and make recommendations to the Owner for Owner's award of Contracts or rejections of bids.

2.2.20 The Construction Manager shall assist the Owner in preparing Construction Contracts and advise the Owner in the acceptability of Subcontractors and material suppliers proposed by Contractors.

2.3.12 The Construction Manager shall review the safety programs developed by each of the Contractors for purposes of coordinating the safety programs with those of the other Contractors. The Construction Manager's responsibilities for coordination of safety programs shall not extend to direct control over or charge of the acts or omission of Contractors, Subcontractors, agents or employees of Contractors or Subcontractors, or any other persons performing portions of the Work and not directly employed the Construction Manager.

2.3.15 With respect to each Contractor's own Work, the Construction Manager shall not have control over or charge of and shall not be responsible for construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work of each of the Contractors, since these are solely the Contractor's responsibility under the Contract of Construction. The Construction Manager shall not be responsible for a Contractor's failure to carry out the Work in accordance with the respective Contract Documents. The Construction Manager shall not have control over or charge of acts or omissions of the Contractors, Subcontractors, or their agents or employees, or any other persons performing portions of the Work not directly employed by the Construction Manager.

2.3.28 Duties, responsibilities and limitations on authority of the Construction Manager as set forth in the Contract Documents shall not be restricted, modified or extended without written consent of the Owner, Construction Manager, Architects and Contractors. Consent shall not be unreasonably withheld."

A supplement to Turner's contract modifies section 2.3.15 by adding "unless such failure could have reasonably been discovered by the Construction Manager" to the second sentence in that paragraph, inserting "and" between Owner and Construction Manager in paragraph 2.3.28, and deleting the last sentence of that paragraph.

Waukegan Steel, a trade contractor hired by the School District for the project, subcontracted its work to Linden Erectors (Linden), plaintiff's employer. On July 17, 2003, plaintiff was injured on the construction site while working with another Linden employee to unravel a large steel perimeter cable using a motorized lift. Plaintiff was injured when the cable he was guiding went slack and then taut, jerking him forward. Plaintiff's "right foot fell in a little hole -- a rut," his neck snapped back, his hardhat fell off, and plaintiff fell to the ground, landing on his knees and hands. ...


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