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Anwar Oshana v. Fcl Builders

January 27, 2012

ANWAR OSHANA,
PLAINTIFF-APPELLANT,
v.
FCL BUILDERS, INC.,
DEFENDANT-APPELLANT (SUBURBAN IRON WORKS, INC., )
DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County Honorable Thomas P. Quinn, Judge Presiding. No. 06 L 13001

The opinion of the court was delivered by: Justice Lampkin

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

Presiding Justice Robert E. Gordon and Justice Garcia concurred in the judgment and opinion.

OPINION

¶ 1 Plaintiff Anwar Oshana and defendant FCL Builders, Inc. (FCL), appeal the circuit court's order granting summary judgment in favor of defendant Suburban Ironworks, Inc. (Suburban). Appellants argue that Suburban, which fabricated and delivered structural steel for a construction project, retained sufficient control over the steel erection work of an independent contractor and, thus, fell within the ambit of the retained control exception of section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)). Specifically, appellants argue that, even though Suburban subcontracted out the steel erection work to the independent contractor, Suburban retained contractual control over the safety of the steel erection work and supervisory and operational control over the steel erection work.

¶ 2 For the reasons that follow, we affirm the judgment of the circuit court.

¶ 3 I. BACKGROUND

¶ 4 Plaintiff Anwar Oshana was an ironworker employed by JAK Ironworks (JAK), a steel erection and installation subcontractor. Plaintiff was injured when he fell from a steel beam while working at the Willow Inn project construction site. At the time of his injury, he was working at the first-floor level and was not tied off.

¶ 5 Plaintiff filed a negligence suit based on section 414 of the Restatement (Second) of Torts against defendants: FCL, the general contractor, and Suburban, the steel subcontractor that had subcontracted out the erection work to JAK. FCL filed a third-party complaint for contribution against JAK and a counterclaim for contribution against Suburban. The parties conducted discovery and deposed various witnesses.

¶ 6 According to the subcontract between FCL and Suburban, Suburban agreed to fabricate and erect the structural steel for the project. Suburban, however, could further subcontract out part or all of that work, provided, inter alia, that all subcontractors were union, coordinated their work through FCL, and observed all applicable ordinances and safety standards. Suburban agreed to assume "responsibility for the prevention of accidents to its agents, invitees and employees." Suburban also agreed to "take all reasonable safety precautions with respect to the work to be performed" and "comply with all safety measures initiated by [FCL] and with all applicable laws, ordinances, rules, regulations, and orders of any public authority for the safety of persons or property." Furthermore, Suburban agreed that it "shall at all times maintain a qualified and skilled superintendent or foreman at the site of the work *** [who] shall be dully [sic] and legally authorized to represent and act for [Suburban] with respect to all matters in connection with or arising out of work under this Subcontract."

¶ 7 In Suburban's subcontract with JAK, JAK agreed to "provide and pay for all labor, materials, tools, plant, supplies, scaffolding, transportation, insurance, taxes, equipment, competent full-time supervision, and all other services and do all things necessary for the proper and complete performance, installation, and construction of all of the work identified in the attached Project Specific Agreement." The project specific agreement defined that work as "Steel Erection: With Safety Cabel [sic] Install & Remove." Furthermore, JAK agreed to be bound by the provisions of Suburban's general contract with FCL and would "perform on behalf of [Suburban] each and all of [Suburban's] obligations under the General Contract in reference to the Work hereby subcontracted to [JAK]." JAK agreed to furnish competent workers and a full-time superintendent to supervise the steel erection work. JAK also agreed to conform its work to the basic safety policy of Suburban and comply with OSHA regulations for the steel erection work and all other applicable codes, rules, ordinances, statutes and similar regulations.

¶ 8 Furthermore, JAK agreed to, "at all reasonable times, permit inspection by [Suburban] or Owner or Architect of the work and materials provided under this Subcontract," and "replace or correct any work or materials which [Suburban] or the Owner shall reject as failing to conform to the requirements of [Suburban] of this Subcontract." If JAK failed to make such replacements or corrections, Suburban had the right to do so and hold JAK liable for the costs thereof. In addition, Suburban "may stop the Work whenever such stoppage is ordered by Owner, or its representative, or when, in the sole judgment of [Suburban], such stoppage is necessary to insure the proper execution of the Contract or the Work." JAK agreed to cooperate with and coordinate its work with the work of Suburban and other subcontractors to avoid complications and delays.

¶ 9 In his deposition, plaintiff stated that he was working as an ironworker for JAK at the Willow Inn project site for about three weeks before his accident. He attended JAK's safety meetings once a week, and fall protection for ironworkers was discussed at those meetings. He did not remember the accident, did not know what he was doing immediately before the fall, and did not know what caused him to fall.

ΒΆ 10 Charles Byro, the JAK foreman and plaintiff's immediate superior, said his crew of ironworkers reported to him and took all their orders and directions solely from him. Looking out for his crew's safety was his responsibility, and he held weekly safety meetings for the JAK employees. On the day of the accident, there were no adverse weather conditions, and Byro did not notice any slippery conditions on the steel or any defects in the steel. Byro and plaintiff were walking on the beams on their way to take a break. As Byro went down the ladder, he heard something and turned to see plaintiff hit the ground feet first. Byro did not know why or how plaintiff fell. Plaintiff fell about 12 feet. They were not tied off while doing their work on the first floor, which was in conformity with the OSHA ...


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