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Anderson v. The Chicago Land Trust Co.

United States District Court, Seventh Circuit

September 27, 2013

THE CHICAGO LAND TRUST COMPANY, Hon. Harry D. Leinenweber as Successor Trustee to LaSALLE NATIONAL BANK, as Original Trustee under Trust Agreement dated March 28, 1900, and Known as Trust No. 115406, et al., Defendants.



Before the Court are several Motions for Summary Judgment, a Motion to Strike and a Motion for Sanctions. For the reasons stated herein (1) Defendants Midwestern Regional Medical Center and Northeast Illinois Medical Properties, LP's Motion for Summary Judgment is granted in part and denied in part; (2) Defendant Safway Services, LLC's Motion for Summary Judgment is granted; (3) the remaining Motions for Summary Judgment are struck; (4) Plaintiff John Anderson's Motion to Strike is denied as moot; and (5) Defendant Safway Services, LLC's Motion for Sanctions is denied.


Plaintiff John Anderson (hereinafter, "Plaintiff" or "Anderson") is a carpenter. In mid-2008, he was employed by Riley Construction Company ("Riley") to work at a construction site near 2520 Elisha Avenue in Zion, Illinois. Title to the premises where the construction took place (the "Premises") was held by Defendant Chicago Land Trust, as a Successor Trustee to LaSalle National Bank as Original Trustee under a Trust Agreement dated March 28, 1990 and known as Trust No. 115406. The beneficiary of the land trust was Defendant Northeast Illinois Medical Properties, LP ("NIMP"). NIMP leased the Premises to Defendant Midwestern Regional Medical Center ("MRMC").

MRMC contracted with Riley to serve as a construction manager tasked with constructing a specialized building designed to contain a "linear accelerator" for a medical facility on the Premises. A linear accelerator is a particle accelerator used for radiation treatment of cancer patients by delivering high-energy x-rays to a patient's tumor. The contract laid out various rights and responsibilities of the parties. For example, Riley was to be responsible for safety measures under the contract, while MRMC had the right to stop or change the work. As part of the project, a construction fence was built around the construction area. The parties dispute whether and to what extent MRMC employees could enter the construction site.

On the morning of August 26, 2008, Plaintiff was working below grade in a hole excavated for the foundation of the linear accelerator, also known as the vault. Heavy duty scaffolding was going to be used within the vault in connection with the pouring of a concrete deck. Plaintiff alleges that this scaffolding was provided by Defendant Safway Services, LLC ("Safway"). Bundles of the scaffolding were lowered down into the vault by crane. However, at some point that morning it was determined that the scaffolding was the wrong size for the job and needed to be removed from the vault.

Plaintiff was assisting in the removal of the scaffolding from the vault when he was injured. His role in the scaffolding removal was to rig and secure the banded set of scaffolding with a strap to the crane cable hook. This required Plaintiff to climb on the scaffolding and set the strap to the crane cable hook with his left hand while maintaining balance by placing his right hand on the banded scaffolding. Plaintiff states that this is a task he has done throughout his years as a carpenter. However, while performing this task, components of the banded scaffolding slipped and moved, and Plaintiff's right hand was caught between shifting components of the scaffolding. This resulted in Plaintiff sustaining injuries to his right hand.

Riley's superintendent, Roy Micke, did not see Plaintiff get injured. However, he testified that he viewed the scaffolding after the incident, and that it was leaning against one of the walls in the vault in a bowed state. He also testified that he would not have stepped on the bowed scaffolding because the weight of stepping on it would bring it down in the manner it had.

Plaintiff filed this action on August 26, 2010 asserting various negligence claims against MRMC, NIMP, Safway, the Land Trust, and various cancer treatment centers (the "Cancer Treatment Centers"). Defendants filed several separate Motions for Summary Judgment, which are now before the Court. Plaintiff indicated in his Opposition to MRMC/NIMP's Motion for Summary Judgment that he was stipulating to the dismissal of the Land Trust and the Cancer Treatment Center Defendants. As such, the Court will discuss only on the remaining Motions for Summary Judgment, which are those filed by MRMC/NIMP and Safway.


Federal Rule of Civil Procedure 56 requires this Court to enter summary judgment on the Defendants' motions "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The inquiry is "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). The court must review the record and draw all inferences from it in the light most favorable to the non-moving party. Sharer v. Atchison, T.& S.F.R. Co., No. 91 C 3585, 1992 U.S. Dist. LEXIS 7224 at *14 (N.D. Ill. May 14, 1992).


A. Rule 56.1

The Court is compelled to note at the outset a general frustration with deficiencies in the Local Rule 56.1 Statements of Fact and responses submitted by Plaintiff, MRMC/NIMP and Safway. These parties all displayed some level of misapprehension of or disregard for the purpose and requirements of Local Rule 56.1.

A Local Rule 56.1 statement should consist of short numbered paragraphs, including within each paragraph specific references to the affidavits, parts of the record, and other supporting materials relied upon to support the facts set forth in the paragraph. L.R. 56.1(a). The response to the movant's statement should contain concise responses and, in the case of disagreement, specific references to supporting materials.

As the Seventh Circuit has explained:

For litigants appearing in the Northern District of Illinois, the Rule 56.1 statement is a critical, and required, component of a litigant's response to a motion for summary judgment. The purpose of the local rule is to make the summary judgment process less burdensome on district courts, by requiring parties to nail down the relevant facts and the way they propose to support them.

Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394, 398 (7th Cir. 2012). It is not the purpose of a Rule 56.1 Statement to make legal arguments. See, e.g., Freight Train Adver., LLC v. Chi. Rail Link, LLC, No. 11 C 2803, 2012 U.S. Dist. LEXIS 162330 at *28 (N.D. Ill. Nov. 14, 2012) (citing Cady v. Sheahan, 467 F.3d 1057, 1060 (7th Cir. 2006)). As such, a district court should not address such arguments made in a Rule 56.1 Statement or response. Id.

The Court will not march through all of the deficiencies with the Rule 56.1 submissions. It will, however, note a few problems in the hope of avoiding similar issues in the future. In responding to Plaintiff's Statement of Additional Facts, MRMC and NIMP failed to cite any specific references to materials supporting their responses. Instead, they chose to provide unhelpful and somewhat flippant answers such as: "Admit that the statement reflects some of the answers to the questions of the witnesses"; or "Admit that the witness may have had a different understanding of the words and phrases used by plaintiff's counsel at the depositions." MRMC/NIMP Reply to Pl.'s Rule 56.1 Statement ¶¶ 30, 31, ECF No. 124. The Court can think of no circumstances where such responses are in any way helpful to the Court in ruling on summary judgment submissions.

The Rule 56.1 Statement of Additional Facts issued by Plaintiff with respect to Safway's Motion for Summary Judgment was riddled with improper legal assertions and arguments posed as facts. For example, Plaintiff asserted as an additional fact: "The documents relied upon by Safway for the assertion that the scaffolding was supplied by a different company... are inadmissible, because they are unauthenticated hearsay records, which do not qualify for admission under the business records exception." Pl.'s Statement of Add'l Facts ¶ 13, ECF No. 105. Considering that statement summarizes the entire legal argument upon which Plaintiff based a Motion to Strike, the Court fails to see how this statement could be seen as a fact.

Safway, for its part, chose to ignore Rule 56.1's focus on brevity, by submitting some statements of fact that were compound, and responding to other statements of fact with lengthy responses.

The Court is entitled to insist on strict compliance with Local Rule 56.1. Siudut v. Banner Life Ins. Co., No. 12 C 1726, 2013 U.S. Dist. LEXIS 124383 at *3 (N.D. Ill. Aug. 30, 2013). But it is also within the Court's discretion to overlook transgressions with respect to the rule, as well. Id. In this case, requiring the parties to cure the faulty submissions would have only delayed the case, and the Court was able to wade through the parties' briefs to reach a decision. The Court reminds the parties, however, that they do themselves no favors by ignoring the Court's rules of procedure, and that strict compliance with those rules is expected in the future.

B. Midwest Regional Medical Center (Count IV)

Count IV of the Complaint asserts two negligence theories against MRMC - one based on retained control and another on premises liability. Both of these theories are rooted in the Restatement (Second) of Torts. MRMC disputes that it can be found liable under either theory, whereas Plaintiff argues that there is a genuine issue of material fact as to those claims.

1. Restatement § 414 - Retained Control

In Illinois, a party alleging negligence must show that the defendant owed the plaintiff a duty of care, that the defendant breached this duty, and that the breach was the proximate cause of the plaintiff's injury. Avalos v. Pulte Home Corp., 474 F.Supp.2d 961, 965 (N.D. Ill. 2007). Generally, such a duty arises when the parties stand in a special relationship to one another. Id. However, such a relationship is often lacking when a party hires an independent contractor. Id. Put another way, generally a party that entrusts work to an independent contractor is not liable for the contractor's acts or omissions. Wilfong v. L.J. Dodd Constr., 930 N.E.2d 511, 526 (Ill.App.Ct. 2010). An exception to this general rule exists, though, and is provided in the Restatement (Second) of Torts § 414, which states:

One who entrusts work to an independent contractor, but who retains control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.

Restatement (Second) Torts § 414 (1965). This exception is known as the "retained control exception." Wilfong, 930 N.E.2d at 526.

Illinois has adopted the Restatement (2d) of Torts § 414. Larson v. Commonwealth Edison Co., 211 N.E.2d 247 (Ill. 1965). Both parties acknowledge that § 414, and Illinois case law interpreting and applying that section, govern Plaintiff's negligence claim. In applying § 414, Illinois courts recognize that an employee hired by an independent contractor for construction work may recover from the owner for injuries sustained doing that work when the owner "has retained the requisite control over the work and has failed to exercise that control properly." See McConnell v. Freeman United Coal Co., 555 N.E.2d 993, 995-96 (Ill.App.Ct. 1990).

On its plain terms, liability under § 414 arises only if two conditions are satisfied: (1) the defendant "entrusts work to an independent contractor"; and (2) the defendant "retains the control of any part of the work." Henderson v. Bovis Lend Lease, Inc., 848 F.Supp.2d 847, 850 (N.D. Ill. 2012). Most Illinois decisions concerning § 414 turn exclusively on the control requirement. Id. This case is no different, as it is undisputed that MRMC hired Riley as the contractor for the construction at the site. MRMC thus entrusted the work to an independent contractor. The question here then is whether MRMC retained sufficient control of any part of the work.

"In determining whether sufficient control has been retained, Illinois courts ask whether the principal merely retained general oversight of work progress and safety or actually engaged in detailed supervision and/or control of subcontractors' methods and means of performing work." Aguirre v. Turner Constr. Co., 501 F.3d 825, 830 (7th Cir. 2007). To determine whether MRMC retained sufficient control, it is necessary to examine: (1) the construction contract between MRMC and Riley; and (2) the parties' actual practice and interaction with respect to control of the worksite. Avalos, 474 F.Supp.2d at 965-66. Following this framework, it appears there is an issue of material fact as to whether MRMC retained sufficient control such that it owed a duty to Plaintiff.

a. The Construction Contract

As the parties point out, under Illinois law, "the best indicator" of whether a party has retained control over a subcontractor's work is the parties' contract, if one exists. See, Joyce v. Mastri, 861 N.E.2d 1102, 1110 (Ill.App.Ct. 2007). MRMC claims that the agreement between the parties makes it clear that it did not retain the requisite control. Plaintiff responds by pointing to various sections of the agreement that he believes demonstrate that MRMC retained sufficient control. A review of those provisions, however, indicates the contract did not afford MRMC the level of control necessary under § 414 to impose liability.

Plaintiff states that the contract allows MRMC to:

1. reject any proposed subcontractor or supplier (§ 2.1.6);
2. designate specific persons to perform work (§;
3. stop the work (§ 2.3.1);
4. carry out the work (§ 2.4.1 and § 6.1.1);
5. change the work (§ 7.1 and § 7.3);
6. have access to the construction site (§ 3.15.1); and
7. prescribe the means, methods, techniques, sequences and procedures of construction (§ 3.3.1)

See, Pl.'s Opp. to MRMC/NIMP Mot. for Summ. J. at 10, ECF No. 113 (citing Pl.'s Ex. B). A review of the provisions cited, and the rights they give to MRMC, clearly show that they do not dictate the methods of work or operative detail as contemplated under § 414. Indeed, the comments to § 414 provide guidance as to what level of control an employer needs to retain to subject himself to liability under this section:

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

Id. cmt. c. Thus, nearly all of the contractual sections upon which Plaintiff relies are ruled out expressly as being ones that might show control. For example, MRMC's ability under the contract to start and stop work, to go to the construction site and inspect its progress, to prescribe alterations and deviations are all considered rights preserved for employers, as they do not affect the manner in which the work is done. The Court finds that MRMC's ability to reject a proposed subcontractor, or to designate a particular person to do work, is in a similar vein - that determination does not affect how the work is done, but who is doing the work.

In light of the clear guidance given in § 414 comment c., the only contractual provision requiring serious examination is § 3.3.1, which Plaintiff claims reserves to MRMC "the right to prescribe the means, methods, techniques, sequences and procedures of construction." Pl.'s Resp. to MRMC/NIMP Mot. for Summ. J. at 10. Plaintiff's description of that provision is incomplete. That section states:

§ 3.3.1. The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures....

See, Pl.'s Opp. to MRMC/NIMP Mot. for Summ. J. Ex. B § 3.3.1. Contrary to Plaintiff's assertion, this provision makes it clear that the Contractor "shall be solely responsible for and have control over" the means, methods and procedures of work. Id. The only circumstance in which that is not the case is if the contract gives "other specific instructions concerning these matters." Id. Plaintiff points the Court to no such other specific instructions in the contract.

The Court also notes that various provisions of the contract assigned responsibility for safety at the construction site to Riley. See, e.g., Pl.'s Opp. to MRMC/NIMP Mot. for Summ. J. Ex. B § 10.1.1 ("The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the contract."). The contract terms relied upon by Plaintiff thus fail to indicate that MRMC retained control over the construction project.

b. Other Indicators of Control

An examination of the construction contract does not end the analysis, however. It is possible that while a company may enter into a contract that does not indicate retention of control over the means and methods of work, in practice it may exercise such control. Plaintiff argues that there are several facts that indicate that MRMC retained such a level of control as to affect the means of the construction work: (1) the specialized nature of the linear accelerator construction required MRMC to retain control; (2) MRMC performed walkthroughs of the construction site, had input into the construction schedule, and had the authority to stop work; (3) MRMC personnel gave directions to Plaintiff that he ...

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