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Fonseca v. Clark Constr. Group, LLC

Court of Appeals of Illinois, First District, First Division

April 28, 2014

FORTINO FONSECA, Plaintiff-Appellant,
v.
CLARK CONSTRUCTION GROUP, LLC, Defendant-Appellee, and Maron Electric Company, Defendant

Appeal from the Circuit Court of Cook County. No. 10 L 1404. Honorable Kathy M. Flanagan, Judge Presiding.

SYLLABUS

Summary judgment was properly entered for defendant, the general contractor on a construction project, where plaintiff, an employee of the drywall subcontractor, tripped on a pipe while carrying a sheet of drywall and filed an action alleging that defendant failed to remove debris from the area where plaintiff was working and to properly supervise the work being done, since defendant never exercised general/supervisory authority, did not alter or directly supervise the work of the electrical subcontractor responsible for the debris on which plaintiff tripped, and did not retain sufficient control over the electrical contractor's work to warrant imposing a duty on defendant under section 414 of the Restatement (Second) of Torts to exercise reasonable care.

Keith Young, Chicago, Illinois, counsel for Appellant.

Johnson & Bell, Chicago, Illinois, (Joseph F. Spitzzeri, Garrett L. Boehm, Jr., and Katie E. Gorrie, of counsel), for Appellees.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Delort concurred in the judgment and opinion.

OPINION

Page 275

CUNNINGHAM, JUSTICE.

[¶1] This appeal arises from an October 15, 2012 order which granted the motion for summary judgment filed by defendant-appellee Clark Construction Group, LLC (Clark Construction), and denied the motion for summary judgment filed by defendant Maron Electric Company (Maron Electric). Maron Electric is not participating in this appeal. On appeal, plaintiff-appellant Fortino Fonseca (Fonseca) argues that the trial court erred in granting summary judgment in favor of Clark Construction because there was sufficient evidence to establish that Clark Construction owed Fonseca a duty to exercise reasonable care. For the following reasons, we affirm the judgment of the circuit court of Cook County.

[¶2] BACKGROUND

[¶3] In March 2008, Clark Construction was the general contractor working on the construction of an office building located at 300 N. LaSalle Street, Chicago, Illinois (the building). The building was owned by 300 LaSalle LLC, a Delaware limited liability company (300 LaSalle). Fonseca was employed as a contractor for RG Construction, a drywall subcontractor of Clark Construction. Maron Electric was also a subcontractor of Clark Construction and was in charge of the electrical work for the building. The contracts between the owner of the building, the general contractor, and the subcontractors contained several provisions that are at issue in this case.

[¶4] 300 LaSalle and Clark Construction executed a contract for the construction of

Page 276

the building (the Clark contract). Section 3.3.1 of the Clark contract stated:

" [Clark Construction] 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 Contract Documents or otherwise required by good construction practice or by any applicable code. Contractor understands and acknowledges that although certain construction means, methods, techniques, sequences and procedures necessary for the completion of the Project may be referenced in the Contract Documents, it shall remain responsible for and have control over the construction means, methods, and techniques necessary to comply with such sequences and procedures."

[¶5] Section 3.3.2 of the Clark contract stated:

" [Clark Construction] shall be responsible to [300 LaSalle] for acts and omissions of [Clark Construction's] employees, suppliers, consultants, Subcontractors and Sub-Subcontractors and their respective agents and employees, and all other persons or entities performing portions of the Work."

[¶6] Section 10.2.1 of the Clark contract stated:

" [Clark Construction] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work, including safety of all persons and property during performance of the Work. This requirement shall apply continuously throughout the course of the Work and shall not be limited by normal working hours. [Clark Construction] shall take all reasonable precautions and safety measures, including those listed in the Contract Documents (which are ...

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