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Lederer v. Executive Construction, Inc.

Court of Appeals of Illinois, First District, Fifth Division

August 29, 2014

ROGER LEDERER, Plaintiff-Appellant,
v.
EXECUTIVE CONSTRUCTION, INC., Defendant-Appellee and Third-Party Plaintiff (Midwest Interstate Electrical Construction Company, Defendants, and Alliance Drywall and Acoustical Company, Third-party Defendant)

Page 113

Appeal from the Circuit Court of Cook County. No. 09 L 221. The Honorable Kathy M. Flanagan, Judge, presiding.

SYLLABUS

In an action for the injuries suffered by a drywall taper employed by a subcontractor who tripped over some exposed and unprotected conduit protruding from the floor of the room where he was using drywall stilts to work on the ceiling, the trial court's entry of summary judgment for defendant general contractor was reversed and the cause was remanded, since there was sufficient evidence to show that defendant had more than a general right of supervision and was potentially subject to liability under section 414 of the Restatement (Second) of Torts, defendant's safety manual specifically prohibited the use of stilts by a subcontractor's employees, and defendant had authority to stop unsafe work and order it remedied.

Keith L. Young, of Chicago, for appellant.

Franco & Moroney, LLC, of Chicago (Robert J. Franco, Christopher G. Beunik, and Christopher M. Cano, of counsel), for appellee.

JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.

OPINION

Page 114

PALMER, JUSTICE.

[¶1] Plaintiff, Roger Lederer, appeals the circuit court's July 26, 2012, grant of summary judgment in favor of defendant-appellee Executive Construction, Inc. (Executive). On appeal, Lederer contends that the circuit court erred in granting summary judgment because section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)) established a duty of reasonable care in the present case. Plaintiff argues that the undisputed facts established, as a matter of law, that the degree of control Executive exercised over the construction project imposed a duty of reasonable care upon Executive. Plaintiff also argues that, as a matter of law, a duty of reasonable care was imposed upon Executive as it had notice of the dangerous condition. For the reasons that follow, we reverse the circuit court's ruling and remand for further proceedings.

[¶2] I. BACKGROUND[1]

[¶3] Executive was the general contractor for the construction of an office space on several floors of an existing building located at 115 South LaSalle Street (the project) in Chicago, Illinois, for BMO Capital Markets (BMO). Executive subcontracted with Midwest Interstate Electrical Construction Company (Midwest) for the electrical work at the site. Executive also subcontracted with third-party defendant, Alliance Drywall and Acoustical Company (Alliance), for the drywall and acoustical ceiling work at the site. Plaintiff, a drywall taper employed by Alliance at the site, was working on the ceiling of a conference room on the thirty-seventh floor on July 22, 2008, which was his second day on the job. While performing the work, plaintiff stood on stilts to reach the ceiling, and he fell after allegedly tripping over an exposed and unguarded electrical conduit

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or pipe protruding from the floor in the conference room.

[¶4] Following the accident, plaintiff filed a personal injury action against Executive and Midwest in 2009. Against Executive, plaintiff alleged negligence for failing to ensure that warning cones were placed over the electrical conduit, failing to remove construction debris from the area, failing to warn plaintiff about the conduit, allowing plaintiff to use stilts in performing the drywall work, failing to require the use of a scaffold, and otherwise failing to provide a safe workspace and follow job safety rules. Against Midwest, plaintiff alleged that it failed to place warning cones over the conduit, failed to remove construction debris, failed to warn plaintiff about the conduit, and failed to follow and enforce its own job safety rules. Executive and Midwest both filed third-party complaints against Alliance and counterclaims against plaintiff for contributory negligence. Executive filed a counterclaim for contribution against Midwest.

[¶5] Executive moved for summary judgment pursuant to section 2-1005 of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-1005 (West 2010)) as to plaintiff's complaint. Executive argued that it owed no duty of care to plaintiff under section 414 of the Restatement (Second) of Torts as it did not retain sufficient control over plaintiff's methods of work or operative details to impose such a duty, and it had no knowledge of the allegedly unsafe conditions. Plaintiff countered that the evidence showed that Executive retained supervisory control over the operative details of his work, had the authority to halt work being done in an unsafe manner and had notice that he was using stilts and of the unsafe conditions, and the use of stilts was prohibited by Executive's safety manual. In connection with the motion, Executive and plaintiff submitted the pertinent construction contracts, safety manuals, and other documentation, along with the deposition testimony of plaintiff and several individuals employed by the parties.

[¶6] A. The Contracts and Safety Manuals Involved

[¶7] Executive had a master contract with BMO that permitted Executive to subcontract portions of the work it did not customarily perform. In a letter that was included with the master contract attached to Executive's motion for summary disposition, Executive vice president Glenn Kamin set forth Executive's proposal for the project and wrote that the services that Executive would provide included " Project Control Coordination and Supervision." The letter indicated that Executive " controls construction activities closely. These activities include subcontractor supervision, quality of workmanship, sequencing of work, material deliveries, documentation of decisions, and adherence to the schedule." Further, the letter stated that the proposed cost the project included, among other things, " Full time site supervision," " Project Management," " First aid supplies & equipment," and " Safety program & OHSA compliance."

[¶8] Executive and Alliance entered into a master subcontract agreement and a subcontract work order. The master subcontract agreement provided that Alliance " shall perform all work as authorized and described in Work Orders" and that " all work shall be performed in accordance with all OSHA Standards, Subcontractors' Safety Programs, [and] ECI's [Executive's] Safety Program." The subcontract further provided that Alliance " shall furnish all supervision, materials, plant, scaffolding, hoisting, tools, equipment, supplies and all other things necessary for the construction and completion of the work described in the specific project Work Order."

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Alliance agreed assume all the obligations and responsibilities that Executive had assumed toward BMO. Additionally, the subcontract required Alliance to " coordinate with other work and shall carefully examine other work, determine whether it is in fit, ready and suitable condition for the proper and accurate performance of the Work hereunder, use all means necessary to discovery any defects in such other work, and before proceeding with the Work hereunder, report promptly any such improper conditions and defects to ECI in writing and allow ECI a reasonable time to have such improper conditions and defects remedied."

[¶9] The subcontract work order between Executive and Alliance set forth Alliance's scope of work for the project and authorized Alliance to provide " all labor, materials, tools, equipment and supervision required" to complete the work. The scope of work included providing for " all access and scaffolding arrangements necessary to complete the work," coordinating work with the other subcontractors, attending weekly coordination meetings, and complying " with all building rules and regulations."

[¶10] Attached to the Alliance/Executive contracts was a document entitled " contractor rules and regulations" for the building, which included " EXHIBIT 'G' CONTRACTOR'S SAFETY REQUIREMENTS." This document provided that the contractor was required to prepare and implement a project safety program, " shall require all Subcontractors at any tier to adhere to the Project Safety Program as well, and shall ensure its Subcontractor's actions, policies and programs do not interfere with the Project Safety Program." The document indicated that the contractor would have a project superintendent responsible for implementing and enforcing the safety program, while the subcontractors would have a safety representative who would also ensure compliance with the project safety program, train their employees, conduct weekly " tool box" meetings, and submit written minutes to the project safety coordinator. It also provided that project employees were required to comply with the project safety program and the subcontractor's safety program, safely utilize tools and equipment, and alert supervisors of hazards and dangerous conditions.

[¶11] Executive and Midwest also entered into a master subcontract agreement and subcontract work order for the project, which, with the exception of the type of work, were identical to those entered into between Executive and Alliance.

[¶12] In addition, Executive's own safety manual provided that the " supervisor and management are to enforce all safety rules" and the supervisor, project manager, and safety coordinator were " responsible for inspecting the jobsite on a regular basis" for unsafe conditions. It provided that subcontractor employees " should be properly warned when in a dangerous situation," and should warn others when they are aware of such a situation and " report any dangerous or unsafe condition to his supervisor or a safety representative." Additionally, the manual provided that " [t]he use of stilts is not permitted by an ECI or subcontracted employee on ECI job sites."

[¶13] B. Deposition Testimony

[¶14] Executive's superintendent for the project, Anthony Urso, testified in his deposition that there was a safety preplanning and coordination meeting with the subcontractors before construction began on the project. Executive had a safety coordinator, Melissa Kamin, who reviewed safety policies and ran the safety coordination meeting. She was not on-site on a daily basis, but visited occasionally.

Page 117

[¶15] Urso explained that his role as superintendent was to " oversee the project as a whole [and] to oversee the schedule" and report back to his office regarding " manpower, job site duties, scheduling, [and] job coordination." He did not specifically coordinate the work being done between Alliance and other contractors as far as instructing them which rooms they had to work in. Urso testified that he would not say that he had " overall control" of the work done at the jobsite, but he " would give opinions and/or reiterate our schedules." When asked if Executive scheduled the drywall workers to work in the same room as the electricians at the same time, Urso responded that this would be " micromanaging, which we didn't micromanage the project." Urso gave subcontractors general date guidelines based on the master schedule for the project, which Executive created. The foremen from the subcontractors reported to him on a regular basis and Executive had weekly coordination meetings with the subcontractors. Safety was one of the topics discussed, in addition to the course and schedule of the work. At the weekly meetings, Urso " reiterate[d] that we want everybody to abide by ECI's safety policies. If you were to put a potential hazard there, that you're responsible for protecting that."

[¶16] Urso testified that he was familiar with Executive's safety manual and indicated that it should have been sent to all subcontractors. However, Urso testified that Executive did not have a specific policy regarding stilts and he did not instruct any subcontractors not to use them; he did not recall seeing anyone use stilts at the project and if he had, he would not have instructed them to stop using stilts. He affirmed that part of his responsibility as superintendent was to ensure " the subcontractors are abiding by what's in the safety policy," and ensure the subcontractors complied with their contractual obligations and the building's safety policies.

[¶17] Urso was at the jobsite on a day-to-day basis. He did weekly safety inspection walkthroughs of the jobsite, where he inspected the work of Executive and the subcontractors, the conditions of the jobsite, and looked for any unsafe or hazardous conditions created by Executive or a subcontractor. If he noticed a potential safety hazard, such as the accumulation of debris, he or someone from Executive would talk to the subcontractor about addressing it. If he " noticed any potential hazards due to a specific subcontractor, [he] would approach them and have them follow up with the proper safety procedures to draw attention to or protect these hazards." He affirmed that hazards included electrical conduit feeds protruding from the floor, which were installed by the electrical subcontractor. He testified that for one or two instances of an electrical conduit feed being left unguarded, he would " follow up with a verbal to their foreman." If it was a persistent problem, then he would make a written report or note and call Executive's safety coordinator.

[¶18] When asked if he felt he had the right to stop subcontractors working with inadequate lighting, Urso answered, " I don't feel I have the right to stop their work." When asked if he had the right to stop work that was being done in an unsafe manner where it needed " immediate attention for somebody's personal welfare," Urso responded, " [i]f I feel there is an urge to safety, I would generally pull them away from that task until it's corrected." When asked whether he would have to go through the workers' foreman or if he could address the workers directly, Urso explained that, " ...


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