Court of Appeals of Illinois, First District, Fifth Division
KEVIN E. O'GORMAN and LAURA O'GORMAN, Plaintiffs-Appellants,
F.H. PASCHEN, S.N. NIELSEN, INC., an Illinois Corporation, Defendant-Appellee (Old Veteran Construction, Inc., Defendant)
Appeal from the Circuit Court of Cook County. No. 06 L 1567. The Honorable Kathy Flanagan, Judge Presiding.
For APPELLANT: William J. Harte, Chicago, IL.
For APPELLEE: Robert J. Winston, W. Scott Trench, BRADY, CONNOLLY & MASUDA, P.C., Chicago, IL.
JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.
[¶1] Kevin O'Gorman (plaintiff) was injured while supervising a construction project at which defendant F.H. Paschen, S.N. Neilsen, Inc., was operating as a general contractor. Plaintiff alleged that he was injured due to the actions of employees of Old Veteran Construction, Inc. (Old Veteran), which was operating as a subcontractor for defendant and which is not a party to the instant appeal. Plaintiff and his wife, Laura O'Gorman, filed suit against both defendant and Old Veteran, alleging that they were negligent and that their negligence was a cause of plaintiff's injuries. Defendant filed a motion for summary judgment, arguing that it owed no duty to plaintiff, and the trial court granted summary judgment in defendant's favor. Plaintiffs appeal, and we affirm.
[¶3] I. Complaint
[¶4] On February 10, 2006, plaintiffs filed a complaint against defendant and Old Veteran; the complaint was amended twice and it was the second amended complaint that was the subject of defendant's motion for summary judgment. The second amended complaint alleges that defendant contracted with the City of Chicago (the City) to act as a general contractor for portions of a construction/renovation project involving the conversion of former police department headquarters into a custodial youth center (the project). Part of defendant's responsibilities included the construction of an elevator shaft within the building. " At all times relevant herewith, Paschen supervised and controlled or was obligated to supervise and control the work for which it contracted, as part of its duties and responsibilities as general contractor, including the construction of the elevator shaft."
[¶5] Defendant, in turn, retained Old Veteran to act as a masonry subcontractor on the project. Specifically, Old Veteran was hired to perform the masonry work involved in the construction of the elevator shaft, including an extension of the elevator shaft above the existing roofline of the building. " At all times relevant herewith, the defendant, Old Veteran, supervised and controlled or was obligated to supervise and control the work it was doing as Paschen's masonry subcontractor, including the construction of the elevator shaft."
[¶6] On February 10, 2005, City employees cut a hole in the roof of the building to allow for extension of the elevator shaft above the roofline and placed a wooden cover over the hole. The second amended complaint alleges that on February 11, 2005, " Old Veteran removed the wooden cover in order to erect and place the courses of cinder block, and it thereafter erected and placed the courses of cinder block." The second amended complaint further alleges that " [w]hen it removed the roof cover originally placed by the City, Old Veteran left a piece of wood, with a nail imbedded therein, upon the roof in proximity to" a roof hatch that was used to access the roof during construction.
[¶7] Plaintiff was employed by the City and used the roof hatch on February 14, 2005, to access the roof. While attempting to exit the hatch, plaintiff stepped on the piece of wood with the nail embedded therein. In pulling the nail from his foot, plaintiff lost his balance and fell through the hatch opening to the floor below.
[¶8] The first count of the second amended complaint was for negligence against both defendant and Old Veteran and alleged that defendant was negligent in one or more of the following ways:
" a. Failed to maintain a safe work site;
b. Failed to assure that the roof cover was removed in a safe and appropriate manner;
c. Failed to inspect the work area in which Old Veteran was involved to assure that its work was done in a safe and workmanlike manner;
d. Failed to inspect the work area in which Old Veteran was involved to assure that such was clear of construction waste or debris;
e. Failed to properly dispose of construction waste or debris or see to it that Old Veteran did so;
f. Failed to warn the plaintiff and others of the risk inherent in leaving debris on the roof, including the nail imbedded in wood;
g. Failed to place and provide safe, suitable and proper barricades or other fall protection devices for the hatch, or require their use;
h. Failed to warn the plaintiff and others of the risk involved attendant to the [ sic ] its failure to to [ sic ] place barricades or other fall protection devices for the hatch, or require their use;
i. Allowed the plaintiff and others to enter upon the roof when the nail imbedded in wood was present and when there were no fall protection devices for the hatch."
The second amended complaint alleges that, as a result of one or more of these negligent acts or omissions, plaintiff sustained severe injuries.
[¶9] The second count of the second amended complaint was for loss of consortium against both defendant and Old Veteran.
[¶10] II. Discovery
[¶11] A. Discovery Deposition of Plaintiff
[¶12] At his deposition, plaintiff testified that he began working for the City in 1996 as a journeyman carpenter and was currently working as a general foreman of general trades. The " general trades" were " [g]lazers, pipe fitters, sheet metal, carpenters, laborers, [and] iron workers," and plaintiff's responsibility was to coordinate work for the trades under his command at the jobsite. The work that could not be performed by the trades would be contracted out to a general contractor to complete the work. Plaintiff testified that when working on a jobsite, each contactor would have the responsibility of keeping its area clean. Plaintiff did not have the responsibility to supervise the work of any non-City contractors. Plaintiff's presence on the jobsite would vary, and sometimes he was not present at the site at all, but on average, he visited the jobsite four to six times a week to attend weekly jobsite meetings, check manpower, and check the progress of the work.
[¶13] Plaintiff testified that one of the tasks performed by City workers on the instant project was the removal of a portion of the building's roof so that the elevator shaft could be extended. Plaintiff instructed his foreman, Anthony Pilas, to perform the work, who, in turn, instructed two additional City employees--Jaime
Martinez and Terry Regan--to cut the roof, which took approximately two days.
[¶14] Plaintiff testified that approximately a week before his accident, the City workers cut the hole in the roof, and sometime between then and February 14, the day of the accident, the elevator shaft was extended by Old Veteran, the masonry subcontractor for defendant. On February 14, plaintiff observed Old Veteran workers on the third floor of the building taking down scaffolding that had been erected inside the elevator shaft. Plaintiff did not observe any Old Veteran workers on the roof.
[¶15] Plaintiff testified that Tuesday or Wednesday of the week of February 7, he went to the roof of the building to ensure that his workers had properly secured the opening cut into the roof. The opening was covered with 3-by-14 planks across it, then plywood, with " strapping" of 2-by-4s and 1-by-4s nailed to the top of the plywood so that it would not blow away. When the workers cut the hole in the roof, they cleaned up their debris and threw it away into a dumpster located in the parking lot. Plaintiff testified that he accessed the roof via a ladder extending through a roof hatch. When he exited the roof hatch, the elevator shaft would have been a few feet to his left.
[¶16] Plaintiff testified that on the day of the accident, he climbed the ladder through the roof hatch and stepped to the left upon exiting the hatch. He first stepped with his left foot and landed on a nail embedded in a blonde piece of wood approximately a foot to two feet long; the wood was new and was rectangular in shape, but plaintiff could not recall whether it was a 1-by-4 or a 2-by-4. Plaintiff picked up his left foot and " hopped around trying to pull the nail out." He placed a hand on the roof hatch to steady himself, but did not hold onto the hatch the entire time. As he hopped, plaintiff backed into the curb of the hatch and fell backward, hitting his head on the top of the hatch. When he fell, plaintiff stretched his arms out and caught himself on the sides of the hatch. Pilas and City architect John Albrechet came to plaintiff's side and attempted to assist plaintiff, but were unsuccessful. Plaintiff fell through the hatch 13 to 15 feet to the floor below and lost consciousness.
[¶17] Plaintiff testified that he had previously complained to defendant about construction debris throughout the building at their regular jobsite meetings. Plaintiff believed the piece of wood and nail came from the cover of the elevator shaft and also believed that someone from Old Veteran disassembled the cover because " [t]hey had to complete their work" of extending the brickwork through the roof. On February 14, the brickwork was above the level of the roof. Plaintiff testified that if someone from Old Veteran wanted a City worker to remove the cover over the elevator shaft, " [h]e would have to go through me." As of the time of the accident, no one from Old Veteran had asked plaintiff to remove the cover.
[¶18] B. Testimony From Other City Employees
[¶19] 1. Discovery Deposition of Terrence Regan
[¶20] Terrence Regan testified that he was a carpenter for the City's department of general services and worked on the project at issue in the instant case. Pilas was his foreman and was the person Regan would turn to with any questions about his work. Regan testified that he was involved in cutting a hole in the roof for the extension of the elevator shaft and that plaintiff was the person requesting that Regan cut the hole.
[¶21] Regan testified that as they were cutting the hole, the workers would stack the old roofing materials to be later discarded. The roofing materials included pieces of wood with nails sticking out of them, and were thrown over the side of the building into the dumpster. All of the wood that was discarded was old wood; there were no new pieces of wood in the roofing material. However, some of the 1-by-4 that was used was newer wood that was blond in color.
[¶22] Regan testified that Pilas asked the workers to cover the hole. They first laid timbers of 3-by-16 down across the hole and nailed them to the roof deck using nail guns. They then nailed sheets of three-quarter plywood over the timbers, followed by 1-by-4 strapping that was nailed to the timbers through the plywood to hold it down. After the hole was cut and covered, Regan did not return to the roof.
[¶23] When Regan was presented with a photograph of the roof from February 14, 2005, he identified masonry bricks, covered by plywood with cinder blocks on top of the plywood, in the area where he had cut the hole in the roof. He testified that the bricks, plywood, and cinder blocks were not the cover he had placed over the hole and that ...