JUSTICE THEIS delivered the judgment of the court, with
opinion. Chief Justice Garman and Justices Freeman, Thomas,
Karmeier, and Burke concurred in the judgment and opinion.
1 Plaintiff, Patrick Joseph Carney, filed a negligence action
in the Circuit Court of Cook County against defendant, Union
Pacific Railroad Company, after he suffered severe personal
injuries during the removal of an abandoned railroad bridge
in Chicago. The circuit court granted defendant summary
judgment. The appellate court held that fact issues precluded
summary judgment and reversed the circuit court's
judgment and remanded for further proceedings. 2014 IL App
2 For the reasons that follow, we reverse the judgment of the
appellate court and affirm the judgment of the circuit court.
4 The record discloses the following undisputed facts. In the
spring of 2006, defendant invited various contractors to
submit bids in connection with the purchase and removal of
three abandoned railroad bridges that spanned Arthington,
Polk, and Lexington Streets in Chicago. Among those invited
to bid was Happ's, Inc., a scrap contractor that had
worked with defendant and other railroads for 25 years
recycling steel and railroad ties.
5 Before submitting a bid, company president, Steven Happ,
contacted Patrick Leo Carney, owner of Carney Group, Inc.,
which does business as Chicago Explosive Services. Happ and
Carney had a 20-year business relationship, and Happ had
frequently enlisted Carney's assistance for bridge
removal jobs. Carney attended the on-site pre-bid meeting
with Happ, and the two came to some agreement as to Carney
Group's involvement in the bridge removals should
defendant accept the bid from Happ's. As they had in the
past, Happ and Carney had a handshake agreement.
6 Defendant ultimately accepted the bid from Happ's, and
on July 19, 2006, defendant and Happ's entered into a
"Purchase and Removal Agreement." Under the
agreement, Happ's, which was identified as an independent
contractor, purchased the three bridges from defendant and
agreed to provide all the labor, tools, and material
necessary for the bridge removals. Defendant was unaware of
the agreement between Happ's and Carney Group.
7 The dismantling and removal of the Arthington Street bridge
proceeded without incident, and work commenced on the Polk
Street bridge. Although all three bridges were of the same
"through-plate steel girder" design, the Polk
Street bridge was by far the largest of the three. To remove
that bridge, Happ's first removed the rails and ties.
Thereafter, workers from Happ's and Carney Group removed
the steel crossbeams that connected the bridge's east and
west horizontal girders (the bridge walls), along with the
steel deck or floor plate that the crossbeams supported. A
few crossbeams at the north and south ends of the bridge were
left intact for support.
8 On July 31, 2006, Carney called plaintiff, his son, to the
job site to help thread four steel cables through holes that
had been torched in the bridge's east girder. The cables,
in turn, were attached to a spread bar on a crane supplied by
Gatwood Crane Services. A worker from Carney Group then made
the cuts that severed the connections between the remaining
crossbeams and the east girder so that the crane could lift
the girder and lower it onto Polk Street. When the crane
operator attempted to lift the east girder, only the south
end would lift. A crossbeam on the north end of the bridge
was "pinched" against the east girder preventing
the north end of that girder from lifting. While a worker
made an additional cut in the crossbeam to free it, the
crossbeam snapped, and the west girder, which was not secured
or supported, fell to the east. At the time, plaintiff was
standing north of the bridge on a gravel-covered steel
plate. When the west girder fell, the steel plate
moved up, and plaintiff slid forward under the west girder.
Plaintiff's legs were severed below his knees.
9 The dismantling and removal of the Polk Street bridge was
completed without further incident under the direction of the
Occupational Safety and Health Administration. As to the
Lexington Street bridge, Happ's hired another contractor,
DMD Services, to remove it.
10 On August 8, 2007, plaintiff filed a complaint against
Happ's, which plaintiff amended shortly thereafter to add
defendant, Union Pacific Railroad. Various third-party claims
and counterclaims were filed. All claims were settled with
the exception of plaintiff's claim against defendant. In
his "revised second amended complaint at law"
(hereinafter, the complaint), plaintiff alleged that
defendant was negligent in failing to discover and disclose
to Happ's or plaintiff the presence of the
"planking, " i.e., the steel plate at the
north end of the bridge. Plaintiff further alleged that
defendant retained control over the work and safety of the
demolition project but negligently failed to develop a
demolition plan and to supervise the work. Finally, plaintiff
alleged that defendant was negligent in hiring Happ's.
11 Defendant filed a motion for summary judgment, which the
trial court granted. Plaintiff appealed, and the appellate
court reversed and remanded. 2014 IL App (1st) 130105-U.
12 The appellate court held that although an employer is
typically not liable for acts of an independent contractor,
an exception exists where the employer " 'retains
the control of any part of the work' " (emphasis
omitted) (id. ¶ 23 (quoting Restatement
(Second) of Torts § 414 (1965))), and that a genuine
issue of material fact exists as to whether defendant
retained such control over the work performed by Happ's
to become vicariously or directly liable to plaintiff
(id. ¶ 32).
13 As to plaintiff's negligent hiring claim, the
appellate court recognized that " '[a]n employer is
subject to liability for physical harm to third persons
caused by his failure to exercise reasonable care to employ a
competent and careful contractor' " (id.
¶ 37 (quoting Restatement (Second) of Torts § 411
(1965))) and agreed with the trial court that a fact issue
exists as to whether defendant exercised reasonable care in
selecting Happ's (id. ¶ 38). Although the
trial court found that plaintiff was not a "third
person" to whom liability for negligent hiring would
extend, the appellate court declined to reach that issue,
holding that a fact issue exists as to whether plaintiff was
an employee of Carney Group at the time of the accident or
whether he was simply "hanging around."
Id. ¶ 40.
14 Finally, the appellate court considered plaintiff's
claim that defendant was liable as a possessor of land for
injury to plaintiff by failing to warn about a dangerous
condition on defendant's land, namely, the steel floor
plate on which plaintiff was standing at the time of the
accident. Id. ¶¶ 42-43 (citing Restatement
(Second) Torts § 343 (1965)). The appellate court held
that a genuine issue of fact exists as to whether defendant
should have known that workers would fail to discover how far
the floor plate extended. Id. ¶ 46.
15 We allowed defendant's petition for leave to appeal.
Ill. S.Ct. R. 315 (eff. Jan. 1, 2015). We also allowed the
following groups to file amicus curiae briefs in
support of defendant's position: the Illinois Chamber of
Commerce, Illinois Construction Industry Committee, and
Associated Builders and Contractors; the Associated General
Contractors of Illinois; and the Illinois Association of
Defense Trial Counsel. We further allowed the Illinois Trial
Lawyers' Association to file an amicus curiae
brief in support of plaintiff's position. Ill. S.Ct. R.
345 (eff. Sept. 20, 2010).
18 We first consider plaintiff's request that we dismiss
this appeal as improvidently granted.
19 Grounds typically advanced for dismissal of an appeal once
taken include the following: (1) the underlying judgment is
not a final judgment (Phelps v. Elgin, Joliet &
Eastern Ry. Co., 28 Ill.2d 275, 279 (1963); Wilkey
v. Illinois Racing Board, 96 Ill.2d 245, 251 (1983));
(2) the issues have become moot (In re Marriage of
Peters-Farrell, 216 Ill.2d 287, 291 (2005)); and (3) the
petition for leave to appeal was not timely filed (Roth
v. Illinois Farmers Insurance Co., 202 Ill.2d 490, 497
(2002)). Plaintiff does not rely on any of these grounds for
dismissal of this appeal. Instead, he contends that this case
falls outside the "commonly accepted grounds" for
review by this court. Plaintiff explains that because the
underlying facts are disputed, we will not be able to
establish bright-line rules of general applicability.
Plaintiff further explains that, contrary to defendant's
position, no conflict exists between the appellate court
decision here and other appellate court decisions involving
construction-related negligence claims.
20 Where, as here, the case is not appealable as a matter of
right, Rule 315(a) governs review by this court. Ill. S.Ct.
R. 315(a) (eff. Jan. 1, 2015). Under this rule, whether a
petition for leave to appeal will be granted "is a
matter of sound judicial discretion." Id. Rule
315 further provides:
"The following, while neither controlling nor fully
measuring the court's discretion, indicate the character
of reasons which will be considered: the general importance
of the question presented; the existence of a conflict
between the decision sought to be reviewed and a decision of
the Supreme Court, or of another division of the Appellate
Court; the need for the exercise of the Supreme Court's
supervisory authority; and the final or interlocutory
character of the judgment sought to be reviewed."
21 This court, exercising its judicial discretion, initially
denied defendant's petition for leave to appeal.
Defendant was granted leave to file a motion to reconsider
that denial. On reconsideration, defendant's petition
garnered the necessary votes to proceed. We are not inclined
to again reconsider our decision simply because, as plaintiff
argues, the facts are disputed. We were well aware at the
time we considered and reconsidered defendant's petition
that the facts might be in dispute. The appellate court,
after all, had held that genuine issues of material fact
precluded summary judgment. 2014 IL App (1st) 130105-U,
22 We are also not inclined to reconsider our decision
because, according to plaintiff, a conflict in appellate
decisions, on which defendant relied in its reconsideration
motion, does not really exist. Although the existence of a
conflict between the decision sought to be reviewed and a
decision of another division of the appellate court is an
adequate basis for review under Rule 315, it is not a
23 Having twice exercised our judicial discretion as to
whether the issues raised in defendant's petition warrant
the attention of this court and having concluded that they
do, we decline to dismiss the appeal as improvidently
granted. We thus turn to the merits of defendant's
25 Summary judgment is appropriate only where "the
pleadings, depositions, 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 a judgment as a matter of law." 735 ILCS 5/2-1005(c)
(West 2012). In determining whether a genuine issue of
material fact exists, we construe the pleadings, depositions,
admissions, and affidavits strictly against the moving party
and liberally in favor of the opponent. Mashal v. City of
Chicago, 2012 IL 112341, ¶ 49. A genuine issue of
material fact exists "where the material facts are
disputed or, if the material facts are undisputed, reasonable
persons might draw different inferences from the undisputed
facts." Id. We review summary judgment rulings
de novo. Bruns v. City of Centralia, 2014
IL 116998, ¶ 13.
26 Where, as here, the plaintiff seeks recovery based on the
defendant's alleged negligence, the plaintiff must plead
and prove the existence of a duty owed by the defendant to
the plaintiff, a breach of that duty, and injury proximately
resulting from the breach. Id. ¶ 12. Whether a
duty exists is a question of law appropriate for summary
judgment. Id. ¶ 13. " 'In the absence
of a showing from which the court could infer the existence
of a duty, no recovery by the plaintiff is possible as a
matter of law and summary judgment in favor of the defendant
is proper.' " Id. (quoting Vesey v.
Chicago Housing Authority, 145 Ill.2d 404, 411 (1991)).
27 The duty inquiry focuses on "whether defendant and
plaintiff stood in such a relationship to one another that
the law imposed upon defendant an obligation of reasonable
conduct for the benefit of plaintiff." Ward v. K
mart Corp., 136 Ill.2d 132, 140 (1990). The term
"relationship" is a shorthand description for the
sum of the following factors: "(1) the reasonable
foreseeability of the injury, (2) the likelihood of the
injury, (3) the magnitude of the burden of guarding against
the injury, and (4) the consequences of placing that burden
on the defendant." Simpkins v. CSX Transportation,
Inc., 2012 IL 110662, ¶ 18.
28 Here, plaintiff has alleged three theories under which he
claims defendant owed him a duty of reasonable care. Although
plaintiff did not specifically cite to the Restatement
(Second) of Torts in his complaint, defendant does not
dispute that plaintiff has effectively invoked three sections
of the Restatement: section 414 ("Negligence in
Exercising Control Retained by Employer"); section 411
("Negligence in Selection of Contractor"); and
section 343 ("Dangerous Conditions Known to or
Discoverable by Possessor"). Restatement (Second) of
Torts §¶ 343, 411, 414 (1965). We consider each in
29 Section 414-Retained Control
30 Beginning in 1907 and continuing for over eight decades,
construction-related personal injury claims were analyzed
under the provisions of the Structural Work Act (Act) (740
ILCS 150/1 et seq. (West 1994)). The Act coexisted
with common-law negligence principles. Calderon v.
Residential Homes of America, Inc., 381 Ill.App.3d 333,
340 n.2 (2008); Bokodi v. Foster Wheeler Robbins,
Inc., 312 Ill.App.3d 1051, 1057-58 (2000). After the
General Assembly's repeal of the Act in 1995 (Pub. Act
89-2, § 5 (eff. Feb. 14, 1995)), plaintiffs looked to
the common law, particularly as compiled in the Restatement
(Second) of Torts, to pursue claims for construction-related
negligence. Bokodi, 312 Ill.App.3d at 1057-58; see
also Peter Puchalski, Illinois Construction Negligence,
Post-Structural Work Act: The Need For A Clear Legislative
Mandate, 36 J. Marshall L. Rev. 531, 540 (2003).
31 Under the common law, one who employs an independent
contractor is not liable for harm caused by the latter's
acts or omissions. Lawlor v. North American Corp. of
Illinois, 2012 IL 112530, ¶ 42; Gomien v.
Wear-Ever Aluminum, Inc., 50 Ill.2d 19, 21 (1971);
Lee v. Six Flags Theme Parks, Inc., 2014 IL App
(1st) 130771, ¶ 66; Restatement (Second) of Torts §
409 (1965). The reason for this rule is apparent in the
definition of an independent contractor:
"An independent contractor is one who renders service in
the course of an occupation representing the will of the
person for whom the work is done only as to the result of the
work and not as to the means by which it is accomplished,
[citation] and is one who undertakes to produce a given
result without being in any way controlled as to the method
by which he attains that result. *** The test of the
relationship is the right to control. It is not the fact of
actual interference with the control, but the right to
interfere, that makes the difference between an independent
contractor and a servant or agent." Hartley v. Red
Ball Transit Co., 344 Ill. 534, 538-39 (1931).
Horwitz v. Holabird & Root, 212 Ill.2d 1, 13
32 Because the hiring entity has no control over the details
and methods of the independent contractor's work, it is
not in a good position to prevent negligent performance, and
liability therefor should not attach. Rather, the party in
control-the independent contractor-is the proper party to be
charged with that responsibility and to bear the risk.
Fonseca v. Clark Construction Group, LLC, 2014 IL
App (1st) 130308, ¶ 26; Pestka v. Town of Fort
Sheridan Co., 371 Ill.App.3d 286, 300 (2007);
Restatement (Second) of Torts § 409 cmt. b (1965).
33 This does not mean, however, that one who hires an
independent contractor is absolutely immune from tort
liability for a plaintiff's injuries. As section 414 of
the Restatement explains, a hiring entity may yet be liable
for its own negligence where it retains some control
over the independent contractor. Section 414 states:
"One who entrusts work to an independent contractor, but
who retains the 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) of Torts § 414 (1965).
34 In Larson v. Commonwealth Edison Co., 33 Ill.2d
316, 325 (1965), we implicitly recognized section 414 of the
first Restatement of Torts as an expression of Illinois
common law. Section 414 of the first Restatement is identical
to section 414 of the second Restatement, with the exception
that the latter contains an additional comment. Compare
Restatement of Torts § 414 (1934), with Restatement
(Second) of Torts § 414 (1965).
35 Numerous appellate court decisions, relying on
Larson, have cited favorably to section 414 of the
second Restatement and applied section 414 in negligence
cases involving construction-related injuries. E.g.,
Lee, 2014 IL App (1st) 130771, ¶ 66; Cain
v. Joe Contarino, Inc., 2014 IL App (2d) 130482, ¶
9; Garcia v. Wooton Construction, Ltd., 387
Ill.App.3d 497, 505 (2008); Moiseyev v. Rot's
Building & Development, Inc., 369 Ill.App.3d 338,
344 (2006); Downs v. Steel & Craft Builders,
Inc., 358 Ill.App.3d 201, 204-05 (2005); Cochran v.
George Sollitt Construction Co., 358 Ill.App.3d 865, 873
(2005); Clifford v. Wharton Business Group, L.L.C.,
353 Ill.App.3d 34, 40 (2004); Bieruta v. Klein Creek
Corp., 331 Ill.App.3d 269, 275 (2002); Rangel v.
Brookhaven Constructors, Inc., 307 Ill.App.3d 835, 838
(1999); Rogers v. West Construction Co., 252
Ill.App.3d 103, 105 (1993). We see no reason to depart from
Larson or the numerous appellate court opinions that
recognize section 414 of the Restatement as an expression of
Illinois common law.
36 Many appellate court decisions, including the decision
under review, have cited section 414 of the Restatement as a
basis for imposition of both direct liability and vicarious
liability against the employer of an independent contractor.
E.g., Cabrera v. ESI Consultants, Ltd.,
2015 IL App (1st) 140933, ¶ 102; Lederer v.
Executive Construction, Inc., 2014 IL App (1st) 123170,
¶ 49; Lee, 2014 IL App (1st) 130771,
¶¶ 68-69; Ramirez v. FCL Builders, Inc.,
2014 IL App (1st) 123663, ¶¶ 123, 149; Maggi v.
RAS Development, Inc., 2011 IL App (1st) 091955,
¶¶ 44-45; Diaz v. Legat Architects, Inc.,
397 Ill.App.3d 13, 31 (2009). The rule set forth in section
414, however, articulates a basis only for imposition of
direct liability. Because an employer of an independent
contractor is typically not answerable for the
contractor's negligence, "the employer's
liability must be based upon his own personal
negligence." (Emphasis added.) Restatement (Second)
of Torts, Ch. 15, Topic 1, Introductory Note, at 371
(1965). Section 414 sets forth one way in which an
employer of an independent contractor may be negligent and,
thus, directly liable for physical harm to others.
Id. (citing id. § 414).
37 Confusion as to the scope of section 414 appears to arise
in connection with comment a, which states:
"If the employer of an independent contractor retains
control over the operative detail of doing any part of the
work, he is subject to liability for the negligence of the
employees of the contractor engaged therein, under the rules
of that part of the law of Agency which deals with the
relation of master and servant. The employer may, however,
retain a control less than that which is necessary to subject
him to liability as master. He may retain only the power to
direct the order in which the work shall be done, or to
forbid its being done in a manner likely to be dangerous to
himself or others. Such a supervisory control may not subject
him to liability under the principles of Agency, but he may
be liable under the rule stated in this Section unless he
exercises his ...