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Carney v. Union Pacific Railroad Co.

Supreme Court of Illinois

October 20, 2016


          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 (1st) 130105-U.

         ¶ 2 For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.

         ¶ 3 BACKGROUND

         ¶ 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.[1] 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).

         ¶ 16 ANALYSIS

         ¶ 17 I

         ¶ 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." Id.

         ¶ 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, ¶ 1.

         ¶ 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 necessary one.

         ¶ 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 appeal.

         ¶ 24 II

         ¶ 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 turn.

         ¶ 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).

         Accord Horwitz v. Holabird & Root, 212 Ill.2d 1, 13 (2004).

         ¶ 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 ...

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