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Gerasi v. Gilbane Building Co., Inc.

Court of Appeals of Illinois, First District, Second Division

March 14, 2017

JEFFREY G. GERASI, Plaintiff-Appellant,
GILBANE BUILDING COMPANY, INC., AT&T SERVICES, INC., and JOHNSON CONTROLS, INC. Defendants Gilbane Building Company, Inc., Defendant-Appellee.

         Appeal from the, Circuit Court of Cook County No. 08 L 7258 Honorable James P. Flannery, Jr. Judge Presiding.

          JUSTICE MASON delivered the judgment of the court, with opinion. Presiding Justice Hyman concurred in the judgment and opinion. Justice Pierce dissented, with opinion.


          MASON JUSTICE.

         ¶ 1 Plaintiff Jeffrey Gerasi, appeals from an order granting summary judgment to defendant Gilbane Building Company, Inc. (Gilbane). Gerasi contends that questions of material fact exist as to whether Gilbane retained control over the work of its subcontractor, Geary Electric (Geary), such that Gilbane may be directly liable under section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)) for its negligence in exercising its retained control.[1] Gerasi also argues that the trial court erred in denying his motion to reconsider its ruling on Gilbane's motion for summary judgment. Because we find no issues of material fact exist, we affirm the ruling of the trial court.

         ¶ 2 BACKGROUND

         ¶ 3 Gilbane was hired by AT&T Services, Inc. (AT&T) to act as general contractor for the replacement of two air conditioning systems (the chiller project) used to cool telecommunications equipment at AT&T's Wabash telecommunications building at 520 South Federal Street in Chicago. Prior to the chiller project, Gilbane had worked on several AT&T construction projects at that building. Gilbane itself was not performing any work on the chiller project; its job was to coordinate the work of various subcontractors.

         ¶ 4 Operations at the Wabash building are overseen by a number of AT&T corporate groups, including construction management and property management. Construction management oversees new construction, such as the chiller project, at the building. Property management, along with the building's engineer, Johnson Controls, Inc. (JCI), inspects, maintains, and performs (or arranges for) repairs to the building, including its existing electrical equipment. Any work by contractors on new projects that involves or could affect the building's existing electrical equipment requires JCI's prior approval.

         ¶ 5 Gilbane hired Geary to perform electrical work on the project. Gilbane had worked with Geary on a number of earlier projects at the Wabash building. Further, Geary had worked at the Wabash building off and on for 40 years prior to the chiller project and was thus familiar with the building's electrical systems. Geary was hired for its electrical expertise and its experience in working with the electrical systems at the Wabash building.

         ¶ 6 Maintenance of optimal temperature and air quality at a telecommunications center is critical to the system's operation. In particular, temperatures that are too high, even for a brief period of time, can affect the integrity of the system and result in interruption of service to customers. Heating and cooling (HVAC) systems at AT&T's telecommunications centers are powered by a number of motor control centers (MCC), discussed in more detail below.

         ¶ 7 Gilbane entered into written contracts with both AT&T (AT&T/Gilbane contract) and Geary (Gilbane/Geary contract). The AT&T/Gilbane contract charged Gilbane with providing general contractor services. Pursuant to the contract, during the construction phase, Gilbane was to conduct weekly on-site meetings and weekly method of procedure (MOP) safety meetings.

         ¶ 8 An MOP is a document that describes a detailed outline of the steps to be followed to complete a particular procedure. Its purpose is to "ensure adequate precautions *** to protect against service interruptions and injury to personnel." There was a general MOP covering the chiller project as a whole. More detailed MOPs were prepared by subcontractors for various aspects of the work in connection with the project. Detailed MOPs were required for "any work that puts building equipment, personnel, or services in jeopardy." For example, a detailed MOP would be required if a subcontractor's work entailed powering down an MCC. MOPs for the chiller project were reviewed and signed off on by the subcontractor that prepared the MOP, Gilbane, JCI and AT&T. Gilbane was responsible for coordination of all of the MOPs on the project.

         ¶ 9 The AT&T/Gilbane contract required Gilbane to place "the highest importance and priority on health and safety for the [w]ork performed" and provided that Gilbane was "responsible for the safety and protection of the [w]ork, workers of [c]ontractor and [s]ubcontractors, and any other persons or public or private property as required by law." Gilbane was responsible for administering the AT&T/Gilbane safety plan, a 64-page document, which set forth the responsibilities of Gilbane and the subcontractors charged with performing the work. Gilbane "was responsible for the active control" of the safety plan and had the authority to require a contractor to submit an MOP for a particular procedure.

         ¶ 10 Because AT&T was concerned about service interruption, the contract also stated that Gilbane was required to maintain "electric power, light energy and telephone service *** without interruption at all times." AT&T's concern over service interruptions related not only to inconvenience to its customers as a result of the loss of telephone signal but also, and more importantly, to its customers' inability, even momentarily, to make 9-1-1 emergency calls.

         ¶ 11 Pursuant to the Gilbane/Geary contract, Geary's work was performed under the general direction of Gilbane. Gilbane retained control over schedules and milestones. Geary was bound to and assumed toward Gilbane all the obligations and responsibilities Gilbane assumed towards AT&T. Geary agreed to adhere to, among other things, Gilbane's safety plan "so as to avoid injury or damage to persons or property, and to be directly responsible for damage to persons and property resulting from the failure to do so."

         ¶ 12 Under Gilbane's safety plan, Geary was required to designate a project site safety coordinator who would devote at least 20 hours per week, and occasionally full-time attention, to safety issues. Geary was required to decide whether a particular task called for an MOP and, if so, to formulate the steps to complete that operation and present it to Gilbane.

         ¶ 13 Gilbane's safety plan gave Gilbane "active control" and made Gilbane responsible for "planning and requiring all work to be done in compliance with the [plan]" and "weekly inspections relating to all safety" to be conducted and documented. Specifically referring to energized equipment or electrical circuit in the work area, Gilbane's safety plan provided: "Contractor [(defined as 'any company performing work under the contract')] shall determine before operations start if there is any energized equipment or electrical circuit in the work area, which might have risk to the worker. Equipment and conductors that must be de-energized shall be identified to Gilbane who [will] arrange to de-energize the equipment under the Lockout and Tagging procedure/system."

         Thus, it was the subcontractor's obligation to identify equipment that needed to be de-energized in order for the subcontractor to do its work. Prior to Gerasi's accident, Geary never identified to Gilbane any equipment it believed needed to be de-energized. Gilbane's safety plan further provides that "electrical tie-ins shall be conducted only on de-energized (locked out and tagged out) systems. If a condition makes this procedure impossible then a pre-task safety meeting with Gilbane is required."

         ¶ 14 Geary had its own safety manual. Under "Geary Electric Safety Mission, " the manual stated: "All members of management and supervision are charged with the responsibility of preventing incidents or conditions that could lead to occupational injuries [or] illness. While the ultimate success of a safety and health program depends upon the full cooperation of each individual employee, it is management's responsibility to see that safety and health rules and procedures are adequate and enforced." Geary's project foreman on any given project was "directly responsible for the control and activities of the tradesmen. [The foreman] play[s] a key role in implementing an effective safety process on the jobsite." Among other responsibilities, the project foreman was charged with providing and requiring the use of hard hats and "other personal protection as indicated by the operation" such as eye, face, and hand protection. Personal protective equipment supplied by Geary for its workers' use on the project was kept in a designated area on the 10th floor of the building. Any worker who felt the need to use such equipment could do so.

         ¶ 15 Tom Persin was Gilbane's construction manager on the project. Persin, as Gilbane's only employee on the job, did not provide full-time supervision of the construction, nor was Gilbane asked to provide such supervision by AT&T. Persin conducted the required weekly safety meetings and visited the site, on average, one more time each week, spending approximately two to three hours on each visit. Attendees at the weekly safety meetings included representatives of AT&T, including the departments in charge of operations at the building, JCI, and the various subcontractors on the project. Persin was not present nor did he visit the site the day Gerasi was injured.

         ¶ 16 The project periodically entailed the provision of temporary power to equipment operated by subcontractors, including pipefitters who were doing welding at the site. It was Geary's responsibility, as the electrical subcontractor, to identify possible power sources as necessary. Geary electricians had performed temporary electrical tie-ins on this, as well as other, earlier projects at the building.

         ¶ 17 The electrical work involved in providing temporary power, i.e., connecting the equipment to an available breaker, was not included in the price under Geary's subcontract and thus generated an extra charge, which had to be approved by Gilbane. Prior to December 5, 2006, Geary had twice arranged temporary power tie-ins for welders operated by Air Comfort, the pipefitting subcontractor. On those occasions, Air Comfort contacted Geary's superintendent, Steve Soltys, to request temporary power. Soltys then contacted Persin to approve the charge for the tie-in. After receiving Persin's approval, Soltys identified an available breaker and then sought approval from JCI to make the connection for the temporary power source. At one of the weekly safety meetings conducted by Persin prior to the incident involving Gerasi, Persin informed Soltys that in order to expedite the process, Geary could go directly to JCI to identify a power source for temporary tie-ins and that Soltys did not need to obtain advance approval for the charge from Persin. Only JCI, as the building's manager, could authorize the shutdown of an entire MCC. Under its contract with AT&T, Gilbane had no authority to power down an MCC or override any decision by JCI regarding work that could affect the building's existing electrical systems.

         ¶ 18 On December 5, 2006, Air Comfort asked Soltys to provide a temporary electrical tie-in for one of its welders. Soltys identified an available breaker in the MCC on the third floor of the building, determined that it was not in use, and sought and obtained permission from JCI to use it for the connection. On the two prior occasions Soltys had arranged temporary tie-ins for Air Comfort, Soltys himself did the electrical work necessary to make the connection. He did not request that the entire MCC be de-energized nor did he wear any personal protective equipment, such as protective glasses or gloves when he connected the welder to the breaker. There is some evidence that Soltys asked JCI on December 5 if the MCC could be powered down before the tie-in, although Soltys denied he made such a request and no witness from JCI recalled it either.

         ¶ 19 An MCC contains circuit breakers of various voltages, each housed in its own compartment. The breaker Soltys identified was inside a metal compartment or "bucket" that was located inside the third floor MCC. The MCC provides power to the breakers through bus bars on the back of the bucket. The bus bars connect to the "line" or "live" side of the breaker behind the back of the bucket. The "load" side of the breaker faces the door of the bucket. The breaker is accessed by opening the handle on the bucket door. The load side of the breaker is de-energized when the bucket handle is opened and remains so as long as the door is open. The line side of the breaker can only be de-energized by either powering off the entire MCC or by pulling the bucket out of the MCC. If a bucket is pulled out of the MCC, it is disconnected from the power source. Since the early 1970s, AT&T had not permitted electricians to pull buckets out of an MCC because brackets on the buckets could break, which could, in turn, short out the entire system. The bucket was specifically designed to allow workers to make temporary power connections without having to shut down an entire MCC.

         ¶ 20 On December 5, after Soltys identified the available power source, he was called away to respond to an emergency alarm regarding an HVAC malfunction at a nearby AT&T building and so instructed Gerasi to perform the tie-in. Gerasi, a Geary foreman and journeyman electrician, had personally performed temporary tie-ins "hundreds of times" on this and other projects with similar equipment. Gerasi was not in the habit of wearing personal protective equipment for such tasks, nor did he believe such equipment was required given that the load side of the breaker was not energized. Further, the gloves provided to protect an electrician's hands are bulky and the housing for the breaker is small, thus rendering it difficult to wire the connections using gloves.

         ¶ 21 Neither Tom Berk, Geary's owner, nor Soltys considered a temporary tie-in as involving "live" work. Rather, because the load side of the bucket was de-energized when the door was open, Berk and Soltys both believed that temporary tie-ins, such as the one performed by Gerasi, were safe and that the lockout and tagging procedure described above was not required. Thus, neither on this occasion nor on any prior occasion did Geary identify to Gilbane equipment it believed needed to be de-energized so that Gilbane could initiate the lockout and tagging procedure. Geary electricians had performed tie-ins on other projects at the Wabash building in the same manner, all without incident and without encountering any defective breakers.

         ¶ 22 Had either Berk or Soltys observed Gerasi performing the tie-in on December 5 without personal protective equipment, neither would have stopped him from doing so because they did not believe that what Gerasi was doing was unsafe. By the same token, they would not have expected that had Persin observed Gerasi performing the tie-in, he would have discerned any hazard. Asked to quantify the risk to Gerasi from the manner in which he performed the tie-in on December 5, Berk stated, "zero." Finally, any defect in the breaker that posed a risk of an arc flash could not have been detected on visual inspection.

         ¶ 23 Before performing the tie-in, Gerasi tested the inside of the bucket with a meter and determined that it was not "hot, " i.e., energized. Gerasi proceeded to perform the tie-in, which entailed attaching leads from the welding machine to three connections on the breaker, as well as a fourth ground wire. Since Gerasi was not using any personal protective equipment and, in particular, was not wearing protective gloves, he was handling the leads with his bare hands.

         ¶ 24 Using one type of screwdriver, Gerasi attached the leads to the breaker by wrapping the wires around the three connections on the breaker and tightening the screws. He then proceeded to further tighten the connections using another screwdriver with a wider head. As he attempted to tighten the third connection, he noticed that it was "wiggling." According to Gerasi, he then used his left hand to grip the breaker and had his right hand on the bucket when an arc flash of electricity occurred, seriously injuring him. Gerasi had been working for only about 10 to 15 minutes when the accident occurred. There were no other witnesses to the accident and Gerasi could not say what caused it.

         ¶ 25 Immediate following the accident, the third floor MCC was briefly de-energized. Soltys and another Geary employee removed the bucket containing the breaker Geary was working on from the MCC, checked the bus bars for any apparent defects and, finding none, re-energized the system.

         ¶ 26 It was later determined that the breaker failed for unknown reasons. AT&T's property management group and JCI, as owner and maintenance manager, respectively, were responsible for inspection, maintenance, and repair of existing electrical systems, including circuit breakers, at the Wabash building. No evidence suggested that Gilbane had any responsibility for maintenance, inspection, or repair of the building's electrical systems unless requested to do so by AT&T. Such activities were not within the scope of Gilbane's contract with AT&T for the chiller project.

         ¶ 27 Before Gerasi's accident, Geary did not propose an MOP for temporary tie-ins because neither Berk nor Soltys believed such work posed a risk, either to the safety of the worker or to the integrity of AT&T's telecommunications system given that the load side of the breaker was de-energized as long as the door was open. Following Gerasi's accident, Geary proposed an MOP relating to temporary tie-ins. The MOP prepared by Geary following the accident did not call for powering down the MCC in order to make a temporary tie-in. Upon reviewing the proposed MOP, Persin determined that it included no reference to the use of personal protective equipment. This was the first time Persin learned that Geary was performing tie-ins without personal protective equipment. Persin instructed Geary to include a requirement to use such equipment in the MOP.

         ¶ 28 On one occasion after Gerasi's accident, Soltys performed another temporary tie-in for a welder. Pursuant to the MOP, Soltys donned a protective suit, a tinted face shield and gloves to make the connection. Because the face shield interfered with his vision, he required another employee to hold a light for him. Soltys determined that he could not connect the wires with the gloves on and, notwithstanding the new MOP, made the connection after taking the gloves off. Although a summary of the postaccident meeting among the principals on the project, including Gilbane, Geary, and AT&T, indicated that Geary should notify Gilbane before attempting any activity it did not believe could be performed with personal protective equipment, there is no evidence Soltys advised Persin before making the connection without the gloves.

         ¶ 29 Gerasi filed this action against Gilbane, AT&T, and JCI on July 3, 2008. Gerasi filed his third amended complaint on November 19, 2012. In count I against Gilbane, Gerasi alleged that Gilbane, individually and through its agents, had a duty to (i) supervise the work on the project, (ii) ensure that the work was being performed in a safe and suitable manner, (iii) determine that the equipment used in the course of the project was safe, and (iv) stop work that was being done in an unsafe manner or on equipment that was unsafe, improperly maintained, or that had not been properly tested to determine its safety. Gerasi alleged that Gilbane was negligent in that, among other things, it failed to (i) instruct workers to de-energize electricity to equipment before work was performed; (ii) turn off, lock out, and tag out "defective or damaged electrical devices;" (iii) warn that the circuit breaker on which Gerasi worked was (a) energized, (b) not properly maintained, and (c) defective; (iv) implement a program for the inspection, maintenance, and replacement of defective circuit breakers; (v) provide safety gear and a safe place to work; and (vi) employ an electrical engineer to consult on the use of electrical equipment as part of the project. Gerasi further alleged that Gilbane's negligence caused an electrical arc flash explosion resulting in severe injuries, leaving him permanently disabled with chronic nerve pain disorder.

         ¶ 30 On January 11, 2013, plaintiff disclosed the opinions of his construction safety expert, Frank Burg, and electrical expert, Brian Vandal. Shortly thereafter, Gilbane filed its motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2010)). In its motion, Gilbane argued that the undisputed facts demonstrated that it did not have notice that the manner in which Gerasi performed his work was unsafe and that it exercised its supervisory ...

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