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Snow v. Power Construction Company, LLC

Court of Appeals of Illinois, First District, Fourth Division

May 4, 2017

JOHN T. SNOW, Plaintiff-Appellant,
v.
POWER CONSTRUCTION COMPANY, LLC, an Illinois Limited Liability Company, THORNE ASSOCIATES, INC., an Illinois Corporation, and POWER CONTRACTING AND ENGINEERING CORPORATION, an Illinois Corporation, Defendants-Appellees.

          Rule 23 order filed December 22, 2016

          Motion to publish allowed April 12, 2017

         Appeal from the Circuit Court of Cook County, No. 12-L-3597; the Hon. Eileen Brewer, Judge, presiding.

          Daniel E. Compton, of Compton Law Group, of Elgin, for appellant.

          Patricia J. Hogan, Yaro M. Melnyk, and James F. Maruna, of Cassiday Schade LLP, of Chicago, for appellees Power Construction Company, LLC, and Power Contracting and Engineering Corp.

          Robert J. Franco, Christopher G. Beunik, and Christopher M. Cano, Franco & Moroney, LLC, of Chicago, for appellee Thorne Associates, Inc.

          Panel JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Ellis and Justice Burke concurred in the judgment and opinion.

          OPINION

          McBRIDE, JUSTICE

         ¶ 1 Plaintiff John T. Snow filed a negligence action against defendants Power Construction Company, LLC (PCC), Power Engineering and Contracting Corporation (PCEC) (collectively Power), and Thorne Associates, Inc. (Thorne), after he was injured when several sheets of drywall fell on him while at a construction site. Plaintiff was employed by third-party defendant, Professionals Associated Construction Layout & Survey Co., Ltd. (Professionals), as a surveyor and was on the site in his professional capacity. The trial court granted summary judgment in favor of PCC, PCEC, and Thorne.

         ¶ 2 Plaintiff appeals, arguing that the trial court erred in (1) granting summary judgment because there was a material question of fact regarding the stacking of the drywall and the responsibility for safety of persons on the jobsite, (2) ruling that reliance on an alleged custom and practice could make an injury unforeseeable as a matter of law, (3) striking portions of the affidavits of plaintiff and Richard Hislop tendered in response to the motions for summary judgment, and (4) quashing the notice of deposition for Jeff Karp, president of PCC.

         ¶ 3 In May 2010, Alexian Brothers Health System (Alexian), as the owner, entered into a contract with PCEC, as the construction manager, for the construction of the new children's hospital and bed tower (bed tower site) at St. Alexius Medical Center (St. Alexius) in Hoffman Estates, Illinois. In May 2011, PCEC entered into a project specific agreement with Professionals to perform surveying work at the bed tower site. A master subcontract agreement between PCC and Professionals, from October 2004, governed the project specific agreement and was incorporated by reference. Also in May 2011, PCEC entered into a project specific agreement with Thorne to perform framing and drywall assembly at the bed tower site. A master subcontract agreement between PCC and Thorne, dated November 2003, governed and was incorporated by reference.

         ¶ 4 As part of Thorne's subcontract, it was to construct a temporary corridor connecting the emergency room of the hospital to the new construction. On June 29, 2011, Thorne completed its installation of drywall in the temporary corridor. At the end of the work day, Thorne's employees vertically stacked approximately 14 sheets, 4 by 8 feet high, of leftover drywall near the entrance to the corridor. The next morning, on June 30, 2011, plaintiff came to the bed tower site to check his previously placed benchmarks in the corridor. Plaintiff believed one of his benchmarks was behind the stacked drywall. He then moved the stack toward himself to check for his benchmark, but the stack continued to move and fell forward. Plaintiff was struck on his right leg and trapped under the drywall. He immediately sought care at St. Alexius.

         ¶ 5 Plaintiff initially filed his negligence action in April 2012. In December 2012, plaintiff filed his second amended complaint with one count directed at each of the defendants. The allegations against PCC and PCEC are identical. The complaint asserts that both PCC and PCEC were the general contractor for a project at the east pavilion of St. Alexius. Both PCC and PCEC retained some control over the safety of the work on the project. PCC and PCEC each had a duty to exercise that control with ordinary care. PCC and PCEC were individually guilty of one or more negligent and careless acts or omissions: (1) caused drywall to be stacked or stored in such a manner as to easily topple over; (2) allowed drywall to be stacked or stored in such a way and in such a manner as to be easily tipped or toppled over; (3) failed to brace drywall stacked in a vertical manner when it knew or should have known that drywall so stored or stacked could easily tip over, causing injury; (4) failed to move, alter, or correct drywall stacked or stored in an unsafe manner or direct that drywall so stacked or stored be moved, braced, or corrected; (5) scheduled work of the subcontractor Professionals such that its employees would have to move or disturb stacked or stored drywall, and (6) failed to assure that the drywall was stacked, racked, blocked, interlocked, or otherwise secured to prevent sliding, falling, or collapse. As a result of one or more of these acts or omissions, the vertically stacked drywall fell and struck plaintiff, trapping him underneath and causing injury to his back and legs. As a direct and proximate result of said accident, plaintiff has experienced and will continue to experience pain, suffering, disability, loss of normal life, and lost income.

         ¶ 6 The third count of the complaint pled the following allegations against Thorne. Thorne was a drywall subcontractor at the St. Alexius site, and it stacked, moved, and stored drywall, specifically the drywall involved in the accident which injured plaintiff. Thorne had a duty to use due care in its stacking, storage, and moving of drywall so as not to cause an unsafe condition, which might injure plaintiff and other employees on the project. Thorne was guilty of one or more negligent and careless acts or omissions: (1) stored or stacked drywall in an area that was neither safe nor authorized; (2) caused drywall to be stacked or stored in a manner such that plaintiff could move or dislodge it; (3) failed to brace, band, or secure the drywall in such a manner that it would not tip or fall; (4) improperly stacked the drywall; and (5) was otherwise careless and negligent. As a result of one or more of these acts or omissions, the vertically stacked drywall fell and struck plaintiff, trapping him underneath and causing injury to his back and legs. As a direct and proximate result of said accident, plaintiff has experienced and will continue to experience pain, suffering, disability, loss of normal life, and lost income.

         ¶ 7 The parties engaged in lengthy discovery, which included all relevant contracts as well as several depositions of employees of PCC, PCEC, Thorne, and Professionals. The contract between Alexian and PCEC included the following provisions in the general conditions of the contract for construction.

         ¶ 8 Article 1.1.3 detailed the work under the contract.

"The term 'Work' means the construction and services required by the Contract Documents, whether completed or partially completed, and included all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. The Work shall also consist of labor, materials, equipment and services provided or to be provided by Subcontractors, Sub-subcontractors, material suppliers or any other entity for whom the Contractor is responsible under or pursuant to Contract documents, and specifically includes the duty to supply all necessary supervision and coordination of all forces furnished by and through Contractor."

         ¶ 9 Article 3.3 governs the supervision and construction procedures. Article 3.3.1 stated, in relevant part, as follows:

"The Contractor shall supervise and direct The Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety thereof, and except as stated below, shall be fully and solely responsible for the jobsite safety of such means, methods, techniques, sequences or procedures."

         ¶ 10 Article 3.3.2 provided that:

"The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors and for any damages, losses, costs or expenses resulting from such acts or omissions."

         ¶ 11 Article 5.3 concerned the subcontractual relations of the contract. Article 5.3.1 provided, in relevant part, that:

"By appropriate agreement, written where legally required for validity, the Contractor shall require each subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's Work, which the Contractor, by these Documents, assumes toward the Owner and Architect."

         ¶ 12 Article 10.1 detailed the safety precautions and programs under the contract. Article 10.1.1 provided that, "The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract."

         ¶ 13 Article 10.2 governed safety of persons and property. Article 10.2.1.1 provided, in relevant part:

"The Contractor shall take all necessary precautions for safety of, and shall provide all necessary protection to prevent damage, injury or loss to *** all persons involved in or affected by the Project."

         ¶ 14 The master subcontractor agreements between PCC and Professionals, and PCC and Thorne, respectively, contain the following identical provisions.

         ¶ 15 Under Article 1,

"The Subcontractor shall provide and pay for all labor, materials, tools, plan, supplies, scaffolding, transportation, insurance, taxes, equipment, competent full-time supervision, and all other services and do all things necessary for the proper and complete performance, installation, and construction of all of the work identified in the attached Project Specific Agreement."

         ¶ 16 Under Article 27, subpart C, the master agreement stated:

"Subcontractor shall be and is fully responsible for protection and condition of its materials, Work or equipment installed or stored on Job Site or elsewhere until final acceptance thereof by Owner and Architect."

         ¶ 17 Article 28 of the master agreement provided the following policy on the use of equipment.

"If, at any time during construction of Work covered by the Contract, the Subcontractor, its agents, employees or supplies should, either with or without permission of General Contractor, use any tools, appliances, hoists, elevators, scaffolding, ladders, falsework, shoring, materials, machinery or equipment which belong to or are furnished by General Contractor, Subcontractor assumes full responsibility for any injury to person or property which may result from or in connection with use of any such tools, appliances, hoists, elevators, scaffolding, ladders, falsework, shoring, materials, machinery or equipment by Subcontractor, its agents, employees or suppliers."

         ¶ 18 The project specific agreement between PCEC and Thorne included several general provisions:

"The Scope of Work shall include, but is not necessarily limited to, furnishing all labor supervision, safety, protection, clean-up, insurance, materials, fixtures, equipment, tools, supplies, transportation, other property and services to complete the GYPSUM BOARD ASSEMBLY work as identified in the plans, specifications, bid documents, and as listed herein.
* * *
This subcontractor is responsible for the protection of all stored and installed materials until final acceptance by the ...

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