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LePretre v. Lend Lease (US) Construction, Inc.

Court of Appeals of Illinois, First District, First Division

June 26, 2017

WILLIAM LePRETRE, Plaintiff-Appellant,
LEND LEASE (US) CONSTRUCTION, INC., a Corporation, Defendant-Appellee.

         Appeal from the Circuit Court of Cook County. No. 13 L 13896, Honorable Kathy M. Flanagan, Judge Presiding.

          CONNORS PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Simon and Mikva concurred in the judgment and opinion.



         ¶ 1 Plaintiff William M. LePretre brought a cause of action against Lend Lease (US) Construction, Inc. (Lend Lease) and other defendants for injuries he allegedly sustained while working at a construction site at 515 North Clark Street in Chicago. Lend Lease filed a motion for summary judgment, and the trial court granted it, finding that Lend Lease owed no duty to plaintiff under which it could be subject to vicarious or direct liability. The trial court also denied plaintiff's motion to reconsider, and plaintiff now appeals. We affirm.

         ¶ 2 BACKGROUND

         ¶ 3 Plaintiff filed a nine-count complaint against Lend Lease and other defendants seeking damages for injuries he sustained when he slipped and fell while installing iron rebar on February 15, 2012. Count I was directed at Lend Lease, and it is the only count at issue in this appeal. Lend Lease was the general contractor for the project, and it retained Adjustable Forms, Inc. (Adjustable), as the concrete sub-contractor, which in turn retained plaintiff's employer, Bond Steel, to install and reinforce the iron rebar for the concrete pour.

         ¶ 4 Plaintiff alleged that Lend Lease failed to make a reasonable inspection of the premises; improperly operated, managed, maintained, and controlled the premises; failed to provide plaintiff with a safe place to work; failed to warn plaintiff of the dangerous conditions there existing; failed to provide adequate safeguards; failed to supervise work being done on the premises; failed to provide a safe and proper excavation; and failed to provide safe and proper material to be placed within the excavation.

         ¶ 5 Lend Lease filed a motion for summary judgment contending that it owed no duty under section 414 of the Restatement (Second) of Torts because, although it retained some general supervisory powers, it did not control the incidental aspects of the work of Adjustable or Bond Steel. Lend Lease noted that in plaintiff's discovery deposition, plaintiff attributed his injury to three factors: the rebar pieces that he was installing were too long, the workspace he was in was too confined, and there was loose, falling dirt. Lend Lease argued that the contract between it and Adjustable, and the one between Adjustable and Bond Steel, showed that it retained no control over the rebar length, the work space, or debris removal and did not direct or control plaintiff's work.

         ¶ 6 Lend Lease attached relevant portions of the contracts to its motion for summary judgment. These attachments showed that Lend Lease entered into a contract with the owner of the project, ClarGran, for the construction of Clark and Grand Hotels. Section 3.3.1 of the General Conditions of that contract provided:

"The Contractor [Lend Lease] 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 other specific instructions concerning these matters ***."

         ¶ 7 Section 10.2.1 of the General Conditions provided:

"The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to: 1. employees on the Work and other persons who may be affected thereby ***."

         ¶ 8 Lend Lease then entered into a subcontract with Adjustable for the concrete work on the project. Portions of this subcontract were attached to Lend Lease's motion for summary judgment. "Exhibit B-Scope of Work" in the subcontract provided:

"Subcontractor [Adjustable] shall provide all labor, material, equipment, supervision as required to complete all scope-of-work items on this Concrete Subcontract and related work, in accordance with the Drawings, Specifications and the Contract Documents ('Work')."

         ¶ 9 Article 15 of the subcontract provided:

"Subcontractor agrees that the prevention of accidents to workers engaged upon or in the vicinity of the work is its responsibility, even if the Contractor [Lend Lease] establishes a safety program for the entire Project. Subcontractor shall establish and implement safety measures, policies and standards ***."

         ¶ 10 Article 16 provided:

"Subcontractor shall, at its own expense: (a) keep the premises at all times free from waste materials *** and other debris accumulated in connection with the Work by collecting and removing such debris from the jobsite on a daily or other basis ***."

         ¶ 11 Adjustable then hired Bond Steel to perform the rebar reinforcement installation portion of the concrete work. Lend Lease attached portions of that subcontract to its motion for summary judgment, which indicated that the prevention of accidents and injuries shall be the primary concern of Bond Steel and that it should maintain a safe and healthful work environment with its safety program. The contract also noted that Bond Steel "shall submit a copy of [its] safety program together with the name and experience of [its] on-site safety representative." The contract stated that Bond Steel agreed to comply with OSHA and all safety and ...

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