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Foley v. Builtech Construction, Inc.

Court of Appeals of Illinois, First District, Second Division

July 23, 2019

JOHN FOLEY, Plaintiff-Appellant,

          Appeal from the Circuit Court of Cook County. No. 16 L 2809 The Honorable Kathy M. Flanagan, Judge, presiding.

          Steven A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago, for appellant.

          Dustin J. Karrison, of Purcell & Wardrope, Chtrd., of Chicago, for appellee.

          JUSTICE HYMAN delivered the judgment of the court, with opinion Justice Pucinski concurred in the judgment and opinion.


          HYMAN, JUSTICE

         ¶ 1 An employee of a subcontractor was injured while moving rebar used for concrete installation. He sued the general contractor, Builtech Construction, Inc., for negligence. After discovery closed, Builtech moved for summary judgment, arguing it had neither actual nor constructive notice of any dangerous condition at the jobsite. The trial court granted summary judgment. We reverse and remand for further proceedings.

         ¶ 2 We hold that the issue of whether Builtech retained sufficient control over the subcontractor's work to trigger liability for its employee's injury presents a question of fact, precluding summary judgment. Builtech had a project superintendent who inspected the jobsite daily, its own safety measures in place, a safety manual, ongoing training, and a safety supervisor monitoring safety at the worksite who was authorized to halt the subcontractor's unsafe work practices. Builtech also employed an outside safety auditor who worked closely with the safety supervisor. The contract between Builtech and the subcontractor required the subcontractor to comply with Builtech's own safety rules. Because a material question of fact arises regarding the issue of compliance with Builtech's own safety rules, summary judgment is inappropriate.

         ¶ 3 Background

         ¶ 4 Second Amended Complaint

         ¶ 5 While attempting to retrieve buried rebar on the jobsite, John Foley was injured. Foley's second amended complaint alleged construction negligence in that Builtech had the authority to stop the work, refuse the work and materials, "and/or order changes in the work, in the event the work was being performed in a dangerous manner or for any other reason." Foley also alleged that Builtech had a duty to exercise reasonable care at the site, including providing proper and safe placement of the rebar, and failed to (i) provide a safe workplace, (ii) inspect and supervise the work, (iii) warn of dangerous conditions, and (iv) provide adequate space to store the rebar.

         ¶ 6 A second count, "Premises Liability," alleged Builtech had a duty to maintain the jobsite and through its negligence caused the premises "to become and remain in a dangerous condition." Builtech "improperly operated, managed, maintained, and controlled" the worksite; failed to properly move the rebar, allowing it to be moved and buried; failed to reasonably inspect and warn Foley of the dangerous condition; and failed to provide space to adequately store the rebar.

         ¶ 7 Depositions

         ¶ 8 Builtech retained two subcontractors, Chicago Town and Precision Excavation, Inc., to do the foundation work. Precision would excavate the site, while Chicago Town was to perform concrete services for the building's foundation. The concrete structures were reinforced with steel rebar; Chicago Town's work included placing rebar into the forms, pouring concrete into the forms, and then stripping the forms. The rebar was stacked on-site.

         ¶ 9 Bob Bokar

         ¶ 10 Builtech's superintendent for the project, Bob Bokar, had a storefront office across from the jobsite. Bokar supervised all the subcontractors on the jobsite and was part of the safety department. Eliminating jobsite hazards was part of Bokar's duties. Bokar, on a daily basis, inspected the workplace, arriving at the jobsite around 6 a.m. Builtech had the authority to direct people how to properly lift heavy items on the jobsite. Part of Bokar's job was to stop a worker from improperly lifting a heavy item. If Bokar determined a subcontractor's "means and methods" were unsafe, he had the authority to stop the subcontractor and direct safety or work method changes. Chicago Town employees were required to comply with all decisions made by Builtech regarding safety requirements.

         ¶ 11 Builtech had an auditor who would periodically inspect the jobsite to identify unsafe conditions or work methods and then notify Bokar of any concerns. John Ribskis, Builtech's safety supervisor, accompanied the auditor and possessed the authority to require workers to change unsafe work means and methods.

         ¶ 12 Builtech's safety manual required subcontractors to comply with its "means and methods" provisions, including lifting and material handling. Builtech held weekly meetings for its subcontractors on various safety topics.

         ¶ 13 Bokar took photographs of the jobsite, "usually daily." During the deposition he testified about photographs taken on May 11 and May 15. Bokar stated he did not take photographs to try to document where the incident occurred.

         ¶ 14 Chicago Town ordered the rebar for the concrete work and scheduled delivery. Chicago Town workers unloaded the rebar, but Bokar controlled its storage on-site. Further, if Chicago Town wanted to store the rebar in a location or manner that could have been hazardous to workers, Bokar would "not allow that" and had authority to tell Chicago Town to "re-store or re-organize their rebar."

         ¶ 15 Bokar approved certain areas to store the rebar, which required communication with Chicago Town. The standing agreement for subcontractor work included as a general condition of all work performed: "the subcontractor shall store its materials within the locations as approved by the contract." In Bokar's experience this was a "smaller" jobsite with limited space. The project was small enough not to need assistant superintendents.

         ¶ 16 When Foley's counsel asked Bokar about Builtech's safety rules, "hypothetically, if Chicago Town argued with you, *** your direction would trump Chicago Town's?" Bokar answered," [a]bsolutely." Bokar stated he had authority to inspect the rebar at any time. If he inspected and found the rebar "tangled up," he would have told Chicago Town. The excavating company brought sand in a dump truck to use as backfill. If the excavators left dirt or "spoils" (mounds of dirt) on the site, he would have required them to clean it up as improper and potentially unsafe.

         ¶ 17 The rebar was delivered to the jobsite on May 1, 2015. Two Chicago Town employees, Ismael Ramirez, a carpenter, and Juan Alfaro, a laborer, and others moved the rebar from the delivery spot to a spot closer to the building. They tried to stack the rebar so that it would not tangle.

         ¶ 18 Bokar did not see Foley lifting rebar on May 21, nor did he see Foley hurt himself. Foley told Bokar he "twinged" his back. Bokar had him fill out an incident report form.

         ¶ 19 Michael Chapman Deposition

         ¶ 20 Michael Chapman, the owner and president of Chicago Town, testified that he decided where to store the rebar on the jobsite but Bokar had the authority to tell Chapman to move the rebar or to stop work if necessary. Sometime between May 4 and May 15, Ramirez, Alfaro, and another carpenter moved and restacked the rebar.

         ¶ 21 Jonathan Ribskis Deposition

         ¶ 22 Jonathan Ribskis, who had been Builtech's project manager/safety coordinator, testified remotely from North Carolina. For this project Ribskis acted as the safety coordinator, generally responsible for safety on the jobsite. He conducted occasional safety audits on-site, inspecting the subcontractors' work methods and making recommendations. Bokar was on the jobsite on a daily basis; a project manager was not on-site daily but "no less than every other week." One of Bokar's duties was to determine safety concerns. The project manager had the authority to stop a subcontractor performing unsafe work or to change the means or method of lifting.

         ¶ 23 The means and methods of work were each subcontractor's responsibility. The general contractor was responsible for coordinating the work between the subcontractors and for alerting the subcontractors about unsafe storage. Builtech had the authority to instruct Chicago Town to restack or move the rebar if it believed Chicago Town had stacked the rebar in an unsafe manner or location.

         ¶ 24 Builtech had a safety manual, an "Injury & Illness Prevention Program," and weekly safety meetings at the jobsites.

         ¶ 25 A safety inspector hired by Builtech for a safety program prepared a report for Builtech, "Construction Hazard Identification and Risk Assessment 2015." Section 13, labeled "Ergonomics," addressed "identification and assessment of hazardous manual tasks:" If Builtech saw a subcontractor lifting with poor or dangerous form, it had the authority to stop him. Another section, "Lifting and Material Handling," contained bullet points on safe lifting.

         ¶ 26 Before Foley's accident, Ribskis was unaware of any complaints about where or how safely the rebar was stacked. Ribskis stated "at that time it was an average size project."

         ¶ 27 Ribskis identified four color photographs that, according to the Chicago Town attorney, were taken "sometime in May of 2015." The undated photographs show four views of the rebar in various piles next to a brick wall. Ribskis did not think the way the rebar was stacked in any of the photographs was a "deviation of the safety standard."

         ¶ 28 Patrick Burns Deposition

         ¶ 29 Patrick Burns was the estimator/project manager for Precision Excavating. Precision's contract with Builtech required compliance with all safety rules and regulations and to keep daily work reports. Precision would dig according to the blueprints, and then the concrete company would come in to pour footings. Burns agreed that the photographs showed mounds of dirt. Burns stated the jobsite was small and without room to "spread out." He heard one of the ironworkers complain that it was not easy to walk around because of the small jobsite, excavations, and rebar "all over." On this job, Precision did not create any mound of dirt that could have inadvertently covered any materials nearby. Precision did not move any of the piles of rebar.

         ¶ 30 Ismael Ramirez and Juan Alfaro

         ¶ 31 Ramirez and Alfaro each testified through a Spanish interpreter. Ramirez was a union carpenter working for Chicago Town for 30 years, the last 12 years as a foreman. Ramirez went though Occupational Safety and Health Administration (OSHA) safety training. Whenever Chicago Town started a new job, the superintendents for the general contractors held a safety orientation. In Ramirez's experience, the chain of command was Mike Chapman, Bob Bokar, and then Ramirez. Only ironworkers were permitted to handle the rebar.

         ¶ 32 Alfaro was a laborer with Chicago Town for five years. The carpenters and laborers from Chicago Town would not move the rebar pile unless the ironworkers or Chapman told them to do so. Alfaro was on-site and saw Foley on "six or eight" occasions around the time of the accident, which occurred somewhere in the middle of those days. The following exchange was had:

"Q. Did you see Mr. Foley pulling rebar and hurting his back?
A. I saw him pulling it, but I don't know if that's the moment when he injured himself.
Q. Were you present-when you saw Mr. Foley pulling rebar, did you see him pulling it from a stack of rebar?
A. Yes.
Q. At the time you saw Mr. Foley pulling the rebar from the stack of rebar, was the stack organized in bundles of rebar that were tied ...

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