Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 16 L 2809 The
Honorable Kathy M. Flanagan, Judge, presiding.
A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd.,
of Chicago, for appellant.
J. Karrison, of Purcell & Wardrope, Chtrd., of Chicago,
JUSTICE HYMAN delivered the judgment of the court, with
opinion Justice Pucinski concurred in the judgment and
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
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.
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.
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
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
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
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
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
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
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
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?
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 ...