FIRST DIVISION December 29, 2008
No. 1-07-1883
NATIVIDAD F. GARCIA, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County. v. ) ) WOOTON CONSTRUCTION, LTD., a ) Corporation; ) No. 04 L 8684 ) Defendant-Appellee ) ) (Smithfield Properties Development,) L.L.C., a Limited Liability ) The Honorable Company; Harris Management, Ltd., ) Kathy M. Flanagan, a Corporation; and Zalk Josephs ) Judge Presiding. Fabricators, L.L.C., a Limited ) Liability Company, Defendants). ) )
JUSTICE GARCIA delivered the opinion of the court.
The plaintiff in this construction negligence case,
Natividad Garcia, injured his back while employed by JP Cullen &
Sons, an ironworking subcontractor, doing work on a condominium
project. The plaintiff appeals the grant of summary judgment in
favor of the defendant, Wooton Construction, Ltd., the general
contractor of the project. We are presented with two questions:
(1) whether Wooton retained sufficient control over the work by
Cullen to impose a duty of reasonable care under section 414 of 1-07-1883
the Restatement (Second) of Torts (Restatement (Second) of Torts
§414 (1965)) and (2) whether a material question of fact exists
as to the proximate cause element of the plaintiff's negligence
claim against Wooton. For the reasons that follow, we find the
facts give rise to a duty of care and it is for a jury to decide
the question of proximate cause. Accordingly, we reverse and
remand.
BACKGROUND
In August 2002, a condominium complex known as "Kingsbury on
the Park" in Chicago was being developed. The property was owned
by Smithfield Properties Development, L.L.C. Wooton
Construction, Ltd., the general contractor, was a subsidiary of,
or otherwise affiliated with Smithfield.
Wooton contracted with Zalk Josephs Fabricators, L.L.C., to
fabricate structural steel. Zalk subcontracted with the
plaintiff's employer, JP Cullen & Sons, to erect the steel.
Ross Nasca was Wooton's superintendent on the Kingsbury
project; Bob Robertson was the head of Wooton's safety department
and Harles Epps was Wooton's safety director. William Dohnke was
Cullen's general foreman. Kary Eckhardt was Cullen's "raising
gang" foreman and the plaintiff's direct supervisor. Rudy
Saunders was the union steward.
Shortly before his lunch break on August 28, 2002, the
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plaintiff, an ironworking apprentice with the Cullen raising
gang, was in the process of unloading a crane basket containing
approximately 10 kegs of bolts. Each keg weighed between 100 and
200 pounds. The plaintiff was standing inside the basket and was
handing the kegs to another Cullen employee, Larry Dempsey, when
the plaintiff felt something "pop" in his back and he experienced
severe pain. He reported the injury to Dohnke.
On September 4, 2002, the plaintiff went to Northwestern
Hospital and was eventually diagnosed with a herniated disc. The
plaintiff underwent surgery to repair the herniated disc, but was
not "cleared" by his doctor to return to ironworking.
On August 2, 2004, the plaintiff filed a one-count
construction negligence complaint in the circuit court of Cook
County, naming Wooton, Smithfield, and Harris Management, Ltd.,
as defendants. The plaintiff filed a first-amended complaint on
September 20, 2005, adding Zalk as a defendant. Wooton,
Smithfield, and Zalk filed a third-party complaint for
contribution against Cullen on July 27, 2006.
On August 10, 2006, the plaintiff filed a second-amended
complaint. The plaintiff alleged the defendants committed nine
instances of negligence, only two of which are pertinent to the
issues before us: (1) the defendants failed to provide a crane or
other mechanical device to move the kegs of bolts and (2) the
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defendants permitted the plaintiff to move the kegs manually
where they knew or should have known a crane or other device was
necessary.
Ultimately, Wooton filed a motion for summary judgment.1
Wooton contended it did not owe a duty to the plaintiff because
it did not retain control over Cullen's work under section 414 of
the Restatement (Second) of Torts. Wooton also argued the
plaintiff could not establish its acts or omissions proximately
caused the plaintiff's injury.
Amongst the evidence attached to Wooton's motion and the
plaintiff's response are depositions from the plaintiff, Nasca,
Dohnke, William Harris Smith, the president of Smithfield, and
ironworkers Lawrence Dempsey, Michael Barrett, and Truman
"Derrick" Keene III, all of whom were employed by Cullen. Also
attached are the contract between Wooton and Zalk, the
subcontract between Zalk and Cullen, and Wooton's "Sub-Contractor
Safety Orientation Packet" (safety packet).
Section 2.1 of the Wooton-Zalk contract states that Zalk
1 Smithfield and Zalk filed separate motions for summary
judgment. Subsequently, the plaintiff voluntarily dismissed
Smithfield. Zalk's motion was granted but is not raised on
appeal.
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"shall perform and furnish all labor, supervision, services,
appliances, materials, equipment, tools, scaffolds, hoisting,
transportation, storage and all other things necessary to
prosecute and complete the Work." The agreement between Zalk and
Wooton provided that a crane for subcontractor's use would be
provided. Section 2.7 provides that Zalk "agrees that the
prevention of accidents to workers engaged upon or in the
vicinity of the Work is its responsibility, even if [Wooton]
establishes a safety program for the entire Project.
Subcontractor shall establish and implement safety measures,
policies and standards conforming to those required or
recommended by governmental or quasi-governmental authorities
having jurisdiction and by [Wooton] and [Smithfield]."
The Zalk-Cullen subcontract indicates Cullen is to "Furnish
Supervision, Labor, Equipment, Consumable Materials, Electrical
Power, Hoisting, and Rigging to unload and erect structural steel
and Precast." Cullen was not to furnish a crane. Cullen also
agreed to be bound by the Wooton-Zalk contract, which was
incorporated into the subcontract.
Wooton leased the crane for the jobsite and, as acknowledged
in Wooton's brief, "the general practice in the construction
industry" is for the general contractor to have "ultimate control
of job site cranes." Cullen employees Lawrence Dempsey, William
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Dohnke, Truman Keene and Michael Barrett in their depositions
expressed dismay over Cullen not having exclusive use of the
crane. Cullen did supply its own lifting basket and rigging for
the crane.
Wooton's safety packet consists of 13 pages and contains 17
specific topics, including a dress code, protective equipment,
"fall protection," and "general safety regulations." The safety
packet generally provides the workers must wear shirts, long
pants and work boots. They must utilize hard hats, protective
eye wear, and, where necessary, earplugs. It also prohibits the
use of illegal drugs, alcohol, firearms, and cameras. It directs
how ladders and scaffolds are to be utilized and sets forth seven
regulations regarding the use of "Cranes and Rigging," including
that only authorized personnel may operate cranes and that the
"Capacities of rigging equipment shall not be exceeded." The
final page states the packet is "to be given to every employee
prior to beginning work." It also states that employees are
required to sign a form demonstrating "completion of the safety
and health orientation." No employee may begin work prior to
completing orientation.
Smithfield president, William Harris Smith, testified that
Wooton's superintendent, Ross Nasca, was the highest-ranking
Wooton employee on the jobsite daily. Nasca's duties included
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being familiar with the daily progression of the job and making
sure the work stayed on schedule.
Smith testified Wooton's safety packet was part of Wooton's
overall safety plan. Wooton required each subcontractor to
comply with the safety packet and OSHA regulations. Nasca had
authority to require compliance with the safety packet and OSHA.
If Nasca thought work was being performed unsafely, he had the
authority to stop the work, but "[t]hat is all he would be
authorized to do." He could keep the work stopped until the work
could be completed safely.
Ross Nasca testified his duties as the superintendent
included compiling the job schedule, monitoring the progress of
the work, and ensuring the work stayed on schedule. Nasca
testified that Wooton safety employees, Robertson and Epps, were
responsible for placing the project safety packet in the hands of
the foreman of each subcontractor. The foremen were expected to
share the information with their employees. He described the
packet as outlining "generic" rules Wooton thought to be
important. Subcontractors were also required to hold weekly
"toolbox talks," to discuss safety measures. The subcontractor
foremen would decide the topic of the talks. Sign-in sheets for
the talks were required to be given to Nasca.
If a subcontractor employee felt a work condition was
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unsafe, he or she was free to talk to Nasca about the concern.
Nasca would do what he could to remedy it.
Nasca explained there was only one crane available on the
Kingsbury project. Wooton leased the crane, which was operated
by employees of another company controlled by Smithfield. Nasca
testified Cullen "controlled" the crane, but Nasca, as the
superintendent, could make the crane available to other
subcontractors. Nasca and Cullen would make decisions regarding
the availability of the crane. Nasca explained:
"[W]e gave them [Cullen] the crane with
the idea that they had a hundred percent use
of the crane; so whatever I would have to
schedule as far as other subcontractors would
have to be done, A, during their break, lunch
period, or we would have to cover the premium
time for our vendor as opposed to paying
their raising gang. You know, if I take--if
I was to theoretically take the crane away
from them, now I have all their ironworkers,
they're looking at me saying, well, you owe
me for that. That's a path that's, you know,
I would not go down."
According to Nasca, Cullen never complained about the
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unavailability of the crane. Rather, the other subcontractors
complained about Cullen having first priority.
Nasca also testified that the Cullen employees were
responsible for their own safety. Nasca was not involved in how
they "rigg[ed]" or lifted their bolts. He also did not direct
the Cullen employees on how to move the kegs of bolts. "How they
move their bolts around is up to them." However, Nasca had never
seen kegs of bolts moved in any manner other than with a crane.
William Dohnke, Cullen's general foreman, testified that
neither Nasca nor any other Wooton employee told the Cullen
employees how to perform their jobs. However, Nasca could stop
the work if he saw an unsafe practice or if the work did not
match the project specifications.
Dohnke was required by Wooton and Cullen to complete weekly
safety reports. Saunders, the union steward, also conducted
weekly safety meetings. All ironworkers were required to attend
but no minutes were kept.
Dohnke also testified about the crane. According to Dohnke,
Wooton provided the "hook" but Cullen provided the "basket" and
"chokers." Dohnke denied that Nasca limited other
subcontractor's use of the crane to times when Cullen would not
otherwise be using it. Dohnke testified that Nasca would take
the crane away from Cullen without limitation. Nasca's taking of
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the crane sometimes prevented Cullen from completing the crane-
dependent work Cullen had started. Dohnke complained to Nasca
about this practice on several occasions before the date of the
plaintiff's injury. Dohnke told Nasca the unavailability of the
crane was putting his employees' safety at risk.
On the day the plaintiff was injured, Nasca told Dohnke he
was taking the crane but would return it after lunch. Dohnke did
not know whether Nasca meant right after lunch or hours later.
Because the crane was being taken, the plaintiff could not use
the preferred, but more time-consuming, method of using a choker
and the crane to unload the kegs from the basket. Instead, the
plaintiff unloaded the kegs manually. This was done at the
direction of Kary Eckhardt, the raising gang foreman. Eckhardt
also directed the plaintiff to empty the basket before the lunch
break.
The plaintiff testified in his deposition that Nasca never
told him how to do his work but, on several occasions, stopped
workers who were not properly tied-off. The plaintiff often saw
Wooton's "safety person" on the jobsite. The person would
regularly check to see that workers were wearing the necessary
safety equipment and that they were "tied on." He attended
weekly safety meetings that were conducted by his union steward.
According to the plaintiff, Nasca set a "crane schedule"
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that would permit other subcontractors to use the crane while the
Cullen employees were on a break, such as lunch. On the day of
his injury, the plaintiff was manually unloading the kegs of
bolts at the direction of his foreman, Kary Eckhardt. Eckhardt
told the plaintiff to hurry and finish moving the kegs of bolts
by lunch because another subcontractor needed to use the crane.
The plaintiff would have preferred to "cinch" the kegs
individually with the crane to unload them. This method involved
less manual lifting, because the crane did the work, but took
more time. According to the plaintiff, it is not unusual for an
iron worker to have to lift a single keg of bolts, but it was
unusual for a worker to have to unload multiple kegs from a crane
basket. In his view, he would not have been injured if he had
not been in a rush to finish emptying the basket by lunch.
Lawrence Dempsey was working with the plaintiff when he was
injured. Eckhardt instructed that the basket had to be unloaded
before lunch because another subcontractor needed the crane.
Dempsey also explained the usual way to unload the basket was to
use the crane to individually lift them out. However, Dempsey
and the plaintiff were unloading it manually because they were in
a hurry to finish before lunch. Dempsey testified it was
"unusual" for the general contractor to supply the crane, which
the Cullen raising gang needed to perform its work. Dempsey
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testified that Nasca had "supreme say so" on the job. Although
he had several conversations with Nasca, he did not recall
whether Nasca ever told him how to do his job.
Derrick Keene testified that nobody from Wooton ever told
him how to do his job. However, if Nasca would have told him to
stop his work for a safety reason, Keene would have listened.
According to Keene, the Cullen employees were not free to do
their job in the manner in which they preferred when the crane
was absent. Instead, they had to use unsafe practices contrary
to their training. Prior to the plaintiff's injury, Keene
complained to Nasca because the unavailability of the crane
required Keene to manually move a 20-foot "perimeter angle."
According to Keene, Nasca "blew off" his complaint.
Michael Barrett testified the customary way to unload a
basket in the ironworking industry is to use a "choker" and a
crane to lift the kegs individually. This was why ironworkers
usually supplied their own cranes: so they could lift things
safely. Wooton's control of the crane caused problems because
Wooton would let other subcontractors use it. When this
happened, the Cullen employees either had to manually lift items
or risk being "shut down." That the crane was unavailable at
times was a problem for Cullen during the whole job. Screaming
matches between the employees from Cullen and the employees from
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Wooton would often result.
Barrett testified he was "working the phones" with the crane
operators on the day the plaintiff was injured. He was about 10
feet from the plaintiff and also near Nasca and Eckhardt.
Barrett heard Nasca tell Eckhardt that Wooton was taking the
crane. "[Q]uite a few swear words" and "an argument" resulted.
In response to Eckhardt's protests, Nasca told him that the
Cullen employees would have to "lift the stuff manually" because
he was pulling the crane.
The trial court granted Wooton's motion for summary
judgment, finding Wooton retained only a general right of
supervision, which was insufficient to invoke a duty of care
under section 414. Without explaining its reasoning, the court
also found the plaintiff failed to present evidence to establish
proximate cause. This timely appeal followed.
ANALYSIS
Summary judgment is proper if "the pleadings, depositions,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." 735 ILCS 5/2-1005(c) (West 2006); Purtill v. Hess, 111
Ill. 2d 229, 240, 489 N.E.2d 867 (1986). Wooton, as the moving
and successful party on the summary judgment motion, does not
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(and cannot) challenge the facts in this case as presented to the
circuit court below, as summary judgment "is not designed to try
an issue of fact, but rather to determine whether one exists."
Rivan Die Mold Corp. v. Stewart Warner Corp., 26 Ill. App. 3d
637, 640-41, 325 N.E.2d 357 (1975). We construe what is
contained in the papers on file most liberally in favor of the
opponent. Rivan Die Mold Corp., 26 Ill. App. 2d at 640.
"If, from a review of the pleadings and evidentiary material
before the trial court, a reviewing court determines that *** the
summary judgment was based upon an erroneous interpretation of
the law, a reversal is warranted." Pagano v. Occidental Chemical
Corp., 257 Ill. App. 3d 905, 909, 629 N.E.2d 569 (1994).
In its written order granting summary judgment, the trial
court gave two grounds. First, Wooton owed no duty of care to
the plaintiff. See Rangel v. Brookhaven Constructors, Inc., 307
Ill. App. 3d 835, 838, 719 N.E.2d 174 (1999). Second, in any
event, the plaintiff could not show that his injury was
proximately caused by Wooton's alleged breach of its duty of
care. See City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d
351, 395-96, 821 N.E.2d 1099 (2004) ("the lack of proximate cause
may be determined by the court as a matter of law where the
facts" are legally insufficient). Our review is de novo.
Purtill, 111 Ill. 2d at 240.
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I. Duty
The general rule is that one who employs an independent
contractor is not liable for the independent contractor's acts or
omissions. Section 414 provides an exception to this general
rule.
"One who entrusts work to an independent
contractor, but who retains the control of
any part of the work, is subject to liability
for physical harm to others for whose safety
the employer owes a duty to exercise
reasonable care, which is caused by his
failure to exercise his control with
reasonable care." Restatement (Second) of
Torts §414, at 397 (1965).
This exception, known as the "retained control exception,"
was recognized by our supreme court in Larson v. Commonwealth
Edison Co., 33 Ill. 2d 316, 211 N.E.2d 247 (1965). In order for
this exception to apply, it must be shown that the general
contractor retained sufficient control over the work of the
subcontractor so that the law recognizes the existence of a duty
to exercise that "supervisory control with reasonable care." See
Aguirre v. Turner Construction Co., 501 F.3d 825, 831 (7th Cir.
2007) (duty of care arose where "specific alternative design
15 1-07-1883
requirements on the scaffold from which [the plaintiff] fell"
were imposed by general contractor). Whether Wooton retained a
level of control sufficient to give rise to a duty of reasonable
care is a question of law. Rangel, 307 Ill. App. 3d at 837.
At oral argument, the plaintiff made clear that his
negligence claim is based on comment c of section 414 where a
duty of care is recognized when a general contractor "retained
*** some degree of control over the manner in which the work [of
the subcontractor] is done." Restatement (Second) of Torts §414,
Comment c, at 388 (1965). In essence, the plaintiff contends a
sufficient degree of control over the work by Cullen was
exercised by Wooton's control over the only crane available at
the work site. The Cullen raising gang, of which plaintiff was a
part, required the use of a crane to perform its work. The
contract between Wooton and Zalk, which was incorporated into the
contract between Zalk and Cullen, expressly provided that Wooton
would provide the crane and, in accordance with industry
practice, would control its use. Dempsey, from the Cullen
raising gang, testified it was unusual for Cullen not to have
provided its own crane.
We understand the gravamen of the plaintiff's claim to be
that Wooton, in controlling the use of the crane, had a duty to
exercise reasonable care in taking the crane from use by Cullen.
16 1-07-1883
In other words, before Wooton removed the crane from the Cullen
raising gang, Wooton had a duty to ensure that the raising gang
had completed its crane-dependent work. More specifically,
because the safe and customary practice in the steel raising
industry was to use the crane to remove multiple kegs of bolt
from a transporting basket, Wooton should have made clear at the
time it announced the "taking" of the crane, that Cullen complete
the unloading of the basket with the crane before relinquishing
the crane to Wooton. With Wooton assuming control over the only
crane at the work site and in light of the conceded need for the
use of the crane for the raising gang to perform its work, it
follows that Wooton retained some degree of control over the
manner in which the work of the Cullen raising gang was done.
See Restatement (Second) of Torts §414, Comment c, at 388 (1965).
Our conclusion is amply supported by the facts in the record.
Dempsey testified that Nasca had "supreme say so" on the
job. Nasca testified that Wooton, as the general contractor, in
line with industry practice, controlled the use of the crane.
Dohnke told Nasca that the unavailability of the crane was
putting his employees' safety at risk. According to Keene, he
complained to Nasca that the unavailability of the crane forced
him to move a 20-foot "perimeter angle" manually but that Nasca
"blew off" his complaint. Nasca himself testified that he had
17 1-07-1883
never seen kegs of bolts moved manually, but he had never seen
more than one moved in any manner other than with a crane. As
Wooton acknowledges in it brief, it is "standard practice in the
steel erection industry to load and unload kegs of bolts with
the use of a crane." Nasca also admitted that the Cullen
raising gang required the use of a crane to do its work.
Just prior to the incident involving the plaintiff, Nasca
told Dohnke, Cullen's general foreman, that Wooton was taking
the crane and would return it after lunch. It appears Dohnke
conveyed Nasca's intention to take the crane to Eckhardt,
Cullen's raising gang foreman, who in turn directed the
plaintiff and Dempsey to manually unload the basket full of kegs
of bolts to relinquish the crane quickly to Wooton. Consistent
with the industry standard, the preferred, but more time-
consuming, method of unloading kegs of bolts is by use of a
choker and crane. Nasca did not condition his taking of the
crane on completing the unloading of the basket in line with the
safe and preferred method by use of the crane. In the course of
unloading the basket, after it appears several kegs had been
lifted out of the basket by the plaintiff, the plaintiff
suffered the herniated disk.
Given that Wooton had "supreme say so" over the use of the
crane, and that Wooton told Cullen that it was taking the crane
18 1-07-1883
after Wooton through Nasca had been told that the Cullen raising
gang was forced to engage in unsafe practices when the crane was
unavailable, it was foreseeable that Cullen would direct that
the unloading of the basket full of kegs of bolts be done in a
manner that would provide the crane to Wooton in as short a time
as possible, that is, by manually unloading the basket, rather
than taking the safer but more time-consuming method of using
the choker and crane.
Wooton's control over the use of the crane--equipment that
all acknowledge the raising gang needed to perform its work--
supports a finding that Wooton had a duty of care to reasonably
exercise its control over the use of the crane so as not to
expose the raising gang to foreseeable danger of harm. Wooton's
control over the use of the crane is not unlike the alternative
design of scaffolding imposed by the general contractor in
Aguirre. In Aguirre, the scaffolding used by the plaintiff and
from which he fell, was constructed in accordance with "specific
alternative design requirements" imposed by the general
contractor. Aguirre, 501 F.3d at 831. In effect, the general
contractor controlled the subcontractor's "means and methods of
doing it work" by directing that the subcontractor do its work
with scaffolding devised by the general contractor. Here,
Wooton controlled the "means and methods" of the work contracted
19 1-07-1883
to be done by the Cullen raising gang, by Wooton depriving
Cullen of the use of the crane to do crane-dependent work. See
Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051,
1059, 728 N.E.2d 726 (2000) (general contractor should have been
aware of the unsafe, manual hoisting method being used by the
plaintiff to lift the metal sheets).
The circumstances leading to the injury sustained by the
plaintiff in unloading the kegs of bolts manually are not unlike
the circumstances leading to the injury to the plaintiff in
Bokodi. In Bokodi, the plaintiff, a subcontractor employee,
sued the general contractor after he injured his back lifting
sheets of metal siding. Although the plaintiff would have
preferred to use a mechanical device to lift the metal sheets,
he used a "manual well wheel and handline" at the time of his
injury. Bokodi, 312 Ill. App. 3d at 1054. In Bokodi, we found
the contractual language and the general contractor's actions
demonstrated sufficient control to trigger a duty of care under
section 414. In that case, the general contractor held weekly
safety meetings and had the authority to stop a subcontractor's
work if an unsafe practice was suspected. Further, the contract
between the general contractor and the subcontractor required
the subcontractor to comply with 29 specific safety measures and
the general contractor hired a full-time safety manager to
20 1-07-1883
ensure the subcontractor's compliance. We emphasized that the
general contractor should have been aware of the unsafe, manual
hoisting method being used by the plaintiff to lift the metal
sheets. Bokodi, 312 Ill. App. 3d at 1063. We concluded the
general contractor "went to great lengths to control the safety
standards at the work site," despite contractual language that
indicated the subcontractor was to maintain control of its work
and the safety of its employees. Bokodi, 312 Ill. App. 3d at
1063. The evidence of Wooton's control over the means and
methods of the Cullen raising gang's work is considerably
stronger than the control exerted by the general contractor in
Bokodi.
Here, direct evidence was presented of Wooton's exercise of
control over the unloading of the kegs of bolts by the
plaintiff. Barrett testified that Wooton through Nasca directed
that the basket full of kegs of bolts be unloaded manually.
While Barrett's version of the conversation between Wooton and
Cullen may stand alone among those within earshot of that
conversation, at this junction we take the evidence and all
reasonable inferences to be drawn from the evidence in the light
most favorable to the plaintiff.
Based on the facts in the record, we conclude, as the court
did in Aguirre, that the general contractor, Wooton, "retained
21 1-07-1883
sufficient control over the safety of [the crane-dependent work]
and construction to give rise to a duty of reasonable care under
section 414 of the Restatement. Of course, this holding does
not mean [Wooton is] liable for [the plaintiff's] injuries; [the
alleged breach of that duty] remains a question for the jury."
Aguirre, 501 F.3d at 831.
We find the cases on which Wooton primarily relies, Rangel,
Shaughnessy v. Skender Construction Co., 342 Ill. App. 3d 730,
794 N.E.2d 937 (2003), and Martens v. MCL Construction Corp.,
347 Ill. App. 3d 303, 807 N.E.2d 480 (2004), to be
distinguishable on their facts. In Rangel, we affirmed summary
judgment in favor of the general contractor because there was no
evidence the general contractor constructed the scaffolding from
which the plaintiff fell. In fact, the evidence was that only
the subcontractor controlled the use of the scaffolding and that
the subcontractor told the plaintiff to use the scaffolding in
an unsafe manner. Rangel, 307 Ill. App. 3d at 839. In
Shaughnessy, the plaintiff fell after a rotten wooden board he
used as a "bridge" over a gap broke. The evidence showed the
subcontractor had furnished its own equipment, including a more
safe way for the plaintiff to perform his work. No evidence was
presented that the general contractor was aware of the unsafe
practice the plaintiff undertook. Shaughnessy, 342 Ill. App. 3d
22 1-07-1883
at 738. In Martens, the plaintiff was injured in a fall. His
claim of negligence against the general contractor was one of
"failing to provide fall protection." Martens, 347 Ill. App. 3d
at 306. The plaintiff never presented any facts to connect his
falling to any control, either by contract or by "operational
control," exercised by the general contractor. Martens, 347
Ill. App. 3d at 318-20. Accordingly, we reject Wooton's
position that this case is more like Shaughnessy, Martens, and
Rangel than like Aguirre and Bokodi.
We reverse the trial court's determination that the facts
in this case did not give rise to a duty of care on the part of
Wooton owed to the plaintiff.
II. Proximate Cause
A plaintiff in a negligence case must present some evidence
that the defendant's alleged negligence proximately caused his
or her injury. Harrison v. Hardin County Community Unit School
District No. 1, 197 Ill. 2d 466, 476, 758 N.E.2d 848 (2001).
Wooton's only contention regarding a showing of proximate cause
is that it was Eckhardt that directed the plaintiff to unload
the basket manually. This is true, but Wooton fails to consider
that the chain of events that resulted in the injury to the
plaintiff began with Wooton's demand that Cullen relinquish
control of the crane. We reject Wooton's contention that as a
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matter of law, a finder of fact could not find Wooton, as the
agent that put in motion the chain of events at issue, to have
proximately caused the plaintiff's injuries. See Espinoza v.
Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 118, 649
N.E.2d 1323 (1995) (the facts of the case were not "sufficiently
one-sided" that the court could determine the issue of proximate
cause as a matter of law); Pasko v. Commonwealth Edison Co., 14
Ill. App. 3d 481, 490, 302 N.E.2d 642 (1973) ("evidence supports
the submission to the jury the question" of the defendant's
negligence).
The plaintiff presented sufficient evidence to support his
claim that he would not have lifted the kegs manually but for
Wooton's control over the crane, which it sought to take from
Cullen to give to another subcontractor. Dohnke and Barrett
both testified that Nasca was aware that the Cullen raising gang
engaged in unsafe practices when the crane was unavailable, and
Barrett testified that Nasca told Eckhardt that the Cullen
employees would have to "lift the stuff manually."
The trial court erred in granting summary judgment on the
element of proximate cause.
CONCLUSION
For the reasons stated above, we reverse the trial court's
grant of summary judgment and remand this matter for further
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proceedings.
Reversed and remanded.
R. GORDON, P.J., and WOLFSON, J., concur.
25 1-07-1883
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT ____________________________________________________________________
NATIVIDAD F. GARCIA, Plaintiff-Appellant, v.
WOOTON CONSTRUCTION, LTD., a Corporation; Defendant-Appellee
(Smithfield Properties Development, L.L.C., a Limited Liability Company; Harris Management, Ltd., a Corporation; and Zalk Josephs Fabricators, L.L.C., a Limited Liability Company, Defendants).
________________________________________________________________
Appellate Court of Illinois First District, First Division Filed: December 29, 2008 _________________________________________________________________
R. GORDON, P.J., and WOLFSON, J., concur. _________________________________________________________________
Appeal from the Circuit Court of Cook County Honorable Kathy M. Flanagan, Judge Presiding _________________________________________________________________
For PLAINTIFF-APPELLANT Daniel V. O'Connor Jeffrey S. Jordan ANESI, OZMON, RODIN, NOVAK & KOHEN, LTD. 161 North Clark Street, 21st Floor Chicago, IL 60601
For DEFENDANT-APPELLEE Stephen A. Rehfeldt MULHERIN, REHFELDT &
26 1-07-1883
VARCHETTO, P.C. 211 South Wheaton Avenue, Suite 200 Wheaton, Illinois 60187