Neisendorf v. Abbey Paving & Sealcoating Co., Inc.

2024 IL App (2d) 230209-U

• Court: Appellate Court of Illinois
• Decided: June 14, 2024
• Docket: 2-23-0209
• Status: Unpublished

Opinion

2024 IL App (2d) 230209-U No. 2-23-0209 Order filed June 14, 2024

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THOMAS W. NEISENDORF, ) Appeal from the Circuit Court ) of Kane County. Plaintiff-Appellant, ) ) v. ) No. 20-L-412 ) ABBEY PAVING & SEALCOATING CO., ) d/b/a Abbey Paving Co., Inc., ) Honorable ) Robert K. Villa, Defendant-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court. Justices Hutchinson and Kennedy concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in granting defendant general contractor summary judgment on plaintiff subcontractor employee’s claims for negligence and premises liability, where there were no material factual questions concerning the general contractor’s control over the subcontractor’s work or its notice of a dangerous condition. Affirmed.

¶2 Plaintiff, Thomas W. Neisendorf, an employee of subcontractor Campton Construction,

Inc., sued defendant, Abbey Paving and Sealcoating Co., Inc., the general contractor, for

construction negligence, premises liability, and direct negligence, after he was injured when a

trench wall collapsed on him at McHenry County’s government center. The trial court granted 2024 IL App (2d) 230209-U

Abbey summary judgment. Plaintiff appeals, arguing that the trial court erred in granting Abbey

summary judgment, where there were material factual questions as to whether: (1) Abbey retained

sufficient control (contractual or otherwise) over Campton’s work such that it owed plaintiff a duty

of care under section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts §

414 (1965)); and (2) it had notice (actual or constructive) of a dangerous condition such that it

owed plaintiff a duty of care under either section 414 or 343 of the Restatement (Restatement

(Second) of Torts § 343 (Restatement (Second) of Torts § 343 (1965)). We affirm.

¶3 I. BACKGROUND

¶4 A. Plaintiff’s Complaint

¶5 On June 7, 2023, plaintiff sued Abbey. The complaint alleged as follows. On August 31,

2018, Abbey was the general contractor for excavation work at the county’s property at 2200 North

Seminary Drive in Woodstock. Abbey oversaw and supervised excavation, construction, repair,

design, inspection, and removal and/or maintenance of a storm sewer line at the job site. Plaintiff

was employed by subcontractor Campton and was on the premises on August 31. Abbey retained

control for part of the work, including jobsite safety and compliance with Occupational Safety and

Health Act of 1970 (OSHA) (29 U.S.C. § 651 et seq. (2012)) regulations for the trench excavation

and had the opportunity to prevent work by exercising the power of control it retained over the

project. Plaintiff further alleged that Abbey owed a duty of care to exercise its supervisory control

to prevent the work Abbey ordered from causing injury to others, including plaintiff. Abbey

designated work methods, maintained and checked work progress, and participated in work

scheduling and inspection. It also had the authority to stop the work, refuse work and materials,

and order changes in the work in the event it was being performed in a dangerous and unsafe

manner.

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¶6 On August 31, plaintiff alleged, Abbey failed to erect, construct, or place a safe, suitable,

and proper protective system for shoring walls to facilitate the construction/excavation project. It

had the duty to exercise reasonable care in its control over the project and had a non-delegable

duty to provide a safe workplace. Plaintiff was required to work in a trench more than five feet

deep to remove and replace a storm sewer line, but Abbey failed to inspect the premises, provide

a safe workplace, or install adequate protective systems to prevent a dirt cave-in. The dirt wall

collapsed on plaintiff, and, when he attempted to stop the wall from collapsing on him, his arm

broke and his arm and hand were crushed. The collapsed trench wall also pinned in plaintiff’s

legs. Plaintiff suffered a left grade 2 open fracture of the distal radius and dislocation and fracture

of the distal ulnar bone/radius bone at the wrist that required surgery.

¶7 Abbey denied the allegations and raised as affirmative defenses plaintiff’s alleged

contributory or comparative negligence, argued that any alleged unsafe conditions were open and

obvious and known to plaintiff, denied it had any notice of unsafe conditions (and, thus, no duty

to warn), denied that it had control over the operative details of the work performed by others (and,

thus, owed plaintiff no duty of care), and any injuries to plaintiff were proximately caused by

others and not Abbey.

¶8 B. Contract

¶9 Abbey entered into a written contract with the county to perform work (parking lot

reconstruction, storm system restructuring, and lighting system restructuring) as the general

contractor at the county’s government center. Abbey, in turn, pursuant to an oral agreement, hired

Campton as a subcontractor to handle the project’s underground sewer and sanitary installation

and mass grading and foundation excavation.

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¶ 10 Abbey’s contract with the county, dated April 5, 2018, related to work at the county’s

government center parking lot. Section 9.2 addresses supervision and construction procedures and

provides that Abbey “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.” Also, it states that Abbey “shall be responsible to the Owner for acts and omissions

of [Abbey’s] employees, Subcontractors and their agents and employees, and other persons or

entities performing portions of the Work for or on behalf of [Abbey] or any of its Subcontractors.”

¶ 11 Section 16.1 addresses safety precautions and programs and provides that Abbey:

“shall be responsible for initiating, maintaining, and supervising all safety

precautions and programs in connection with the performance of the Contract. [Abbey]

shall take reasonable precautions for safety of, and shall provide reasonable protection to

prevent damage, injury, or loss to *** employees on the Work and other persons who may

be affected thereby[.]” (Emphasis added.)

¶ 12 C. Depositions

¶ 13 1. Plaintiff

¶ 14 Plaintiff testified at his deposition that he started working for Campton in 2009 as a laborer.

On August 31, 2018, the date of plaintiff’s accident, Mark Bowgren was plaintiff’s supervisor at

Campton. Plaintiff received his daily work instructions exclusively from Bowgren and never from

anyone at Abbey. The only time on August 31 that plaintiff saw someone wearing Abbey insignia

or clothing was after his accident. That day, plaintiff was working on removing an existing storm

sewer pipe and replacing it with a larger one. Plaintiff had performed such work for Campton on

about one dozen projects. No other contractors were working in the vicinity of where Campton

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was working that day, and five Campton employees were working at the site. Plaintiff worked in

the trench. Another employee dug out the trench the same day. Bowgren was in the area, but not

always near the trench.

¶ 15 When asked if anyone from Abbey directed him into the trench on August 31, plaintiff

replied, “They don’t control my method. They don’t control the safety of my method.” He also

stated that no one from Abbey directed him to go into the trench. Just prior to the accident, another

employee yelled at plaintiff to look out. When the trench wall collapsed, the dirt covered up

plaintiff’s body up to his shoulder and he had trouble breathing until an employee knocked away

some dirt.

¶ 16 Plaintiff could not recall if, prior to his accident, he received training concerning trench

safety during his tenure with Campton. A trench box keeps trench walls from collapsing in, and,

when needed, Campton used it. Plaintiff would not make the decision whether to use it; it would

be Mark Peterson (Campton’s vice president) or Bowgren. The need for a trench box is related to

the depth of a trench, which, in turn, is determined by the blueprints. Prior to the accident, in

trenches similar in depth to the one where the accident occurred, a trench box would occasionally

be used, depending on soil type. Plaintiff received training on recognition of soil after his accident.

Prior to his accident, Campton used a trench box on the same project (months earlier). Also, there

was no shoring used on the site on the day of the accident, although it was used at some point on

the project; shoring also protects walls from caving in.

¶ 17 Plaintiff further testified that Abbey was “my boss’s boss,” and it “control[s] what happens

on the job site.” Abbey had the authority to control how the work was being carried out on the

date of plaintiff’s injury, because it was the general contractor. If someone from Abbey asked him

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to stop work due to safety reasons, he would stop. However, everyone on the job site had

responsibility for safety.

¶ 18 Plaintiff saw Bob Buelow from Abbey at the job site; he was superintendent. He was, in

plaintiff’s view, in control of the job site and could make requests of Campton, including plaintiff.

He could require Campton to use shoring.

¶ 19 2. Mark Peterson

¶ 20 Mark Peterson, Campton’s vice president, testified that he oversees billing, estimating,

crew scheduling, and is the company’s safety officer. He took OSHA “competent person”1

training and is the competent person for Campton. The training involved reviewing OSHA

standards and trenching. Also, Bowgren, Campton’s foreman for plaintiff’s crew, was a

designated competent person. (After plaintiff’s accident, all employees took the competent person

course.)

¶ 21 For the county’s project, Bowgren would have been overseeing the crew daily at the time

of plaintiff’s accident. Campton’s job was to replace a storm line on the north side of the jail.

Peterson would have been on the jobsite about once per week or every other week. On the day of

plaintiff’s injury, he was present at the site for a meeting to discuss a design issue. Buelow,

Bowgren, and two representatives from the county were also present. Peterson did not go to the

trench where the crew was working. He did not know if anyone from Abbey was present that day

1 A “competent person” is defined as “one who is capable of identifying existing and

predictable hazards in the surroundings or working conditions which are unsanitary, hazardous, or

dangerous to employees, and who has authorization to take prompt corrective measures to

eliminate them.” 29 C.F.R. § 1926.1401.

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at the job site, other than for the design meeting. Peterson never saw Buelow by the trench.

Bowgren, the designated competent person, was at the meeting and not at the trench at the time of

plaintiff’s accident.

¶ 22 The architect or civil engineer specified the depth of the trench, and Campton followed the

plans. Abbey was not involved in digging the trench. Addressing decision making about using

shoring or support inside the trench, Peterson stated that it depends on several factors, including

soil type and trench depth. As to the accident site, the plan was to start at 2.95 feet deep and end

at 5.1 feet deep. “Typically[,] once you reach things that are four feet in depth we would either

take some type of measure reducing the height of the trench wall or installing a trench box.” As

the digging occurs, a visual inspection is conducted to determine the soil type. Each of the workers

was qualified to make the visual inspection, but Bowgren was the competent person. If a trench

exceeds four feet in depth, it should be shelved/shored back or a trench box should be installed.

The decision on whether shoring or a trench box would be used was made by employees in the

field. Campton would not consult with Abbey on that decision. The process of digging out a

trench to backfilling it takes about one hour.

¶ 23 Peterson did not witness plaintiff’s accident. He heard yelling from where the crew was

working, ran over to the trench, and then called emergency personnel.

¶ 24 Reviewing a video of the accident, Peterson testified that the trench was not shelved. It is

also not standard for workers to stand or kneel directly on the edge of the trench, as one worker

did in the video. They should stay two feet back from the edge of the trench. In his accident

report, Peterson noted that workers used improper work technique, specifically, failing to properly

shelve the trench or to use a trench box. He also noted insufficient training in soil-type recognition.

Also, an abandoned gas line (that was not on any plans or marked on the ground) was revealed

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after the trench caved in. It “caused a thin sliver of undisturbed dirt between the two which gave

it a natural shear point to come off that[.]”

¶ 25 Campton did not have a written contract with Abbey at the time of plaintiff’s accident.

They do now. “I have never had Abbey tell me a means and methods that I have to use to do my

subcontract work I guess in that sense; but yes, they are responsible for me performing my work

correctly.” If Abbey told Campton to stop working, Campton would stop. If Abbey told Campton

that what it was doing was not safe and needed to stop, Campton would comply.

¶ 26 When asked how often representatives from Abbey were present at the jobsite, Peterson

responded that they were rarely there, unless Abbey had crews working. Most times Peterson was

on site, he did not see Abbey representatives there. The companies’ operations do not lend

themselves to them being there simultaneously. Abbey did not supply Campton with any

equipment, and Abbey is not an excavating company. Peterson spoke to Buelow about once per

week regarding progress and scheduling. During design meetings, Abbey did not tell Campton

representatives how to do their work. “Abbey would hire us as the subcontractor to complete [any

changes in the work] because it would be in a scope of work that they aren’t familiar with.”

¶ 27 3. Mark Bowgren

¶ 28 Mark Bowgren, Campton’s underground foreman, testified that he completed OSHA

training several times while working for Campton. He also completed competent person training

in October 2018, i.e., after plaintiff’s accident. Plaintiff was a member of Bowgren’s underground

crew, which also included Gilberto Huerta (heavy equipment operator who dug out the trench),

Gabriel (Gabby) Oviedo-Gonzalez (top man assisting plaintiff), and William (Bill) Hansen (heavy

equipment operator who backfilled the trench). Bowgren testified that plaintiff had OSHA training

before he started with Campton. Bowgren’s job was to hand out assignments and get his crew

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started every day. Campton employees used Campton tools; Abbey provided no tools. He would

be present the whole day and not leave the job site. Bowgren did not conduct safety or toolbox

meetings.

¶ 29 Bowgren explained that each section of trench is about 16 feet long. Once it is dug out and

the pipe is replaced, the trench is backfilled and the crew moves on to excavate the next trench.

No other company was doing this work at the job site. On the day of plaintiff’s accident, Bowgren

had a design meeting with Peterson and Buelow, along with two representatives from the county.

¶ 30 Bowgren also testified that, once a trench is deeper than five feet, the crew uses a trench

box or shelving/shoring. The decision whether to use a trench box or shoring also depends on soil

conditions, space, and size of equipment. Further, prior to plaintiff’s accident, the crew found a

pipe that was not marked in the blueprints, which, for safety reasons, precluded shoring. The crew

did not want to hit the pipe. Huerta’s machine could not lift any type of trench box, and his

machine was the only machine that could fit in the space with the trench. Typically, as foreman,

Bowgren is the person who decides whether to use a trench box or shoring. However, in the past,

plaintiff would not always take Bowgren’s suggestion. On the day of the accident, Bowgren did

not give plaintiff any instructions concerning shoring. The decision whether to use shoring or a

trench box was exclusively Campton’s decision. Plaintiff was not at fault for the cave-in. When

plaintiff’s accident occurred, Bowgren was at the design meeting, and Peterson came to get him to

help plaintiff. The portion of trench that caved in was a portion right over the gas pipe.

¶ 31 Plaintiff had experience with soil recognition from work prior to that with Campton. Prior

to plaintiff’s accident, no one on Bowgren’s crew had training concerning shoring or trench boxes.

¶ 32 Campton never had safety meetings with Abbey on prior projects. Abbey never had

questions or concerns about safety, nor were there any discussions between Abbey and Campton

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concerning safety. However, if Abbey had come up to Bowgren on a job where Campton was the

subcontractor and told his crew to stop, “then I stop. I mean we are working for them.” According

to Bowgren, “Abbey just gives us the timeframe basically. They provide all the information that

we need to do the work, and that’s pretty much how it goes.” At any point on the county’s project,

Abbey representatives could not come over and inspect Campton’s work. Buelow would not tell

Bowgren what was next in the project. “He would just let me do my thing, and like I said, he can’t

do anything until I’m done.”

¶ 33 Bowgren communicated with someone from Abbey every day to check in on what work

had been accomplished, and Abbey would then determine which portion of its work it could

commence.

¶ 34 4. Robert (Bob) Buelow

¶ 35 Robert (Bob) Buelow, project manager at Abbey, testified that he bids on work and runs

work to ensure jobs get done and everyone goes home safe at the end of the day.

¶ 36 On the day of plaintiff’s accident, no Abbey crews were on the job site. Buelow arrived

before plaintiff’s injury and was on site for a meeting (with the engineer, the county, and Peterson)

to discuss a utility conflict. The meeting issue was unrelated to Campton’s work that day. When

Abbey employees were not on site, Buelow would stop by the site occasionally to check

subcontractors’ progress or attend meetings. The only safety meetings he had on site were toolbox

talks with his crews (i.e., Abbey crews).

¶ 37 As project manager, Buelow did not instruct Campton employees how to do their work,

but, if he saw “something unsafe, yes, I would say something to them.” If he saw something that

appeared to be unsafe, he had the authority to stop the Campton employees. When asked if he had

the ability to stop the method and manner of Campton employees’ work if he deemed it necessary,

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Buelow replied, “I would ask them to stop, yes.” He also stated, “when it comes to means and

methods, I don’t have any control over that[.]” As to the manner in which the work was being

done, he stated that Campton controlled what it did. “If I seen [sic] something that was happening

wrong, would I say something? Yes.” “We do not control Campton’s safety.” He believed,

however, that the contract gave him the right to.

¶ 38 Buelow was a competent person, but Abbey had no work at the site on the day of plaintiff’s

accident. A competent person may stop work and/or make corrections. He could inspect

Campton’s work at any time. Buelow never gave Campton employees specific instructions on

their daily tasks on the county’s project. Any decisions concerning trench safety or trench boxes

were Campton’s. Abbey did not provide any materials or construction equipment to Campton.

¶ 39 On the day of plaintiff’s accident, Buelow was on site when the trench was being dug but

was not near the trench, nor was it within his field of view. He did not see the trench until after

the accident. As general contractor, Buelow was Peterson’s boss as it related to what needed to be

done for Campton’s part of the project. He could not recall when Campton started digging the

trench that collapsed. Nothing prevented Buelow from observing the work happening inside the

trench if he walked to the trench; however, he was in the meeting.

¶ 40 Buelow saw himself (in his vehicle) arrive on site on the surveillance footage at the 7:28

time stamp, and the trench collapsed about four minutes after he arrived (or about two minutes

after he walked to the meeting site). After plaintiff’s accident, he spoke to Peterson “about them

setting up some training with OSHA on trench safety,” upon which Campton followed up. Abbey

continues to work with Campton.

¶ 41 5. Additional Campton Employees

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¶ 42 Gilberto Huerta, a heavy equipment operator for Campton, testified that he worked for the

company for 30 years. He had trench safety training earlier in his career. On the day of plaintiff’s

accident, Huerta operated a mini hoe that was provided by Campton. (He assumed Bowgren, his

supervisor, was a designated competent person. Huerta was not a competent person.) Huerta was

not aware who the general contractor was on the project.

¶ 43 Campton held daily meetings at the site to review work for the day. Huerta received all his

instructions about daily tasks from Campton. He never spoke to anyone from Abbey at the job

site, nor did he see anyone from Abbey there.

¶ 44 At the job site, Huerta dug out the trenches, and plaintiff was the bottom man who was

inside the trench. Oviedo-Gonzalez, the top man, handed things to plaintiff. Hansen was a support

staff operator who backfilled the trench. The trench plaintiff was in the day of the accident was

dug out the same day. Bowgren instructed the crew how deep to dig a trench. Campton did not

use shoring but, rather, a trench box. It was used when a trench was over five feet deep or if the

ground was sandy/gravely or had running water. If Campton knew there would be a deep dig, it

would bring the trench boxes. Bowgren, plaintiff, and Huerta were the underground team members

who would make the decision whether to use a trench box. The decision on whether to use a trench

box was Campton’s alone. On the day of plaintiff’s accident, there was no discussion about using

a trench box. Huerta had no concerns about needing a trench box because they dug only four feet

down.

¶ 45 Huerta witnessed plaintiff’s accident. Bowgren was not near the trench at the time of the

accident. Plaintiff was standing on the pipe getting ready to get out when, suddenly, the trench

caved in.

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¶ 46 William Hansen, a heavy equipment operator for Campton, testified that, on the day of

plaintiff’s accident, he backfilled the trench and brought the pipe. All of the equipment he used

was provided by Campton, and all the instructions he received at the jobsite came from Bowgren

at Campton. It was not Hansen’s role to decide whether to use a trench box or shoring. Typically,

the “bottom guy” makes the call against the digger (Huerta) when the ground is bad. The person

then informs Bowgren whether the ground is “bad,” i.e., soft dirt, and whether they need a trench

box.

¶ 47 Hansen further testified that there was a trench box on the jobsite but at a different location,

where the crew was performing a deeper excavation that required it. Generally, if a trench is

shallower than five feet, a trench box is not used. If there is room on the sides, the crew shelves it

out. On the day of the accident, the trench in which plaintiff worked was not shelved out because

there was a gas line present on the side. After plaintiff’s accident, at Campton’s direction, Hansen

completed trench certification.

¶ 48 Hansen saw Abbey personnel on the site about two to three times per week. No one from

Abbey ever had a conversation with Hansen about his job. If they had instructed him to stop work

because it was not safe, he would have stopped.

¶ 49 Gabriel (Gabby) Oviedo-Gonzalez, a laborer for Campton, testified that he took a trenching

class at one point. After plaintiff’s accident, he took OSHA training. Also, Campton conducted

safety meetings. At the job site, Oviedo-Gonzalez worked as a top man, which involved standing

outside of the trench and handing things to the person in the trench—the bottom man (i.e.,

plaintiff). He received all his instructions on his daily tasks from Bowgren.

¶ 50 Oviedo-Gonzalez witnessed plaintiff’s accident. There was a trench box at the site on the

day of plaintiff’s accident. Any Campton employee can request a trench box. Oviedo-Gonzelez

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did not believe that the trench was deep enough that day to warrant a trench box. If someone from

Abbey requested that he stop digging the hole or put in a trench box, Oviedo-Gonzalez would have

complied.

¶ 51 D. Abbey’s Motion for Summary Judgment

¶ 52 On December 21, 2022, Abbey moved for summary judgment (735 ILCS 5/2-1005 (West

2022)), asserting that: (1) it owed no duty to plaintiff given that it did not retain the requisite control

of the operative details of Campton’s work; and (2) it had no notice, actual or constructive, of the

alleged dangerous condition posed by the unsecured trench.

¶ 53 As to control, Abbey argued that it did not owe a duty to plaintiff because it did not exercise

the requisite control over the operative details of Campton’s work, including Campton’s means

and methods. Abbey, it argued, did not direct or intervene in Campton’s work, all work

instructions for Campton’s employees came from the Campton supervisor, Campton had its own

safety officer and held periodic safety meetings with its employees, and plaintiff testified that

Abbey did not control the safety of his “method.”

¶ 54 As to notice, Abbey argued that, even if it had the requisite control over Campton’s work,

it had no actual or constructive notice of the unsecured and unsupported trench. As to actual notice,

Abbey argued that it did not dig out the trench, no one from Abbey was on the site at any point

that day, Abbey’s Buelow arrived on site about four minutes before the accident and did not see

the trench prior to the accident, any decision on whether to use a trench box or shoring was

exclusively Campton’s, and Abbey was not consulted on the use of a trench box or shoring. Abbey

argued as to constructive notice that the unsecured trench did not exist for enough time to constitute

constructive notice. Peterson estimated that the entire process, including the final pipe replacement

and backfilling of the trench would take no longer than one hour, and Campton had not even

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completed the pipe replacement; thus, the time between digging out the trench and its collapse was

significantly shorter than one hour.

¶ 55 E. Trial Court’s Ruling

¶ 56 On June 7, 2023, the trial court granted Abbey’s summary judgment motion. Addressing

the negligence claims (counts I & III), the court found that there was no evidence that Abbey

entered into an agreement with Campton “that could be analyzed for distribution of jobsite

responsibility.” Abbey’s contract with the county, the court determined, “created no automatic

duty owed to plaintiff.” The court found that Abbey did not retain any control over the incidental

aspects of Campton’s work. The court noted plaintiff’s testimony that, “[t]hey don’t control the

safety of my method.” It also noted that Campton provided its own materials and equipment, that

all work instructions for Campton’s employees came from the Campton supervisor, Campton’s

employees did not receive instructions from Abbey (and Abbey’s representatives were rarely on

site), Campton’s jobsite foreman testified that he only spoke with an Abbey representative about

the project’s timeframe and that he was otherwise allowed to “do his thing” at the site, Campton

had its own designated safety officer and held periodic safety meetings with its employees, and

Abbey did not hold any safety meetings for Campton employees.

¶ 57 Addressing premises liability (count II), the trial court found that Abbey did not have actual

or constructive notice that the trench in which plaintiff was working presented an unsafe condition.

Campton maintained responsibility for the trench work, not Abbey. Further, Abbey did not have

sufficient notice of the trench’s potentially unsafe condition so as to impose liability. The trench,

the court found, was excavated by Campton on the date of the accident “just shortly (perhaps one

hour) before” plaintiff sustained his injuries. “No one from Abbey was on site at any point that

day.” Thus, no Abbey representative had the opportunity to see the trench prior to its collapse.

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Buelow, the court noted, testified that he was on site for about four minutes before the collapse

and never saw the trench or had the opportunity to observe it prior to its collapse. Further, no one

consulted with Abbey concerning the use of a trench box or shoring. Peterson, Campton’s vice

president, the court noted, testified that Abbey would not have been involved with securing or

shoring up the trench. Accordingly, Abbey had no notice that the trench presented a dangerous

condition to plaintiff. Plaintiff appeals.

¶ 58 II. ANALYSIS

¶ 59 Plaintiff argues that the trial court erred in granting Abbey summary judgment, where there

were material factual questions as to whether: (1) Abbey retained sufficient control (contractual or

otherwise) over Campton’s work such that it owed plaintiff a duty of care under section 414 of the

Restatement; and (2) it had notice (actual or constructive) of a dangerous condition such that it

owed plaintiff a duty of care under either section 343 or 414 of the Restatement. For the following

reasons, we reject plaintiff’s arguments.

¶ 60 Summary judgment is proper where, when viewed in the light most favorable to the

nonmoving party, the pleadings, depositions, affidavits, and admissions on file show that there is

no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter

of law. 735 ILCS 5/2-1005(c) (West 2022); Home Insurance Co. v. Cincinnati Insurance Co., 213

Ill. 2d 307, 315 (2004). A genuine issue of material fact exists where the material facts are disputed

or when the material facts are undisputed but reasonable persons can draw different inferences

from the facts. Williams v. Bruscato, 2019 IL App (2d) 170779, ¶ 15. Summary judgment is a

drastic measure and should be granted only when the movant is clearly entitled to judgment. Id.

We review de novo a grant of summary judgment. U.S. Bank N.A. v. Gold, 2019 IL App (2d)

180451, ¶ 7.

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¶ 61 To succeed in an action for negligence, the plaintiff must establish that the defendant owed

a duty to the plaintiff, defendant breached that duty, and the breach proximately caused injury to

the plaintiff. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 227 (1996). A legal duty refers

to a relationship between the defendant and the plaintiff such that the law imposes on the defendant

an obligation of reasonable conduct for the benefit of the plaintiff. Iseberg v. Gross, 227 Ill. 2d

78, 87 (2007); Kirk v. Michael Reese Hospital & Medical Center, 117 Ill. 2d 507, 525 (1987).

Absent a duty, “no recovery by the plaintiff is possible as a matter of law.” Vesey v. Chicago

Housing Authority, 145 Ill. 2d 404, 411 (1991). The existence of a duty under a particular set of

circumstances is a question of law for the court to decide. Bucheleres v. Chicago Park District,

171 Ill. 2d 435, 445 (1996); Vesey, 145 Ill. 2d at 411.

¶ 62 A. Duty - Control

¶ 63 Plaintiff argues first that, under its contract with the county, Abbey assumed control over

safety precautions and programs in connection with performance of the contract, and, because

there was no written contract between Abbey and Campton, Abbey did not delegate to Campton

any such control. The trial court, he argues, should have found that Abbey had control over job

site safety under its contract with the county and, thus, owed a duty to plaintiff.

¶ 64 In construction-injury cases, we analyze common-law negligence under section 414 of the

Restatement. Snow v. Power Construction Co., LLC, 2017 IL App (1st) 151226, ¶ 50. In Downs

v. Steel & Craft Builders, Inc., 358 Ill. App. 3d 201 (2005), this court explained the duty of care

under section 414 of the Restatement and the retained control exception:

“Generally, one who employs an independent contractor is not liable for the latter’s

acts or omissions. Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 838

(1999). In Illinois, a recognized exception to this rule is found in section 414 of the

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Restatement (Second) of Torts (Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 325

(1965)), which states:

‘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 387 (1965).” Downs, 358 Ill. App. 3d at 204-05.

¶ 65 “The comments accompanying section 414 ‘describe a continuum of control’ and provide

some illumination as to the necessary degree of control a defendant must exercise to be subject to

liability under this section.” Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d 333,

341 (2008) (quoting Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 314 (2004)).

¶ 66 Comment a to section 414 explains:

“If the employer of an independent contractor retains control over the operative

detail of doing any part of the work, he is subject to liability for the negligence of the

employees of the contractor engaged therein, under the rules of that part of the law of

Agency which deals with the relation of master and servant. The employer may, however,

retain a control less than that which is necessary to subject him to liability as master. He

may retain only the power to direct the order in which the work shall be done, or to forbid

its being done in a manner likely to be dangerous to himself or others. Such a supervisory

control may not subject him to liability under the principles of Agency, but he may be liable

under the rule stated in this Section unless he exercises his supervisory control with

reasonable care so as to prevent the work which he has ordered to be done from causing

injury to others.” Restatement (Second) of Torts § 414, comment a, at 387 (1965).

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¶ 67 Comment a “distinguishes between vicarious and direct liability.” Calderon, 381 Ill. App.

3d at 341. It “clarifies that ‘the general contractor, by retaining control over the operative details

of its subcontractor’s work, may become vicariously liable for the subcontractor’s negligence;

alternatively, even in the absence of such control, the general contractor may be directly liable for

not exercising [its] supervisory control with reasonable care.’ ” Id. (quoting Cochran, 358 Ill.

App. 3d at 874).

¶ 68 “Comment b provides further illumination on the theory of direct liability described in

Comment a.” Calderon, 381 Ill. App. 3d at 341. Comment b to section 414 states:

“The rule stated in this Section is usually, though not exclusively, applicable when

a principal contractor entrusts a part of the work to subcontractors, but himself or through

a foreman superintends the entire job. In such a situation, the principal contractor is subject

to liability if he fails to prevent the subcontractors from doing even the details of the work

in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable

care should know that the subcontractors’ work is being so done, and has the opportunity

to prevent it by exercising the power of control which he has retained in himself. So too,

he is subject to liability if he knows or should know that the subcontractors have carelessly

done their work in such a way as to create a dangerous condition, and fails to exercise

reasonable care either to remedy it himself or by the exercise of his control cause the

subcontractor to do so.” Restatement (Second) of Torts § 414, comment b, at 387-88

(1965).

¶ 69 Comment c, on the other hand, describes the necessary degree of retained control a general

contractor must exercise to be subject to vicarious liability, limiting the scope of the “retained

control” exception. Calderon, 381 Ill. App. 3d at 342. Comment c states:

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“In order for the rule stated in this Section to apply, the employer must have retained

at least some degree of control over the manner in which the work is done. It is not enough

that he has merely a general right to order the work stopped or resumed, to inspect its

progress or to receive reports, to make suggestions or recommendations which need not

necessarily be followed, or to prescribe alterations and deviations. Such a general right is

usually reserved to employers, but it does not mean that the contractor is controlled as to

his methods of work, or as to operative detail. There must be such a retention of a right of

supervision that the contractor is not entirely free to do the work in his own way.”

(Emphasis added.) Restatement (Second) of Torts § 414, comment c, at 388 (1965).

¶ 70 Thus,

“even where the employer or general contractor retains the right to inspect the work

done, orders changes to the specifications and plans, and ensures that safety precautions

are observed and the work is done in a safe manner, no liability will be imposed on the

employer or general contractor unless the evidence shows the employer or general

contractor retained control over the ‘incidental aspects’ of the independent contractor’s

work.” Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 839 (1999).

¶ 71 The retained control issue is typically a factual question. Bokodi v. Foster Wheeler

Robbins, Inc., 312 Ill. App. 3d 1051, 1059 (2000). However, the interpretation of a contract is a

question of law and, therefore, may be decided on a motion for summary judgment. Wolff v.

Bethany North Suburban Group, 2021 IL App (1st) 191858, ¶ 36.

¶ 72 1. Contract

¶ 73 Plaintiff argues first that the contract between the county and Abbey controls Abbey’s

retention of safety over the job site, and there is no contract between Abbey and Campton that

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“disputes” who is in control over jobsite safety. Thus, he asserts, Abbey controlled safety of the

job site and owed a duty to plaintiff.

¶ 74 Generally, “[t]he best indicator of whether a contractor has retained control over the

subcontractor’s work is the parties’ contract, if one exists.” Joyce v. Mastri, 371 Ill. App. 3d 64,

74 (2007). “A party retaining some control over the safety of the work then has a duty to exercise

its control with ordinary care.” Foley v. Builtech Construction, Inc., 2019 IL App (1st) 180941,

¶ 57. Specifically, “only the party with retained control ‘over incidental aspects of the work’

should be charged with the responsibility of preventing negligent performance.” Id. ¶ 65 (quoting

Fonseca v. Clark Construction Group, LLC, 2014 IL App (1st) 130308, ¶ 29). 2

¶ 75 A general right to enforce safety does not amount to retained control under section 414 of

the Restatement. Joyce v. Mastri, 371 Ill. App. 3d 64, 74 (2007). “The mere existence of a safety

2 Some cases separately analyze vicarious and direct liability under section 414. See, e.g.,

Lee v. Six Flags Theme Parks, Inc., 2014 IL App (1st) 130771 (and cases cited therein). However,

the parties do not separately address the concepts, and the factors relevant to the analyses greatly

overlap. Id. ¶¶ 74, 99 (addressing retained control for vicarious liability purposes by assessing

contractual, supervisory, and/or operational control over the independent contractor’s work; then

addressing retained control for direct liability purposes by assessing “the employer’s actual

exercise of its discretionary authority to stop its contractor’s work,” whether the general contractor

required compliance with extensive safety guidelines, conducted regular safety meetings and

inspections, whether it was required to approve the site safety plan and minutes of the

subcontractor’s safety meetings, and whether the general contractor had actual or constructive

knowledge of the unsafe work methods or a dangerous condition).

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program, safety manual, or safety director is insufficient to trigger [section 414].” Madden v. F.H.

Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362, 382 (2009). “Even if the general contractor

retains the right to inspect work, orders changes to the plans, and ensures that safety precautions

are observed and the work is done safely, the general contractor will not be held liable unless the

evidence shows that the general contractor retained control over the incidental aspects of the

independent contractor’s work.” Fonseca v. Clark Construction Group, LLC, 2014 IL App (1st)

130308, ¶ 28 (citing Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 839 (1999)).

¶ 76 Here, there was no written contract between Abbey and Campton. The contract between

the county and Abbey provides, in section 9.2, that Abbey “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.” It also provides, in section 16.1, that Abbey

“shall be responsible for initiating, maintaining, and supervising all safety precautions and

programs in connection with the performance of the Contract. [Abbey] shall take reasonable

precautions for safety of, and shall provide reasonable protection to prevent damage, injury, or loss

to *** employees on the Work and other persons who may be affected thereby[.]” (Emphasis

added.)

¶ 77 Plaintiff relies on Moorehead v. Mustang Construction Co., 354 Ill. App. 3d 456 (2004),

where the reviewing court reversed summary judgment for the general contractor. Id. at 457. In

Moorehead, the court held that the plaintiff sufficiently alleged that the general contractor owed

him a duty under section 414 of the Restatement. Id. at 460. In that case, the contract between a

college and the general contractor provided that the general contractor agreed to “ ‘be fully and

solely responsible for the jobsite safety’ of the means, methods, and techniques of construction”

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(id. at 457), agreed to take safety precautions for employees under the control of the subcontractor,

agreed to designate a safety director, and provided that the general contractor could order the work

to stop if there were safety concerns. There was also a subcontract between the general contractor

and the subcontractor that incorporated the general contract and added that the subcontractor

agreed to safeguard against injuries and comply with all safety requirements. Further, the general

contractor’s project manager supervised the project daily, inspected the work to ensure compliance

with plans and that it was being performed in a safe manner, and held regular construction meetings

with subcontractors to discuss scheduling and safety issues. The general contractor’s safety

director, in turn, also conducted weekly safety inspections. The Moorehead court held that a duty

was sufficiently alleged, where the general contractor was responsible for initiating and

maintaining all safety procedures, initiated a safety program and designated an individual whose

sole function was to investigate for safety concerns, had the authority to stop work if there were

safety concerns, and its safety manager inspected the site weekly to ensure compliance with safety

standards. Id. at 460. Finally, the court rejected the argument that, per the subcontract, the

subcontractor assumed the general contractor’s duty to control safety. Id. at 461. The court

concluded that the general contract’s language that the general contractor was fully and solely

responsible for safety precluded it from replacing its primary obligation to control safety. Id.

¶ 78 Here, plaintiff argues that, like the contract between the general contractor and the college

in Moorehead, the contract between Abbey and the county states that Abbey will be “solely

responsible for” and “have control over” the means, methods, techniques, sequences, procedures,

and coordination of all portions of work under the contract. Also, plaintiff contends, like the

general contract in Moorehead, the contract here gives Abbey responsibility over safety

precautions and programs in connection with performance of the contract. Further, plaintiff argues

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that, because there is no contract between Abbey and Campton, Abbey cannot argue that Campton

assumed Abbey’s obligation to control safety.

¶ 79 We find Moorehead easily distinguishable. The reviewing court did not analyze the

general contractor’s contract with the college and merely mentioned that the general contractor

had the authority to stop work. The general contract provided that the general contractor agreed

to be fully and solely responsible for job site safety of the means, methods, and techniques of

construction; it also agreed to designate a safety director and that it could stop work for safety

reasons; and it agreed to take reasonable precautions for subcontractor employee and equipment

safety. Here, Abbey’s contract with the county provides that it “shall be solely responsible for and

have control over construction means, methods, techniques, sequences, and procedures” and that

it was responsible for “all safety precautions and programs” and “shall provide reasonable

protection to prevent damage, injury, or loss to *** employees *** and other persons who may be

affected thereby[.]” In contrast to Moorehead, Abby did not contract to designate a safety director

or to specifically take certain precautions to ensure safety for subcontractors’ employees and their

equipment. Further, the facts in Moorehead are distinguishable from this case. In Moorehead, the

general contractor’s project manager held regular meetings with subcontractors to discuss safety

issues, and its safety director conducted weekly safety inspections and wrote memos concerning

safety concerns. Thus, it had greater control over safety issues than Abbey did here. Abbey, as

we discuss below, did not hold safety meetings with Campton personnel, nor did it conduct safety

inspections or write memos concerning safety concerns.

¶ 80 Several cases with language like the contract here are helpful to our analysis. First,

Cochran v. George Sollitt Construction Co., 358 Ill. App. 3d 865 (2005), involved a standard form

general contract (and no subcontract) that contained identical language to the contract in this case,

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and the reviewing court affirmed summary judgment for the general contractor. Id. at 867.

Specifically, the contract provided that the general contractor “shall be solely responsible for and

have control over the construction means, methods, techniques, sequences and procedures, and for

coordinating all portions of the Work under the Contract[.]” Id. at 868. It also provided that “[t]he

Contractor shall be responsible for initiating, maintaining and supervising all safety precautions

and programs in connection with the performance of the Contract.” Id. at 869. In addition, the

evidence reflected that the general contractor had general control over its subcontractors’ work but

had authority to stop work that was conducted in an unsafe manner; it also required subcontractors

to have safety protocols, and its field superintendent walked through the job site and looked for

hazards. The general contractor did not instruct the subcontractors’ employees on how to do their

work or provide them with any tools. In affirming summary judgment for the general contractor,

the court noted that the general contractor “did not employ a full-time safety manager, did not

conduct safety meetings for its subcontractors, did not require its superintendent to do a daily

‘walk-through,’ did not get involved in the specific details of the subcontractors’ safety means, did

not actively inspect for safety violations, and only empowered its ‘competent persons,’ as opposed

to all of its employees, to halt the subcontractors’ work upon observing safety violations.” Id. at

877. The court stated that there was no basis for vicarious liability under section 414 of the

Restatement, where no evidence showed that the general contractor controlled the operative details

of the subcontractor’s work such that the subcontractor’s “employees were not entirely free to

perform the work in their own way.” Id. at 879.

¶ 81 Similarly, in Shaughnessy v. Skender Construction Co., 342 Ill. App. 3d 730, 738 (2003),

the contract between a racquet club and the general contractor was a standard form agreement that

provided that the general contractor “would supervise and direct the work and be responsible for

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and control the construction means, methods, techniques, sequences and procedures for

coordinating all portions of the work *** [and] to be responsible for initiating, maintaining and

supervising all safety precautions and programs in connection with the performance of the contract

and to employ a superintendent whose duties included the prevention of accidents.” Id. at 732-33.

(A subcontract between the general contractor and the subcontractor merely provided that the

subcontractor was to furnish labor, equipment, and supervision to install a metal deck, and a sub-

subcontract between the subcontractor and the sub-subcontractor provided that the sub-

subcontractor was to provide labor, equipment, and supervision to unload and erect a deck.) The

general contractor acknowledged that, contractually, its personnel had authority to stop unsafe

work and had discretionary authority to provide equipment to a subcontractor if requested. As to

the general contract’s language, the court affirmed summary judgment for the general contractor

and subcontractor against the sub-subcontractor, holding that it “establish[ed] only that [the

general contractor] and [the subcontractor] reserved a general right to stop, start and inspect the

progress of the work.” Id. at 738.

¶ 82 Based on the foregoing case law, we reject plaintiff’s argument that the contract between

the county and Abbey shows that Abbey owed a duty to plaintiff under section 414 of the

Restatement. Cochran and Shaughnessy warrant this conclusion. The contract here did not grant

Abbey control over the operative details of Campton’s work, and it had only the general right to

stop work. These are insufficient to grant it the requisite contractual control.

¶ 83 2. Power to Stop Work

¶ 84 Next, plaintiff argues that, notwithstanding the contract, because Abbey had the power to

stop Campton from performing unsafe work, Abbey had sufficient control to invoke a duty to

exercise its supervisory control with reasonable care under section 414 of the Restatement.

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Specifically, plaintiff asserts that there is some evidence that Buelow was usually on the job site

about once per day and was in control of the site. Also, plaintiff notes that Bowgren communicated

with Buelow or someone from Abbey nearly every day. Buelow had the ability to stop the manner

and method of Campton’s work if he deemed it necessary. Indeed, plaintiff notes, Buelow testified

that he believed that any of his employees had the right to stop Campton’s work if they saw

something unsafe. Also, plaintiff notes that Campton’s employees agreed that Abbey had the

power to stop any work that Abbey deemed unsafe. He also contends that, after his accident,

Buelow spoke to Peterson and Bowgren about setting up OSHA training on trench safety, upon

which they followed through. Plaintiff contends that the determinative factor is whether the

general contractor had the power to stop work that it found to be unsafe, not whether it actually

exercised such power. The trial court’s reliance on Abbey not exercising its control, he argues,

was an improper basis to grant summary judgment.

¶ 85 Even if the contract provides no evidence that the defendant retained control, “evidence of

the defendant’s conduct at variance with the agreement may still demonstrate that control.” Foley,

2019 IL App (1st) 180941, ¶ 57; see also Cain v. Joe Contarino Inc., 2014 IL App (2d) 130482,

¶ 86 (courts “can find retained control despite the contract language if the parties’ course of

conduct demonstrates such control”).

¶ 86 The general right to stop work is not sufficient to impose a duty on a general contractor

pursuant to section 414 of the Restatement. Calderon v. Residential Homes of American, Inc., 381

Ill. App. 3d 333, 344 (2008). Further “[a] general right to enforce safety [ ] does not amount to

retained control under section 414.” Carney v. Union Pacific Railroad Co., 2016 IL 118984, ¶ 47;

see also Cain v. Joe Contarino, Inc., 2014 IL App (2d) 130482, ¶ 106 (same). “[T]he existence of

a safety program, safety manual or safety direction does not constitute retained control per se.”

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Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 318 (2004). This is so because

“[p]enalizing a general contractor’s efforts to promote safety and coordinate a general safety

program among various independent contractors at a large jobsite hardly serves to advance the

goal of work site safety.” Id. at 318. Thus, a safety program or manual must “ ‘sufficiently affect[

] a contractor’s means and methods of doing its work’ ” to “ ‘bring the defendant within the ambit

of the retained control exception.’ ” Cochran, 358 Ill. App. 3d 865, 876 (2005) (quoting Martens,

347 Ill. App. 3d at 318-19). Finally, “even multiple daily employer visits to a work site will not

raise a genuine issue of retained control where the employer’s responsibility was primarily focused

on checking daily progress, not supervising the manner in which the work was done.” Lee v. Six

Flags Theme Parks, Inc., 2014 IL App (1st) 130771, ¶ 89 (citing cases).

¶ 87 Plaintiff relies on several cases, arguing that they illustrate that a general contractor may

retain only the power to forbid work be done in a dangerous manner (not that it need exercise its

control over the safety of a project). However, the safety controls in those cases were far more

extensive than those in this case. See, e.g., Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App.

3d 491, 497 (2008) (reversing summary judgment for the general contractor, where the contract

between the general contractor and the subcontractor required the subcontractor to comply with

the general contractor’s list of 21 safety regulations, hold weekly safety meetings and submit

minutes to the general contractor, prepare and submit for the general contractor’s approval a site-

specific safety plan, and attend the general contractor’s weekly safety meetings; although the

contract between the general contractor and the subcontractor left to the subcontractor the

operative details of its work and its employees’ safety, the general contractor “retained more than

a general right of supervision”; this included a letter asserting the general contractor’s discretionary

authority to stop the subcontractor’s work); Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App.

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3d 1051, 1062-64 (2000) (reversing summary judgment for the general contractor, where the

general contractor established its own safety program and appointed a safety manager to seek out

safety hazards, the subcontractors’ agreement contained 29 safety measures and procedures

required by the general contractor, subcontractors were required to conduct weekly safety meetings

that the general contractor had the right to monitor, they were instructed by the general contractor

concerning protective equipment and clothes and given guidelines for personal grooming, and

were told where to erect barricades and warning lights and to notify adjacent landowners if work

affected them; the general contractor also could halt subcontractors’ work for safety violations and

shut down work until safety breaches were alleviated, and the general contractor constantly

monitored subcontractors’ work; thus, the general contractor retained control over operative details

of the work, superintended the job, and retained the right of supervision in that subcontractors were

not free to do their work their own way).

¶ 88 We reject plaintiff’s argument that the fact that Abbey could stop work was itself sufficient

evidence of control under section 414 of the Restatement. Bokodi does not stand for this

proposition. It cites to a general statement that the power to stop work is the type of power retained

by an employer that could subject it to liability. Bokodi, 312 Ill. App. 3d at 1063-64 (quoting Ryan

v. Mobil Oil Corp., 157 Ill. App. 3d 1069, 1078 (1987) (quoting Pasko v. Commonwealth Edison

Co., 14 Ill. App. 3d 481, 488 (1973))). However, it also cites to section 414 of the Restatement,

specifically comment c, which provides,

“[i]t is not enough that [the employer] has merely a general right to order the work

stopped or resumed ***[.] Such a general right is usually reserved to employers, but it

does not mean that the contractor is controlled as to his methods of work, or as to operative

detail. There must be such retention of a right of supervision that the contractor is not

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entirely free to do the work in his own way.” Bokodi, 312 Ill. App. 3d at 1059 (quoting

Restatement (Second) of Torts § 414, Comment c, at 388 (1965)); see also Wilkerson, 379

Ill. App. 3d at 494 (quoting Comment c).

¶ 89 Plaintiff also relies on comment a to the Restatement, which provides that an employer

who retains the power to forbid work being done “may be liable” unless it exercises supervisory

control with reasonable care. Restatement (Second) of Torts § 414, Comment a, at 387 (1965).

However, this reliance is misplaced because comment a does not state that the employer shall be

or is liable. Further, the cases upon which he relies also misread the concept in comment a and/or

are otherwise factually distinguishable. See Foley v. Builtech Construction, Inc., 2019 IL App

(1st) 180941, ¶¶ 2, 60, 78 (reversing summary judgment for the general contractor; general

contractor had authority to inspect subcontractor’s materials; deposition testimony was

“confusing” and there was a question of how much retained control the general contractor had;

also, factual question existed as to whether the case “involve[d] less than a specific prohibition of

one means or method of performing the work [citation] or more than the complete lack of

supervision seen in other cases”); Claudy v. City of Sycamore, 170 Ill. App. 3d 990, 995 (1988)

(reversing summary judgment for general contractor city; city’s control over subcontractor

included that its representative visited work sites, city had the right to stop the subcontractor’s

work, and the city had the right to remove employees of the subcontractor). Also, direct liability,

as noted in comment a and elaborated upon in comment b, requires actual or constructive

knowledge, which we discuss in the next section (as it is also relevant to premises liability). See

Cochran, 358 Ill. App. 3d at 879-80 (“According to comment b to section 414, the general

contractor’s knowledge, actual or constructive, of the unsafe work methods or a dangerous

condition is a precondition to direct liability.”).

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¶ 90 Here, the evidence was undisputed that the power over safety issues that Abbey had over

Campton was a general power. Peterson testified that, if Abbey told Campton to stop working,

Campton would stop. Bowgren testified that Campton never had safety meetings with Abbey on

prior projects, Abbey never had questions or concerns about safety, nor were there any discussions

between Abbey and Campton concerning safety. If Abbey were to ask Bowgren to stop work,

“then I stop. I mean we are working for them.” Plaintiff testified similarly. Buelow testified that,

if he saw something that appeared to be unsafe, he had the authority to stop Campton employees’

work. Further, as a competent person, he could stop work. He could also inspect Campton’s work

at any time. However, Buelow further testified that he never gave Campton employees specific

instructions on their daily tasks on the county’s project, and any decisions concerning trench safety

or trench boxes were Campton’s decisions. He also testified that the only safety meetings he had

on site were toolbox talks with his (i.e., Abbey’s) crews. Finally, Campton employees Hansen and

Olviedo-Gonzalez testified that they would have stopped their work if Abbey instructed them to

do so for safety reasons.

¶ 91 We believe the circumstances here are like cases finding in general contractors’ favor. See,

e.g., Downs, 358 Ill. App. 3d at 206 (affirming summary judgment for the general contractor in a

trench collapse case; holding that the general contractor was not responsible for safety measures

at the site, where the contract between it and the subcontractor provided that the general contractor

could order work to start or stop, order changes to the plans, and could approve workers and

subcontractors or material suppliers hired by the subcontractor; the general contractor relied on the

subcontractors for safety and did not provide them with classes, inspections, or equipment; thus,

the general contractor did not control safety measures at the site and its powers were general rights

of supervision, not a retention of control over incidental aspects of subcontractor’s work);

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Shaughnessy, 342 Ill. App. 3d at 738-41 (affirming summary judgment for the general contractor;

contract between it and the property owner provided that general contractor was responsible for

the construction means and methods for all portions of the work and for initiating and maintaining

and supervising all safety programs; the general contractor did not control manner in which the

plaintiff completed his work; the subcontractor furnished its own equipment; the subcontractor’s

foreman instructed the subcontractor’s crew; and the general contractor had no notice of plaintiff’s

acts that led to his injury); Bieruta v. Klein Creek Corp., 331 Ill. App. 3d 269, 276-78 (2002)

(affirming summary judgment for the general contractor; no indication that the general contractor

exerted any control over the subcontractor’s mass excavation of townhouse lots; there was no

contract between the general contractor and the subcontractor; the general contractor merely told

the subcontractor which lots to excavate and for what purpose; the general contractor did not direct

the operative details of the subcontractor’s or the plaintiff’s work; the subcontractor used only its

own equipment; the subcontractor’s employees directed the plaintiff in how to perform his duties;

and owners and employees of the subcontractor testified that the subcontractor was responsible for

the means and methods used to perform their work).

¶ 92 Finally, we note the fact that Buelow spoke to Campton personnel about setting up OSHA

trench safety training after the collapse does not aid us in assessing the nature of their relationship

leading up to the accident, nor does it affect our conclusions.

¶ 93 In summary, the trial court did not err in granting Abbey summary judgment on the

negligence counts.

¶ 94 B. Notice

¶ 95 Next, relying on the premises liability doctrine, plaintiff argues that Abbey owed him a

duty of care under section 343 of the Restatement, because Abbey possessed the land where

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plaintiff sustained his injuries. He contends that the blueprints gave Abbey actual notice that the

trench was over five feet deep and that it was, therefore, unsafe without shelving/shoring or a

trench box. Plaintiff also maintains defendant was negligent because it knew of the dangerous

condition that caused plaintiff's injury, was able to safeguard against that condition, and failed to

act with reasonable care.

¶ 96 “[T]he general contractor’s knowledge, actual or constructive, of the unsafe work methods

or a dangerous condition is a precondition to direct liability.” Cochran, 358 Ill. App. 3d at 879-

80. Section 343 of the Restatement provides:

“A possessor of land is subject to liability for physical harm caused to his invitees by a

condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and

should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to

protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.”

Restatement (Second) of Torts § 343, at 215-16 (1965).

¶ 97 The trial court found that Abbey did not have actual or constructive notice that the trench

in which plaintiff was working presented an unsafe condition. Campton maintained responsibility

for the trench work, the court noted, not Abbey. Further, Abbey did not have sufficient notice of

the trench’s potentially unsafe condition to impose liability. The trench, the court found, was

excavated by Campton on the date of the accident “just shortly (perhaps one hour) before” plaintiff

sustained his injuries. “No one from Abbey was on site at any point that day.” Thus, no Abbey

representative had the opportunity to see the trench prior to its collapse. Buelow, the court noted,

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testified that he was on site for about four minutes before the collapse and never saw the trench or

had the opportunity to observe it prior to its collapse. Further, no one consulted with Abbey

concerning the use of a trench box or shoring/shelving. Peterson, Campton’s vice president, the

court noted, testified that Abbey would not have been involved with securing or shoring up the

trench.

¶ 98 As to actual notice, plaintiff argues that the court erred in its determination because Abbey

had plans/blueprints (showing the trench would start off at 2.95 feet and end at 5.1 feet) providing

it notice and because Buelow was on the scene and around the trench for four minutes before the

collapse. He even drove by the unsafe work, plaintiff notes, about two minutes before arriving

near the scene on foot. Abbey provided Campton with all the information that Campton needed

to dig the trench to its depth, Abbey could not commence work until Campton completed its phase

of the work, the entities communicated daily about where Campton needed to be on the project,

Buelow knew a trench was being excavated, and he was on the scene before the collapse. Thus,

plaintiff argues, drawing all reasonable inferences in his favor, the dangerous condition of the

unsecured trench encompasses the depth of the trench imputed to Abbey by the blueprints for

bidding on the job. Conceding the trench depth is not the only factor to be considered in deciding

whether to use shoring, the blueprints, plaintiff asserts, determined the depth and whether shoring

is needed on a particular site. Based on the blueprints, he argues, factual questions exist whether

Abbey knew that the trench was deep enough to require shoring or a trench box.

¶ 99 We conclude that no material factual questions existed to preclude summary judgment in

Abbey’s favor on the actual notice issue. The deposition testimony was consistent that trench

depth was not the only factor that determined whether shoring or a trench box was required.

Plaintiff, Peterson, and Bowgren testified that soil condition is also a factor and that soil conditions

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were assessed by Campton personnel only after digging had begun. Further, Peterson elaborated

that the decision whether to use a trench box or shoring depends on soil conditions, space, and size

of equipment. Also, Hansen testified that the trench in which plaintiff worked was not shelved out

because there was an unmarked gas line on the side. There is no evidence that, even if Abbey

knew from the blueprints or otherwise that the trench depth would be over five feet, the trench was

unsupported or unsecured, nor was there any testimony that shoring was required by law or

contract. Further, Abbey played no role in digging out the trench, nor did it provide the relevant

equipment.

¶ 100 Alternatively, plaintiff next argues that questions of fact exist as to whether Abbey had

constructive notice that the trench constituted a dangerous condition. He contends that Buelow

was onsite the day of the collapse, knew that the trench was being dug, and testified that he had

the ability to inspect Campton’s work at any time and that he could inspect its work during the

storm sewer replacement. Plaintiff also notes that Buelow testified that, had he walked through

the trench, he could have seen that unsafe trenchwork was being performed. He also contends that

it is disputed whether the necessary equipment was on site to support the wall. Thus, plaintiff

reasons, based on the foregoing, a factual question exists as to whether the unsafe trench depth

could have been discovered by a reasonable inspection of the trench and further whether Abbey

had constructive notice of the unsafe trenching.

¶ 101 Plaintiff also argues that there is a factual question whether the unsafe trench depth

persisted long enough that Abbey should have discovered it through the exercise of reasonable

care. He maintains that there was some evidence that building the trench could take several days

and that there was some evidence that Campton began digging the trench either on the morning of

the day in question or the day before. He also points to Buelow’s testimony that other than

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directing his attention to the design meeting, there was nothing precluding him from observing the

work that was happening in the trench. Surveillance footage, plaintiff notes, shows that the trench

wall stood about 11 minutes and 30 seconds before the collapse and that Buelow arrived on site

about 2 minutes 15 seconds before the collapse. (He first drove by four minutes before the

collapse.) Thus, plaintiff reasons, there is a factual question as to whether the unsafe trench depth

persisted one day, a matter of hours, or mere minutes before the collapse.

¶ 102 In response, Abbey contends that plaintiff misrepresents some of the evidence, specifically,

that there is a dispute whether the necessary equipment was on site to support the trench wall and

that a trench box is not the only way to support a trench. Abbey also notes that there was no

evidence that the trench was dug several days before the accident; in fact, it existed only a short

time before the accident.

¶ 103 “When a general contractor has an insufficient opportunity to observe unsafe working

conditions, then knowledge will not be inferred and direct liability will not ensue.” Calderon v.

Residential Homes of America, Inc., 381 Ill. App. 3d 333, 347 (2008). “[W]hether knowledge may

be inferred depends upon a general contractor’s opportunity to observe the plaintiff engage in

dangerous activities, and [ ] the number of times a plaintiff confronts a dangerous condition is

relevant to this analysis[.]” Id. at 348.

¶ 104 We conclude that there is no material factual question precluding summary judgment for

Abbey on the constructive notice issue. We disagree with plaintiff that there is a question as to

how long the unsafe trench depth persisted at the site. Plaintiff contends that Buelow testified that

the trench was dug either the morning of the collapse or the day before. Actually, his testimony

was that he did not recall when it was dug. The other evidence, including Huerta’s testimony, was

consistent that the trench was dug that day. Other than Buelow, no Abbey personnel were on the

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job site on the day of plaintiff’s accident. Buelow was at the site for a meeting to discuss an issue

unrelated to Campton’s work. Buelow testified that he did not see the trench until after the

accident. He was not near it, nor was it within his field of view. He arrived at the site about four

minutes before the trench collapse, which occurred about two minutes after he arrived at the

meeting. His presence at the site for such a brief period was not sufficient to create a material

factual question concerning Abbey’s constructive notice of the dangerous condition. Compare

Cochran, 358 Ill. App. 3d at 880 (affirming summary judgment for the general contractor; the

plaintiff admitted an unsafe ladder setup put in place by his employer’s foreman existed for about

one hour at most before his injury, the injury occurred in a relatively remote location, and none of

the general contractor’s competent persons had observed the unsafe setup during that short period).

Further, Peterson estimated that the entire process, including the final pipe replacement and

backfilling of the trench, would take no longer than one hour, and Campton had not even completed

the pipe replacement when the trench collapsed. Thus, the time between digging out the trench

and its collapse was significantly shorter than one hour.

¶ 105 In summary, the trial court did not err in granting Abbey summary judgment on the

premises liability count.

¶ 106 III. CONCLUSION

¶ 107 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 108 Affirmed.

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