Rogers v. West Construction Co.

623 N.E.2d 799, 252 Ill. App. 3d 103, 191 Ill. Dec. 209, 1993 Ill. App. LEXIS 1617
CourtAppellate Court of Illinois
DecidedOctober 28, 1993
Docket4-93-0366
StatusPublished
Cited by23 cases

This text of 623 N.E.2d 799 (Rogers v. West Construction Co.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rogers v. West Construction Co., 623 N.E.2d 799, 252 Ill. App. 3d 103, 191 Ill. Dec. 209, 1993 Ill. App. LEXIS 1617 (Ill. Ct. App. 1993).

Opinion

JUSTICE LUND

delivered the opinion of the court:

Plaintiff appeals an order of the circuit court of McLean County granting summary judgment in favor of defendant on claims based upon common law negligence and the Structural Work Act (Act) (111. Rev. Stat. 1991, ch. 48, par. 59.90 et seq.). Plaintiff was injured while employed on a construction site. His employer N.E. Finch Company (Finch) was a subcontractor hired by defendant West Construction Company (West). On April 2, 1990, plaintiff was injured on the jobsite while unloading “H-beams” from a flatbed truck.

Plaintiff alleged that West, as general contractor, was under a duty to use due care for plaintiff’s safety. This duty was allegedly breached when defendant (a) failed to provide a safe place for plaintiff to do his work; (b) allowed steel beams to be stacked on the truck in an unsafe fashion, so that when one of the beams was removed, other beams would fall on persons engaged in removing the beams; and (c) caused the beams to be stacked in such a fashion that they were prone to fall and injure plaintiff. The trial court found that West was not in charge of the work at the site where plaintiff was injured and granted summary judgment on both counts of plaintiff’s complaint. We affirm.

Common Law Negligence

To state a cause of action for negligence, one must allege a duty, breach of that duty, and a compensable injury proximately caused by that breach. (Niemann v. Vermilion County Housing Authority (1981), 101 Ill. App. 3d 735, 737, 428 N.E.2d 706, 708.) In order to establish that West owed a duty to Finch’s employees, plaintiff relies upon the concept of “retained control,” based upon section 414 of Restatement (Second) of Torts, which states:

“Negligence in Exercising Control Retained by Employer[.] 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) (hereinafter Restatement).)

Section 414 has been recognized as an expression of law in ffiinois in Larson v. Commonwealth Edison Co. (1965), 33 Ill. 2d 316, 325, 211 N.E.2d 247, 252-53.

Comment b to section 414 states:

“The rule stated in this Section is usually *** 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.” (Restatement (Second) of Torts §414, Comment b, at 387-88 (1965).)

However, comment c to section 414 states:

“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.” Restatement (Second) of Torts §414, Comment c, at 388 (1965).

West contracted with the State of Illinois (State) to construct three bridges in McLean County. West subcontracted with Finch to perform the pile-driving work. At each of the three bridge sites, West performed excavation work in order to prepare the site for the pile-driving work. Then, according to recognized safety practices within the bridge-building industry, West vacated the site and notified Finch to begin the pile-driving work. West did not provide any equipment, manpower, or supervision to the Finch crew and did not observe or receive any notice of the manner in which the H-beams would be loaded, delivered, or unloaded.

The H-beams were picked up from the fabrication company by a Finch truck and delivered to the work site, where a Finch crew began unloading them with a crane owned and operated by Finch. The beams were stacked in two rows on the flatbed truck, with the beams in the “H” position. The beams on the second row overlapped those underneath. Plaintiff and a co-worker attached “alligator claws” to the ends of each beam, and the crane lifted the beams off the truck. At some point during this unloading process, a beam still on the truck rolled over onto plaintiff’s foot.

Robert Schaeffer, superintendent for West, was in charge of coordinating the work of the subcontractors. He made one or two visits each day to check the progress at the bridge where plaintiff was working. He was there briefly on the morning of the accident, but did not witness the H-beams being unloaded or the accident itself.

The trial court considered the affidavit of Schaeffer in ruling on the motion for summary judgment, which states in part:

“Neither I, nor any employee or officer of West Construction Company exercised any direct, or indirect, control over the work assigned to, performed by or any activities of either Jimmie Rogers or any employees or officers of N.E. Finch and Company.
Over the past five (5) years I can attest that there have been at least fourteen (14) bridge projects which involved nearly identical procedures and arrangements. Once a job is secured then a purchase order is issued to N.E. Finch and Company for their portion of the job. With rare exception, N.E. Finch and Company is the first crew on the site to initiate work. Due to the nature of the work, West Construction Company refrains from having any personnel or employees, as well as any other sub-contractors who may be involved, on the site. N.E. Finch and Company would complete their tasks and vacate the site. They would then serve notice of their completion of their portion, usually by phone, and only then would other workers proceed onto the site.
West Construction Company relied on the [professional] expertise and experiences of N.E. Finch and Company and did not then, nor in the past, ever exercise any control over the manner in which their work was accomplished. N.E. Finch and Company had unrestricted control over their supervisors, employees, materials, equipment and/or apparatus.
*** Prior to, and during, the work activities undertaken by N.E.

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Cite This Page — Counsel Stack

Bluebook (online)
623 N.E.2d 799, 252 Ill. App. 3d 103, 191 Ill. Dec. 209, 1993 Ill. App. LEXIS 1617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rogers-v-west-construction-co-illappct-1993.