No. 2-09-0347 Filed: 5-27-10 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
DAVID W. WILFONG, ) Appeal from the Circuit Court ) of Kendall County. Plaintiff-Appellant, ) ) v. ) No. 06--L--15 ) L.J. DODD CONSTRUCTION and ) G. PORTER AND COMPANY, ) ) Defendants-Appellees ) ) (Kluber, Skahan and Associates, Inc., and ) Honorable Kocurek Concrete Contractors, Inc., ) Thomas E. Mueller, Defendants). ) Judge, Presiding. _____________________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
Plaintiff, David W. Wilfong, was injured when he fell while walking across ruts at a
construction site. He appeals from the trial court's grant of summary judgment in favor of
defendants, L.J. Dodd Construction (Dodd) and G. Porter & Company (Porter). Plaintiff argues that:
(1) the trial court erred in ruling that the ruts were open and obvious; (2) the trial court erred in
determining that the "distraction exception" did not apply; (3) the trial court erred in ruling that the
distraction was not reasonably foreseeable by defendants; (4) even if the ruts were open and obvious,
defendants owed him a duty to maintain a safe jobsite pursuant to their contracts with the landowner;
and (5) the trial court did not give proper weight to an expert's statement attached to plaintiff's
motion to reconsider. We affirm. No. 2--09--0347
I. BACKGROUND
In November 2004, plaintiff was a project manager for Jones & Brown Company and was
assigned to the Churchill Elementary School project in Oswego. Jones & Brown was a steel
fabricator hired by the project owner, Oswego Unit School District 308 (OSD 308). OSD 308 hired
defendant Dodd as the general contractor and defendant Porter as a masonry subcontractor. Kluber,
Skahan & Associates, Inc. (Kluber, Skahan), was the architectural firm for the project, and Kocurek
Concrete Contractors, Inc. (Kocurek Concrete), was hired by OSD 308 to pour concrete.
The following facts come from excerpts of depositions contained in the record. At the time
in question, the construction site consisted primarily of the school building under construction and
Dodd's job trailer, which was in a paved parking lot about 75 yards west of the school. Much of the
site was very muddy and filled with ruts. About 20 to 30 feet or 60 to 70 feet from the job trailer was
a gravel path that led from the parking lot to the east entrance of the school. Michael Barr, OSD
308's construction supervisor, testified that Dodd had the path installed after he requested a "smooth
walking path" to provide "clear access to the building." The path satisfied his concerns regarding
ground conditions, and he did not think that anything else needed to be done to address the ground
conditions. When asked if there was a designated walkway, Barr replied in the negative and said that
there were "several points of access to the building." On several occasions he had chosen to walk
across the ruts rather than take the gravel path. The number and size of ruts shown in plaintiff's
photographs did not look different from other construction sites at that time of year. Barr further
testified that Jones & Brown and Porter were hired directly by OSD 308.
Plaintiff testified in his deposition as follows. On November 18, 2004, he was participating
in a progress meeting in the job trailer. Plaintiff had been to the jobsite about two to three times a
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week for the previous two months to inspect progress. About 20 minutes into the meeting, Neal
Dodd (Neal) was concerned whether Jones & Brown had enough "sure connectors" delivered to the
site. Sure connectors are welded through decking to allow poured concrete to maintain its structural
integrity. Plaintiff called his office, and the person in charge of shipping, Mike Milligan, told
plaintiff that they had been delivered and told him the quantity. Neal said that the quantity was
insufficient. Plaintiff asked Milligan to check again, and Milligan said that he would. Plaintiff
decided to leave the trailer to do a physical count. The discussion in the trailer had been heated, and
plaintiff was upset with Milligan for not verifying the number of connectors before plaintiff left the
trailer. Plaintiff did not know where the connectors were but "[c]ommon sense *** told [him] that
the sure connecters [sic] were inside the building and were protected" from the elements because
they came in cardboard boxes. "That's the first thing [he] thought about."
Plaintiff left the trailer at about 9:30 or 10 a.m., and walked over the parking lot, down a
grassy area, and down a "drive" that was bare ground with rough terrain but was an access way for
vehicles to get to the building. Plaintiff testified that he had to walk in a rut that a truck had made
in the drive and that "[f]rom that point on it was at your discretion which way you went. There was
no designated path to the job." Plaintiff explained that the rut in which he was walking in the drive
did not lead to the building, so he had to keep stepping in and out of different ruts to make his way
to the building. He was walking in a normal manner and was not in a hurry.
The ruts plaintiff was walking in were consistent with the tires of the lulls that bricklayers
use to carry bricks. The width and shape of the tire tracks, along with plaintiff's experience, allowed
him to identify the source of the tracks as a lull. Porter used lulls on this site. The ruts were
generally about 8 to 10 inches deep. He could not walk on the "tops" of the ruts, meaning ground
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level, because they were unstable; it was like walking on a peak. The ruts themselves went down
from ground level. The ruts were a "little hard" because the sun had not come out yet to "soften stuff
up." Low areas of the site were damp and muddy, but the inside of the ruts was "firm." He believed
that he must have been sidestepping from one rut to the next, because he could not cross over and
put two feet in the same rut. When plaintiff was stepping from one rut into the bottom of another
rut, the "side of the rut *** gave way" and he lost his balance and turned his right ankle. Just before
he fell, he was looking at the ruts and trying to determine his next step.
A few seconds before he fell, Milligan called plaintiff on his cell phone and told him that the
quantity of connectors Neal had claimed should be on the site was correct. Plaintiff was on the
phone when he fell. Plaintiff was about 25 to 30 yards away from the building and 35 to 40 yards
away from the trailer. He was wearing high-top boots with steel toes.
For two or three weeks before the accident, plaintiff had complained about the site's condition
because trucks could not get close enough to the building to make proper deliveries. Plaintiff said
that the site needed to be scraped because the trucks "needed a level laid out surface to bring our
material onto the worksite." Deliveries had to be made about 100 or 150 yards from the building,
which was not the usual case for construction sites. Plaintiff believed that leveling ruts was the
responsibility of the general contractor, construction manager, or whoever was in charge of safety.
Plaintiff had worked in construction for over 20 years and had 40 hours of a safety training
course. The instruction included keeping an eye on the site's ground to watch where you are
walking. Plaintiff was familiar with ruts on jobsites and with muddy and rainy conditions, and he
was familiar with how to avoid ruts while walking on jobsites. However, this jobsite was
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substandard regarding the number, length, and depth of the ruts. As a result of his fall, plaintiff
fractured his ankle.
Melvin Greathouse testified that he was the general foreman for DTI, which Jones & Brown
had hired as a steel erector. At one of the first progress meetings he was involved in, he told Neal
that as the general contractor, Dodd was obligated to provide access with a good road and a level dry
area to put the steel down. Greathouse believed that the site's condition was even worse than
depicted in plaintiff's photos, and he repeatedly complained about conditions. His workers also
complained about the muddy conditions when walking to the building site, because "[b]y the time
you would get there *** you would have mud *** halfway up your thighs." In his 40 years as an
ironworker, Greathouse had been to about 4,500 jobsites. He had been to a few sites with ruts
similar to the Churchill School project, but those had been shut down to fix the ruts, whereas Dodd
made little to no attempt to fix these ruts. There was one day Greathouse called off his workers due
to site conditions.
Ronald Tucek ran Kocurek Concrete. He testified that they were scheduled to pour concrete
on November 17 but had to postpone until the 22nd due to rain. Tucek described the conditions as
those of a "normal jobsite," though he also said that it was "pretty muddy" and he was "surprised that
they were working in this kind of mud and that the lulls made it through." Ruts such as those
depicted in plaintiff's photos were common on construction sites. The only way to avoid ruts was
to put down stone, but it was highly doubtful that any construction contractor would do that because
of the expense and the impracticality. Tucek explained that the contractor would then have to
remove all of the stone to plant grass. On some projects, his company had been hired to grade out
ruts similar to the ruts on this site. However, he had never seen grading done on a daily or weekly
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basis. Usually, it would be done before a freeze, again in spring after the freeze/thaw cycles, and
toward the end of the job. It was a "never-ending battle for ruts" and there was no way for a
contractor to avoid them, because anything with rubber tires, especially lulls, would rip up the
ground from November until April.
Michael Kjellesvik, the plumber foreman of C.R. Leonard Plumbing & Heating, testified that
he and his crew did not have any problems accessing the building due to ground conditions. At one
point, "they made us [a] stone sidewalk." The sidewalk was installed because of the mud outside
and mud being tracked into the building. It was shown in one of plaintiff's pictures as a muddy
gravel path. It went from the parking lot to the building. When Kjellesvik parked near the trailer,
he would take the gravel path to the building. The number and size of the ruts shown in plaintiff's
photographs were typical for a construction site at that time of year.
John Kennelly, Porter's superintendent, testified that the quantity and size of the ruts shown
in plaintiff's photographs looked typical for that stage of the work at that time of year. Edward
Mucha, Porter's foreman, similarly testified that the number and size of the ruts depicted in the
photographs were typical for that time of year, and he described the site as "in fairly decent shape."
Mucha also testified that there was a "stone road" that went from the parking lot "right to the
building," which was used to make deliveries to the building.
Steve Freeman of S&K Excavating testified that S&K was on-site at the beginning of the
project and at the end to level the ground. Looking at photographs of the site, Freeman stated that
it would probably "not do much good" to scrape the site in that condition because it was pretty
muddy; his machine probably would not be able to get around in the mud and would be making its
own ruts. The ground would first have to "freeze up a little bit." If he leveled out such a muddy site
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in the morning and machinery continued to be used on the site, the site probably would return to its
previous condition within a few hours. Freeman described pictures of the site as depicting a "typical
construction site" in terms of the ground condition and number of ruts. He had seen sites where
plywood was laid down for workers to have access to the site.
Plaintiff filed his initial complaint on March 8, 2006. He filed an amended complaint on
June 19, 2006. Count I alleged negligence against Dodd. Plaintiff alleged that Dodd had a duty to
exercise reasonable care in the operation of the construction site, "including the provision of a safe,
suitable and proper ground condition" for him and other workers. Dodd allegedly breached this duty
by violating various sections of the Occupational Safety and Health Act (OSHA); failing to make
reasonable inspection of the premises and work; improperly managing and maintaining the premises;
failing to provide plaintiff with a safe place to work; failing to warn plaintiff of the dangerous
conditions; failing to provide adequate safeguards to prevent injury; failing to supervise the work;
and failing to maintain the ground of the construction site in a safe manner.
Count II alleged negligence against Porter. Plaintiff alleged that Porter used heavy equipment
in the mixing and pouring of concrete and had the authority to order changes in the work that would
have prevented the "improperly graded area" caused by its machinery. Count II alleged the same
breaches of duty alleged in count I, with the exception of the failure to supervise.
Count III alleged negligence against Kluber, Skahan, and count IV alleged negligence against
Kocurek Concrete. Plaintiff voluntarily dismissed these defendants on August 29, 2007.
Dodd filed a motion for summary judgment on August 12, 2008, and Porter filed a motion
for summary judgment on September 25, 2008. The trial court granted the motions on January 9,
2009, finding as follows. Defendants generally had a duty to plaintiff to protect against the harm
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caused by the unreasonably dangerous condition created by ruts, mud, and water on the construction
site. However, an exception to such a duty exists when the danger is open and obvious. In this case,
the conditions were open and obvious, and plaintiff had worked in construction for over 20 years and
was familiar with the site's conditions. The "distraction exception" to the open-and-obvious doctrine
did not apply because defendants did not cause the distraction of plaintiff talking on his cell phone
while walking over the ruts and, further, because the distraction was not reasonably foreseeable by
defendants. The "deliberate encounter exception" to the open-and-obvious doctrine did not apply
because there was an alternative gravel path, which plaintiff admitted existed, and plaintiff chose not
to use the path but to instead tackle the ruts.
Plaintiff filed a motion to reconsider on February 3, 2009. The trial court denied the motion
on March 13, 2009. Plaintiff timely appealed.
II. ANALYSIS
Summary judgment is appropriate only where the pleadings, depositions, admissions, and
affidavits on file, when viewed in the light most favorable to the nonmoving party, show that there
is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of
law. Murray v. Chicago Youth Center, 224 Ill. 2d 213, 228 (2007). The purpose of summary
judgment is to determine whether a question of fact exists, not to make factual findings, and
summary judgment should be granted only where the movant's right to it is clear. Forsythe v. Clark
USA, Inc., 224 Ill. 2d 274, 280 (2007). We review de novo a grant of summary judgment. Weather-
Tite, Inc. v. University of St. Francis, 233 Ill. 2d 385, 389 (2009).
Here, plaintiff alleged negligence against both defendants. The elements of a cause of action
for negligence are: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty; and
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(3) an injury proximately caused by the breach. Matthews v. Aganad, 394 Ill. App. 3d 591, 598
(2009). Plaintiff's arguments on appeal relate to the element of duty, and we discuss this area of law
in some detail before returning to plaintiff's specific arguments. Whether a duty exists is a question
of law to be determined by the court. Bonavia v. Rockford Flotilla 6-1, Inc., 348 Ill. App. 3d 286,
291 (2004). The four factors courts typically consider in determining whether a duty exists are: (1)
the reasonable foreseeability of injury; (2) the likelihood of injury; (3) the magnitude of the burden
of guarding against injury; and (4) the consequences of placing that burden on the defendant. Grant
v. South Roxana Dad's Club, 381 Ill. App. 3d 665, 669 (2008).
We consider the first prong of the duty test, foreseeability, by reference to section 343 of the
Restatement (Second) of Torts. LaFever v. Kemlite Co., 185 Ill. 2d 380, 389 (1998). Section 343
states in pertinent part:
"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 (1965).
Comment d to section 343 provides that "[a]n invitee is entitled to expect that the possessor will take
reasonable care to ascertain" the premises' condition and, "having discovered it, either to make it
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reasonably safe by repair or give warning of the actual condition and risk involved therein."
Restatement (Second) of Torts §343, Comment d, at 217 (1965).
However, an open and obvious condition is a recognized exception to the duty of care set
forth in section 343 of the Restatement. LaFever, 185 Ill. 2d at 390. Section 343A(1) of the
Restatement addresses this subject, stating in relevant part:
"A possessor of land is not liable to his invitees for physical harm caused to them by
any activity or condition on the land whose danger is known or obvious to them, unless the
possessor should anticipate the harm despite such knowledge or obviousness." Restatement
(Second) of Torts §343A(1) (1965).
See also Ward v. K mart Corp., 136 Ill. 2d 132, 150-51 (1990) (adopting section 343A). The term
"obvious" means that a reasonable person would recognize both the condition and the risk involved.
Green v. Jewel Food Stores, Inc., 343 Ill. App. 3d 830, 832 (2003). The determination of whether
a condition is open and obvious is an objective test rather than a subjective test. Buchaklian v. Lake
County Family Young Men's Christian Ass'n, 314 Ill. App. 3d 195, 203 (2000).
Whether a condition is open and obvious plays a large role in whether a duty exists because
it relates to the issues of foreseeabilty and likelihood of injury. Belluomini v. Stratford Green
Condominium Ass'n, 346 Ill. App. 3d 687, 691-92 (2004). That is, it is not reasonably foreseeable
that someone will be injured by an open and obvious condition because it is assumed that people will
appreciate the risks of such a condition and exercise care for their own safety. Belluomini, 346 Ill.
App. 3d at 692. Similarly, the likelihood of injury from open and obvious conditions is considered
slight because the law assumes that individuals encountering such conditions will appreciate and
avoid the risks. Belluomini, 346 Ill. App. 3d at 692.
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Plaintiff first argues that whether a condition is open and obvious is a question of fact. As
stated, whether a duty exists is a question of law, and this court has held that whether a condition is
open and obvious is also a question of law where there is no dispute about the physical nature of the
condition. Belluomini, 346 Ill. App. 3d at 692-93; see also Bucheleres v. Chicago Park District, 171
Ill. 2d 435, 455-56 (1996) (Lake Michigan presents an open and obvious risk to individuals diving
from concrete seawalls into the lake); Deibert v. Bauer Brothers Construction Co., 141 Ill. 2d 430,
438 (1990) (tire rut outside of portable bathroom was an obvious condition). However, where there
is a dispute about the condition's physical nature, such as its visibility, the question of whether a
condition is open and obvious is factual. Belluomini, 346 Ill. App. 3d at 693; see also Simmons v.
American Drug Stores, Inc., 329 Ill. App. 3d 38, 44 (2002) (whether "cartnapper" barrier outside of
drug store presented an open and obvious danger was a factual question); Buchaklian, 314 Ill. App.
3d at 204 (whether defect in mat in locker room was open and obvious was a question of fact).
Plaintiff further argues that the ruts were not open and obvious. Plaintiff argues that the
evidence clearly shows that the site was covered in ruts, mud, and standing water. Plaintiff argues
that many of the ruts were not visible and were covered with water. Plaintiff's argument is without
merit. While plaintiff's photographs show that some of the site, including some ruts, was covered
with water, plaintiff's testimony clearly shows that he was aware that he was walking over ruts,
stepping from one to another. He characterized the ground at the bottom of the ruts on which he was
placing his feet as "firm." He also testified that the ruts he was stepping into did not contain water:
"It was just dirt and mud." Plaintiff explained that "in the low areas [of the site] it was damp and
muddy. When you're in a rut it was firm."
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Plaintiff relatedly argues that the risk that the particular rut he fell in would collapse could
not have been known by him or any other reasonable person. Plaintiff argues that some of the ruts
on the site were hardened and able to hold workers' weight, and he notes that Barr testified that he
had walked across the ruts on several occasions. As stated, whether something is obvious relates to
whether a reasonable person would recognize both the condition and the risk involved (Green, 343
Ill. App. 3d at 832), and with this argument plaintiff challenges the risk aspect. However, the
question is not whether one particular rut would collapse, but rather whether a reasonable person
would anticipate the danger of crossing over the ruts. Here, plaintiff testified that the ruts were 8 to
10 inches deep, the tops of the ruts were unstable, he was looking at the ruts to determine his next
step, and he was familiar with how to avoid ruts on a jobsite. A reasonable person in his position
would therefore realize that walking across the ruts on the site would present the danger of a rut
collapsing or of tripping or otherwise falling. Accordingly, we agree with the trial court that the ruts
were open and obvious as a matter of law.
Even if a condition is open and obvious, the landowner may still be liable if he should
anticipate the harm despite the condition's obviousness. Restatement (Second) of Torts §343A(1)
(1965); Belluomini, 346 Ill. App. 3d at 691. Two such exceptions to the open-and-obvious doctrine
are the "distraction exception" and the "deliberate encounter exception." Bonavia, 348 Ill. App. 3d
at 292. The former exception refers to a situation where the landowner "has reason to expect that
the invitee's attention may be distracted, so that he will not discover what is obvious, or will forget
what he has discovered, or fail to protect himself against it." Restatement (Second) of Torts
§343A(1), Comment f, at 220 (1965); see Ward, 136 Ill. 2d at 153-54 (it was reasonably foreseeable
that customers would become distracted while exiting store with large purchases and collide with
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post). The latter exception arises when the landowner "has reason to expect that the invitee will
proceed to encounter the known or obvious danger because to a reasonable man in his position the
advantages of doing so would outweigh the apparent risk." Restatement (Second) of Torts
§343A(1), Comment f, at 220 (1965); see LaFever, 185 Ill. 2d at 392 (it was reasonably foreseeable
that the plaintiff would walk on slippery fiberglass material while performing his employment
obligations).
Plaintiff challenges the trial court's finding that the distraction exception does not apply
because he was distracted by his own action in electing to talk on his cell phone while trying to cross
the ruts. Plaintiff argues that the distraction exception applies because it is reasonably foreseeable
that a worker focusing on his duties, such as speaking on the phone to verify the location of a
delivery, could become distracted and not realize that the rut he was stepping on was not strong
enough to support him. Plaintiff further argues, in a somewhat contradictory manner, that "there is
absolutely no evidence that the use of the cellular telephone distracted him," because his testimony
shows that he was looking at the ground and contemplating his next step while he talked on the
phone. Plaintiff maintains that he never testified that he was distracted; "[t]hat was Defendants'
mischaracterization." Dodd argues that by admitting he was not distracted, plaintiff has thereby
conceded that the distraction exception to the open-and-obvious doctrine does not apply. We agree.
Cf. Reis v. Aetna Casualty & Surety Co. of Illinois, 69 Ill. App. 3d 777, 785 (1978) (insurance
company had duty to defend based on concession in its brief).
In any event, plaintiff's argument is without merit. In general, "[i]n order for the distraction
to be foreseeable to the defendant so that the defendant can take reasonable steps to prevent injuries
to invitees, the distraction should not be solely within the plaintiff's own creation." Whittleman v.
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Olin Corp., 358 Ill. App. 3d 813, 817-18 (2005) (distraction exception did not apply for injuries the
plaintiff sustained from high-voltage lines, because the plaintiff alleged only that he was distracted
by his work and did not allege that the defendant did anything to cause the distraction or that the
layout of the site was distracting); see also Sandoval v. City of Chicago, 357 Ill. App. 3d 1023, 1030-
31 (2005) (distraction exception inapplicable where a plaintiff is distracted by his or her own
independent acts for which the defendant has no direct responsibility). In this case, to any extent that
talking on the cell phone was a distraction to crossing the ruts, plaintiff created that distraction by
answering the phone and continuing to walk across the site while talking. Cases relied on by
plaintiff are distinguishable because there the defendant had created or contributed to the distraction.
See Rexroad v. City of Springfield, 207 Ill. 2d 33, 46 (2003) (the plaintiff student fell in a hole
because he was distracted by carrying a football helmet the coach of the defendant school had
ordered him to bring); Deibert, 141 Ill. 2d at 439 (the "[d]efendant also created the hazard which
caused the distraction"); Ward, 136 Ill. 2d at 153-54 (the defendant sold the plaintiff a large mirror
that obscured his view of a post outside the store).
Plaintiff further relies on Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34,
45 (2004), where the court held that section 343A does not require proof that the possessor of the
land created or controlled the distraction. We agree that there is no single bright-line test for
foreseeability. However, the Clifford court also stated that "the distraction exception generally
involves a situation where the injured party was distracted from the open and obvious condition
because circumstances required him to focus on some other condition or hazard." Clifford, 353 Ill.
App. 3d at 43. The court held that the defendant general contractor should have reasonably foreseen
that the plaintiff carpenter, whose work on the project required him to look upward, would have his
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attention distracted and would fall into a nearby uncovered hole in the floor. Clifford, 353 Ill. App.
3d at 47. In the instant case, by contrast, circumstances did not require plaintiff to walk across the
ruts and talk on the phone at the same time. Thus, the trial court did not err in ruling that the
distraction exception was inapplicable.
Plaintiff does not argue that the deliberate-encounter exception to the open-and-obvious
doctrine applies, thereby forfeiting the issue for review. See 210 Ill. 2d R. 341(h)(7) (points not
argued in the appellant's brief are forfeited).
In the end, the open-and-obvious doctrine, along with its exceptions, is simply a means to
assist in analyzing the foreseeability and the likelihood of injury. To any extent that those factors
are present here, we conclude that the remaining factors in determining whether a duty exists,
namely, the magnitude of the burden of guarding against the injury and the consequences of placing
that burden on defendants, weigh against imposing a duty under the facts of this case. Although
individuals testified that they had seen similar ruts graded, the only depositions from people who had
personally been involved in grading ruts showed the impracticality of doing so here. Tucek testified
that grading was usually done just before a freeze, again in the spring, and toward the end of a job
and that he had never seen grading done on a daily or weekly basis. He testified that it was a "never-
ending battle for ruts" because anything with rubber tires, especially lulls, would rip up the ground
from November until April. According to Tucek, the only way to avoid ruts was to put down stone,
but no contractor would likely do that because it was expensive and the stone would later have to
be removed. Freeman testified that the site in the condition shown probably could not be graded,
because his machine would not be able to get around in the mud and it would be making its own ruts.
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He testified that if he had leveled it in that condition with heavy machinery still present, it probably
would return to its previous condition within a few hours.
Further, as plaintiff acknowledges in his brief, the evidence showed that Dodd had a gravel
pathway installed. At oral argument, plaintiff argued that the pathway went just from a portable
toilet to the building, and not from the parking lot to the building. However, we find no support for
this assertion in the record. Indeed, Barr, Kjellesvik, and Mucha all testified that the path went from
the parking lot to the building. Plaintiff argues that there were several points of access to the
building, and there was "no evidence that workers were directed or required to use the gravel
pathway." Plaintiff also argues that defendants could have used plywood boards to cover the ruts.
However, considering the open-and-obvious nature of the ruts, the limited effectiveness of grading
a site at the time of year at issue, the cost of putting down gravel on the entire site, and the existence
of a gravel path leading from the parking lot to at least one building entrance, we conclude that
defendants did not have a duty to try to grade the site or create additional pathways with plywood
boards.
Plaintiff next argues that even if the ruts were open and obvious, defendants owed him a duty
to maintain a safe jobsite pursuant to their contracts with OSD 308. Plaintiff notes that under their
respective contracts, defendants are both listed as contractors. Plaintiff relies on identical language
in the contracts stating that: (1) "If the Contract Documents give specific instructions concerning
construction means, methods, techniques, sequences, and procedures, the Contractor shall evaluate
the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the
jobsite safety of such means, methods, techniques, sequences, or procedures"; (2) "The Contractor
shall be responsible for initiating, maintaining and supervising all safety precautions and programs
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in connection with the performance of the Contract"; and (3) "The Contractor shall take reasonable
precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss
to employees on the Work [sic] and other persons who may be affected thereby."
Dodd argues that plaintiff forfeited this argument by failing to raise it in the trial court.
However, plaintiff mentioned the contractual provisions in his response to Porter's motion for
summary judgment, in argument during the hearing on the summary judgment motions, and again
in his motion to reconsider. Accordingly, he has not forfeited the argument on appeal.
Defendants further argue that the contracts did not create a duty toward plaintiff because he
was not a third-party beneficiary of the contracts. A strong presumption exists that contracting
parties intend that the contract's provisions apply to only them and not third parties. Martis v.
Grinnell Mutual Reinsurance Co., 388 Ill. App. 3d 1017, 1020 (2009). An individual who is not a
party to a contract may enforce the contract only where the contracting parties intentionally entered
into the contract for the individual's direct benefit. Martis, 388 Ill. App. 3d at 1020. Whether
someone is a third-party beneficiary depends on the contracting parties' intent, as shown by the
contract's language. Martis, 388 Ill. App. 3d at 1020. Even if the contracting parties know, expect,
or intend that others will benefit from their agreement, that alone is not sufficient to overcome the
presumption that the contract was intended only for the parties' direct benefit. Martis, 388 Ill. App.
3d at 1020. Rather, the contract's language must show that the contract was made for the direct
benefit of the third person, and not just for the incidental benefit of that person. Martis, 388 Ill. App.
3d at 1020. "Such an intention must be shown by an express provision in the contract identifying
the third-party beneficiary by name or by description of a class to which the third party belongs."
Martis, 388 Ill. App. 3d at 1020.
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Dodd cites Alaniz v. Schal Associates, 175 Ill. App. 3d 310, 312-13 (1988). There, the
plaintiff, a sub-subcontractor's employee, brought suit against the subcontractor and the general
contractor for a work-related injury, alleging that he was an intended third-party beneficiary of
contracts entered into among the parties. Alaniz, 175 Ill. App. 3d at 311. On appeal, he relied on
a provision in a contract between the general contractor and the subcontractor stating that " '[t]he
subcontractor *** has the responsibility for maintaining the safety and loss prevention programs
covering all work performed by it, and its subcontractors.' " Alaniz, 175 Ill. App. 3d at 311-12. The
plaintiff argued that the provision allowed him to maintain an action against the subcontractor for
personal injuries caused by unsafe work conditions and equipment. Alaniz, 175 Ill. App. 3d at 312.
The court held that the contracting parties did not intend to confer a direct benefit to the plaintiff by
including general language about safety and loss-prevention programs. Alaniz, 175 Ill. App. 3d at
312-13. Rather, they intended to benefit just themselves by setting forth their respective
responsibilities during construction. Alaniz, 175 Ill. App. 3d at 313. The court stated, "Given the
nature of the construction industry and the frequency with which construction injuries occur despite
safety precautions, we do not believe the presumption [that parties stipulate for themselves in a
contract and not for a third person] has been overcome." Alaniz, 175 Ill. App. 3d at 313. The court
further stated:
"It is not enough that an incidental benefit will flow to third parties; only a direct
beneficiary has a right under a contract. [Citation.] We believe that more than the general
safety provision found in the contract between [the subcontractor] and [the general
contractor] is required to evidence an intent to directly benefit plaintiff. While plaintiff
would most likely have received some benefit by implementation of safety programs, such
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benefit is incidental to the direct benefit intended for the contracting parties, and thus is not
sufficient to allow him to maintain an action on the contract. Plaintiff's action is better
characterized as a tort action." Alaniz, 175 Ill. App. 3d at 314-15.
Dodd argues that, as in Alaniz, plaintiff may not rely on general safety language to create a
contractual duty of care toward him.
Porter argues that no duty was created by its signing a standardized form contract that refers
to only safety provisions of a general nature. Porter cites American States Insurance Co. v. A.J.
Maggio Co., 229 Ill. App. 3d 422 (1992). There, a subcontractor's insurance company brought suit
against the general contractor to recover damages sustained as a result of the subcontractor's
employee slipping and falling on ice. The plaintiff alleged that the defendant failed to provide a
reasonably safe workplace as required by its contract with the subcontractor. American States
Insurance Co., 229 Ill. App. 3d at 423. It relied on a provision stating that the contractor " '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.' "
American States Insurance Co., 229 Ill. App. 3d at 424-25. The appellate court stated that the
contract "imposes a duty of a very general nature to maintain the work area in a reasonably safe
condition--a duty no greater than would be imposed at common law on an owner or occupier of the
property." American States Insurance Co., 229 Ill. App. 3d at 426. The court further stated that a
defendant's duties will not be expanded beyond the scope of duties described in the contract.
American States Insurance Co., 229 Ill. App. 3d at 426. The court held that the duty claimed by the
plaintiff went beyond the agreement of the parties because the defendant assumed a duty no greater
than that which would ordinarily be expected of a landowner, and the contract did not contain an
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express provision requiring the removal of snow and ice from the construction site. American States
Insurance Co., 229 Ill. App. 3d at 427.
Returning to the specific contractual provisions relied on by plaintiff here, the first one
requires the contractor to evaluate and be responsible for the jobsite safety of means, methods,
techniques, sequences, or procedures for which the contract documents provide "specific
instructions." Plaintiff does not point to any specific instruction in the contract documents requiring
defendants to level the ruts or maintain the ground in a certain manner, so he may not rely on this
provision to create a duty. The second provision requires the contractor to initiate, maintain, and
supervise all safety precautions and programs. This provision is similar to the one at issue in Alaniz.
It does not identify plaintiff by name or describe a class to which he belongs and therefore does not
confer a third-party-beneficiary status to plaintiff. Instead, as in Alaniz, by using general language
about safety precautions and programs, the contracting parties intended to benefit just themselves
by allocating their responsibilities on this subject, and any benefit to plaintiff would be incidental
rather than direct. The third provision plaintiff relies on requires the contractor to take reasonable
precautions for the safety of, and provide reasonable protection to prevent injury to, employees and
others on the site. The contractual language is almost identical to that at issue in American States
Insurance Co., and under that case, such language does not impose a duty greater than that which is
ordinarily owed by a landowner. As we already concluded that defendants did not owe plaintiff a
common-law duty under section 343, plaintiff's reliance on this provision fails as well.
Plaintiff additionally argues that his complaint alleges a duty under the theory of construction
negligence, which should be viewed under section 414 of the Restatement (Second) of Torts and not
solely under section 343. Defendants point out that plaintiff did not raise a section 414 theory of
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recovery in the trial court, and Dodd argues that plaintiff thus has forfeited such an argument on
appeal. Plaintiff argues that his theory of construction negligence is present in his amended
complaint and has been litigated throughout the case. However, we agree that by never raising
section 414 in the trial court, plaintiff may not rely on it now to reverse summary judgment. See
Norman v. Brandt, 397 Ill. App. 3d 1074, 1079 (2010) (the plaintiffs forfeited their contention that
a section of the Restatement applied to the facts of their case, because they raised that section for the
first time on appeal).
In any event, section 414 does not save plaintiff's claims. In general, a party that entrusts
work to an independent contractor is not liable for that contractor's acts or omissions. Calderon v.
Residential Homes of America, Inc., 381 Ill. App. 3d 333, 340 (2008). An exception to this rule is
provided by section 414, 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 (1965).
This exception is known as the "retained control exception." Madden v. F.H. Paschen/S.N. Nielson,
Inc., 395 Ill. App. 3d 362, 380 (2009). Such liability usually arises where a general contractor
subcontracts work but superintends the job himself or through a foreman. Pekin Insurance Co. v.
Hallmark Homes, L.L.C., 392 Ill. App. 3d 589, 591 (2009). The general contractor may be
vicariously liable for the subcontractor's negligence if it retains control over the operative details of
the subcontractor's work, or it may be directly liable for not exercising its supervisory control with
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reasonable care. Calderon, 381 Ill. App. 3d at 341; see Restatement (Second) of Torts §414,
Comment a, at 387 (1965).
For section 414 to apply:
"[T]he 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).
"The mere existence of a safety program, safety manual, or safety director is insufficient to trigger
this exception." Madden, 395 Ill. App. 3d at 382.
"The best indicator of whether a contractor has retained control over the subcontractor's work
is the parties' contract, if one exists." Downs v. Steel & Craft Builders, Inc., 358 Ill. App. 3d 201,
205 (2005). Porter argues that there is no evidence that there was a contract between it and Jones
& Brown and points out that Barr testified that both it and Jones & Brown were hired directly by
OSD 308. Porter also argues that there is no evidence that it took an active role in ensuring safety
or that it retained control over the incidental aspects of plaintiff's work. Dodd similarly points to the
lack of evidence of contracts between it and Porter and it and Jones & Brown, and Dodd argues that
it is impossible to know the extent of control, if any, that it had over either Porter's or plaintiff's
work. We agree that the lack of evidence of a contract between the respective companies
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undermines plaintiff's argument. Cf. Moiseyev v. Rot's Building & Development, Inc., 369 Ill. App.
3d 338, 351 (2006) (considering a lack of a contract between the general contractor and
subcontractor as evidence of no duty under section 414). Even if we construe the contracts between
defendants and OSD 308 as giving defendants a general right to ensure that safety precautions were
being exercised and that work was done in a safe manner, there is no indication that they had control
over the means and methods of an independent contractor's work, as is required to prevail under a
section 414 claim. See Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1071 (2003). In other words,
there is no evidence that Dodd controlled the operative details of Porter's work or that Porter was not
free to do its work in its own way. See Joyce v. Mastri, 371 Ill. App. 3d 64, 75-76 (2007). The
evidence also shows that defendants did not control plaintiff's work. Accordingly, plaintiff's reliance
on section 414 is not persuasive.
Last, plaintiff argues that the trial court failed to give proper weight to the "Statement of
Opinions" of Kenneth Yotz, which was attached to plaintiff's motion to reconsider. Plaintiff's
motion to reconsider stated that Yotz: was the senior vice president of Environmental, Management
and Training Systems, Inc.; had over 38 years of experience in the construction industry; and
specialized in occupational and environmental health and safety issues. In the signed "Statement of
Opinions," Yotz opined that: Dodd controlled the work performed by Jones & Brown and plaintiff;
Porter created the hazardous ruts with its lulls; defendants failed to conduct frequent and regular
inspections of the jobsite, as required by OSHA standards; and Dodd failed to maintain access and
pedestrian roads, to maintain means of egress free of impediments, and to clear passageways for the
safe movement of workers, all in violation of OSHA standards. Yotz opined that these failures were
the proximate cause of plaintiff's fall and resulting injuries.
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Defendants argue that the trial court properly disregarded Yotz's statement because it was
substantially insufficient under Supreme Court Rule 191 (210 Ill. 2d R. 191), which states in relevant
part:
"Affidavits in support of and in opposition to a motion for summary judgment under section
2--1005 of the Code of Civil Procedure *** shall be made on the personal knowledge of the
affiants; shall set forth with particularity the facts upon which the claim, counterclaim, or
defense is based; shall have attached thereto sworn or certified copies of all papers upon
which the affiant relies; shall not consist of conclusions but of facts admissible in evidence;
and shall affirmatively show that the affiant, if sworn as a witness, can testify competently
thereto." 210 Ill. 2d R. 191.
Defendants argue that Yotz's statement did not list the facts upon which Yotz based his opinions or
include copies of all the papers on which Yotz relied. See Robidoux v. Oliphant, 201 Ill. 2d 324,
334-35, 339-40 (2002) (under the plain language of Rule 191, affidavits submitted in support of or
in opposition to summary judgment must consist of facts admissible in evidence rather than
conclusions, and they must have any supporting papers attached). Defendants also argue that
contrary to Rule 191, Yotz's statement does not qualify as an affidavit because it does not appear that
he took an oath. See Robidoux, 201 Ill. 2d at 343 (affidavit under Rule 191(a) does not need to be
verified, but the affiant's name must appear as one who has taken an oath). Defendants point out that
they objected to the statement at the hearing on plaintiff's motion to reconsider.
Plaintiff notes that in his initial response to the summary judgment motions, he attached a
Rule 191 affidavit signed by his attorney. Plaintiff's attorney averred that although the parties were
not yet required to disclose opinion witnesses, he had discussed the case with several potential expert
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witnesses, and at the time of trial, plaintiff would present expert testimony regarding the violations
of applicable OSHA standards and other standards accepted in the construction industry. Plaintiff
argues that Yotz's affidavit was intended to supplement his attorney's affidavit, and he points out that
the trial court did not strike Yotz's statement.
Defendants counter that regardless of Rule 191 compliance, there is no reason Yotz's
statement could not have been submitted earlier, in time for the initial decision on summary
judgment.
We agree with defendants' position. A motion to reconsider is meant to bring to the trial
court's attention newly discovered evidence not available at the prior hearing, changes in the law,
or errors in the trial court's application of existing law. Caywood v. Gossett, 382 Ill. App. 3d 124,
133 (2008). A ruling on a motion to reconsider is typically reviewed for an abuse of discretion, but
a motion to reconsider a grant of summary judgment typically questions the trial court's application
of existing law, and the denial of such a motion is reviewed de novo. Duresa v. Commonwealth
Edison Co., 348 Ill. App. 3d 90, 97 (2004). To the extent that plaintiff sought to have Yotz's
statement considered as newly discovered evidence, it would not qualify because there is no
indication that it was not available prior to the hearing on the motions for summary judgment. See
Landeros v. Equity Property & Development, 321 Ill. App. 3d 57, 65 (2001). " 'Trial courts should
not allow litigants to stand mute, lose a motion, and then frantically gather evidentiary material to
show that the court erred in its ruling.' " Landeros, 321 Ill. App. 3d at 65, quoting Gardner v.
Navistar International Transportation Corp., 213 Ill. App. 3d 242, 248 (1991). The statement would
also not qualify as a supplement to plaintiff's attorney's affidavit because, in addition to the fact that
it was from a different individual, even a revised expert affidavit would have to contain newly
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discovered evidence in order to be proper for a motion to reconsider. See Landeros, 321 Ill. App.
3d at 66. Finally, as Dodd points out, Yotz relies on OSHA regulations, but OSHA regulations in
and of themselves do not create a duty of care. Recio v. GR-MHA Corp., 366 Ill. App. 3d 48, 58
(2006). Accordingly, the trial court did not err in according little or no weight to Yotz's statement,
or in denying plaintiff's motion to reconsider.
III. CONCLUSION
For the foregoing reasons, we conclude that the trial court did not err in granting summary
judgment for defendants or in denying plaintiff's motion to reconsider. We therefore affirm the
judgment of the circuit court of Kendall County.
Affirmed.
McLAREN and JORGENSEN, JJ., concur.
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