Is a General Contractor Liable for the Injuries Sustained by a Subcontractor's Employee? Is Illinois Closer to a Definitive Answer?
July, 2005
Inevitably, an employee of a subcontractor gets injured on the job. In turn, the employee files suit against the general contractor (GC), the owner and other contractors who may have been working on the site.
Recent Illinois case law has provided more ammunition for a GC to extricate itself from litigation provided that appropriate contractual language is inserted in the construction documents and the facts establish that the GC had no responsibility for the safety for any of the subcontractors. According to one recent decision, a GC may even assign its OSHA safety obligations to a subcontractor.
Typically, a GC’s liability focuses upon any duty that it owes to the injured subcontractor’s employee. The starting point for determining whether a duty exists upon a general contractor is found in §414 of the Restatement (Second) of Torts which provides:
“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).
The “retained control” element is explained in comment (c) to §414, which 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 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). (Emphasis added.)
Since Section 414 was published in 1965, courts have grappled with its interpretation and application to a variety of construction accident cases. The leading Illinois cases supportive of a general contractor appear to be Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 719 N.E.2d 174 (1st. Dist. 1999) and Kotecki v. Walsh Construction Co., 333 Ill. App. 3d 583, 776 N.E. 2d 774 (1st Dist. 2002).
A plaintiff in a construction accident case will typically argue that §414 of the Restatement imposes a duty upon the GC because the GC retained control of certain aspects of the work performed by the subcontractor. In such a case, the GC’s contractual language with the subcontractor and the specific control over the subcontractor’s work (the facts of the case) are the salient points which will serve to alleviate the imposition of liability upon the general contractor.
The recent Illinois case of Downs v. Steel & Craft Builders, Inc., 2005 WL 1492077 (2d Dist. 2005), is instructive on these points. In Downs, the plaintiff worked for P & M Water and Sewer, Inc., the subcontractor responsible for the installation of the sewer system. The plaintiff was injured when a trench in which he was working collapsed. The plaintiff filed suit against the owner of the property and the GC to recover for his personal injuries.
The GC’s contract with P&M Water and Sewer, Inc., provided in part that the GC could: order work to stop or start; make change orders; and approve the workmen, subcontractors or material suppliers hired by P&M Water and Sewer. P&M Water and Sewer was required to provide the material, equipment and labor. The contract further provided:
“All Sub-contractors and material suppliers and their Sub-contractors and/or agents are required and herewith notified that they will comply with [the] Williams-Steiger Occupational Safety and Health Act of 1970, which became effective April 28, 1971. The Sub-contractor assumes responsibility to the Contractor for compliance with applicable regulations issued under the Construction Safety Act of 1960 and the Occupational Safety and Health Act of 1970 as to acts of commission or omission by the Sub-contractor, its agents, employees, and Sub-contractors and hold [sic] Steel & Craft Builders Corp., and the owner harmless.”
The GC filed a motion for summary judgment, which the trial court granted. The Second District affirmed. The court held that based upon the contractual language and the facts of the case, the GC owed no duty to the injured worker.
The court discussed the rule in Illinois that generally, one who employs an independent contractor is not liable for the latter’s acts or omissions. However, Illinois courts find an exception to this rule in §414 of the Restatement (Second) of Torts and, particularly, comment (c) to §414. Determining whether an exception applies and whether a GC retains such control over a subcontractor’s work so as to give rise to liability is an issue reserved for a trier of fact, unless the evidence presented is insufficient to create a factual question.
The Downs court stated that the best indication of whether a GC has retained sufficient control over a subcontractor’s work is the contract itself, if one exists. The court first focused on the contract between the GC and P&M Water and Sewer and framed the issue as “whether the contract between defendant and P&M evidences an intent by defendant to retain any control over safety at the construction site, which would give rise to a duty of care owed by defendant to plaintiff.”
Citing Steuri v. Prudential Insurance Co. of America, 282 Ill. App. 3d 753, 668 N.E.2d 1066 (1st Dist. 1996), the court recognized that summary judgment is appropriate in favor of a GC where an independent contractor is “contractually responsible for job site safety and the defendant general contractor takes no active role in ensuring safety,” or, “where the general contractor reserves the general right of supervision over the independent contractor, but does not retain control of the incidental aspects of the independent contractor’s work.”
The court found that the contract between the GC and P&M Water and Sewer provided that the GC did not control and was not responsible for safety measures at the construction site. Pursuant to its contract, P&M Water and Sewer agreed to comply with all safety requirements set forth by the Occupational Safety and Health Act of 1970 (“OHSA”). The Downs court recognized that although the contract clearly placed the responsibilities for safety upon the subcontractor, a duty may nevertheless be imposed upon the GC under §414 if the GC performed activities in contravention of the contract language. The court stated that the GC, through its conduct, could have assumed a duty to the plaintiff by exercising control over the subcontractor’s work. However, based upon the evidence presented to it, the Downs court concluded that the defendant GC did not control the work of the subcontractor who employed the plainiff.
The Downs court found that the GC only instructed the independent contractors where to work and when. There was no evidence to suggest that the GC directed the “operative details” of P&M Water and Sewer’s work. There was no evidence to suggest that the subcontractor was not free to perform its work in its own way. Further, the plaintiff presented no evidence that the GC knew or should have known that the subcontractor employed a hazardous method in dangerous conditions at the time of the accident. The court concluded that the GC did not control the “incidental aspects” of P&M Water and Sewer’s work, but only the desired ends of its work. Therefore, the GC, based on its limited control over how the subcontractor performed its work under the contract, did not create a duty to the plaintiff.
In conclusion, the court stated, “[i]n summary, defendant did not direct, supervise or participate in any of the work, means, or methods of P&M. Because defendant contractually and actually removed itself from the incidental aspects of the construction and safety work done by P&M, summary judgment for defendant is appropriate on this issue.”
The plaintiff next argued that the OSHA safety regulations create a nondelegable duty requiring the GC to be responsible to maintain a safe job site. Therefore the GC remained liable for the injured worker’s injuries. The court disagreed. It found that the GC effectively and properly transferred its obligations under OSHA to P & M Water and Sewer in its contract with the subcontractor. P & M agreed to comply with the cited federal safety regulations. The court held that under Illinois law, the GC could not be liable under any of the plaintiff’s theories. The court stated:
“Liability in this case would result only from affecting defendant’s right to contract away private liability for injuries, or from enlarging defendant’s liabilities to plaintiff under §414, by declaring that, via the OSHA, defendant retained control of the work of P&M. Doing so would create an exception that would swallow the rule, because no matter what steps defendant would take to shield itself from liability, the OSHA inevitably would pierce defendant’s armor, striking a fatal blow that otherwise would be blocked under the theories advanced by plaintiff.”
Learning Point
Add Downs to the growing list of Illinois cases which appear to provide some level of insulation to a GC for the subcontractor’s employee. However, a court will not find that a GC owed no duty to the injured worker unless the contractual language and the facts demonstrate and support that conclusion.
Downs and its predecessor cases, Rangel, Kotecki, et al. are instructive in that they provide a two-step defense mechanism for a GC to insulate itself from liability against claims asserted by an injured employee of a subcontractor. First, the contract between the GC and its subcontractors should make explicitly clear that the GC is not responsible for the safety of the job site as it pertains to any employee of the subcontractor. Further, the contract should be clear that the GC is not responsible for the means and methods employed by the subcontractor or the operative details of the subcontractor’s work, but only the desired end. With the protection of the contractual language, the GC should ensure that the GC did not direct the operative details of the subcontractor’s work, that it allowed the subcontractor to perform its work in its own way, and that it did not control the incidental aspects of the subcontractor’s work. •
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