Conflicts in the Illinois Appellate Court Regarding "Retained Control" of a Worksite May Cause the Supreme Court to Intervene
July, 2005
A newly decided Illinois First District case, Cochran v. Sollitt, 2005 WL 1538240 (Ill. App. 1st Dist.), may cause the Illinois Supreme Court to clarify the Restatement (Second) of Torts §414 “retained control” concept. Although Restatement (Second) §414 and its comments outline the various scenarios under which a general contractor (GC) can be liable for its subcontractor’s work and employees, several recent cases call into question the exact effect and application of §414.
In Cochran, the GC entered into a construction contract with a hospital. Under that contract, the GC assumed certain responsibilities for safety on the project. The GC subcontracted out certain work to be done by the plaintiff’s employer. The subcontract made the subcontractor responsible for the safety of its employees. The subcontractor was required to conduct safety toolbox meetings and was in control of its own work and the means and methods of performing its work.
The plaintiff was injured when he fell from a ladder that was placed on top of two plywood boards balanced on top of milk crates. The testimony indicated that: the GC was not aware of the condition where the plaintiff was injured; the GC did not participate in any of the subcontractor’s safety meetings; the subcontractor provided its own equipment; and that the GC required that every subcontractor have its own safety program.
Although the GC admitted in discovery that it had “general control” over the subcontractor’s work, it did not have “specific control” over the plaintiff’s employer. The GC’s job was primarily to coordinate the work of various subcontractors. Although the GC did not perform specific walkthroughs, it did observe the progress of the work and if it found a dangerous condition it had the authority to stop the work.
The GC moved for summary judgment arguing that the language of the construction contract between it and the hospital that delegated safety responsibility to the GC was not controlling and that the existence of a duty on the part of the GC was governed by the “retained control” concept articulated in of the Restatement (Second) of Torts §414. §414 and its notes provide:
The employer must have retained at least some degree of control over the manner in which the work was 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 the methods of the work, or as to the 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.)
The GC argued that it owed no duty of care to the injured employee of the subcontractor because “it did not exercise such control over the operative details of the subcontractor’s work and that subcontractor’s employees were entirely free to perform the work in their own way.” In the alternative, the GC argued that it could not be held liable under the retained control theory because it did not have actual or constructive notice of the dangerous condition of the ladder.
The trial court granted the GC’s motion for summary judgment and an appeal followed. The plaintiff argued that the GC owed him a duty of care under two alternative theories: (1) the retained control theory of §414 of the Restatement; and (2) the premises liability theory of §343 of the Restatement. The appellate court found that the premises liability theory under §343 of the Restatement was waived because it was not advanced during the summary judgment argument.
As for the “retained control” concept under §414 of the Restatement, the plaintiff argued that the Fourth District’s decision in Moss v. Rowe Construction, 344 Ill. App. 3d, 772, 801 N.E.2d 612 (4th Dist. 2003) was controlling. In Moss, the GC’s contract with the owner specifically provided that the GC would be responsible for all safety. This provision of the general contract was incorporated into all of the subcontracts. The court framed the essential issue of retained control not in terms of who had “control of the means and methods of performing the task,” but rather who “contractually and/or physically had the duty to control the safety of the project.” Ultimately the Fourth District in Moss decided that the language of the contract precluded summary judgment for the GC because genuine issues of material fact remained as to whether the contract placed the duty to control safety on the defendant and whether the defendant physically exercised or failed to exercise that duty.
The First District Court in Cochran rejected the Moss decision as it had in Martens v. MCL Construction, 347 Ill. App. 3d 303, 807 N.E.2d 480 (1st Dist. 2004). In Martens, the First District Court disagreed with Moss that the essential issue was whether the defendant had undertaken the task of controlling the safety of the project. In Martens, the court stated that the central issue was if the “retained control” of the independent contractor’s work was contractual, supervisory, operational or some mix thereof. The party who retains such control of the work is the logical party upon whom to impose a duty to ensure worker safety. Penalizing a GC’s efforts to promote safety and coordinate a general safety program among various independent contractors at a large job site hardly serves to advance the goal of work site safety. The party who retains such control over the safety of the work has a duty to exercise that control with ordinary care.
In Cochran, the First District Court affirmed summary judgment in favor of the GC. The court determined that there was no evidence that the GC controlled the operative details of the work performed by the subcontractor that employed the plaintiff. The court noted that the GC could not be liable to the plaintiff under §414 of the Restatement because it: 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” of the job site; and did not get involved in the operative details of the safety program used by the subcontractor that employed the plaintiff.
As this division between the districts regarding liability imposed under the “retained control” concept of §414 of the Restatement becomes more apparent with additional case law, it is likely the Illinois Supreme Court will be called upon to resolve the issue. It appears that in most of the cases imposing liability upon the GCs, the GCs had contracts with the owners containing language making the GCs responsible for safety on the job site. In the event of a suit filed by a worker injured on the site, it is important to analyze and properly review the safety provisions of the contracts of the subcontractors. The language contained in those subcontracts, according to the Fourth District will be persuasive as the determining factor as to whom has responsibility to the subcontractor’s employees in case of injury. However, decisions from the First District suggest that the party that exercised its’ “retained control” for job site safety is the entity that has a duty to workers on the job site.
Learning Point:
As is outlined in previous decisions such as Moss and Martens, if the GC fails to exercise reasonable care in complying with a “specific mandate for safety contained in the contracts” and therefore should have known that a subcontractor’s work was being done in an unsafe or dangerous manner, it is likely that the GC will be found to have a duty to an injured employee of the subcontractor. However, as different factual situations present themselves to the courts, this will be an issue that will continue to develop with a potential for continuing conflicts in the different districts of the appellate court. As a result, legislative and/or Supreme Court intervention may be necessary to more clearly define the concept of “retained control” under §414 of the Restatement. •
Back to CM Report On Construction (2005) 2005 Table of Contents
