How Much Control Must A General Contractor Exert Over The Work Of Its Subcontractor To Be Found Liable For Injuries Sustained By The Subcontractor’s Employee?
June, 2007
by P. Scott Ritchie and Steven N. Novosad
The use of common law actions by plaintiffs to recover for injuries sustained as a result of working on construction projects is more prevalent since the abolition of the Illinois Structural Work Act in 1995. Since the Illinois Structural Work Act was repealed, plaintiffs have generally sought recovery under either § 414 or § 343 of the Restatement (Second) of Torts (“Restatement”).
While it is generally true that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor, Illinois has recognized an exception to that rule in § 414 of the Restatement. Larson v. Commonwealth Edison Company, 211 N.E.2d 247 (1965) adopted § 414 as part of the common law in Illinois. § 414 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.
a. 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 a 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.
b. 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.
c. 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.
Traditionally, courts have had a difficult time interpreting the term “control” in favor of defendants. The problem for the courts has been distinguishing between “control” - for which a defendant is liable, and mere “supervisory control” - for which a defendant is not liable. Reviewing courts have adopted different approaches in analyzing the control requirement thereby making it unpredictable under what circumstances a defendant in a construction suit may be found liable for the injuries sustained by an employee of its subcontractor. Recently the Illinois Appellate Court in Moiseyev v. Rot’s Building and Development, Inc., 860 N.E.2d 1128 (3rd Dist. 2006) helped to clarify this analysis.
In Moiseyev, the plaintiff was employed by a subcontractor as a plasterer and was injured when he fell from a scaffold. The subcontractor did not have a written contract with the general contractor. The general contractor admitted that it coordinated the work on the project and organized the subcontractors, but denied it performed any of the physical construction work. While the general contractor monitored the quality of the work being performed by the subcontractors and ensured that the work conformed to the plans and specifications for the project, the individual subcontractors were responsible for the safety of their crews. The general contractor did not instruct the subcontractors how to safely perform their jobs in any manner. Further, the general contractor did not have its own safety program or any type of written safety procedure in place for the project.
The general contractor monitored the performance of the subcontractors on the project by personally being present on the job site. The general contractor admitted that it could step in at any time and halt the work of a subcontractor if its work did not conform to the plans, or if the work appeared to be unsafe. However, the general contractor had never invoked that right on the job site.
The general contractor provided no tools or equipment to the subcontractor that employed the plaintiff, nor did it have any discussions with the subcontractors regarding the means and methods of its work. The general contractor never directed the subcontractor on how to do its work, never supervised the means of the subcontractor’s work, and never corrected the subcontractors on how to do their job. The general contractor did not provide the scaffolding from which the plaintiff fell, nor did it ever inspect the scaffold. The subcontractor that employed the plaintiff was solely responsible for the construction and safety of the complained of scaffolding.
The general contractor moved for summary judgment arguing that it owed no duty to the plaintiff because it did not retain control over any part of the plaintiff’s work and that the plaintiff was free to do the work in its own way. The plaintiff argued that the general contractor retained sufficient control of the work site to impose a duty upon it to provide him with a safe work place. The trial court granted the motion for summary judgment of the general contractor and its decision was affirmed on appeal.
In its analysis, the court questioned whether to establish the general contractor’s liability under § 414, the plaintiff had to prove that the general contractor controlled the “routine and incidental aspects” of the subcontractor’s work, or prove that the defendant general contractor retained control over any part of the work and failed to exercise reasonable care of that control. The court recognized that the test of retaining control over any part of the work was broader than the test in which the defendant must retain control over the routine and incidental aspects of the work in order to be found liable. In Moiseyev, the court determined that for it to impose a duty, the defendant must retain control over the routine and incidental aspects of the work, which includes an analysis of the operative details of the work.
The court in Moiseyev recognized that § 414 balances a defendant’s liability between the standard liability of a principle who controls an agent and the lack of liability in the traditional independent contractor relationship. While § 414 does not provide an analytical definition of control, it does provide various illustrations and examples of what does and does not constitute control. Absent a specification definition, the courts are left to decide on a case-by-case basis whether or not a general contractor exerted the requisite level of control to impose liability.
In summarizing the other cases that have considered this issue, the court in Moiseyev found that a general contractor exerts control when it “supervises the entire job and effects the means and methods of the subcontractor’s work, preventing the subcontractor from working in its own way, and/or is consistently present on the jobsite directing operative details of the subcontractor’s work, or supervises the entire safety program, and fails to prevent the subcontractors from doing the details of the work in a way unreasonable 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 authority to prevent it by exercising the power of control which he has retained himself.” Moiseyev, 860 N.E.2d at 1138.
Conversely, a general contractor does not retain control when it “merely retains the general right to order the work stopped, or . . . merely retains the general right to inspect work progress or process or receives reports.” Id. at 1138-1139. In such instances, control is what triggers liability, not a general interest in safety. According to the Moiseyev court, this analytical approach “emphasizes the importance of the degree of control over the manner in which the work is done and is a highly factual inquiry into the degree of control over routine and incidental aspects of the work.” Id. at 1139.
In Moiseyev, the court held that there was not enough evidence to show that the defendant retained sufficient control of the work to impose a duty on it under § 414. Important to the court’s analysis was the lack of any written contract between the defendant and the subcontractor that employed the plaintiff. Further, the plaintiff’s employer supplied all of its own tools on the job and exclusively instructed the plaintiff and his fellow employees on how to do their job. Further, the plaintiff admitted that he had absolutely no contact with anyone from the defendant general contractor. Even though the defendant retained the right to halt the work on the jobsite at any time for any reason and went onsite to inspect the work progress, the court held that it could not impose liability on the defendant unless it “retained control over the ‘incidental aspects’ of the independent contractor’s work.” Id. at 1140.
Learning Point
Under the Moiseyev holding, for a general contractor to become liable for the injury to one of its subcontractor’s employees, the general contractor must not only have the right, but must also have exercised its right to control the operative details of the subcontractor’s work. This means more than the general control of the project, i.e., making sure that the subcontractor’s work complied with the contractual specifications. Instead, the general contractor must control the means by which the work of the subcontractor is to be achieved, i.e., the manner, methods and means of construction.
It also appears to be important to this analysis that there was no written contract that could have delineated the general contractor’s further obligations. Also, the general contractor did not appear to exercise its implied rights to control the subcontractor’s work.
It is interesting to note that other jurisdictions have interpreted § 414 in a similar fashion with respect to the owner exerting control of the job site. In those instances, the courts have ruled that it is normal for an owner or interested party to visit the scene of new construction to observe the progress of work, but that such inspections of finished work furnish no evidence of a right to control the workmen and instead shows only an interest in the result to be obtained. See, Farabaugh v. Pennsylvania Turnpike Commission and Trumbull Corporation, 2006 WL 3813765 (Pa. Dec. 28, 2006).
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