"Clifford v. Wharton," 817 N.E.2d 1207 (III.App.2004): A Restatement §414 Claim Against a General Contractor by any Other Name is Still a Restatement § 414 Claim
April, 2005
by Edward M. Kay and Melinda S. Kollross
The Strategem:
In recent personal injury litigation involving construction-related accidents, plaintiffs' attorneys have employed a strategem in cases against general contractors arising under Restatement § 414. That section provides that “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.” Plaintiffs' attorneys, fearing that they do not have the evidentiary muscle to convince a trial court or jury that a general contractor has control over the work, have repackaged their § 414 claims into claims arising under Restatement § 343 which subjects a possessor of land to liability for physical harm caused to invitees by conditions on the premises. As support for this maneuver, plaintiffs' attorneys are citing the recent decision of the Illinois Appellate Court in Clifford v. Wharton Business Group, 817 N.E.2d 1207 (Ill. App. 2004), asserting that Clifford lessens their burdens of proof on the issue of control. This is wrong and we advocate an aggressive stance in attacking this “repackaging” of claims by plaintiffs' attorneys in construction-related accidents.
The Clifford Decision
In Clifford, the plaintiff carpenter, who was employed by a subcontractor, sued the defendant general contractor for injuries suffered working on a construction site owned by defendant. His wife brought a loss of consortium claim. Plaintiffs' initial complaint sought damages only under Restatement § 414. After defendant moved for summary judgment, plaintiff amended the complaint to add a count under Restatement § 343 because defendant owned the premises. The trial court struck the § 343 claim as duplicative of the § 414 count and granted defendant summary judgment, finding that defendant did not retain sufficient control over the operative details of the subcontractor's work to impose liability under § 414.
On appeal, plaintiffs argued that the trial court erred in finding that the sole remedy was § 414. Plaintiffs contended that because defendant owned the subject premises, he could also seek relief under § 343 - conceding, significantly, that defendant owed no duty of care under § 414. Defendant, by contrast, argued that construction negligence cases brought by a subcontractor's employee against a general contractor may only be pled under § 414.
The Appellate Court agreed with plaintiffs on the § 343 issue, and found that a § 343 claim may be asserted against a general contractor “as the owner or possessor of the premises” if the complaint is premised upon a dangerous condition on the land. 817 N.E.2d at 1214. Where, however, the complaint alleges only the “failure to exercise supervisory control over a subcontractor,” the claim arises solely under § 414. Id.
The Clifford plaintiff alleged that he was injured when a newly built wall collapsed on top of him causing him to fall or be thrown into a nearby stairwell opening in the floor. The Court found that “plaintiffs consistently alleged that [defendant] was negligent in permitting dangerous conditions [the defective wall] to exist at the construction site” as opposed to the mere failure to exercise supervisory control over a subcontractor. 817 N.E.2d at 1214. The Court then reversed the grant of summary judgment to defendant on the § 343 claim, finding that defendant owed plaintiff a duty of care under § 343 as the owner of the premises upon which plaintiff was injured:
[W]e agree with plaintiff[] that a possessor of land, including a general contractor, owes its invitees a common law duty of reasonable care to maintain its premises in a reasonably safe condition …(817 N.E.2d at 1214).
Finally, although it was no longer at issue, the Court affirmed the trial court's grant of summary judgment to defendant on plaintiff's § 414 claim:
[W]e uphold the circuit court's finding that [defendant] may not be held liable under the retained control exception of section 414. There is no indication that [defendant] exercised the level of control necessary to subject it to liability under section 414. [Defendant] clearly did not control the operative detail of [the subcontractor]'s methods of work, such that [the subcontractor] was not entirely free to do the work in its own way. [Defendant] did not supply any equipment to [the subcontractor]'s employees, did not direct the carpenters how to perform their tasks, and did not hold safety meetings or maintain safety rules for subcontractors. (817 N.E.2d at 1219)
Clifford teaches that a subcontractor's employee may assert a cause of action against a general contractor under § 343 only where two criteria are met: (1) the plaintiff alleges that his injury was caused solely by a dangerous condition on the land, and not by the general contractor's alleged failure to exercise supervisory control over the subcontractor; and (2) the general contractor owns or possesses the premises upon which plaintiff as injured. Simply put, Clifford does not support the mere repackaging of a § 414 claim into a § 343 claim.
The Clausen Miller Recommended Defense Strategy
If plaintiffs do no more than simply re-allege a general contractor's failure to exercise supervisory control as a basis for their § 343 claim, a motion to dismiss should be made against the § 343 claim because, as Clifford makes clear, such allegations can only support a § 414 claim:
We disagree with [defendant]'s contention that plaintiffs' pleadings did not allege the negligence claim as being premised upon a dangerous condition on the land [the defective wall], which would be governed by sections 343 and 343A, and only alleged a failure to exercise supervisory control over a subcontractor, which would be governed by section 414. (817 N.E.2d at 121)
Additionally, the general contractor is rarely the owner of the premises -- unlike Clifford where that general contractor did own the premises and that ownership formed the basis of plaintiffs' § 343 claim. Further, there are various hurdles plaintiffs must overcome in establishing that a general contractor was the possessor of the premises. In this respect, it is insufficient that the general contractor occupies the premises; plaintiff must meet a heavy burden in establishing that the general contractor intended to control the premises before a duty of care under § 343 will be imposed upon it.•
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