Illinois Appellate Court Finds No Liability For Construction Accident Where Defendants Lacked Sufficient Control Over Jobsite
March, 2004
In Martens v. MCL Construction Corp. and Shelco Steel Works, Inc., 807 N.E.2d 480 (Ill. App. 2004), the Illinois Appellate Court addressed the level of “control” over a jobsite that is necessary to establish liability for a construction accident. The court examined control by contract, supervisory control, and operational control, and concluded that, regardless of the control theory asserted, a critical examination of the facts is required to create a triable question of fact.
Facts
Plaintiff, an iron worker, was injured when he lost his balance and fell off a beam. MCL Construction Corp. (MCL) was the construction manager for the project and it contracted with Shelco Steel Works, Inc. (Shelco) for the steel fabrication and erection work. Shelco subcontracted with plaintiff’s employer, F. K. Ketler Co. (Ketler), for the erection of the structural steel. Plaintiff sued MCL and Shelco, alleging that they breached their duty to provide him with a safe place to work by failing to provide fall protection.
Plaintiff exclusively took his directions from Ketler foremen, and the foremen determined whether their crew members needed to tie off in a given situation. MCL’s safety director visited the job site twice a week, and addressed safety observations at meetings with foremen. He could make safety recommendations to Ketler foremen and could impose a fine if a Ketler worker was in violation of the OSHA tie-off standard, but he could not demand that ironworkers comply with a standard that was greater than the OSHA requirements. MCL’s project manager was at the site daily and ran safety meetings on a regular basis. Shelco’s project manager was at the jobsite periodically, and he could raise concerns to Ketler management but he could not supervise the ironworkers or tell them how to do their job. Plaintiff was not tied off at the time of the accident Due to the location on the project where he was working, there was no OSHA requirement that he be tied off at that time.
Analysis
MCL and Shelco moved for summary judgment, arguing that they did not owe a duty of care to plaintiff because they did not retain sufficient control over the steel erection work. The trial court granted their motion and the appellate court affirmed, reasoning as follows.
As a general rule, one who employs an independent contractor is not liable for the independent contractor’s acts or omissions. Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 838 (1999). There is, however, a “retained control” exception to this rule, set forth in Section 414 of the Restatement (Second) of Torts: “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.” In determining whether the retained control exception applied in this case so as to impose upon a defendants a duty of care to plaintiff, the appellate court looked to three types of control and found that all three were lacking here.
(1) Control by Contract: Even though MCL was contractually responsible for initiating and supervising a safety program for the project, which entailed citing contractors for rule and regulation violations, maintaining reasonable safeguards, and designating a safety director at the site whose duty was to prevent accidents, the court did not equate those safety responsibilities with control over the means and methods of Ketler’s steel erection work. The court found that Shelco also lacked contractual control over the means and methods of the steel erection work.
(2) Supervisory Control: A party who retains some control over the safety of the work does have a duty to exercise that control with ordinary care, but the existence of a safety program, safety manual or safety director does not constitute retained control per se. Instead, a defendant’s safety program will bring it within the ambit of the retained control exception only where it “sufficiently affect[] a contractor’s means and methods of doing its work.” Here, such was not the case. Even though MCL’s safety director and project manager and Shelco’s project manager were on site at times and could raise safety concerns to Ketler’s foremen, plaintiff failed to establish that defendants supervised Ketler’s work or maintained an extensive work site presence and, thus, were liable for failure to exercise supervisory control with reasonable care. They could not stop the work or instruct or supervise the ironworkers, and they did not retain or exercise authority over Ketler’s method of operation.
(3) Operational Control: Ketler was free to perform its work in its own way and only Ketler exercised control over plaintiff’s work. Orders were given to the Ketler crew by the Ketler foremen. No one from MCL or Shelco was involved in Ketler’s steel erection work or even present when plaintiff fell. MCL and Shelco thus lacked the requisite involvement with the operative details of the work of Ketler or plaintiff to give rise to a duty of care.
Learning Point:
Contract language clearly setting forth the respective responsibilities of contractors and subcontractors with regard to control over the means and methods of work to be performed on a project is very important. However, as can be seen from this decision, the courts do not begin and end their “control” analysis with the language of the contracts. Courts also examine the actual exercise of control: “The central issue is retained control of the independent contractor’s work, whether contractual, supervisory, operational, or some mix thereof. The party who retains control is the logical party upon whom to impose a duty to ensure worker safety.” In limiting your exposure to liability for injuries to employees of subcontractors, do not rely on contract language alone and do not exercise means and methods control on a job site that is beyond the scope of your contractual responsibilities. ¨
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