Retaining Control Over Subs Could Cause Liability

Wednesday, January 28, 2009 | 0

By Shawn R. Biery


Synopsis:
If you, as a general contractor, exercise sufficient control over the work performed on the job sites, summary judgment may not be granted and you may face trial to determine if you would be liable for injuries of a subcontractor's employees.
 

Editors comment:
This case reiterates and is arguably a potential expansion of a theory already noted in various areas of Illinois law, which generally holds a party who controls the work/worksite potentially liable for injury to subcontractors' workers, even though they are not direct employees of the controlling party.

It should be noted  the "control" exerted here involved removing an essential "tool" of the job, which was to be contractually provided. In Carcia v. Wooton Construction LTD (No. 1-07-1883 December 29, 2008), the Illinois Appellate Court, First District, First Division was presented with two questions: (1) Whether Wooton retained sufficient control over the work by Cullen to impose a duty of reasonable care under section 414 of the Restatement (Second) of Torts) and (2) Whether a material question of fact existed as to the proximate cause element of Plaintiff's negligence claim against Wooton.
 

By way of background, in August 2002, a condominium complex known as "Kingsbury on the Park" in Chicago was being developed. The property was owned by Smithfield Properties. Wooton Construction, the general contractor, was a subsidiary of, or otherwise affiliated with Smithfield. Wooton contracted with Zalk Josephs Fabricators, to fabricate structural steel. Zalk subcontracted with plaintiff's employer, JP Cullen & Sons, to erect the steel.

A crane was to be provided, however, at some point Wooten indicated they were taking the crane for use by another party. Shortly before his lunch break on Aug. 28, 2002, plaintiff, an ironworker apprentice with the Cullen raising gang, was in the process of unloading a crane basket containing approximately 10 kegs of bolts, which weighed between 100 and 200 pounds and plaintiff felt something "pop" in his back and he experienced severe pain. He reported the injury and, on September 4, 2002, went to Northwestern Hospital and was eventually diagnosed with a herniated disc for which he underwent surgery, but was not "cleared" by his doctor to return to ironworking.
 
On Aug. 10, 2006, plaintiff filed a second-amended complaint. Plaintiff alleged defendants committed nine instances of negligence. The court noted defendants failed to provide a crane or other mechanical device to move the kegs of bolts. Subsequently, plaintiff voluntarily dismissed Smithfield. Zalk's motion was also granted and was not raised on appeal. Ultimately, Wooton filed a motion for summary judgment. Wooton contended it did not owe a duty to plaintiff because it did not retain control over Cullen's work under section 414 of the Restatement (Second) of Torts. Wooton also argued plaintiff could not establish its acts or omissions proximately caused injury.
 
In its written order granting summary judgment, the trial court gave two grounds. First, Wooton owed no duty of care to plaintiff. Second, in any event, plaintiff could not show his injury was proximately caused by Wooton's alleged breach of its duty of care. This court noted the general rule  one who employs an independent contractor is not liable for the independent contractor's acts or omissions. Section 414 provides an exception to this general rule. "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, at 397 (1965).
 
This exception, known as the "retained control exception," was recognized by our Supreme Court in Larson v. Commonwealth Edison Co. In order for this exception to apply, it must be shown the general contractor retained sufficient control over the work of the subcontractor so the law recognizes the existence of a duty to exercise "supervisory control with reasonable care."

In this claim, the analysis focused on whether Wooton retained a level of control sufficient to give rise to a duty of reasonable care. In essence, plaintiff contended a sufficient degree of control over the work by Cullen was exercised by Wooton's control over the only crane available at the work site. The Cullen raising gang, of which plaintiff belonged, required the use of a crane to perform its work. The contract between Wooton and Zalk, which was incorporated into the contract between Zalk and Cullen, expressly stated Wooton would provide the crane and, in accordance with industry practice, would control its use.

Plaintiff argued Wooton, in controlling the use of the crane, had a duty to exercise reasonable care in taking the crane from use by Cullen. With Wooton assuming control over the only crane at the work site and in light of the conceded need for the use of the crane for the raising gang to perform its work, it followed Wooton retained some degree of control over the manner in which the work of the Cullen raising gang was done. Wooton controlled the "means and methods" of the work contracted to be done by the Cullen raising gang, by Wooton depriving Cullen of the use of the crane to do crane-dependent work.

The court noted direct evidence was presented of Wooton's exercise of control over the unloading of the kegs of bolts by plaintiff when a Wooten representative directed the basket full of kegs of bolts be unloaded manually. The court noted this holding did not mean Wooton was liable for plaintiff's injuries; the alleged breach of the duty remained a question for the jury.
 
On the second question of proximate cause, the court found plaintiff presented sufficient evidence to support his claim  he would not have lifted the kegs manually but for Wooton's control over the crane, which it sought to take from Cullen to give to another subcontractor. Based upon their findings, the court noted the facts could give rise to a duty of care and it was for a jury to decide the question of proximate cause so they reversed and remanded for those determinations.
 
This case should be important to most general contractors. It may now be important to note to your various foremen and supervisors that they not only may create liability by directing the subcontractors in the manners by which duties are performed, but they now also may be creating liability by actions which affect the ability for the subcontractor to perform the duties such as moving equipment to other areas of the job.

Our initial suggestion would be to review agreements with subcontractors to avoid providing equipment if possible or by allowing for the use of the equipment with a penalty for use past certain deadlines to cover the cost of delays caused by deadline overruns involving shared equipment.

Obviously all-new contracts would have to be reviewed on a case-by-case basis to make determinations of any potential control by subtraction.





Shawn R. Biery is a partner in the Chicago law firm of Keefe, Campbell & Associates.

The views and opinions expressed by the author are not necessarily those of WorkCompCentral.com, its editors or management.