In Lederer v. Executive Construction, 2014 IL App (1st) 123170, a drywall subcontractor’s employee sued a general contractor and an electrical subcontractor after the stilt-walking employee tripped on an uncovered electrical outlet at a downtown (Chi.) office building construction site. The outlet was left uncovered by the electrical subcontractor who was hired by the general contractor. The plaintiff’s theory of recovery was negligence: he argued that the general contractor owed and breached a legal duty of care to the plaintiff (and others like him) to ensure that the electrical subcontractor was adhering to project safety requirements.
The general contractor moved for summary judgment on the basis that it didn’t supervise the electrical subcontractor and wasn’t responsible for plaintiff’s injuries. The trial court agreed and granted summary judgment for the general contractor. The plaintiff appealed.
Result: summary judgment for the general contractor reversed. Questions of fact concerning the degree of control the general contractor exerted over the project and the plaintiff’s work precludes summary judgment.
Rules/Reasoning:
The First District found that the evidence showed that the general contractor exerted enough supervisory control over the project that it could be liable for an independent (sub)contractor’s negligence. The following liability principles controlled the Court’s analysis:
– Under Illinois negligence law, whether a duty exists is a question of law to be determined by the court;
– A general contractor defendant is usually not liable for negligence of an independent contractor;
– Under Section 414 of the Restatement (Second) of Torts, a defendant can be liable for the negligence of an independent contractor where it retains (a) control over the operative detail of the independent contractor’s work; or (b) “supervisory control” over the work;
– Supervisory control consists of the power to direct the order in which a contractor’s work is to be done;
– But, a defendant is not liable where he merely has a general right to order work stopped or resumed, to inspect work progress and to receive status reports. In such a case, there isn’t enough control to subject the defendant to liability for the independent contractor’s negligence;
– The best indicator of whether a contractor has retained control is the parties’ contract;
– A defendant general contractor only needs to retain control over a single part of the overall work to be subject to liability for failure to exercise control with reasonable care.
(¶¶48-58); Restatement (Second) of Torts, s. 414, comments a-c.
Here, the Court pointed to substantial record evidence that showed the general contractor controlled and supervised multiple aspects of both the electrical sub’s and the drywall sub’s (the plaintiff’s employer) work including: (1) retaining authority to stop unsafe work; (2) ensuring that all subs followed the general contractor’s safety policies; (3) having a strong work site presence; (4) having its safety coordinator visit the site regularly; and (5) all subcontracts had extensive references to project safety and required all subs to adhere to the defendant’s written safety guidelines.
Significantly, the defendant’s safety manual specifically banned the use of the type of stilts the plaintiff was using (to reach the high ceiling) when he was injured. Taken together, these facts established as a matter of law that the defendant knew or should have known of the dangerous conditions surrounding the plaintiff’s injury. (¶¶ 62-64).
Take-aways: Aside from providing a thorough synopsis of the relevant negligence principles and liability-shifting rules that govern construction project injuries, the case should serve as a cautionary tale for general contractors who carry on an active presence on a job site. It’s clear that if a general contractor exerts even a modicum of control over a subcontractor and takes an active role for setting the safety guidelines on a project, that contractor may be held liable for a subcontractor’s employee’s on-site injuries; at least enough to survive summary judgment.