CONSTRUCTION NEGLIGENCE CASES IN ILLINOIS

A LOOK AT SECTIONS 414 AND 343 OF THE RESTATEMENT (2d) OF TORTS

Joseph F. Spitzzeri

Genevieve M. LeFevour Johnson & Bell, Ltd.

Prior to 1995, liability associated with construction-related injuries in Illinois was

analyzed under the Illinois Structural Work Act, which co-existed with common law negligence

principles. The Act was repealed, however, in 1995, leaving the common law negligence

principles including those found in sections 343, 343(A), and 414 of the Restatement (Second) of

Torts. These are not mutually exclusive and each one offers an independent basis for recovery.

Kotecki v. Walsh Construction Co., 333 Ill.App.3d 583, 776 N.E.2d 774 (1st Dist. 2002).

To recover under a construction negligence theory, plaintiff has to present sufficient

evidence to establish that the defendants owed him a duty. Wojdyla v. City of Park Ridge, 148 Ill.

2d 417, 592 N.E.2d. 1098 (1st Dist. 1992.) Whether a duty exists is a question of law to be decided

by the court, and if none exists, plaintiff cannot recover. (Schoenbeck v. DuPage Water

Commission, 240 Ill. App. 3d 1045, 607 N.E.2d 693 (1st Dist. 1993).

With regards to the allegations involving construction negligence, the general rule in Illinois

is that one who employs an independent contractor is not liable for the acts or omissions of the

independent contractor. Gomien v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 276 N.E.2d 336

(1971). Section 414 of the Restatement reads as follows:

“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.”

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See Restatement 2d of Torts § 414 (1965).

The “retained control” concept is explained in comment (c) to § 414 below:

“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 that need not necessarily be followed, or to prescribe alternations and deviations. Such as 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.”

Section 414 of the Restatement clearly sets forth the exceptions to the general rule of

general contractors not being liable for actions of independent contractors. Under these exceptions,

an employer of an independent contractor can nevertheless be subject to vicarious liability for the

contractor’s negligence if the employer retains control over the operative details of the contractor’s

work. Alternatively, even in the absence of such control, an employer may be subject to direct

liability where it assumes supervisory duties on a construction project and fails to exercise them

with reasonable care. Recio v. GR-MHA Corp., 361 Ill.App.3d 48, 851 N.E.2d 106 (1st Dist. 2006).

In either case, the scope of liability for the employer of an independent contractor is determined by

the scope of its undertaking. Id. Moreover, such an employer cannot be held liable unless it knew

or had reason to know of danger to the contractor’s workers. Id.

Important and Recent Positive Defense Cases under Section 414

Although it is an older case, Connaghan v. Caplice, 325 Ill.App.3d 245, 757 N.E.2d 971,

(2nd Dist., 2001) is a very good defense case and must be noted and discussed. Connaghan

involved an independent contractor who was injured after falling off a ladder at defendant

owner’s home. The defendant hired plaintiff to perform rough carpentry work on defendant’s

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home and garage. Id. at 973. The plaintiff’s complaint against defendant homeowner sounded in

negligence stating that defendant owed plaintiff a duty pursuant to Section 414 of the

Restatement Second of Torts. Id. The plaintiff and his partner met with defendant to go over the

plans an architect had prepared for defendant. The plaintiff then told defendant what materials he

and his partner would need to complete the job and defendant bought the materials. Id. The

plaintiff and defendant had no conversations about who would supply the tools for the job or who

would be responsible for safety.

The plaintiff and his partner then proceeded to build the garage walls. The plaintiff

testified that he knew how to do the work based on his thirty years of experience in carpentry. He

never asked defendants for direction on how to perform any task and defendant never directed

him how to perform his work. Id. Moreover, plaintiff and his partner decided their own work

schedule and even though defendant did come around and check on the progress of the work, he

never criticized the work or told them they were doing something unsafe. Id. at 247.

In addition, the plaintiff and his partner provided their own tools to perform their job,

although at times, they would use defendant’s ladders. Id. On the day of the accident, the

plaintiff fell off one of defendant’s ladders after trying to climb up to nail the rafters. Id. As a

result of his fall off defendant’s ladder, the plaintiff filed suit against defendant.

Before trial, defendant homeowner moved for summary judgment stating that the plaintiff

was an independent contractor and that defendant did not retain control over the incidental

aspects of his work pursuant to Section 414 of the Restatement Second of Torts and therefore

could not be liable to the plaintiff. Id. The plaintiff then attempted to defeat defendant’s motion

for summary judgment through attaching an affidavit of an engineering expert who had opined

that the ladders were old, in disrepair, and violated OSHA safety standards as well as the fact that

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OSHA standards were violated by the failure to provide adequate scaffolding. Id. However, the

trial court agreed that the defendant did not control the incidental aspects of the plaintiff’s work

and granted defendant’s motion for summary judgment.

On appeal, the Appellate Court for the Second District affirmed the trial court’s granting

of summary judgment, but stated that the trial court was incorrect to even do a Section 414

analysis. The Appellate Court held that there was no need to do a Section 414 analysis because

Section 414 did not apply in the first place and that the defendant owed no duty to the plaintiff

under Section 414. In short, the court explained that Section 414 of the Restatement does not

apply to independent contractors and that plaintiff’s reliance on 414 to try and hold the defendant

liable was misplaced. Id. at 249, 975. Specifically, the court noted that,

One essential element of a negligence action is the existence of a duty that the defendant owed the plaintiff. Plaintiff claimed that defendant owed plaintiff a duty of reasonable care pursuant to section 414 of the Restatement provides an exception to the general rule that one who employs an independent contractor is not liable for the acts or omissions of the independent contractor. Section 414 provides:

One who entrusts work to an independent contractor, but who retains 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.

Thus, section 414 addresses the duty that an employer owes “to others,” for example, employees of the independent contractor and other third parties. Nothing in this section of the Restatement imposes a duty upon employers that inured to an independent contractor. The theory of recovery expresses in section 414 is based on a master/servant relationship or respondeat superior. Such a theory of liability does not encompass liability of the master inuring to the servant for acts or omissions of the servant. There is nothing in the record to establish that plaintiff was anything but an independent contractor. Because section 414 does not contemplate a duty an employer owes to an independent contractor, this section of the Restatement is not applicable. Thus, the trial court properly granted the defendant’s motion for summary judgment. Id.

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Therefore, the court found that since the plaintiff was an independent contractor working for

himself, was not an employee of an independent contractor and was not a third party, Section 414

was not applicable and Plaintiff’s reliance on such was misplaced. Id.

The Connaghan case is an important defense oriented case because if the plaintiff is the

actual independent contractor themselves, Section 414 does not apply and a defendant cannot be

liable.

Another recent helpful defense case that should be highlighted is Gregory v. Exxon

Mobil, No. 1-06-3597 (1st Dist., 2008) which was recently issued by the Illinois Appellate Court

for the First District on May 23, 2008. Gregory involved a plaintiff who worked as an employee

of a subcontractor at a Mobil refinery and while working for the subcontractor came in contact

with asbestos. Prior to trial, Mobil moved for summary judgment on several grounds, one of

which being that Mobil owed no duty to the plaintiff as an employee of an independent

contractor. The trial court granted Mobil’s Motion for Summary Judgment stating that there was

not enough evidence to impose liability against Mobil under Section 414. The court stated that

there was no evidence that Mobil controlled the means or methods by which the plaintiff

performed his work and further, it was not enough that Mobil had the general right to control the

progress of the work, but rather, to impose a duty on it, Mobil must have retained the right to

control the way the contractor did his work. The plaintiff appealed.

On appeal, the Illinois Appellate Court for the First District affirmed the trial court’s

decision. The court found that Mobil did not retain the degree of control necessary to impose

liability upon it. Mobil did not provide any direction and/or supervision to the plaintiff on how to

do his work and moreover, the plaintiff did not look to Mobil for direction on how to do his

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work. Further, although the court noted that Mobil had the general right to stop work, monitor its

completion and control access to the site, these were simply general rights and not mechanisms

that triggered liability under Section 414 of the Restatement.

Gregory represents a positive defense case under section 414 because the court highlights

that the critical question in determining whether a defendant can be liable under section 414 is

whether or not they directed the means and methods by which the plaintiff performed the work.

Oftentimes, plaintiffs try and impose liability because a defendant supplied safety equipment

and/or had the ability to stop work. However, this is not the crucial analysis under 414. The

relevant question to be asked is whether the defendant controlled the means and methods by

which plaintiff performed his/her work.

It is also worth noting the Joyce v. Madison Services, Inc decision. In 2007, the First

District of the Illinois Appellate Court decided Joyce v. Madison Services, Inc., a case involving

a plaintiff who was employed by an independent contractor. 371 Ill.App.3d 64, 861 N.E.2d 1102

(1st Dist. 2007). There, the plaintiff was injured at a construction site on a United States Army

Reserve Base. The defendant Madison Services, Inc. acted as the general contractor on the

project to demolish and install air-handling systems. The defendant hired plaintiff’s employer,

Elk Grove Mechanical, Inc. (EGM) to work on the project. Pursuant to the contract between

EGM and the defendant, EGM was to provide for all labor, materials, equipment, services, and

other items required to complete the work. The contract also stated that EGM was to take

reasonable safety precautions with respect to the performance of the subcontract. Madison

Services (the general contractor) was not to give instructions or orders directly to EGM

employees. EGM was also contractually obligated to keep the premises and areas surrounding the

work area free from accumulations of waste materials.

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The plaintiff alleged that on the day of his accident, he was hurt when he fell off of a

fifteen-foot ladder he was using to remove some ductwork. The ladder’s locking mechanism did

not operate properly, causing the plaintiff to fall down the ladder, injuring his wrist. The plaintiff

also testified that no one told him to use the ladder but rather, that it was available so he used it.

He spoke to his supervisor only once during the project to go over what needed to be done. The

plaintiff never spoke to anyone from Madison Services, Inc. and Madison did not provide any of

the equipment.

Madison Services, Inc.’s project manager was Michael Reinersman. Reinersman testified

that his job was to learn what the scope of the job was for the government and then to pass that

scope on to the subcontractor. On the project, Madison Services, Inc. had no tradesmen. He

visited the work site approximately five times. He never observed work being done in violation

of OSHA or in an unsafe manner. Madison Services, Inc. did have the right to stop work of a

subcontractor at the base if there was a safety hazard, although this was never done. Further,

Reinersman was not present when the plaintiff was injured and no one did any accident

investigation on behalf of the defendant. He also testified the contract with EGM did not mandate

on-site daily supervision nor did Madison have a role in enforcing safety rules. Subcontractors

were to comply with OSHA, based on their contract with Madison. Reinersman also testified that

he never instructed anyone from EGM to use certain tools or equipment or how to go about their

work. Madison did not direct EGM employees, nor did they give any job assignments to them.

An EGM superintendent testified that he supervised the work done by the plaintiff, was

responsible for the job from start to finish, and that he ran the job site. He testified that ladders

were checked at safety meetings run by EGM and that the repair of a broken ladder would be

something he would oversee. He also testified that EGM inspects their ladders, the locking

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mechanism on the ladders, and the ropes on the ladders. He further testified that there was only

one employee of the defendants who would visit the site and that he did so on a very limited

basis. It was also rumored, that the EGM superintendent reported that the ladder was backwards

when the plaintiff tried to use it and that the ladder was at a bad angle. Others also testified that

no one from the defendant Madison came to the work site to supervise EGM or any other

workers. No one had any information that anyone from Madison ever directed any EGM work.

The plaintiff alleged that the defendant, Madison, owed him a duty of care pursuant to

section 414 of the Restatement (Second) of Torts, because Madison retained contractual and

actual control over EGM’s employees. Again, the court looked at the retained control exception

to the rule in section 414 of the Restatement, just as the court had done in Cochran v. George

Sollitt Construction Company. 358 Ill.App.3d 865, 832 N.E.355 (1st Dist. 2005). The court found

that Madison Services neither controlled the safety measures employed at the site nor retained

control over the incidental aspects of the work done by EGM. The court noted the sections in the

contract, which required EGM to provide all labor, materials, and equipment, as well as the

provision that stated Madison would not give orders or instructions to EGM employees. Madison

employee Reinersman only looked at progress at the job site and Madison relied on EGM for

safety compliance. EGM conducted its own safety training and equipment checks. As to whether

the general contractor retained control over incidental aspects of the independent contractor’s

work (which could also create a duty to the subcontractor’s employee), the court found that there

was no evidence showing that Madison directed EGM’s work or directed the operative details of

the work. EGM’s work was not supervised by Madison, nor did Madison participate in the work.

The Madison employee did not direct EGM employees in any fashion.

In addition, the Calderon v. Residential Homes of America case should be highlighted as

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it is another recent positive case for the defense under section 414. In 2008, the First District of

the Illinois Appellate Court decided Calderon v. Residential Homes of America, 885 N.E.2d

1138, (1st Dist. 2008) a case involving a plaintiff who was employed by an independent

contractor. Calderon, 885 N.E.2d at 1140. In Calderon, the plaintiff was injured at a

construction site while providing roofing services for the general contractor. The defendant,

Residential Homes of America, acted as the general contractor on the project to build a housing

development. The defendant hired plaintiff’s employer, Kap Roofing to perform the roofing work

for the project. Pursuant to the contract between Kap and the defendant, Kap was to inspect its

own work for quality.

The plaintiff alleged that on the day of his accident, he was hurt when he fell off of a

ladder as he was carrying a 60-pound bundle of shingles to the roof-top. The plaintiff testified

that the company who was responsible for delivering the shingles were supposed to lift the

shingles to the rooftop but failed to do so. Therefore, although no one instructed him to do so, the

plaintiff carried the shingles to the rooftop via a ladder. On his fourth trip, he lost his balance and

fell of the ladder.

The plaintiff alleged that Residential Homes owed him a duty of care pursuant to section

414 of the Restatement (Second) of Torts because Residential Homes retained contractual and

actual control over Kap’s employees. The court ultimately found that Residential Services neither

controlled the safety measures employed at the site nor retained control over the incidental

aspects of the work done by Kap. The court noted that the sections in the contract, which

required Kap to adhere to the safety manual provided by Residential Homes did not give rise to

liability under 414. Specifically, the court stated that the existence of a safety program, safety

manual and/or safety directors does not constitute retained control. Calderone 885 N.E.2d at

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1147. The court made a special point to note that the reason behind not imposing liability on a

general contractor under section 414 for having a safety program and or manual is because

penalizing a general contractor’s efforts to promote safety and coordinate a general safety

program among various independent contractors does not serve to advance the goal of worksite

safety. Id.

The court further stated that Residential Homes did not exercise the requisite actual

control over Kap to be liable under 414. The court found that Residential Homes merely

maintained general supervisory rights over the plaintiff, but in no way retained control over the

incidental aspects of the plaintiff’s work; the aspect of control necessary to impose vicarious

liability under section 414.

The court also noted that Residential Homes could not be found directly liable to the

plaintiff under section 414. Under section 414, a general contractor can be liable if it does not

exercise its supervisory role with reasonable care. A general contractor’s knowledge, actual or

constructive, of the unsafe work methods or a dangerous condition is a precondition to direct

liability. When a general contractor has an insufficient opportunity to observe unsafe working

conditions, knowledge will not be imputed and liability will not ensue. Id. at 1151. The plaintiff

attempted to argue that Residential Homes had knowledge of the dangerous condition relating to

the ladder and the shingles on the ground because its superintendent maintained a daily presence

on the job site. The plaintiff also argued that he had traversed the ladder several times with the

shingles prior to this accident and therefore Residential Homes would have had knowledge of the

dangerous condition. However, the court stated that a daily presence does not equate constant

monitoring and that there was no evidence that the superintendent ever actually saw the plaintiff

traversing the ladder with the shingles. Further, the court noted that the plaintiff never told the

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general contractor or any of its employees that the shingle company had failed to lift the shingles

to the roof and therefore, the general contractor would have had notice that a dangerous condition

existed on the site. The court found that because the general contractor did not control the

manner in which the plaintiff did his work and did not exercise its supervisory control in a

negligent manner, the general contractor could not be liable under section 414 of the

Restatement. Id. at 1152.

The Calderon decision makes it very evident that a daily presence on the work site as

well as having a safety manual and or program does not give rise to liability under 414 which is

very helpful to the defense.

The Recio case noted above is also important to a potential defendant in a construction

related case. In Recio, plaintiff’s decedent, an employee of a subcontractor, died after falling from a

ladder while carrying shingles. Id. The plaintiff brought suit arguing that by obtaining a building

permit from the city where work was being performed, the general contractor became obligated to

comply not only with that city’s ordinances, rules, and regulations, but also with all other applicable

laws regulating contractors, including federal OSHA regulations regarding ladder safety. Id. The

applicable OSHA standard required that when using a ladder, employees shall not carry any object

or load that could cause a fall. 29 CFR 1926.1053(b)(22) (2005). The plaintiff also cited the case of

Kalata v. Anheuser-Busch Co., which found that a violation of a statute or ordinance designed to

protect human life or property is prima facie evidence of negligence. Kalata v. Anheuser-Busch

Co. 144 Ill.2d 425, 434-35, 581 N.E.2d 656 (1991). A party injured by such a violation then may

recover by showing that the injury was proximately caused by the violation and that the statute was

intended to protect a class of person to which he belongs from the kind of injury he suffered. Recio

at 7. The court held that although a violation of OSHA regulations may be evidence of failure to

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exercise reasonable care, OSHA regulations do not create a duty of care. Recio at 7.

Although Recio is important and a helpful defense case representing the fact that OSHA

regulations do not create a duty of care, it is necessary to note the case of Pozzi v. McGee

Associates, Inc. 236 Ill.App.3d 390, 602 N.E.2d 1302 (1st Dist. 1992). Pozzi states that although an

OSHA regulation may not create a duty, it can be used for the limited purpose of establishing a

standard of care. In Pozzi, the plaintiff was injured after falling off a ladder. Id. The general

contractor’s contract included contract provisions that they would comply with the OSHA

regulation related to ladders and scaffolds. Id. at 404. The court recognized that the general

contractor had agreed and had included the OSHA regulations in their own contract and as such, the

court allowed expert testimony about the OSHA provision at trial and whether it was violated. Id.

This allowed the construction expert to use the violation of the OSHA regulation for the limited

purpose of establishing a standard of care. Id.

Additional Older 414 Cases That Remain Positive For The Defense In Construction

Related Incidents

In the case of Bieruta v. Klein Creek, 331 Ill.App.3d 269, 770 N.E.2d 1175, (1st Dist.

2002); the plaintiff, a worker employed by DuPage as a backhoe operator was injured in an alleged

trench collapse. There, the plaintiff alleged that the owner retained such sufficient control over

safety and the work site that a duty existed to provide the plaintiff with a safe place to work. The

plaintiff contended that Klein Creek should have required a trench box or shoring to reinforce the

trench thereby preventing its collapse and his injury. Bieruta, 331 Ill.App.3d 269 at 275. Summary

judgment in favor of Klein was upheld in that case on the issue of control over the work in

question. The court pointed out that there was no contract between the owner and the excavator;

there was no evidence that Klein had done anything more than tell the subcontractor which lots to

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excavate and for what purpose; and there was no evidence to suggest that DuPage was not entirely

free to perform the work in its own way. Id. at 276. The court further pointed out that Klein never

directed the operative details of the work performed by the DuPage and that the subcontractor

supplied all equipment and instruction on how to perform the work in question. Id. Due to the fact

that the general contractor never directed the plaintiff on how to perform his work, it could not be

held liable under section 414.

Further, in 2005, the Illinois Appellate Court issued a ruling in Cochran v. George Sollitt

Construction Company, 358 Ill.App.3d 865, 832 N.E.355 (1st Dist. 2005). There, the plaintiff, an

employee of a subcontractor of Sollitt Construction (which was the general contractor) fell off of a

ladder while performing work on his first day on the job. The plaintiff claimed he was ordered to

begin work by his foreman (for the subcontractor employer of plaintiff) in a specific area on the job

site. When he got to the area to begin, he saw a ladder owned by his own employer (the

subcontractor) sitting on top of a piece of plywood, which was balanced on top of milk crates. After

climbing to the top of the ladder, the ladder began to “walk” off of the plywood and Cochran

eventually fell, suffering injury.

The plaintiff alleged negligence against the general contractor Sollitt Construction, claiming

that Sollitt failed to provide him with a safe place to work, failed to provide a safe, suitable, and

proper support for his protection, and failed to properly manage, maintain, or control the premises

and the support equipment used thereon. Id. Prior to the incident, the plaintiff never spoke to any

employees of the general contractor and they had never provided him with directions or instruction

regarding the work.

The general contractor and the hospital where work was being performed entered into a

standard American Institute of Architects’ contract. The contract provided that general contractor

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Sollitt was to supervise and direct the work, and be solely responsible for and have control over the

construction means, methods, techniques, and procedures. The general contractor was also to be

solely and fully responsible for the jobsite safety unless they gave timely written notice that such

means or methods may not be safe. The contractor was also to take reasonable precautions for the

safety of and shall provide protection to prevent damage, injury, or loss to employees on the project.

Id.

The President of the general contractor admitted that they had “general control” over the

subcontractors’ work, but denied that Sollitt had “specific control”. Sollitt’s job was primarily to

coordinate the work of various subcontractors. Sollitt’s construction superintendent was not

required to do daily walk-throughs of the job site but in the course of his job, he would have

occasion to observe the work being done and conditions at the site. He also had the authority to

stop work if work was being done in an unsafe manner. The primary responsibility for the safety of

subcontractors’ employees was with the subcontractors themselves. The subcontractors controlled

their own work and had their own means and methods of doing it.

The plaintiff, Cochran, contended that Sollitt Construction owed him a duty of care under

both the retained control theory via Restatement 414, and the premises liability theory of Section

343 of the Restatement. Id. The court in Cochran held that Sollitt Construction’s state of

knowledge and degree of control was insufficient to support a finding of liability under direct

liability. A sufficient basis for imposition of direct liability would include if employees of the

general contractor knew of unsafe conditions or inadequate equipment, and yet, took no step to stop

the work or remedy the situation. There also was no basis within which to infer any vicarious

liability, because no evidence was presented that Sollitt so controlled the operative details of the

subcontractor’s work that the subcontractor’s employees were not entirely free to perform the work

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in their own way.

The First District also decided Pestka v. Town of Fort Sheridan Company, L.L.C., et al.

whereby the court once again looked at what level of control could lead to liability for a general

contractor. 371 Ill.App3d 286, 862 N.E.2d 1044 (1st Dist, 2007) In Petska, the plaintiff worked

for a subcontractor charged with hauling away debris after demolition. He was seriously injured

when a crane operator lost control of a load, causing the load to strike him. He sued the general

contractor alleging the general was in charge of the work occurring at the site, failure to properly

inspect and manage the premises, failure to provide adequate safeguards, and failure to supervise

the work.

The court reflected back on their previous decision in Cochran and included such analysis

in their opinion. They found that here, the general did provide oversight for the project.

Construction supervisors for the general contractor had the authority to observe the work site and

stop work of the contractors, if necessary. Further, although the subcontractors were responsible

for safety, the general contractor’s supervisors could intervene if they saw something unsafe.

This never occurred. The work of the subcontractors was also inspected by employees of the

general contractor to ensure it was compliant with specifications. Finally, weekly meetings were

held with the subcontractors and general contractor to cover a number a number of items,

including possibly safety concerns. Instructions were given to subcontractors about where to go

and when to go to a specific area of the job but instructions were never given to the

subcontractors telling them how to do their job.

The court stated in their opinion that no evidence was presented that the general

contractor controlled the operative details of the work of the subcontractors such that the

subcontractors were not entirely free to perform the work in their own way. Thus, the general

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contractor could not be found liable for the injuries of the plaintiff. The court also found that the

general was not directly liable for the injuries of plaintiff because the general did not have actual

or constructive knowledge of the dangerous condition (as the time period surrounding plaintiff’s

accident was extremely small).

Further, in December 2007, the Third District rendered an opinion in Moiseyev v. Rot’s

Building and Development, (a residential construction case) and determined that the defendant

did not retain the requisite control over plaintiff and his work so as to give rise to a duty of

reasonable care under Section 414. 369 Ill.App.3d 338, 860 N.E.2d 1128, (Ill.App.Ct. 3rd Dist.,

2007) In that case, the plaintiff sued Rot’s for construction negligence based on an injury arising

from a fall from a scaffold on a house that plaintiff was working on. The plaintiff’s employer

was the subcontractor and Rot was the general contractor. The trial court granted summary

judgment in favor of defendant ruling that plaintiff did not show that defendants retained the

requisite control over plaintiff and his employer under Section 414. In issuing its ruling, the

court considered the following: there existed no contract between Rot and plaintiff’s employer;

plaintiff’s employer supplied all tools for work performed by plaintiff; plaintiff’s employer

exclusively instructed plaintiff and his co-workers as to the details of their work; and plaintiff

testified that he had no contact with Rot employees on the job. Rot employees did testify that

they did retain the right to halt plaintiff’s work at any point for any reason, and went on site to

inspect work progress. The court stated in its ruling that no liability could apply to Rot because it

did not retain control over the incidental aspects of the independent contractor’s work. It found

that plaintiff’s employer was free to do its work in its own way, and accordingly affirmed the trial

court’s ruling.

Finally, in Downs v. Steel and Craft Builders, Inc., 358 Ill.App.3d 201, 831 N.E.2d 92

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(2nd Dist. 2005), an employee was injured when a trench collapsed at a construction site. The

court refused to find control on the part of the general contractor. Under the general’s contract

with the subcontractor, the responsibility for safety measures fell with the subcontractor. Further,

the general did not direct, supervise, or participate in any of the work, means, or methods used by

the subcontractor. The contract also shifted responsibility for compliance with OSHA to the

subcontractor. The court noted this was a proper shifting of OSHA duties and responsibilities in

the context of a private action.

Jury Instructions Relative to Section 414 of the Restatement

The recently approved Illinois Pattern Jury Instructions for construction negligence cases

focuses on control of safety in determining whether a defendant was in control for Section 414

purposes. The jury instruction states that a defendant is in control of the work for 414 purposes if

the defendant exercises control over any aspect of safety on the project. We believe the new

I.P.I. instruction is inconsistent with Illinois law and should be objected to during jury instruction

conferences. A non-I.P.I. instruction should be prepared and tendered to preserve the issue for

appeal. A sample instruction is below:

“The employer of an independent contractor is not liable for the acts or omissions of the independent contractor unless the employer retains control over the means and methods of the independent contractor’s work so that the independent contractor is not entirely free to do the work in his own way, or if the employer knows, or in the exercise of reasonable care should know, that the independent contractor’s work is being done in an unreasonably dangerous way and has the opportunity to prevent it by exercising the control it has retained.”

Source: Restatement (Second) of Torts, §414; Joyce v. Madison Services, Inc., No. 1-06-0086 (1st Dist. 2007).

An illustrative case on this issue is Shelden v. Kimball Hill. No 1-02-3693 (Ill.App.Ct,

1st Dist., 2005). Shelden involved a plaintiff who brought a negligence action against defendant

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general contractor for injuries he sustained in a construction site accident after he was carrying a

piece of drywall over a muddy driveway and injured his knee. The plaintiff specifically alleged

that defendant was negligent because they retained control over plaintiff’s work because they had

a safety director, had safety policies in place, and should have had gravel instead of mud on the

unpaved driveways to provide easier access for the workers. The jury awarded plaintiff

$632,530.69 in damages. Defendant appealed arguing it was entitled to a new trial based on an

erroneous 414 jury instruction.

On appeal, the court noted that plaintiff both in the trial court and on appeal asserted that

his claim against defendant was premised on 414 of the restatement exclusively and does not

concern section 343. Yet the court noted that the plaintiff’s evidence focused on whether the

defendant’s failure to lay gravel created a dangerous condition on the premises. The plaintiff’s

instruction then read:

The defendant retained some control over the safety of the work; Defendant acted or failed to act in one or more of the following ways;

a. Failed to put stone or gravel on the driveway; b. Failed to provide safe access to the houses; And in so acting or failing to act was negligent in the manner in which it exercised or failed to exercise its control. Plaintiff was injured and the defendant’s negligence was a proximate cause of plaintiff’s injuries. The court held that the instruction includes the retention of control element necessary to

find that defendant owed a duty under section 414 of the Restatement, but allows the jury to

conclude a breach of duty by defendant’s failure to protect against a dangerous condition on the

land. The court agreed that plaintiff’s instruction based on the IPI instructions under 414

incorrectly combined the retention and exercise of control over work with a condition on the

premises. Therefore, they remanded the case back to the circuit court for a new trial.

Justice Wolfson specially concurred with the opinion and stated that IPI No. 55.03 is

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wrong and ought to be re-written. He noted that it is fatally incomplete. He reasoned that

addressing the issue of control, the instruction simply requires that the defendant retained some

control over the safety of the work. Yet, Wolfson explained that this is not nearly enough to

satisfy the requirement of Section 414. He indicates that it is not the “safety” of the work that the

defendant must have retained control over, it is “the degree of control over the manner in which

the work is done…there must be such a retention of a right of supervision that the contractor is

not entirely free to do the work in his won way. Justice Wolfson concludes by stating that IPI

55.03 and 55.02 should be sent back to the drawing board and that neither one accurately reflects

Section 414.

This opinion is very important in cases involving construction litigation. It will be

necessary for defendants to draft their own 414 instruction to tender to the jury until the 414

instructions are modified.

It should be noted however, that despite rulings by judges that the 414 instruction is

improper such as Shelden, courts are still finding that the IPI instructions on 414 are sufficient

and that it is not error to refuse a defendant’s modified 414 instruction. The Illinois Appellate

Court for the First District recently affirmed a trial court’s ruling that it was not improper to

refuse the defendant’s modified 414 instruction in the case of Jones v DHR Cambridge Homes,

381 Ill.App.3d 18, 885 N.E.2d 330, (1st Dist., 2008). Jones involved a plaintiff who was injured

while working for a subcontractor who had contracted with a general contractor to perform

carpentry work. The plaintiff was injured after walking out on a wooden still plate that was

mounted on a structural beam. Jones, 381 Ill.App.3d at 21, 885 N.E.2d at 334. At trial the general

contractor via their safety expert argued that the subcontractor, plaintiff’s employer, was

responsible for the means and methods of performing the plaintiff’s work and that injury resulted

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from the plaintiff’s work methods. Further, the general contractor argued that even if the general

contractor had maintained a supervisory role over safety, OSHA had never issued a citation for

this type of incident and therefore, this established that the general contractor was not negligent.

However, the court barred all evidence of the lack of OSHA citations. Id. at 27, 339.

Throughout the tenure of the trial, the plaintiff maintained and provided evidence that the

general contractor was responsible for safety on the job and that they had employees in place to

make sure the subcontractors complied with the general contractor’s safety manual and

guidelines. The subcontractor then moved for a directed verdict at the close of evidence arguing

that none of the witnesses testified that the subcontractor had done anything wrong. The directed

verdict was granted.

The case was then sent to the jury solely to determine whether the general contractor was

negligent. During the jury instruction conference, the general contractor tendered a non-IPI

objection with respect to 414 stating that the IPI instruction was not sufficient. The plaintiff

objected, and the trial court tendered the IPI construction negligence instructions to the jury.

The general contractor then appealed arguing that the directed verdict was improper, the

lack of OSHA citations should have come in, and the modified 414 instruction should have been

tendered to the jury. On appeal, the Appellate Court for the First District reversed the trial court’s

ruling granting a directed verdict to the subcontractor stating that the plaintiff was injured as the

result of walking on a sill plate without fall protection. The court noted that the responsibility for

providing the fall protection was disputed at trial. The court noted that the plaintiff put on

evidence that general contractor was responsible for all of the safety issues on the job. However,

the court also noted that the general contractor’s safety expert indicated that the subcontractor

was responsible for the means and methods of performing the work which can give rise to

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liability under 414 and for this reason the directed verdict should be reversed. Id. at 30, 342.

On appeal, the appellate court affirmed the trial court’s ruling regarding OSHA citations

and the refusal of defendant’s modified jury instruction for Section 414. With respect to OSHA,

the court found that it was not error to bar evidence that OSHA had not ever given a citation for a

prior similar incident because this testimony was based purely on the expert’s own knowledge,

and not based on anything of an official or definitive nature. Id.

With respect to the 414 jury instruction, the court found that despite the jury instructions

for section 414 having been called into question by other decisions such as the Marten’s

decision, this does not mean that the pattern instruction no longer reflects an accurate statement

of the law. Further, the court noted that it is in the trial court’s discretion to determine if a

particular jury instruction is applicable. Id. at 35, 346.

Based on the Jones ruling, in the event that a defendant wants to introduce evidence of

lack of OSHA citations, a defendant should know that they must have hard evidence to support

such and not simply an expert’s limited knowledge that no such citation had been given in

similar circumstance. Further, the Jones case should not deter a defendant from challenging the

414 instruction. It is in the trial court’s discretion to determine if a particular instruction is

applicable and based on the circumstances surrounding a case, the trial court may find that the

414 instruction as it is now, is not an accurate statement of the law and not applicable to that

particular case.

Finally, the Oldenstedt v. Marshall Erdman, 381 Ill.App.3d, 884 N.E.2d 830 (1st Dist.,

2008) decision should be noted for its discussion on section 414 jury instructions. In Oldenstedt,

the defendant rejected the use of the IPI 55 series; the construction negligence series from being

used. The court overruled the defendant’s objections, but the parties came to an agreement

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regarding a modification to the 55 series. For example the IPI Instruction 55.01 usually reads,

“A party who has retained control over the methods and/or means of the work has a duty to exercise that control with ordinary care to ensure workers’ safety.”

The parties tendered the following modified instruction in place of 55.01:

“A contractor who entrusts work to a subcontractor can be liable for injuries resulting from the work if the contractor retained control over the methods and/or means of the work and the injuries were proximately caused by the contractor’s failure to exercise that control with ordinary care to ensure worker’s safety.” Oldenstedt 381 Ill.App.3d at 13.

Oldenstedt is an instructive decision from a defense aspect because it represents the proposition

that even if a judge overrules an objection to tendering different instructions other than the 55

series for construction negligence, it is still possible to make an agreement with the other party

that more accurately reflects the law.

Recent Negative Defense Cases Under Section 414

Despite recent positive cases for the defense under Section 414, there have also been

negative decisions that should be noted in order to determine how to avoid being liable under

Section 414 in the future. Wilkerson v. Paul H. Schwendener, Inc., 379 Ill.App.3d 491, 884

N.E.2d 208 (1st Dist. 2008) involved a defendant general contractor who was hired to construct a

retirement home in Glenview, Illinois. Defendant subcontracted with Monarch Construction Co.

to perform carpentry work at the site. On January 20, 2003, plaintiff, a Monarch employee, was

installing second-floor floor joists at the site. It is undisputed that plaintiff was working without

fall protection by balancing on top of wall frames that were less than six inches wide and about

nine feet above the ground. The plaintiff worked with another Monarch carpenter, Erik Bergl,

who would manually lift the joists to plaintiff from the ground floor. The plaintiff would then

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place the joists on the top of the walls to create the frame for the second-level floor. While

performing this work, Bergl struck plaintiff with a floor joist, causing plaintiff to lose his balance

and fall. Plaintiff sustained injury to his left foot. As a result of his injury, plaintiff brought suit

against defendant general contractor alleging negligence pursuant to 414 and 343. Defendant then

moved for summary judgment on the ground that plaintiff could not establish defendant owed

him a duty of care. The trial judge granted defendant’s motion for summary judgment, finding as

a matter of law that defendant did not owe plaintiff a duty of care under either section 343 or 414.

Plaintiff appealed this ruling.

On appeal, the Appellate Court of Illinois for the First District reversed the trial court’s

ruling finding that there was a genuine issue of material fact that should have precluded summary

judgment for defendant on both the 343 and 414 issues. Specifically, with regard to the 414 issue,

the court noted that Section 414 commonly arises when a general contractor entrusts work to a

subcontractor but superintends the job himself or through a foreman. Citing to Restatement

(Second of Torts) Section 414 (1965). Under these circumstances, the general contractor is

subject to liability if he knows or reasonably should know that the subcontractor work is being

performed in a dangerous manner and fails to exercise his power of control to stop the work.

Citing to Restatement (Second of Torts) Section 414 (1965) The court noted that for this rule to

apply, the general contractor:

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 recommendation which need not necessarily be followed, or to prescribe alterations or deviations. Such a general right is usually reserved to general contractors, but it does not mean that the subcontractor 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 [sub] contractor is not entirely free to do the work in his own way. Restatement (Second of Torts) Section

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414, Comment C (1965)

The court stressed that they recognize that a general contractor retaining a general right of

supervision of supervision over the subcontractor for safety issues does not rise to liability under

414. However, they found that there was at least a genuine issue of material fact as to whether

defendant general contractor controlled plaintiff pursuant to 414 because defendant did way more

than retain a general right of supervision over plaintiff. The defendant entered into a contract

with the subcontractor that required the subcontractor to: 1) comply with a list of 21 safety

regulations prepared by defendant; 2) hold weekly safety meetings and submit minutes of those

meetings to defendant; 3 prepare and submit for approval a “site specific safety plan”; and 4)

attend defendant’s weekly safety-related meetings. In addition, the plaintiff produced several

letters from the general contractor to the subcontractor that indicated that the general contractor

was upset with the subcontractor because of the lack of safety on the job. The letters also

referenced specific incidents where the subcontractor had not followed proper safety procedures.

In addition, the letters stated the manner in which the general contractor wanted the subcontractor

to change his work practices in order to comply with the general contractor’s safety regulations.

The court stated in their opinion, that because defendant went above simply retaining the

control to stop unsafe work practices and required the subcontractor to perform their work in a

manner pursuant to 21 safety regulations that did not allow them to do their job freely, there was

a question of fact for the jury to decide regarding the 414 issue.

The Wilkerson decision makes it apparent that requiring an independent contractor to

comply with specific safety requirements and regulations can give rise to liability under Section

414.

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Section 343 of the Restatement

As noted earlier, plaintiffs include premises liability claims along with their construction

negligence claims. Plaintiff’s allegations of premises liability are premised on the Restatement

(2d) of Torts, Section 343, titled “Liability of general contractor as the owner of a premises”,

which states:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:

(a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) Fails to exercise reasonable care to protect them against the danger.

Restatement (2d) of Torts, §343 (1965).

This Restatement has been adopted by the Illinois Supreme Court in LaFever v. Kemlite

Co., in which it was stated that to determine whether a defendant owes a plaintiff a duty of care,

the court is to consider the following factors: (1) foreseeability, (2) the likelihood of injury, (3)

the magnitude of the burden on the defendant to guard against the injury, and (4) the

consequences of placing the burden on the defendant. LaFever v. Kemlite Co., 185 Ill.2d 380,

389, 706 N.E.2d 441, 446 (1998).

In Deibert v. Bauer Brothers Construction Co., the Illinois Supreme Court found that a

duty existed between a general contractor as the possessor of land and the employee of a

subcontractor. 141 Ill.2d 430, 566 N.E.2d 239 (1990). There, the plaintiff electrician, an

employee of a subcontractor, stepped out of a portable bathroom. The bathroom had been placed

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directly underneath an area where debris was routinely thrown from higher floors to the ground.

While exiting the bathroom, the plaintiff looked up to ensure no debris was being thrown.

However, he stepped into a large tire rut in the ground, injuring his back. He sued the general

contractor alleging negligence. The electrician admitted the tire rut was open and obvious but

that looking to see if debris was being thrown down distracted him.

In determining whether a defendant owes a plaintiff a duty of care, the Diebert Court

considered the following factors: (1) foreseeability, (2) the likelihood of injury, (3) the magnitude

of the burden on the defendant to guard against the injury, and (4) the consequences of placing

the burden on the defendant. LaFever v. Kemlite Co., 185 Ill.2d 380, 389, 706 N.E.2d 441, 446

(1998). The Court found that the plaintiff’s injury was reasonably foreseeable. They commented

that the plaintiff had an obligation himself to be aware for his own safety and that ruts are a

normal hazard on a construction site. However, a defendant’s duty does not end if the defendant

had reason to believe the plaintiff’s attention could be distracted. As the general contractor’s duty

did not end, the court had to then assess whether the general contractor exercised reasonable care

to protect the plaintiff. There, the general contractor knew that debris was routinely thrown down

in that area, and as such, the court found that they should not have placed a bathroom in the

vicinity as the plaintiff’s attention would not be focused on obvious items, such as a tire rut in the

ground.

The plaintiffs rely on the premises liability doctrine enunciated in Restatement Section

343 as a theory of recovery, arguing that the defendants are liable for a breach of the duty of care

as a possessor of the premises where the plaintiffs were injured. The duty of reasonable care

imposed on a general contractor as the owner or possessor of the premises is independent of its

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duty to exercise reasonable care where it retains control of work entrusted to an independent

contractor. Clifford v. Wharton Business Group, LLC., 353 Ill.App.3d 34, 817 N.E.2d 1207 (1st

Dist. 2004). With regards to the premises liability theory, the plaintiffs will have to present

evidence of an unsafe condition that could subject the plaintiffs to physical harm. For liability to

be imposed, there must be actual or constructive knowledge of the unsafe condition on the part of

the defendants. Restatement (2nd

) of Torts, §343, 215-16 (1965).

We argue that defendants did not have knowledge, either actual or constructive, as to the

defect in the premises. In determining whether a legal duty exists, the occurrence involved in the

incident complained of must not have been simply foreseeable, but must have been reasonably

foreseeable. See Cunis v. Brennan, 56 Ill.2d 372, 374-76, 308 N.E.2d 617 (1974), cited by

Hoffman v. Vernon Township, 97 Ill.App.3d 721, 724, 423 N.E.2d 519 (2nd

Dist. 1981); see also

Kotecki, 333 Ill.App.3d at 590-91, 776 N.E.2d at 780-81, also citing Cunis.

The Cunis court held that “the creation of a legal duty requires more than a mere

possibility of occurrence. The Prosser Handbook of the Law of Torts (4th Edition 1971, Section

31 at 146) comments: “no man can be expected to guard against harm for events that are not

reasonably to be anticipated at all or are so unlikely to occur that the risk, although recognizable,

would commonly be disregarded. In judging whether harm was legally foreseeable we consider

what was apparent to the defendant at the time of his now complained of conduct, not what may

appear through existent exercise of hindsight.” Cunis, 56 Ill.2d at 375-376, 308 N.E.2d at 619.

The Recio v. GR-MHA Corp, 366 Ill.App.3d 48, 851 N.E.2d 106, (1st Dist., 2006) case is

a noteworthy decision for defendants under Section 343 of the Restatement. Recio involved a

plaintiff who was employed as a roofer by a subcontractor working on a remodeling project

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for a general contractor. Recio 366 Ill.App.3d at 50, 851 N.E.2d at 109. While carrying a

bundle of shingles to the roof of a two-story apartment building via a ladder provided by the

general contractor, plaintiff lost his balance and fell to the ground and was severely injured

and ultimately died. Id. The plaintiff’s estate proceeded with many theories against the

defendant general contractor, including a theory of premises liability articulated in section

343 of the Restatement Second of Torts. Id. at 55, 114.

Section 343 provides,

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:

a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

c) fails to exercise reasonable care to protect them against the danger.

Section 343 will impose liability when there is a defect that is a part of the land and the

owner/general contractor knew of such defect, should expect that someone will not realize

the danger associated with such defect and failed to exercise reasonable care to protect them

against such danger.

In Recio, the plaintiff tried to argue that the dangerous condition on the general

contractor’s property was that the general contractor placed the ladder on the land and allowed

the plaintiff to climb to the roof via the ladder with shingles in his hand. The trial court did not

agree and ruled that the ladder and plaintiff’s unsafe work practice of carrying the shingles up the

ladder did not amount to a defect on the premises as required by Section 343. Moreover, the trial

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court noted that there was no evidence to suggest that the general contractor knew the plaintiff

was carrying the shingles up the ladder, which is a critical requirement under 343 for liability to

be imposed. Id. at 56, 114. The plaintiff appealed.

On appeal, the Appellate Court for the First District affirmed the trial court’s ruling. The

court noted that the plaintiff was trying to argue that the defendant, as owner and possessor of the

premises where construction work took place, was obligated to exercise reasonable care to

protect against the danger of the plaintiff climbing up a ladder to the roof with shingles in his

hand, which the court essentially found was a unsafe work practice, not a defect on the land. Id.

at 62, 119. The court agreed with the circuit court that section 343 is ill-suited for application to

such facts.

The court also made special note of the Haberer v. Village of Sauget, 158 Ill.App.3d 313,

511 N.E.2d 805, (5th Dist.1987) case where Plaintiff tried to allege that the failure of his

employer to provide him with protective gloves before mixing grout was a 343 claim. The court

states that the plaintiff’s claim against his employer was not a defect or dangerous condition that

was a part of the land. A ladder placed on the land by the general contractor either by itself or

used by the plaintiff in an unsafe manner is not a condition that is a part of the land. Ultimately,

the court found that liability can only be imposed under 343 when there is a dangerous condition

that is a part of the land.

Moreover, the court states that no liability can be imposed unless the owner or possessor

of the land had actual or constructive knowledge of the unsafe/dangerous condition of the land.

Id. at 63, 120. The court found that the general contractor/owner of the land had no reason to

know that the plaintiff would carry the shingles up the ladder causing him to lose his balance and

30

fall when at all other times, the shingles would be carried up to the roof via a lift. Therefore, the

court found that there was no liability under section 343 because first, the plaintiff climbing up a

ladder placed on the land by the general contractor with shingles in his hand is not a defect on the

land and second, because the general contractor/owner would have no reason to know that

plaintiff would use the ladder to carry the shingles up to the roof causing him to lose his balance.

Id.

As demonstrated by the Recio case, without knowledge that the condition existed on the

land, liability cannot be imposed under Section 343 of the Restatement.

The Gregory decision cited above and discussed in conjunction with Section 414 also

discussed section 343 of the Restatement and promulgates positive case law for defendants under

section 343. The plaintiff in Gregory attempted to present an alternate theory of liability against

Mobil pursuant to section 343 of the Restatement. Under section 343, an owner or possessor of

land owes its invitees a common law duty of reasonable care to maintain its premises in a

reasonably safe condition, but no legal duty arises unless the harm is reasonably foreseeable.

Gregory, No. 1-06-3597, (1st Dist., 2008). The court found that the plaintiff’s premise liability

argument failed for several reasons. First and foremost, the sources of the plaintiff’s

mesothelioma were the asbestos blankets and gloves. The court found that the blankets and

gloves could not be considered a condition on the land in order for section 343 to be applicable.

Second, the court stated that even if they were to find asbestos blankets and gloves a condition on

the land, there was no evidence that Mobil knew or should have known that the blankets and

gloves contained asbestos. There was no evidence that any of Mobil’s employees observed any

unsafe condition, had control or even regular access to the construction site, or received any

31

complaint that would indicate that Mobil knew or should have known that the blankets and

gloves were being used and contained asbestos. Therefore, based on the evidence, the court

found as a matter of law that no Mobil owed no duty to the plaintiff under section 343 because

first; the gloves and blanket did not constitute a condition on the land and second; Mobil was not

aware of the alleged unsafe condition. Just as in Recio, without knowledge that the condition

existed on the land, liability cannot be imposed under Section 343 of the Restatement.

Negation of the Multi-Employer Worksite Doctrine- a Critical Decision for Defendants

When OSHA was originally implemented, neither the Secretary of Labor nor the OSH

Review Commission thought that the Act imposed a duty on general contractors to ensure

compliance by independent contractors as evidenced by regulation 29 C.F.R 1910.12(a). It was

after the inception of OSHA, that the Review Commission created what is known as the multi-

employer worksite doctrine. This doctrine was founded on an expansive definition of

“employer” in the OSH Act. The term ”employer” was not limited to a common law, master-

servant relationship, but rather was defined to include “controlling” employers, “creating

employers”, “exposing” employers, and “correcting” employers. This expansive definition of

employer and therefore, the duties owed by employers under the Act was justified on the theory

that it would allegedly advance the social purpose of the Act, which is employee safety.

However, the Supreme Court of the United States in Nationwide Mutual Insurance v.

Darden, 503 U.S. 318 (1992) held that it is no longer acceptable and/or permissible to interpret

“employer” or “employee” beyond their common-law meaning in order to advance the purpose of

a particular statute. Despite such a ruling by the Supreme Court changing the law, courts

continued to allow the multi-employer doctrine to apply until a recent ruling by the OSH Review

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Commission. In Secretary of Labor v. Summit Contractors, OSHRC Docket No. 03-1622,

(2007)the OSH Review Commission held that the multi-employer worksite doctrine no longer

applies and that only the direct employer can be liable under OSHA.

Summit involved a general contractor who was cited by OSHA for lack of fall protection.

Summit argued before the Commission that the multi-employer worksite is invalid as to a general

contractor who neither created, nor had employees exposed to, the alleged and cited hazard.

Summit argued that the multi-employer citation policy was not enforceable because it is contrary

to 29 C.F.R Section 1910.12(a) which states as follows:

Standards. The standards prescribed in Part 1926 of this chapter are adopted as occupational safety and health standards under section 6 of the Act and shall apply, according to the provisions thereof, to every employment and place of employment of every employee engaged in construction work. Each employer shall protect the

employment and places of employment of each of his employees engaged in construction work by complying with the appropriate standards prescribed in this paragraph. 29 C.F.R

Section 1910.12(a)

Summit reasoned that the multi-employer doctrine was invalid because as 29 C.F.R.

Section 1910.12(a) clearly indicates, an employer only owes a duty to his employees. Summit v.

Secretary of Labor, OSHRC Docket No. 03-1622 at page 3.

The Review Commission agreed with Summit’s position and ruled that only a

direct employer can be liable for injuries suffered by his employee and therefore, invalidated the

multi-employer worksite doctrine. Id. at 10. The Review Commission held that the language of

29 C.F.R Section 1910.12(a) was clear that an employer can only be liable to his own employees

and therefore, the Commission must give effect to the plain language of the regulation. Id. at 9.

The Commission even went as far to criticize the Secretary of Labor for having known

this discrepancy between 29 C.F.R Section 1910.12(a) and the multi-employer worksite doctrine

33

existed for over ten years via rulings such as the Darden and failed to act. Moreover, the

Commission criticized the Secretary for blatantly ignoring the language of “each of his

employees” contained in 29 C.F.R Section 1910.12(a) and concluded that such an interpretation

by the Secretary was not only incorrect and indefensible, but was untenable. Id. at 9.

The Summit decision is important because an expert can no longer criticize a defendant

based on the multi-employer worksite doctrine and limits the use of the term “employer”.

Johnson & Bell, Ltd.

Johnson & Bell, Ltd. was considered a leader in the defense of Structural Work Act

claims by the plaintiff’s bar, a reputation it continues to hold in the defense of construction

negligence and premises liability claims. We present seminars for risk managers,

superintendents and other supervisory personnel to assist companies in their operations to be

better positioned when the inevitable accident occurs. We also assist in the preparation and

review of contract and risk transfer documents to place our clients in the best possible risk

management position when suit is initiated.

Feel free to contact Joseph F. Spitzzeri, co-chair of Johnson & Bell, Ltd.’s construction

practice group, at 312/984-6683, any time you have questions or need assistance in your

construction risk management efforts.