Aguirre v. Turner Const. Co.

• Decision Date: 07 September 2007
• Docket Number: No. 06-1985.,06-1985.
• Citation: 501 F.3d 825
• Parties: Jose A. AGUIRRE and Maria L. Aguirre, Plaintiffs-Appellants, v. TURNER CONSTRUCTION COMPANY, Barton-Malow Company, Kenny Construction Company, and TBMK, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

501 F.3d 825

Jose A. AGUIRRE and Maria L. Aguirre, Plaintiffs-Appellants, v. TURNER CONSTRUCTION COMPANY, Barton-Malow Company, Kenny Construction Company, and TBMK, Defendants-Appellees.

No. 06-1985.

United States Court of Appeals, Seventh Circuit.

Argued November 6, 2006.

Decided September 7, 2007.

Rehearing and Rehearing En Banc Denied October 12, 2007.

Glen J. Dunn, Jr., Milo W. Lundblad, argued, Brustin & Lundblad, Chicago, IL, for Plaintiffs-Appellants.

Byron D. Knight, argued, Knight, Hoppe, Kurnik & Knight, Des Plaines, IL, for Defendants-Appellees.

Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Jose Aguirre was injured when he fell from a scaffold while working for a masonry subcontractor on the Soldier Field renovation project in Chicago. Aguirre and his wife brought negligence claims based on section 414 of the Restatement (Second) of Torts and res ipsa loquitur against the general contractors in charge of the renovation. Aguirre maintains the defendants owed him a duty of reasonable care based on their extensive oversight of all project safety. The district court granted summary judgment for the defendants after concluding they had not retained sufficient control over the subcontractor's work to give rise to any duty of care toward Aguirre or supply a basis for liability on a res ipsa loquitur theory. Because we conclude that these holdings are inconsistent with the requirements of Illinois negligence law, we reverse.

I. Background

Jose Aguirre was injured when he fell from a scaffold while working as a bricklayer on the renovation of Soldier Field in Chicago. Aguirre was an employee of A.L.L. Masonry ("A.L.L."), one of numerous subcontractors working on the renovation project. The project was overseen by the defendants, collectively known as the joint venture TBMK. Aguirre maintains that his fall was the result of design and/or construction defects in the scaffold. He and his wife brought negligence and loss of consortium claims against the defendants based on section 414 of the Restatement (Second) of Torts, which permits direct liability against a general contractor who retains sufficient control over a subcontractor, and on res ipsa loquitur, which permits circumstantial evidence of liability against a defendant in control of the instrumentality of the injury. The defendants moved for summary judgment on the ground that they, as the general contractors, owed no duty under either theory to Aguirre, an employee of a subcontractor.

Discovery proceeded to determine the extent of control TBMK retained over A.L.L.'s work. This discovery demonstrated that although the contract between TBMK and A.L.L. stated that A.L.L. remained "solely responsible for the safety of [its] employees," TBMK also played an active part in overseeing the safety of the renovation project. For example, TBMK promulgated an extensive 125-page safety program that all subcontractors were required to follow, and it hired a safety coordinator and other personnel to oversee that program. TBMK also held monthly safety meetings, required subcontractors to hold regular safety meetings that TBMK could monitor, and required subcontractors to prepare their own site-specific safety programs. TBMK personnel walked the work site daily to monitor compliance with these safety requirements. The safety coordinator and his employees had and sometimes exercised the authority to halt any subcontractor work being performed in an unsafe manner.

TBMK's safety program, which is part of its contract with A.L.L., included 23 rules specifically pertaining to the erection of scaffolding. Those rules imposed both design requirements, such as guardrail and plank specifications, and safety precautions, such as regular inspection and fall protection. The district court found that although "TBMK was not required to inspect all of the scaffolding, [it] did do so." The scaffold from which Aguirre fell had been specifically altered from the standard design based on an irregularity in the area where the work was being performed. Although no TBMK employee inspected the scaffold prior to Aguirre's fall, TBMK had worked with A.L.L. to create and approve its alternate design.

The district court granted summary judgment for the defendants on both the section 414 and res ipsa loquitur theories of liability. First, the court stated that under Illinois law res ipsa loquitur requires a defendant to be in exclusive control of the instrumentality of the injury. Thus, the court concluded, this theory could not be used because A.L.L. employees constructed the scaffold from which Aguirre fell. Turning to section 414 of the Restatement, the court determined that although TBMK exercised extensive authority over work site safety, TBMK could not be liable because "the contract between TBMK and A.L.L. provided that A.L.L. controlled operative work details . . . . [and] its workers' safety." The court noted that "A.L.L. was contractually required to comply with TBMK's safety program, design its own safety program tailored to TBMK's safety standards, and employ personnel to ensure compliance." Thus, the court held, no duty of care could exist "because [TBMK] did not have control of the incidental details of A.L.L.'s work or its workers' safety." The plaintiffs appealed.

II. Discussion

We review de novo a district court's grant of summary judgment, viewing the evidence in the light most favorable to the nonmoving party. Healy v. City of Chicago, 450 F.3d 732, 738 (7th Cir.2006). Summary judgment is appropriate when "the pleadings, depositions answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED.R.CIV.P. 56(c). When we must decide an unsettled question of state law while sitting in diversity, as we are here, we are obligated to determine how the highest court of that state would rule. Hinc v. Lime-O-Sol Co., 382 F.3d 716, 720 (7th Cir.2004). We review de novo a district court's interpretation of the content of state law. Id. (citing Salve Regina Coll. v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d 190 (1991)).

A. Section 414 Liability

The Restatement (Second) of Torts, section 414 states:

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.

The "retained control" theory of negligence liability described in section 414 was adopted by the Illinois Supreme Court in Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 211 N.E.2d 247 (1965). However, some confusion has arisen recently among Illinois intermediate appellate courts regarding whether section 414 states a theory of vicarious liability or direct liability. See, e.g., Cochran v. George Sollitt Const. Co., 358 Ill.App.3d 865, 295 Ill.Dec. 204, 832 N.E.2d 355, 361 (2005). Although the Illinois Supreme Court has yet to lend its guidance on this issue, we are confident it would interpret section 414 in accordance with its plain language and accompanying commentary, which clearly state a theory of direct liability for a general contractor's own negligence, not a basis for imposing vicarious liability on a general contractor for the negligence of a subcontractor.

The bulk of the existing confusion stems from comment a to section 414, which states:

If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency which deals with the relation of master and servant. The employer may, however, retain a control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.

Some courts, including the district court in this case, have mistakenly read this comment as first laying out when section 414 applies, see, e.g., Cochran, 295 Ill.Dec. 204, 832 N.E.2d at 361 ("As comment a to section 414 clarifies, the general contractor, by retaining control over the operative details of its subcontractor's work, may become vicariously liable for the subcontractor's negligence . . . ."), then explaining that no liability can exist if the general contractor "retain[s] only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others." See Aguirre v. Turner Constr. Co., 2006 WL 644009 at *3 (N.D.Ill. Mar.9, 2006).

Properly read, comment a does just the opposite. The first sentence does not explain the scope of section 414, but rather merely refers to the principles of vicarious liability within the Restatement of Agency. Where the level of retained control gives rise to a master-servant relationship, the master will be liable for the torts of his servant; this is no-fault vicarious liability and it is based on the principles of agency law, not negligence law. When comment a continues with "[t]he employer may, however, retain a control less than that which is necessary to subject him to liability as master" and "may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner...