501 F.3d 825 (7th Cir. 2007), 06-1985, Aguirre v. Turner Const. Co.

Docket Nº:06-1985.
Citation:501 F.3d 825
Party Name:Jose A. AGUIRRE and Maria L. Aguirre, Plaintiffs-Appellants, v. TURNER CONSTRUCTION COMPANY, Barton-Malow Company, Kenny Construction Company, and TBMK, Defendants-Appellees.
Case Date:September 07, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 825

501 F.3d 825 (7th Cir. 2007)

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.

September 7, 2007

Argued Nov. 6, 2006.

Rehearing and Rehearing En Banc Denied Oct. 12, 2007.law.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 05 C 515-Suzanne B. Conlon, Judge.

Page 826

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

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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]...

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