Cochran v. George Sollitt Const. Co.

• Citation: 832 N.E.2d 355
• Decision Date: 30 June 2005
• Docket Number: No. 1-04-2616.,1-04-2616.
• Parties: George COCHRAN and Nancy Cochran, Plaintiffs-Appellants, v. GEORGE SOLLITT CONSTRUCTION COMPANY, Defendant-Appellee (Loyola University Medical Center, an Illinois Not-For-Profit Corporation, Defendant).
• Court: Supreme Court of Illinois

Page 355

832 N.E.2d 355

George COCHRAN and Nancy Cochran, Plaintiffs-Appellants, v. GEORGE SOLLITT CONSTRUCTION COMPANY, Defendant-Appellee (Loyola University Medical Center, an Illinois Not-For-Profit Corporation, Defendant).

No. 1-04-2616.

Appellate Court of Illinois, First District, First Division.

June 30, 2005.

David J. Kupets, Jason M. Kleinman, Law Offices of Kupets & DeCaro, P.C., Chicago, for Appellant.

Philip W. Domagalski, William E. Spizzirri, Kralovec & Marquard, Chartered, Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

George Cochran and his wife brought this negligence action against George Sollitt Construction Co. (Sollitt) and Loyola University Medical Center (Loyola Hospital),¹ seeking damages for injuries sustained on the job by Cochran, a sheet metal worker, and for his wife's loss of consortium. The circuit court granted Sollitt's motion for summary judgment. For the reasons that follow, we affirm.

BACKGROUND

The allegations of the complaint are as follows. On or about October 5, 2000, the day of the incident, Sollitt was a general contractor on a construction project at Loyola Hospital. Cochran was an employee of James H. Anderson (Anderson), one of Sollitt's subcontractors. Cochran was performing construction work on an old air duct in the sub-basement level of Loyola Hospital. While performing the work, he stood on a ladder which had been placed on a piece of plywood that itself was set on top of two milk crates. At one point, the ladder shifted to the edge of the plywood, causing it to tip. As a result, Cochran fell to the floor, sustaining injuries. Cochran alleged negligence on Sollitt's part in 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."

Cochran testified in his deposition that the incident occurred on his first day on the job. When he reported for work at approximately 6 a.m. to the "old fan room" located in the hospital's sub-basement, Anderson's foreman, Bill Wesselhoff, gave him instructions to demolish the old duct work from the ceiling of the "old fan room." The "old fan room" had an overall dimension of 20 feet by 20 feet, was rectangular in shape and consisted of two separate areas. The two areas were referred to as compartment 1 and compartment 2. Cochran was to first work in compartment 2. To access compartment 2, Cochran walked through compartment 1. At that time, no ladders were set up in compartment 1. As Cochran was working in compartment 2, Wesselhoff was setting up ladders in compartment 1.² After Cochran had worked in compartment 2 for about half an hour, Wesselhoff directed him to work in compartment 1. When Cochran entered compartment 1, he saw an Anderson-owned ladder set up atop a four-foot foot by eight-foot piece of plywood. Compartment 1 was so poorly lit that Cochran would not have been able to see his feet. He was unaware that the plywood had been placed atop two milk crates set in a drainage pit that covered a greater portion of the room. After receiving instructions from Wesselhoff, which took approximately 10 minutes, Cochran stepped directly onto the plywood and climbed the ladder. For about 20 minutes, Cochran worked on removing the old duct work from the ceiling. In order to do so, he had to reach up above his head for the air duct with both hands. As Cochran was bringing down the air duct, the ladder "walked" and he fell. Cochran stated that he did not know who owned or placed the plywood and the milk crates. Prior to the incident, he had not spoken to any Sollitt employees; Sollitt had not instructed him as to how, when or where to do his work; and Sollitt had not provided him with any equipment.

Howard Strong, president of Sollitt, testified in his deposition that Sollitt and Loyola Hospital had entered into a construction contract. The parties used a standard American Institute of Architects' contract form. The contract, which was incorporated by reference in Sollitt's motion for summary judgment, provided, in pertinent part:

"8.2 SUPERVISION AND CONSTRUCTION PROCEDURES

8.2.1 The Contractor [Sollitt] shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over the construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the Contractor shall be fully and solely responsible for the jobsite safety thereof unless the Contractor gives timely written notice to the Owner and Architect that such means, methods, techniques, sequences or procedures may not be safe.

8.2.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors.

* * *

15.1 SAFETY PRECAUTIONS AND PROGRAMS

The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to:

.1 employees on the Work and other persons who may be affected thereby."

Strong admitted that Sollitt had "general control" over its subcontractors' work, but denied that Sollitt had "specific control" over the subcontractors, including Anderson. Sollitt's job was primarily to coordinate the work of various subcontractors. Sollitt did not require its construction superintendent to do a daily "walk-through"; however, in the course of his daily duties, the superintendent would observe the progress of the work and the conditions of the site. Should he observe people work in an unsafe manner, he had the authority to stop the work. The primary responsibility for the safety of the subcontractors' personnel and for compliance with all applicable standards and requirements was with the subcontractors. Although the subcontractors were required to conduct safety "toolbox meetings," the topics covered were left to the subcontractors' discretion. The subcontractors controlled their own work and had their own means and methods of doing it.

Paul Ryan, Sollitt's field superintendent, testified in his deposition that although he coordinated the work of various subcontractors, he did not tell the subcontractors, including Anderson, how to perform their work and did not get involved in the specific details of the subcontractors' safety means in the areas of ladder safety and fall protection. The subcontractors provided their own equipment. Sollitt required that every subcontractor have a safety protocol. Ryan made sure that every subcontractor had a copy of its own safety manual on site. At various times throughout the day, Ryan would be walking through the jobsite. While doing so, he was looking for hazards, among other things. In the event he encountered a hazard, Ryan would instruct that it be corrected. Based on his daily observations of the Anderson crew, he stated that they performed their work in a safe and suitable manner. The day before the incident, Ryan observed the conditions in the "old fan room." The room was adequately lit, and he did not observe any unsafe conditions. Ryan was aware of the existence of the drainage pit, which was approximately 12 inches deep, in compartment 1. He next visited the "old fan room" shortly after the incident and observed a piece of plywood teetering on milk crates. Ryan stated that he knew that Anderson brought some of its supplies to the site in milk crates, and no other subcontractor used those types of crates.

Bradley Gaski, Sollitt's labor foreman for the project, testified in his deposition that his job included giving his fellow Sollitt employees their job assignments for the day, making sure "everything is going smooth[ly]" and "inspecting for safety issues." As far as he knew, no employees or agents of Sollitt instructed Anderson's employees on how to do their work or provided them with any tools or equipment. With respect to the safety of the subcontractors' personnel, Gaski stated that if he saw a safety violation, he would be responsible for stopping the work and correcting the problem. Prior to Cochran's fall, he was unaware of the unsafe ladder setup in the "old fan room."

David Hermsdorfer, Sollitt's carpenter foreman on the project, testified in his deposition that his primary responsibility was for Sollitt's carpenters. In regard to the safety of the subcontractors' employees, his responsibility was to stop the work he observed being done in an unsafe manner and tell the subcontractor to correct the problem. However, Hermsdorfer did not have a responsibility to inspect the subcontractors' ladders or scaffold supports.

Sollitt's subcontractor safety handbook, which is part of the record on appeal, was incorporated into the subcontract agreements. The handbook stated that subcontractors had the primary responsibility for the safety of their personnel and compliance with all local, state and federal standards and requirements. The handbook required each subcontractor to have a competent project safety representative assigned to the project, conduct weekly safety "toolbox" talks, and report all accidents and incidents to Sollitt.

Sollitt's safety manual, which was patterned after and mirrored the Occupational Safety and Health Administration (OSHA) regulations, provided that Sollitt's...