Carney v. Union Pac. R.R. Co., 118984.

CourtSupreme Court of Illinois
Writing for the CourtJustice THEIS delivered the judgment of the court, with opinion.
Citation77 N.E.3d 1,2016 IL 118984
Parties Patrick Joseph CARNEY, Appellee, v. UNION PACIFIC RAILROAD COMPANY, Appellant.
Docket NumberNo. 118984.,118984.
Decision Date20 October 2016

2016 IL 118984
77 N.E.3d 1

Patrick Joseph CARNEY, Appellee,

No. 118984.

Supreme Court of Illinois.

Filed Oct. 20, 2016.
Rehearing denied Jan. 23, 2017.

77 N.E.3d 3

Hugh C. Griffin, of Hall Prangle & Schoonveld, LLC, of Chicago, and George H. Brant, of Judge, James & Kujawa, LLC, of Park Ridge, for appellant.

Michael W. Rathsack and Mark E. McNabola, of Chicago, for appellee.

Andrew J. Martone and Adam C. Doerr, of Hesse Martone, P.C., of St. Louis, Missouri, for amicus curiae Associated General Contractors of Illinois.

Cassidy & Mueller P.C., of Peoria (David B. Mueller, Brian A. Metcalf and Caroline J. Cassidy, of counsel), for amici curiae Illinois Chamber of Commerce et al.

Robert E. Elworth, Jessica L. Galanos and Brian D. Lee, of HeplerBroom, LLC, of Chicago, for amicus curiae Illinois Association of Defense Trial Counsel.

Kirsten M. Dunne, of Goldberg Weisman Cairo, of Chicago, for amicus curiae Illinois Trial Lawyers' Association.


Justice THEIS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff, Patrick Joseph Carney, filed a negligence action in the Circuit Court of Cook County against defendant, Union Pacific Railroad Company, after he suffered severe personal injuries during the removal of an abandoned railroad bridge in Chicago. The circuit court granted defendant summary judgment. The appellate court held that fact issues precluded summary judgment and reversed the circuit court's judgment and remanded for further proceedings. 2014 IL App (1st) 130105–U, 2014 WL 6686700.

¶ 2 For the reasons that follow, we reverse the judgment of the appellate court and affirm the judgment of the circuit court.


¶ 4 The record discloses the following undisputed facts. In the spring of 2006, defendant invited various contractors to submit bids in connection with the purchase and removal of three abandoned railroad bridges that spanned Arthington, Polk, and Lexington Streets in Chicago. Among those invited to bid was Happ's, Inc., a scrap contractor that had worked with defendant and other railroads for 25 years recycling steel and railroad ties.

¶ 5 Before submitting a bid, company president, Steven Happ, contacted Patrick Leo Carney, owner of Carney Group, Inc., which does business as Chicago Explosive Services. Happ and Carney had a 20–year business relationship, and Happ had frequently enlisted Carney's assistance for bridge removal jobs. Carney attended the on-site pre-bid meeting with Happ, and the two came to some agreement as to Carney Group's involvement in the bridge removals should defendant accept the bid from Happ's. As they had in the past, Happ and Carney had a handshake agreement.

¶ 6 Defendant ultimately accepted the bid from Happ's, and on July 19, 2006, defendant and Happ's entered into a "Purchase and Removal Agreement." Under the agreement, Happ's, which was identified as an independent contractor, purchased the three bridges from defendant and agreed to provide all the labor, tools, and material necessary for the bridge removals. Defendant was unaware of the agreement between Happ's and Carney Group.

¶ 7 The dismantling and removal of the Arthington Street bridge proceeded without incident, and work commenced on the Polk Street bridge. Although all three bridges were of the same "through-plate steel girder" design, the Polk Street bridge was by far the largest of the three.

77 N.E.3d 4

To remove that bridge, Happ's first removed the rails and ties. Thereafter, workers from Happ's and Carney Group removed the steel crossbeams that connected the bridge's east and west horizontal girders (the bridge walls), along with the steel deck or floor plate that the crossbeams supported. A few crossbeams at the north and south ends of the bridge were left intact for support.

¶ 8 On July 31, 2006, Carney called plaintiff, his son, to the job site to help thread four steel cables through holes that had been torched in the bridge's east girder. The cables, in turn, were attached to a spread bar on a crane supplied by Gatwood Crane Services. A worker from Carney Group then made the cuts that severed the connections between the remaining crossbeams and the east girder so that the crane could lift the girder and lower it onto Polk Street. When the crane operator attempted to lift the east girder, only the south end would lift. A crossbeam on the north end of the bridge was "pinched" against the east girder preventing the north end of that girder from lifting. While a worker made an additional cut in the crossbeam to free it, the crossbeam snapped, and the west girder, which was not secured or supported, fell to the east. At the time, plaintiff was standing north of the bridge on a gravel-covered steel plate.1 When the west girder fell, the steel plate moved up, and plaintiff slid forward under the west girder. Plaintiff's legs were severed below his knees.

¶ 9 The dismantling and removal of the Polk Street bridge was completed without further incident under the direction of the Occupational Safety and Health Administration. As to the Lexington Street bridge, Happ's hired another contractor, DMD Services, to remove it.

¶ 10 On August 8, 2007, plaintiff filed a complaint against Happ's, which plaintiff amended shortly thereafter to add defendant, Union Pacific Railroad. Various third-party claims and counterclaims were filed. All claims were settled with the exception of plaintiff's claim against defendant. In his "revised second amended complaint at law" (hereinafter, the complaint), plaintiff alleged that defendant was negligent in failing to discover and disclose to Happ's or plaintiff the presence of the "planking," i.e., the steel plate at the north end of the bridge. Plaintiff further alleged that defendant retained control over the work and safety of the demolition project but negligently failed to develop a demolition plan and to supervise the work. Finally, plaintiff alleged that defendant was negligent in hiring Happ's.

¶ 11 Defendant filed a motion for summary judgment, which the trial court granted. Plaintiff appealed, and the appellate court reversed and remanded. 2014 IL App (1st) 130105–U, 2014 WL 6686700.

¶ 12 The appellate court held that although an employer is typically not liable for acts of an independent contractor, an exception exists where the employer " ‘retains the control of any part of the work’ " (emphasis omitted) (id. ¶ 23 (quoting Restatement (Second) of Torts § 414 (1965) )), and that a genuine issue of material fact exists as to whether defendant retained such control over the work performed by Happ's to become vicariously or directly liable to plaintiff (id. ¶ 32).

¶ 13 As to plaintiff's negligent hiring claim, the appellate court recognized that

77 N.E.3d 5

" ‘[a]n employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor’ " (id. ¶ 37 (quoting Restatement (Second) of Torts § 411 (1965) )) and agreed with the trial court that a fact issue exists as to whether defendant exercised reasonable care in selecting Happ's (id. ¶ 38). Although the trial court found that plaintiff was not a "third person" to whom liability for negligent hiring would extend, the appellate court declined to reach that issue, holding that a fact issue exists as to whether plaintiff was an employee of Carney Group at the time of the accident or whether he was simply "hanging around." Id. ¶ 40.

¶ 14 Finally, the appellate court considered plaintiff's claim that defendant was liable as a possessor of land for injury to plaintiff by failing to warn about a dangerous condition on defendant's land, namely, the steel floor plate on which plaintiff was standing at the time of the accident. Id. ¶¶ 42–43 (citing Restatement (Second) Torts § 343 (1965) ). The appellate court held that a genuine issue of fact exists as to whether defendant should have known that workers would fail to discover how far the floor plate extended. Id. ¶ 46.

¶ 15 We allowed defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). We also allowed the following groups to file amicus curiae briefs in support of defendant's position: the Illinois Chamber of Commerce, Illinois Construction Industry Committee, and Associated Builders and Contractors; the Associated General Contractors of Illinois; and the Illinois Association of Defense Trial Counsel. We further allowed the Illinois Trial Lawyers' Association to file an amicus curiae brief in support of plaintiff's position. Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).


¶ 17 I

¶ 18 We first consider plaintiff's request that we dismiss this appeal as improvidently granted.

¶ 19 Grounds typically advanced for dismissal of an appeal once taken include the following: (1) the underlying judgment is not a final judgment (Phelps v. Elgin, Joliet & Eastern Ry. Co., 28 Ill.2d 275, 279, 191 N.E.2d 241 (1963) ; Wilkey v. Illinois Racing Board, 96 Ill.2d 245, 251, 70 Ill.Dec. 496, 449 N.E.2d 843 (1983) ); (2) the issues have become moot (In re Marriage of Peters–Farrell, 216 Ill.2d 287, 291, 296 Ill.Dec. 444, 835 N.E.2d 797 (2005) ); and (3) the petition for leave to appeal was not timely filed (Roth v. Illinois Farmers Insurance Co., 202 Ill.2d 490, 497, 270 Ill.Dec. 18, 782 N.E.2d 212 (2002) ). Plaintiff does not rely on any of these grounds for dismissal of this appeal. Instead, he contends that this case falls outside the "commonly accepted grounds" for review by this court. Plaintiff explains that because the underlying facts are disputed, we will not be able to establish bright-line rules of general applicability. Plaintiff further explains that, contrary to defendant's position, no conflict exists between the appellate court decision here and other appellate court decisions involving construction-related negligence claims.

¶ 20 Where, as here, the case is not appealable as a matter of right, Rule 315(a)...

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