Carney v. Union Pac. R.R. Co.

• Court: Appellate Court of Illinois
• Writing for the Court: JUSTICE TAYLOR delivered the judgment of the court.
• Citation: Carney v. Union Pac. R.R. Co., 2014 IL App (1st) 130105-U, No. 1-13-0105 (Ill. App. Nov 26, 2014)
• Decision Date: 26 November 2014
• Docket Number: No. 1-13-0105,1-13-0105
• Parties: PATRICK JOSEPH CARNEY, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Corporation Defendant-Appellee.

2014 IL App (1st) 130105-U

PATRICK JOSEPH CARNEY, Plaintiff-Appellant, v. UNION PACIFIC RAILROAD COMPANY, a Corporation Defendant-Appellee.

No. 1-13-0105

APPELLATE COURT OF ILLINOIS FIRST DISTRICT FOURTH Division

November 26, 2014

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County, Illinois.

No. 07 L 8369

Honorable Randye A. Kogan, Judge Presiding.

JUSTICE TAYLOR delivered the judgment of the court.

Justices Howse and Epstein concurred in the judgment.

ORDER

¶ 1 Held: Summary judgment in favor of a railroad company was improper in a personal injury action from plaintiff who performed a task on behalf of a sub-subcontractor where there was a genuine issue of material fact as to whether the railroadretained sufficient control over part of the work and whether it should have known of a dangerous condition on the premises and failed to warn the contractor.

¶ 2 Plaintiff Patrick Carney appeals from the judgment of the circuit court of Cook County granting summary judgment in favor of defendant Union Pacific Railroad Company (U.P.) in an action for personal injury arising from an accident suffered by plaintiff while assisting with the removal of a bridge on U.P.'s property. U.P. had entered into a contract with Happ's, Inc., who is not a party to this appeal, for the removal of that bridge; and Happ's in turn, hired Carney Group, a company owned by plaintiff's father, to assist in the demolition process. In his action against U.P., plaintiff claimed that U.P breached its duty to him as: (1) an employer who retained control over the work entrusted to an independent contractor; (2) an employer who failed to employ a competent and careful contractor; and (3) an owner of land who failed to protect him from a dangerous condition. He now claims that summary judgment in favor of U.P. was erroneous because, contrary to the circuit court's findings, genuine issues of material fact existed as to whether U.P. retained sufficient control to exercise a duty; whether plaintiff was an employee of Carney Group and possibly outside the class of person's to whom U.P. owed a duty of care; and whether U.P. should have known of certain hidden plates under the ground, which caused plaintiff's accident.

¶ 3 BACKGROUND

¶ 4 The following facts pertaining to the accident that gave rise to the present action appear undisputed. As noted above, U.P. contracted with Happ's to demolish and remove certain unused bridges by entering into an agreement for the "removal and purchase" of those bridges by Happ's. The agreement identified Happ's as the contractor, which thereby purchased the bridges and appurtenances and agreed to provide "all superintendence, labor, tools,equipment, materials and supplies and all other things requisite and necessary" to remove those three bridges. Happ's could not resell the trackage until it was removed from U.P.'s property. Further, the agreement provided that all work to be performed by Happ's was to be completed to U.P.'s satisfaction and the acceptance of a railroad representative. U.P. retained the right to stop the work or make changes in the work, and to terminate the contract immediately if Happ's services were, "in the sole discretion of the Railroad, deemed unsatisfactory." Happ's failure to comply with Federal Rail Administration on track safety standards could result in the loss of the contract.

¶ 5 Happ's, enlisted the assistance of Carney Group for the demolition of the bridge on Polk Street, as Happ's usually did when it took down most steel bridges. Carney Group was a bridge demolition company owned by Patrick Carney Sr., plaintiff's father, with whom Happ's had work on bridge removals for 20 years. Plaintiff worked for his father as a trader on the Chicago Board of Trade, where Carney, Sr. held a seat, and was also learning about his father's demolition business.

¶ 6 It was decided by Happ's and Carney, Sr., that the bridge on Polk Street would be removed using a crane, rather than explosives. The bridge consisted of two upright girders, or sidewalls, connected by cross beams at each end, as its floor had already been removed. While Happ's may have taken down simple girder bridges before, it had never removed a through plate girder bridge like this. When Carney, Sr. learned that there was no one on site capable of attaching the cable from the crane to the bridge girder that was going to be lifted, Carney Sr. asked plaintiff to go to the site and perform that task.

¶ 7 After the crane was connected to girder on the east side of the bridge, a welder cut the last connecting crossbeams at their junction points with that girder, but the crane could stillnot lift it. Carney, Sr. noticed that one of the crossbeams had shifted towards the eastern girder, preventing the lift, and ordered the re-cutting of that beam at the point where it was pinching the eastern girder. Concerned that the western beam would collapse when the eastern beam is lifted, Carney, Sr. measured the height of the western girder to ensure that the welder would not be hit if the western beam fell. Plaintiff, who was then standing near the north end of the bridge, did not hear the discussion about the western girder being at risk of collapse, so when his father warned him to "move back," he stepped towards the western girder. As the welder re-cut that shifted beam, it snapped, and the western girder fell towards the east, trapping and severing plaintiff's legs as he fell down.

¶ 8 Plaintiff testified at a deposition that he had difficulty retreating to safety because he was standing on the remnant of the steel bridge floor plate still connected to the western girder, which came up and pushed him forward as the girder tipped inward, causing him to lose his footing. He believed that by standing on gravel and ballast, seven or eight feet off the bridge, and had no idea that he was standing on a plate. In fact, Steve Happ, the president of Happ's, testified that he was not aware that the floor plate extended as far as it did and had not seen that before. One of Happ's employees, however, testified that he saw plaintiff and his father run into each other, which is what caused plaintiff to fall.

¶ 9 U.P. representatives went to the scene of the accident once they learned about it, and starting again the next day, the bridge removal was completed by employees of Happs and Carney Group. OSHA representatives supervised the work.

¶ 10 As a result of his injuries, plaintiff settled his worker's compensation claim with Carney Group's insurer. He also filed an action against Happ's and was later granted leave to add U.P. as a defendant. U.P. added as a third-party defendant Gatwood Crane Services, Inc., thecompany that provided the crane to remove the bridge, and filed a counterclaim against Happ's. Both Happ's and Gatwood settled their claims with plaintiff.

¶ 11 Representatives from Happ's and U.P. gave inconsistent answers with respect to the level of control that U.P. exercised over the bridge removal. In its interrogatory answer, Happ stated that the bridge was owned by U.P., while U.P. averred that Happ's purchased all bridges pursuant to the agreement. Happ testified at a deposition that he would notify U.P. when his company was working, and that a U.P. employee in charge of that area would check out the job. According to Happ, U.P. security personnel would drive by the site every hour. He later stated, however, that security personnel only drove by because of their trains, not to provide security to the project. Edward Benbow, U.P.'s director of track maintenance, testified at his deposition that he was not involved in supervising the work related to the removal of the Polk Street bridge.

¶ 12 With regard to whether U.P. diligently exercised control over the demolition, its manager of special projects George Meyer testified that specific plans were required for removing a bridge in a populated area, such as the one on Polk Street, and identified a provision in a plan stored in U.P.'s system noting that contractors must submit a proposed sequence of operations for review prior to construction. He acknowledged that Happ's was required to submit such a plan to U.P. However, David Reagan, a bridge supervisor for U.P. testified that he was not aware of any U.P. representatives monitoring that project, or requiring Happ's to submit any type of construction plan.

¶ 13 Insofar as U.P.'s involvement after the incident, Happ testified that U.P. did not want any more work done until a written plan was directed to U.P. and it was approved by their engineers. However, he later appeared to state that the plan that U.P. needed to see pertainedto the removal of the next bridge, not the one on Polk Street, and denied that anything was discussed by U.P. representatives about the Polk Street bridge. Tom Campbell, U.P.'s manager of bridge construction, testified that he met with Happ after the Polk Street bridge had been removed, and created guidelines for the removal of the girders of the next bridge in order to avoid another incident. While those were suggestions, a site representative could stop the work if they were not followed. Benbow, who was present at the meeting with Happ, testified that another incident would not be tolerable, and told Happ what needed to happen so that it did not happen again. According to Benbow, the removal of the bridge on Polk Street was done poorly by cutting the beams on only one side and causing the western girder to be unbalanced. He averred that if it was his job to review a plan, he would have caught that problem. After that meeting, Happ hired a company called DMD to perform the removal of the next bridge. While Happ testified that he "had" DMD perform the work, he also stated that it was U.P. that called them to the job site.

¶ 14 With respect to U.P.'s reasonableness in selecting a...