Clifford v. Wharton Business Group, LLC

• Decision Date: 30 September 2004
• Docket Number: No. 1-03-2932.,1-03-2932.
• Citation: 353 Ill. App.3d 34,288 Ill.Dec. 557,817 N.E.2d 1207
• Parties: Jeremiah CLIFFORD and Geraldine Clifford, Plaintiffs-Appellants, v. The WHARTON BUSINESS GROUP, L.L.C., Defendant-Appellee.
• Court: United States Appellate Court of Illinois

817 N.E.2d 1207

353 Ill. App.3d 34

288 Ill.Dec. 557

Jeremiah CLIFFORD and Geraldine Clifford, Plaintiffs-Appellants, v. The WHARTON BUSINESS GROUP, L.L.C., Defendant-Appellee.

No. 1-03-2932.

Appellate Court of Illinois, First District, First Division.

September 30, 2004.

James K. Leven, Chicago, for Appellants.

Amy L. Anderson, Stephen A. Kolodziej, Elizabeth S. Joshi of Brenner, Ford, Monroe & Scott, Ltd., Chicago, for Appellee.

Justice GORDON delivered the opinion of the court:

Plaintiffs, Jeremiah Clifford (Clifford) and his wife Geraldine Clifford, brought this negligence action against defendant, the Wharton Business Group, L.L.C. (Wharton), seeking damages for work-related injuries sustained by Clifford and his wife's loss of consortium. Clifford was working as a carpenter on a construction site owned by Wharton, a general contractor. He was employed by O'Toole Construction (O'Toole), one of Wharton's subcontractors on the project. Clifford claimed that he was injured when a newly built wall collapsed on top of him and, as a result, he fell or was thrown into a nearby stairwell opening in the floor. Wharton moved for summary judgment on the grounds that, as a general contractor, it was not liable for the acts or omissions of its independent contractors. The circuit court granted Wharton's motion. The Cliffords now appeal. For the reasons that follow, we reverse and remand.

BACKGROUND

The record shows that on the day of the incident Clifford was working as a carpenter on a 10-unit townhome building under construction in Oak Park, Illinois. During the hour preceding the incident, Clifford was "marking out" walls while other carpenters were nailing them. Clifford testified in his deposition that he was working alone on the fourth floor, when he suddenly heard a creaking noise and looked up. The south wall he had earlier put up and braced with other carpenters was collapsing. Clifford put his hands up in an attempt to try to stop it. He apparently fell or was thrown into a nearby 4-foot by 10-foot stairway opening in the floor. Clifford could not remember what happened after he put his hands up to try to stop the wall from falling. There is no evidence in the record regarding how, when or whether he did, in fact, fall through the opening in the floor.

The contract between Wharton and O'Toole contained no provisions imposing responsibility on Wharton for site safety conditions and did not reserve to Wharton any right of supervision or control over the employees of O'Toole. O'Toole supplied its carpenters with certain tools, and the carpenters supplied the rest. Wharton did not supply any equipment for O'Toole's workers to use, direct the carpenters on how to perform their tasks (other than indicating the location of a wall to be built), hold safety or other meetings on this project, or maintain safety rules that were to be followed by the subcontractors. Inspectors from Oak Park, and not Wharton, would inspect the work completed by the carpenters to ensure that it was performed properly. The record shows that, in terms of installing barricades over holes or covering holes, it was the carpenters' decision as to what safety measures to take. None of the carpenters said they wanted to put a railing around any holes or to put anything over the holes to cover them.

In their complaint, plaintiffs alleged that Wharton, through its agents and employees, was negligent in creating or permitting a dangerous work environment; permitting dangerous conditions to exist at the construction site; failing to make inspections; failing to warn of dangerous conditions; failing to erect barricades or install guardrails around open areas at the construction site; failing to enforce reasonable standards of safety; failing to properly supervise the work being done by subcontractors, employees and others; failing to supply or maintain fall protection; and otherwise exercising its obligation as a general contractor in a dangerous, reckless and hazardous manner. Plaintiffs' first amended complaint, for the purposes of our review, was essentially the same as their original complaint.¹

Wharton filed its motion for summary judgment while the first amended complaint was the operative pleading before the court. Wharton relied on section 414 of the Restatement (Second) of Torts (hereinafter the Restatement), adopted in Illinois, which provides:

"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." Restatement (Second) of Torts § 414, at 387 (1965).

The "retained control" concept is further explained in Comment c to section 414:

"In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way." Restatement (Second) of Torts § 414, Comment c, at 388 (1965).

Wharton argued that, as a general contractor, it was not liable for the acts or omissions of O'Toole, its independent carpentry contractor, because it did not retain control over the operative details of the carpenters' work.

Prior to responding to Wharton's motion for summary judgment, plaintiffs filed a second amended complaint, which added a premises liability count against Wharton. The trial court struck the premises liability count on the grounds that it was duplicative of the construction negligence count. Subsequently, plaintiffs answered the motion for summary judgment, arguing that the case was not governed by the theory of retained control articulated in section 414 of the Restatement but, rather, it was governed by the premises liability doctrine, as expressed in sections 343 and 343A of the Restatement, adopted in Illinois. Section 343 provides:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts § 343, at 215-16 (1965).

Section 343 should be read together with section 343A (Restatement (Second) of Torts § 343, Comment a, at 216), which provides the following "known or obvious" exception to the liability of a possessor of land under section 343:

"A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness." Restatement (Second) of Torts § 343A(1), at 218 (1965).

Plaintiffs argued that Wharton owed Clifford a duty of care, despite the obvious nature of the uncovered stairwell opening in the floor, because Wharton should have reasonably anticipated that Clifford would become distracted while working and momentarily forget about the dangerous opening in the floor. Wharton replied, in pertinent part, that it did not create the opening in the floor and neither knew of nor had control over the distraction of the falling wall.

The circuit court granted Wharton's motion for summary judgment. The court found that Wharton did not control the operative details of the carpentry subcontractor's work, did not retain control over the safety aspects of the work, did not know of or create the improperly braced wall or the opening into which Clifford fell and, therefore, did not owe Clifford a duty of care as a matter of law. This appeal follows.

ANALYSIS

Plaintiffs contend that the circuit court erred in relying solely on the theory of retained control articulated in section 414 of the Restatement and failing to "apply the correct legal standards," namely, those under the premises liability doctrine, as expressed in sections 343 and 343A of the Restatement.

Summary judgment is appropriate where the pleadings, depositions, admissions and affidavits on file, viewed in the light most favorable to the nonmovant, show that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2002); Sollami v. Eaton, 201 Ill.2d 1, 6, 265 Ill.Dec. 177, 772 N.E.2d 215, 218 (2002). We review a grant of summary judgment de novo. Golden Rule Insurance Co. v. Schwartz, 203 Ill.2d 456, 462, 272 Ill.Dec. 176, 786 N.E.2d 1010, 1014 (2003)

.

The essential elements of a cause of action based on common law negligence are the existence of a duty owed by the defendant to the plaintiff, breach of that duty, and an injury proximately caused by that breach. Ward v. K mart Corp., 136 Ill.2d 132, 140, 143 Ill.Dec. 288, 554 N.E.2d 223, 226 (1990). Generally, a duty of care arises where the parties stand in such a relationship to one another that the law imposes upon the defendant an obligation of reasonable conduct for the benefit of the plaintiff. Ward, 136 Ill.2d at 140,143 Ill.Dec. 288,554 N.E.2d at 226. Whether a defendant owes a plaintiff a duty of care is usually a question of law to be...