Downs v. Steel and Craft Builders, Inc., No. 2-04-0996.

• Court: Supreme Court of Illinois
• Writing for the Court: Byrne
• Citation: 831 N.E.2d 92
• Parties: Richard DOWNS, Plaintiff-Appellant, v. STEEL AND CRAFT BUILDERS, INC., Defendant and Third-Party Plaintiff-Appellee (Tri-County Properties, Defendant and Third-Party Plaintiff; P & M Water and Sewer, Inc., Third-Party Defendant).
• Docket Number: No. 2-04-0996.
• Decision Date: 22 June 2005

831 N.E.2d 92 Richard DOWNS, Plaintiff-Appellant,
v.
STEEL AND CRAFT BUILDERS, INC., Defendant and Third-Party Plaintiff-Appellee (Tri-County Properties, Defendant and Third-Party Plaintiff; P & M Water and Sewer, Inc., Third-Party Defendant). No. 2-04-0996. Appellate Court of Illinois, Second District. June 22, 2005.

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Lloyd E. Dyer Jr., Mountcastle, Kelly & Dyer, P.C., Wheaton, for Richard Downs.

Lawrence M. Lulich, Wolf & Wolfe, Ltd., Chicago, for Steel & Craft Builders, Inc. Anthony V. Fanone, Pollina, Grant & Gentry, Downers Grove, for Tri-County Properties.

James C. Barrow, Rusin, Patton, Maciorowski & Friedman, Ltd., Chicago, for P & M Water & Sewer, Inc.

Justice BYRNE delivered the opinion of the court:

Plaintiff, Richard Downs, an employee of an independent contractor, suffered serious injuries when a trench collapsed at a construction site. Plaintiff sued defendant, Steel and Craft Builders, Inc., the general contractor of the site, alleging common-law negligence. The circuit court granted summary judgment in defendant's favor. Plaintiff appeals the judgment, arguing that defendant had a duty to prevent his injuries in light of its retention of control over certain aspects of the construction site, its contract with plaintiff's employer, its nondelegable duty to comply with applicable safety regulations, and as the possessor of the land where the injury occurred. Because defendant owed no duty to plaintiff under these theories, we affirm.

I. BACKGROUND

Plaintiff's injuries occurred on April 12, 1999, at a West Chicago building construction site owned by Tri-County Properties, a partnership between Ravin "Woody" Ray and his son. Defendant, a corporation

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owned entirely by Ravin Ray, acted as the general contractor for the job.

Prior to commencing construction, defendant hired several independent contractors, including plaintiff's employer, P & M Water and Sewer, Inc. (P & M), to work at various stages of the job. P & M contracted to work on a sewer system. Pursuant to the contract, defendant could order work to start or to stop, could order changes to the plans, and could approve the workmen, subcontractors, or material suppliers hired by P & M. Otherwise, defendant placed the burden and the responsibility of completing the work on P & M.

Pursuant to the contract, P & M was required to provide labor, equipment, and material. Additionally, P & M agreed to defend, to indemnify, and to "save harmless" defendant against any injuries arising out of P & M's performance of the contract. Finally, the contract identified the standard of conduct and working conditions by which P & M was to abide:

"All sub-contractors and material suppliers and their Sub-contractors and/or agents are required and herewith notified that they will comply with [the] Williams-Steiger Occupational Safety and Health Act of 1970, which became effective April 28, 1971. The Sub-contractor assumes responsibility to the Contractor for compliance with applicable regulations issued under the Construction Safety Act of 1960 and the Occupational Safety and Health Act of 1970 as to acts of commission or omission by the Sub-contractor, its agents, employees, and Sub-contractors and hold [sic] Steel & Craft Builders Corporation, and the Owner harmless."

These terms were standard in all of defendant's subcontracts.

Exercising its authority under the contract, defendant scheduled P & M to install a pipe from a water main to the building being constructed. Plaintiff and his co-workers arrived in the morning of their first day at the site. Plaintiff was employed as a "bottom man," whose task involved climbing down into trenches in order to set, to level, and to connect pipes. Before plaintiff could perform his task, his co-workers used a backhoe to dig into an existing trench so the pipes could be laid properly. As they dug, the workers noticed that the ground was extremely moist. Eventually, water began spilling into the trench, and the backhoe operator could not prevent dirt from falling in.

Although plaintiff suggested that a trench box and a bigger machine be used to reduce the likelihood of a cave-in, his boss decided instead to halve the length of the pipe that was to be installed. While working to connect the second section of the pipe, plaintiff noticed that the trench wall was collapsing. Despite his attempt to move out of the way, the collapsed wall buried him up to his chest, causing serious injuries to his left knee, hip, and leg.

In the morning of the day of the accident, Ravin Ray was at the construction site, but he did not observe the accident or the work being done by P & M; nor did he instruct P & M on the work. He did not direct, supervise, or participate in the work, the means, or the methods of P & M. He frequently visited the site to look only at the work's progress, and he observed no safety violations. He relied on the subcontractors for safety, providing them with no classes, inspectors, or equipment.

After the accident, plaintiff sued defendant and Tri-County Properties for negligence. Both defendants filed third-party complaints against P & M. On August 31, 2004, the circuit court entered summary judgment against plaintiff, finding a lack of negligence because neither defendant nor

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Tri-County Properties retained control over the work that P & M had performed. Plaintiff filed a timely notice of appeal from only that portion of the order that granted summary judgment to defendant.

II. ANALYSIS

[1-4] In a negligence action, a plaintiff must present sufficient evidence to establish that the defendant owed a duty to the plaintiff. Wojdyla v. City of Park Ridge, 148 Ill.2d 417, 421, 170 Ill.Dec. 418, 592 N.E.2d 1098 (1992); Rogers v. West Construction Co., 252 Ill.App.3d 103, 105, 191 Ill.Dec. 209, 623 N.E.2d 799 (1993). The existence of a duty is a question of law to be decided by the court; if no duty exists there is no recovery. Schoenbeck v. Du Page Water Comm'n, 240 Ill.App.3d 1045, 1047-48, 180 Ill.Dec. 624, 607 N.E.2d 693 (1993). The grant of summary judgment will be affirmed if the pleadings, depositions, affidavits, and admissions show that there are no genuine issues of material fact and if judgment is proper as a matter of law. General Casualty Insurance Co. v. Lacey, 199 Ill.2d 281, 284, 263 Ill.Dec. 816, 769 N.E.2d 18 (2002). Our review is de novo. Lacey, 199 Ill.2d at 284, 263 Ill.Dec. 816, 769 N.E.2d 18.

Plaintiff presents three bases for the existence of a duty of care: (1) defendant's contractual right to control and actual retention of control under section 414 of the Restatement (Second) of Torts; (2) the applicable safety regulations; and (3) defendant's status as possessor of the land under section 343 of the Restatement (Second) of Torts. We address each in turn.

A. Section 414 of the Restatement (Second) of Torts

[5-8] Plaintiff argues that defendant owed him a duty of care pursuant to section 414 of the Restatement (Second) of Torts, because defendant retained control of certain aspects of the work performed by P & M. Restatement (Second) of Torts § 414 (1965). Generally, one who employs an independent contractor is not liable for the latter's acts or omissions. Rangel v. Brookhaven Constructors, Inc., 307 Ill. App.3d 835, 838, 241 Ill.Dec. 313, 719 N.E.2d 174 (1999). In Illinois, a recognized exception to this rule is found in section 414 of the Restatement (Second) of Torts (Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 325, 211 N.E.2d 247 (1965)), which states:

"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).

Comment c to section 414 explains the "retained control" concept:

"c. In order for the [exception] 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 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).

Whether a contractor retained such control over a subcontractor's work so as to give rise to liability is an issue reserved for a trier of fact, unless the evidence presented is insufficient to create a factual question.

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Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill.App.3d 1051, 1059, 245 Ill.Dec. 644, 728 N.E.2d 726 (2000).

[9, 10] The best indicator of whether a contractor has retained control over the subcontractor's work is the parties' contract, if one exists. The interpretation of a contract is a question of law and therefore may be decided on a motion for summary judgment. Fitzwilliam v. 1220 Iroquois Venture, 233 Ill.App.3d 221, 237, 174 Ill. Dec. 371, 598 N.E.2d 1003 (1992). When interpreting a contract, we must consider the entire document (Spectramed, Inc. v. Gould, Inc., 304 Ill.App.3d 762, 770, 237 Ill.Dec. 578, 710 N.E.2d 1 (1998)) to give effect to the parties' intent (Omnitrus Merging Corp. v. Illinois Tool Works, Inc., 256 Ill.App.3d 31, 34, 195 Ill.Dec. 701, 628 N.E.2d 1165 (1993)), as determined by the plain and ordinary meaning of the language of the contract (Owens v. McDermott, Will & Emery, 316 Ill.App.3d 340, 344, 249 Ill.Dec. 303, 736 N.E.2d 145 (2000)). The question in this case is whether the contract...