Foley v. Builtech Constr., Inc., 1-18-0941

CourtUnited States Appellate Court of Illinois
Writing for the CourtJUSTICE HYMAN delivered the judgment of the court, with opinion
Citation160 N.E.3d 78,442 Ill.Dec. 505,2019 IL App (1st) 180941
Parties John FOLEY, Plaintiff-Appellant, v. BUILTECH CONSTRUCTION, INC., Defendant-Appellee.
Docket NumberNo. 1-18-0941,1-18-0941
Decision Date23 July 2019

2019 IL App (1st) 180941
160 N.E.3d 78
442 Ill.Dec.

John FOLEY, Plaintiff-Appellant,

No. 1-18-0941

Appellate Court of Illinois, First District, Second Division.

Opinion filed July 23, 2019

JUSTICE HYMAN delivered the judgment of the court, with opinion

442 Ill.Dec. 507

¶ 1 An employee of a subcontractor was injured while moving rebar used for concrete installation. He sued the general contractor, Builtech Construction, Inc., for negligence. After discovery closed, Builtech moved for summary judgment, arguing it had neither actual nor constructive notice of any dangerous condition at the jobsite. The trial court granted summary

160 N.E.3d 81
442 Ill.Dec. 508

judgment. We reverse and remand for further proceedings.

¶ 2 We hold that the issue of whether Builtech retained sufficient control over the subcontractor's work to trigger liability for its employee's injury presents a question of fact, precluding summary judgment. Builtech had a project superintendent who inspected the jobsite daily, its own safety measures in place, a safety manual, ongoing training, and a safety supervisor monitoring safety at the worksite who was authorized to halt the subcontractor's unsafe work practices. Builtech also employed an outside safety auditor who worked closely with the safety supervisor. The contract between Builtech and the subcontractor required the subcontractor to comply with Builtech's own safety rules. Because a material question of fact arises regarding the issue of compliance with Builtech's own safety rules, summary judgment is inappropriate.

¶ 3 Background

¶ 4 Second Amended Complaint

¶ 5 While attempting to retrieve buried rebar on the jobsite, John Foley was injured. Foley's second amended complaint alleged construction negligence in that Builtech had the authority to stop the work, refuse the work and materials, "and/or order changes in the work, in the event the work was being performed in a dangerous manner or for any other reason." Foley also alleged that Builtech had a duty to exercise reasonable care at the site, including providing proper and safe placement of the rebar, and failed to (i) provide a safe workplace, (ii) inspect and supervise the work, (iii) warn of dangerous conditions, and (iv) provide adequate space to store the rebar.

¶ 6 A second count, "Premises Liability," alleged Builtech had a duty to maintain the jobsite and through its negligence caused the premises "to become and remain in a dangerous condition." Builtech "improperly operated, managed, maintained, and controlled" the worksite; failed to properly move the rebar, allowing it to be moved and buried; failed to reasonably inspect and warn Foley of the dangerous condition; and failed to provide space to adequately store the rebar.

¶ 7 Depositions

¶ 8 Builtech retained two subcontractors, Chicago Town and Precision Excavation, Inc., to do the foundation work. Precision would excavate the site, while Chicago Town was to perform concrete services for the building's foundation. The concrete structures were reinforced with steel rebar; Chicago Town's work included placing rebar into the forms, pouring concrete into the forms, and then stripping the forms. The rebar was stacked on-site.

¶ 9 Bob Bokar

¶ 10 Builtech's superintendent for the project, Bob Bokar, had a storefront office across from the jobsite. Bokar supervised all the subcontractors on the jobsite and was part of the safety department. Eliminating jobsite hazards was part of Bokar's duties. Bokar, on a daily basis, inspected the workplace, arriving at the jobsite around 6 a.m. Builtech had the authority to direct people how to properly lift heavy items on the jobsite. Part of Bokar's job was to stop a worker from improperly lifting a heavy item. If Bokar determined a subcontractor's "means and methods" were unsafe, he had the authority to stop the subcontractor and direct safety or work method changes. Chicago Town employees were required to comply with all decisions made by Builtech regarding safety requirements.

¶ 11 Builtech had an auditor who would periodically inspect the jobsite to identify unsafe conditions or work methods and then notify Bokar of any concerns. John

160 N.E.3d 82
442 Ill.Dec. 509

Ribskis, Builtech's safety supervisor, accompanied the auditor and possessed the authority to require workers to change unsafe work means and methods.

¶ 12 Builtech's safety manual required subcontractors to comply with its "means and methods" provisions, including lifting and material handling. Builtech held weekly meetings for its subcontractors on various safety topics.

¶ 13 Bokar took photographs of the jobsite, "usually daily." During the deposition he testified about photographs taken on May 11 and May 15. Bokar stated he did not take photographs to try to document where the incident occurred.

¶ 14 Chicago Town ordered the rebar for the concrete work and scheduled delivery. Chicago Town workers unloaded the rebar, but Bokar controlled its storage on-site. Further, if Chicago Town wanted to store the rebar in a location or manner that could have been hazardous to workers, Bokar would "not allow that" and had authority to tell Chicago Town to "re-store or re-organize their rebar."

¶ 15 Bokar approved certain areas to store the rebar, which required communication with Chicago Town. The standing agreement for subcontractor work included as a general condition of all work performed: "the subcontractor shall store its materials within the locations as approved by the contract." In Bokar's experience this was a "smaller" jobsite with limited space. The project was small enough not to need assistant superintendents.

¶ 16 When Foley's counsel asked Bokar about Builtech's safety rules, "hypothetically, if Chicago Town argued with you, * * * your direction would trump Chicago Town's?" Bokar answered, "[a]bsolutely." Bokar stated he had authority to inspect the rebar at any time. If he inspected and found the rebar "tangled up," he would have told Chicago Town. The excavating company brought sand in a dump truck to use as backfill. If the excavators left dirt or "spoils" (mounds of dirt) on the site, he would have required them to clean it up as improper and potentially unsafe.

¶ 17 The rebar was delivered to the jobsite on May 1, 2015. Two Chicago Town employees, Ismael Ramirez, a carpenter, and Juan Alfaro, a laborer, and others moved the rebar from the delivery spot to a spot closer to the building. They tried to stack the rebar so that it would not tangle.

¶ 18 Bokar did not see Foley lifting rebar on May 21, nor did he see Foley hurt himself. Foley told Bokar he "twinged" his back. Bokar had him fill out an incident report form.

¶ 19 Michael Chapman Deposition

¶ 20 Michael Chapman, the owner and president of Chicago Town, testified that he decided where to store the rebar on the jobsite but Bokar had the authority to tell Chapman to move the rebar or to stop work if necessary. Sometime between May 4 and May 15, Ramirez, Alfaro, and another carpenter moved and restacked the rebar.

¶ 21 Jonathan Ribskis Deposition

¶ 22 Jonathan Ribskis, who had been Builtech's project manager/safety coordinator, testified remotely from North Carolina. For this project Ribskis acted as the safety coordinator, generally responsible for safety on the jobsite. He conducted occasional safety audits on-site, inspecting the subcontractors' work methods and making recommendations. Bokar was on the jobsite on a daily basis; a project manager was not on-site daily but "no less than every other week." One of Bokar's duties was to determine safety concerns. The project manager had the authority to stop a subcontractor performing unsafe work or to change the means or method of lifting.

160 N.E.3d 83
442 Ill.Dec. 510

¶ 23 The means and methods of work were each subcontractor's responsibility. The general contractor was responsible for coordinating the work between the subcontractors and for alerting the subcontractors about unsafe storage. Builtech had the authority to instruct Chicago Town to restack or move the rebar if it believed Chicago Town had stacked the rebar in an unsafe manner or location.

¶ 24 Builtech had a safety manual, an "Injury & Illness Prevention Program," and weekly safety meetings at the jobsites.

¶ 25 A safety inspector hired by Builtech for a safety program prepared a report for Builtech, "Construction Hazard Identification and Risk Assessment 2015." Section 13, labeled "Ergonomics," addressed "identification and assessment of hazardous manual tasks:" If Builtech saw a subcontractor lifting with poor or dangerous form, it had the authority to stop him. Another section, "Lifting and Material Handling," contained bullet points on safe lifting.

¶ 26 Before Foley's accident, Ribskis was unaware of any complaints about where or how safely the rebar was stacked. Ribskis stated "at that time it was an average size...

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1 practice notes
  • Bradley v. United States, 19 C 903
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 7, 2021 "a breach of [thePage 12 defendant's] duty" and "injury proximately resulting from the breach"); Foley v. Builtech Constr., Inc., 160 N.E.3d 78, 86 (Ill. App. 2019) ("To state a claim for negligence under section 414, the plaintiff must allege that the defendant owed him a duty, that t......
1 cases
  • Bradley v. United States, 19 C 903
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • May 7, 2021 "a breach of [thePage 12 defendant's] duty" and "injury proximately resulting from the breach"); Foley v. Builtech Constr., Inc., 160 N.E.3d 78, 86 (Ill. App. 2019) ("To state a claim for negligence under section 414, the plaintiff must allege that the defendant owed him a duty, that t......

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