Kotecki v. Walsh Const. Co.

• Decision Date: 27 August 2002
• Docket Number: No. 1-01-0954.,1-01-0954.
• Citation: 776 N.E.2d 774,267 Ill.Dec. 402,333 Ill. App.3d 583
• Parties: Ronald KOTECKI, Plaintiff-Appellant, v. WALSH CONSTRUCTION COMPANY, and Home Depot, Inc., Defendants-Appellees (Bohemian-Kelleher Painting Company, Third Party Defendant).
• Court: United States Appellate Court of Illinois

776 N.E.2d 774

333 Ill. App.3d 583

267 Ill.Dec. 402

Ronald KOTECKI, Plaintiff-Appellant, v. WALSH CONSTRUCTION COMPANY, and Home Depot, Inc., Defendants-Appellees (Bohemian-Kelleher Painting Company, Third Party Defendant).

No. 1-01-0954.

Appellate Court of Illinois, First District, Second Division.

August 27, 2002.

Stuart H. Galesburg, Chicago, for Appellant.

Mark E. Christensen and Kirsten Radler Waack, of Christensen & Ehret, Chicago, for Appellees.

Justice CAHILL delivered the opinion of the court:

Plaintiff appeals an order granting summary judgment for defendants Walsh Construction Company and Home Depot, Inc. Plaintiff argues that the trial court erred in granting summary judgment because section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)) and section 2 of the Premises Liability Act (the Act) (740 ILCS 130/2 (West 2000)) established a duty of care in this case. We disagree and affirm the summary judgment order of the trial court.

Plaintiff filed a two-count complaint against defendants on January 22, 1998, for injuries arising out of a construction accident on January 23, 1996. Count I alleged common law negligence. Count II alleged premise liability under the Act. Plaintiff's fifth amended complaint set out the following facts.

Plaintiff was a commercial painter employed by Bohemian Kelleher Painting Company. Kelleher was a painting subcontractor hired as part of a construction project for a Home Depot store on North Avenue in Chicago. Defendant Walsh Construction Company was the general contractor.

The building was turned over to Home Depot on January 1, 1996, when construction was substantially complete. Employees began to stock the store to prepare for the grand opening. Employees unloaded trucks in the dock area and used forklifts to move merchandise into the store.

On January 23, 1996, plaintiff was assigned to paint the dock doorframes. This task was a "punch list" item, that is, work still to be done after construction was substantially completed and after the building was turned over to Home Depot. Plaintiff used a six- to eight-foot A-frame ladder, supplied by his employer, to complete his work. Plaintiff positioned the ladder next to a dock leveler. A dock leveler is a mechanical device that allows the dock to be raised or lowered to accommodate the height of varying truck beds.

Plaintiff testified at his deposition that he knew his ladder was next to the dock leveler and that he knew how a leveler worked. Plaintiff was also aware of boxes next to his ladder. Plaintiff knew the dock area was being used by Home Depot employees to unload merchandise. Plaintiff said that he had painted in dock areas before and that the area was well lit.

Plaintiff further testified in his deposition that his ladder was placed on a flat concrete surface. The dock leveler next to the ladder was even with the rest of the dock when plaintiff ascended the ladder. Plaintiff noticed the activity going on around him but was able to complete his work. Plaintiff waited to descend the ladder until the leveler near his ladder was no longer in use. Plaintiff then descended the ladder, carrying his paint and brush. Plaintiff lost his footing as he stepped off the ladder, injuring his right foot and back. Plaintiff admitted that there was no debris near his ladder when he descended. Plaintiff testified that he assumed the leveler caused his fall. Plaintiff testified that Kelleher gave plaintiff his assignments and inspected his work. All painting materials were supplied by Kelleher. Plaintiff said he never spoke to a Home Depot representative.

Michael Parino, a Walsh project manager, testified in his disposition that Walsh never told Kelleher employees how to complete their work. Parino testified that plaintiff could have painted at a different time if he was distracted. Parino said that plaintiff made no such request. Parino testified there were no reports of a malfunctioning dock leveler. Parino described Walsh's duty in the construction project as one of general supervision. Walsh did not observe the subcontractors individually. Safety issues were addressed by the subcontractor's foreman.

Terry Mapes, project manager for Home Depot, testified in his dispositon that construction was substantially completed on January 1, 1996. The building was then turned over to Home Depot. Employees began to prepare the store for its grand opening. "Punch list" items were finished during this time. Mapes said that neither Home Depot nor Walsh directed the manner in which the "punch list" items were completed. That responsibility fell to the subcontractor. Mapes acknowledged the contractual relationship between Home Depot, Walsh and Kelleher.

Defendants moved for summary judgment, arguing that no duty existed under either common law negligence or the Act. The trial court granted the motion.

We review a grant of summary judgment de novo. Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill.2d 107, 113, 208 Ill.Dec. 662, 649 N.E.2d 1323 (1995).

Plaintiff frames two issues for us to consider on appeal:

"Whether * * * summary judgment [was appropriate] in Count I of the fifth amended complaint, sounding in construction negligence, in favor of the Defendant, general contractor, and against the Plaintiff, an injured employee, of the third party subcontractor, while working as a commercial painter, while said general contractor [1] maintained control and [2] was responsible for a safe workplace, over the construction of the Defendant's premises, where said injury occurred[.]

Whether * * * summary judgment [was appropriate] in Count II, of the fifth amended complaint, sounding in premises liability, in favor of the Defendant, property owner, and against the Plaintiff, an injured employee of the third party subcontractor, when said Defendant was in control of, and knew of, or should have known, that the subcontractor, and its employee, Plaintiff had not finished with the contracted work to be performed, and to Defendant's premises[.]"

Whether there is common law negligence, in the context of a construction-related injury, is analyzed under section 414 of the Restatement (Second) of Torts. Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill.App.3d 1051, 1057-58, 245 Ill.Dec. 644, 728 N.E.2d 726 (2000). Section 414 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 (1965).

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

"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 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." (Emphasis added.) Restatement (Second) of Torts § 414, Comment c, at 388 (1965).

To state a claim for negligence under section 414, a plaintiff must allege (and ultimately prove) that the defendant owed him a duty and breached that duty, and that plaintiff's injury was proximately caused by the breach. Hills v. Bridgeview Little League Ass'n, 195 Ill.2d 210, 228, 253 Ill.Dec. 632, 745 N.E.2d 1166 (2000). Whether a duty exists is a question of law. Happel v. Wal-Mart Stores, Inc., 199 Ill.2d 179, 262 Ill.Dec. 815, 766 N.E.2d 1118 (2002). Whether a duty exists under section 414 turns on whether the defendant controlled the work in such a manner that he should be held liable. Bokodi, 312 Ill.App.3d at 1059,245 Ill.Dec. 644,728 N.E.2d 726. Plaintiff offered no evidence of such control here, and, in fact, admitted in his deposition that his employer alone controlled the manner by which he completed his painting assignment. Kelleher furnished the painting supplies and tools. Kelleher coordinated the work, gave plaintiff his assignments and inspected his work. Plaintiff admitted that neither Home Depot nor Walsh had authority to tell him how to complete the job. Plaintiff said he never spoke to a Home Depot representative and that no one from Walsh told him how to perform the work. Plaintiff's argument that the contractual relationship between Kelleher, Home Depot and Walsh created an issue of control is unpersuasive in light of this deposition testimony.

The excerpts of the contracts on which plaintiff relies establish only that Home Depot and Walsh reserved a general right over the work—the right to stop, start and inspect progress. But the undisputed facts show that control of the work was exercised by plaintiff's employer only. Plaintiff points to no facts to show that Walsh and Home Depot retained an amount of supervision such that plaintiff, a painting subcontractor, was not free to complete the work in his own way. Bokodi, on which plaintiff relies for an opposite conclusion, is distinguishable.

The evidence in Bokodi showed that the defendants went to great, lengths to control safety standards at the work site. Bokodi, 312 Ill.App.3d at 1063, 245 Ill.Dec. 644, 728 N.E.2d 726. The defendants employed a full-time safety manager who conducted weekly safety meetings and inspected the work site. The safety manager and all employees had the power to stop the work if they witnessed safety violations. We concluded that this constant monitoring should have made def...