Lee v. Six Flags Theme Parks, Inc.

• Decision Date: 09 May 2014
• Docket Number: No. 1–13–0771.,1–13–0771.
• Citation: 2014 IL App (1st) 130771,381 Ill.Dec. 359,10 N.E.3d 444
• Parties: Donna L. LEE, Personal Representative of the Estate of Thomas J. Lee, Deceased, Plaintiff–Appellant, v. SIX FLAGS THEME PARKS, INC., a Corporation, d/b/a Six Flags Great America, Defendant–Appellee (Royal Crane Service Inc., a Corporation, Defendant).
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 130771

10 N.E.3d 444

381 Ill.Dec. 359

Donna L. LEE, Personal Representative of the Estate of Thomas J. Lee, Deceased, Plaintiff–Appellant,

v.SIX FLAGS THEME PARKS, INC., a Corporation, d/b/a Six Flags Great America, Defendant–Appellee (Royal Crane Service Inc., a Corporation, Defendant).

No. 1–13–0771.

Appellate Court of Illinois, First District, Sixth Division.

May 9, 2014.

Robert B. Pattison, of Law Offices of Robert B. Pattison, Ltd., of Chicago, for appellant.

Richard J. Leamy, Jr., and Robert H. Fredian, both of Weidner & McAuliffe, Ltd., of Chicago, for appellee.

OPINION

Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Donna L. Lee, personal representative of the estate of the late Thomas J. Lee, appeals orders of the circuit court of Cook County granting summary judgment in favor of defendant Six Flags Theme Parks, Inc. (Six Flags) on counts I, II, III and IV of plaintiff's complaint, which alleged wrongful death and survival claims based on theories of construction negligence and premises liability. Counts I and II were brought on behalf of the estate, while counts III and IV were brought as survival actions. On appeal, Donna argues Six Flags retained sufficient control over the work performed by its contractor to owe a duty of care to Thomas. Donna also argues there are genuine issues of material fact precluding the entry of summary judgment on her premises liability claims. For the following reasons, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 On July 3, 2008, Donna filed a complaint against Six Flags and Royal Crane Service, Inc., in the circuit court of Cook County.¹ The complaint generally alleged that prior to March 11, 2008, Six Flags was engaged in the project of dismantling a steel structure known as the “Splash Water Falls” amusement ride (ride), using Campanella & Sons (Campanella) and Royal Crane as contractors. Thomas, employed by Campanella as a heavy equipment mechanic, was assigned to assist in dismantling the ride by disconnecting and removing structural steel.²

¶ 4 On March 11, 2008 Thomas and coworkers had disconnected a motor on a platform 43 feet above ground. The motor was lifted from the platform and moved to the ground, resulting in a large opening in the platform, which was not covered or barricaded. Thomas and coworkers then were connecting cables from a crane to a component known as the pan, which was also 43 feet above ground. During this preparatory work, Thomas fell to his death, through the opening created by the removal of the motor from the platform.

¶ 5 Donna's complaint was comprised of four counts. Count I sounded in negligence on a premises liability theory, alleging Six Flags knew of the dangerous conditions on its land, but failed to exercise reasonable care to protect invitees, including Thomas. Count II sounded in construction negligence, alleging Six Flags retained sufficient control over the manner and method of the safety aspects of the project to incur liability for the negligence of Campanella and had actual knowledge the work would create the dangerous condition, yet failed to provide a safe place or platform upon which Thomas could work. Counts III and IV alleged survival actions based on the theories of premises liability and construction negligence, respectively. Counts II and IV, the construction negligence claims, also alleged Six Flags was negligent in hiring Campanella.

¶ 6 On January 11, 2013, following pretrial discovery, Six Flags filed a motion for summary judgment on the four counts of the complaint alleging construction negligence and premises liability with respect to Six Flags. On January 18, 2013, Six Flags filed an amended motion for summary judgment on these four counts of the complaint. In both motions, Six Flags argued it could not be liable because it did not retain any control over the means and methods of work on the project and was completely unaware of the hazard created shortly before Thomas's death.³ On February 15, 2013, plaintiff filed her response in opposition to the motion for summary judgment, disputing both of Six Flags' primary assertions. Donna also responded to Six Flags' “brief assertion of a sole proximate cause defense,” but neither party has raised such a defense as an issue in this appeal. On February 22, 2013, Six Flags filed its reply in support of its motion for summary judgment.

¶ 7 The materials submitted by the parties in support of and in opposition to summary judgment disclose the following facts. Six Flags and Campanella entered into a construction agreement (Agreement) dated January 31, 2008. Section 1.2 of the Agreement stated the contract documents would include not only the Agreement, but also the specifications of the work and other documents, among which were the proposal from Campanella, an appendix of general conditions, the “Six Flags Great America Contractor Safety Guidelines” (Safety Guidelines), an indemnity and insurance addendum, and supplemental schedules. Section 1.3 of the Agreement provided for Campanella to have conducted a thorough inspection of the work site to determine the difficulties and hazards incident to the work before executing the Agreement or commencing work on the project.

¶ 8 Section 3.1 of the Agreement provided Campanella shall supervise and direct the work on the project. Section 3.1 also provided Campanella “shall be solely responsible and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under this Agreement.” Section 3.2 provided that, unless otherwise specified, Campanella shall provide and pay for all labor, materials, equipment, and other facilities and services necessary for the proper execution and completion of the work. Section 3.6 of the Agreement required Campanella to defend, indemnify and hold Six Flags harmless, to the fullest extent permitted by law, against all claims and causes of actions by any party—including Campanella's employees—arising out of negligence by Campanella and its employees.

¶ 9 The Safety Guidelines, signed by Campanella's president on February 11, 2008, state:

“Safety and the safety training is the responsibility of the contractor for all its operations. Full compliance with all Federal, state and local laws and guidelines are required. This also includes providing personal protective equipment as the job dictates or requires. If Six Flags * * * is required to provide personal protective or other safety equipment to aid in compliance, it reserves the right to do so at the expense of the contractor.”

In particular, the contractor was required to comply with federal Occupational Safety and Health Administration (OSHA) standards regarding communications regarding possible exposure of employees to hazardous materials, OSHA guidelines for the control of hazardous energy, the OSHA program for entries into confined spaces, and OSHA requirements for the proper barricading and warning of open holes.

¶ 10 The Safety Guidelines also provided that “[c]ontractors doing work above six feet will provide for and enforce the use of fall protection for their employees. The contractor was also responsible for the handling, storage and disposal of any hazardous waste in accordance with the law. Contractors were required to use ground fault protected receptacles for all temporary power needs. Moreover, the contractor was required to obey all posted traffic control signs on Six Flags' property. Six Flags disclaimed responsibility for the contractor's equipment. If the contractor worked with flammable materials or welding equipment, the contractor was required to provide proper fire extinguishing media and notify Six Flags when and where welding was to occur.

¶ 11 The Safety Guidelines further provided Six Flags' management could “inspect for any unsafe action and/or conditions and request corrections of such situations.” Consumption of alcohol and illegal substances on or before entering Six Flags' property was prohibited, as were practical jokes, horseplay, scuffling and fighting. Firearms were also barred from Six Flags' property.

¶ 12 The general conditions similarly required the contractor to comply with OSHA law and to provide protection for the work in place. The general conditions barred burning of materials at the work site. Six Flags had the right to approve any substitute equipment or materials for those specified in the underlying contract. The contractor was also required to have a competent superintendent, foreman other representative satisfactory to Six Flags at the work site at all times. The contractor was required to submit a written notice to Six Flags for permission to proceed. Furthermore, if the contractor neglected to properly execute the work, Six Flags could, after three days' notice to the contractor, make good such deficiencies and deduct the cost thereof from the payment due the contractor.

¶ 13 The indemnity and insurance addendum, also signed by Campanella's president on February 11, 2008, provided Six Flags had no right to control the details of the contractor's work, or the means, methods or manner of the contractor's performance of the work under the Agreement. Six Flags had the right to determine the results to be accomplished under the contract, as well as the right to accept or reject the results and quality of the contractor's work.

¶ 14 Schedule A to the Agreement required that all materials conform to the City Of Gurnee building codes, and all workmanship to meet the approval of Six Flags' construction division. The contractor was required to submit daily progress reports. All employees were required to conform to Six Flags policies, specifically the safety policies. The “Schedule ‘A’ Supplemental” required the contractor to remove debris resulting from the operation on a daily basis. All workers on the site were required to wear a hard hat for...