Lepretre v. Lend Lease (Us) Constr., Inc.

• Decision Date: 26 June 2017
• Docket Number: No. 1-16-2320.,1-16-2320.
• Citation: 82 N.E.3d 174,2017 IL App (1st) 162320
• Parties: William LEPRETRE, Plaintiff-Appellant, v. LEND LEASE (US) CONSTRUCTION, INC., a Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 162320

82 N.E.3d 174

William LEPRETRE, Plaintiff-Appellant,

v.LEND LEASE (US) CONSTRUCTION, INC., a Corporation, Defendant-Appellee.

No. 1-16-2320.

Appellate Court of Illinois, First District, FIRST DIVISION.

Filed June 26, 2017

Rehearing denied July 31, 2017

Steve A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago, for appellant.

Christian D. Ambler, of Stone & Johnson, Chtrd., of Chicago, for appellee.

OPINION

PRESIDING JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 Plaintiff William M. LePretre brought a cause of action against Lend Lease (US) Construction, Inc. (Lend Lease) and other defendants for injuries he allegedly sustained while working at a construction site at 515 North Clark Street in Chicago. Lend Lease filed a motion for summary judgment, and the trial court granted it, finding that Lend Lease owed no duty to plaintiff under which it could be subject to vicarious or direct liability. The trial court also denied plaintiff's motion to reconsider, and plaintiff now appeals. We affirm.

¶ 2 BACKGROUND

¶ 3 Plaintiff filed a nine-count complaint against Lend Lease and other defendants seeking damages for injuries he sustained when he slipped and fell while installing iron rebar on February 15, 2012. Count I was directed at Lend Lease, and it is the only count at issue in this appeal. Lend Lease was the general contractor for the project, and it retained Adjustable Forms, Inc. (Adjustable), as the concrete sub-contractor, which in turn retained plaintiff's employer, Bond Steel, to install and reinforce the iron rebar for the concrete pour.

¶ 4 Plaintiff alleged that Lend Lease failed to make a reasonable inspection of the premises; improperly operated, managed, maintained, and controlled the premises; failed to provide plaintiff with a safe place to work; failed to warn plaintiff of the dangerous conditions there existing; failed to provide adequate safeguards; failed to supervise work being done on the premises; failed to provide a safe and proper excavation; and failed to provide safe and proper material to be placed within the excavation.

¶ 5 Lend Lease filed a motion for summary judgment contending that it owed no duty under section 414 of the Restatement (Second) of Torts because, although it retained some general supervisory powers, it did not control the incidental aspects of the work of Adjustable or Bond Steel. Lend Lease noted that in plaintiff's discovery deposition, plaintiff attributed his injury to three factors: the rebar pieces that he was installing were too long, the workspace he was in was too confined, and there was loose, falling dirt. Lend Lease argued that the contract between it and Adjustable, and the one between Adjustable and Bond Steel, showed that it retained no control over the rebar length, the work space, or debris removal and did not direct or control plaintiff's work.

¶ 6 Lend Lease attached relevant portions of the contracts to its motion for summary judgment. These attachments showed that Lend Lease entered into a contract with the owner of the project, ClarGran, for the construction of Clark and Grand Hotels. Section 3.3.1 of the General Conditions of that contract provided:

"The Contractor [Lend Lease] shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters * * *."

¶ 7 Section 10.2.1 of the General Conditions provided:

"The Contractor shall take reasonable precautions for the safety of, and shall provide reasonable protection to prevent damage, injury or loss to: 1. employees on the Work and other persons who may be affected thereby * * *."

¶ 8 Lend Lease then entered into a subcontract with Adjustable for the concrete work on the project. Portions of this subcontract were attached to Lend Lease's motion for summary judgment. "Exhibit B—Scope of Work" in the subcontract provided:

"Subcontractor [Adjustable] shall provide all labor, material, equipment, supervision as required to complete all scope-of-work items on this Concrete Subcontract and related work, in accordance with the Drawings, Specifications and the Contract Documents (‘Work’)."

¶ 9 Article 15 of the subcontract provided:

"Subcontractor agrees that the prevention of accidents to workers engaged upon or in the vicinity of the work is its responsibility, even if the Contractor [Lend Lease] establishes a safety program for the entire Project. Subcontractor shall establish and implement safety measures, policies and standards * * *."

¶ 10 Article 16 provided:

"Subcontractor shall, at its own expense: (a) keep the premises at all times free from waste materials * * * and other debris accumulated in connection with the Work by collecting and removing such debris from the jobsite on a daily or other basis * * *."

¶ 11 Adjustable then hired Bond Steel to perform the rebar reinforcement installation portion of the concrete work. Lend Lease attached portions of that subcontract to its motion for summary judgment, which indicated that the prevention of accidents and injuries shall be the primary concern of Bond Steel and that it should maintain a safe and healthful work environment with its safety program. The contract also noted that Bond Steel "shall submit a copy of [its] safety program together with the name and experience of [its] on-site safety representative." The contract stated that Bond Steel agreed to comply with OSHA and all safety and health requirements imposed by Adjustable and Adjustable's "Subcontractor Safety Handbook" and would conduct operations in a safe and healthy manner.

¶ 12 Lend Lease noted that Adjustable hired Gerdau Ameristeel to design and provide all the reinforcing steel needed to complete the concrete work in accordance with the project construction documents. The purchase order was attached to the motion for summary judgment.

¶ 13 Lend Lease also attached several deposition transcripts to its motion for summary judgment. Plaintiff stated in his discovery deposition that he was Bond Steel's foreman on the project and was in charge of the Bond Steel crew. Plaintiff and his crew took directions with respect to what they would do on a daily basis from Adjustable's superintendent, Eric Blank. Plaintiff testified that he did not take any direction as to how to install steel, what materials to use, or where to work from anyone employed by Lend Lease. Plaintiff testified in his deposition that Lend Lease never stopped Bond Steel's work for safety reasons, and did not provide safety direction specifically relating to the installation of the rebar. He further testified that Lend Lease conducted a site orientation for all new employees to discuss general safety.

¶ 14 Plaintiff also testified that at the time of his accident, he and his crew were installing a 27-foot long piece of rebar and that plaintiff believed the rebar was too long and the work space was too tight because he had to leverage the bars into place. Plaintiff testified that he complained to Blank about the length of the rebar and the size of the work space, and asked him to get shorter bars. Plaintiff testified that Blank did not heed his request because Adjustable was pouring the concrete the next day around the rebar. Plaintiff testified that he never had any discussions with anyone from Lend Lease concerning any safety issues or construction methods.

¶ 15 Phil Schwarz, Lend Lease's general superintendent, testified that he did not know plaintiff and had not heard of the incident. He testified that Lend Lease's primary function on the project was to coordinate the various subcontractors and monitor progress.

¶ 16 Blank, Adjustable's superintendent, testified that he was the top supervisory person on site and that he did not recall plaintiff or anyone else complaining to him about the tight work space or the length of the rebar used. Blank testified that he ordered the rebar for Bond Steel's work by communicating with Gerdau Ameristeel directly. Blank testified that he never had any conversations with anyone from Lend Lease regarding rebar length, work space in the North Core, or loose dirt on the floor.

¶ 17 Dan Bond, the head of safety for Bond Steel at the time of the incident, testified that plaintiff did not mention any safety concerns to him and that Bond never spoke to anyone at Lend Lease as to concerns about Bond Steel's work or the conditions. Bond testified that Bond Steel had a "Site Specific Safety Manual" that required photographs to be taken at the scene of any accident or injury on the project. Bond testified that he was not aware of any photographs of the site of the incident or any report by plaintiff or anyone else of dirt on the floor.

¶ 18 Sean Bond, the field superintendent for Bond Steel, testified that Bond Steel had no contractual relationship with Lend Lease and that for this project he dealt solely with Blank from Adjustable. He testified that Adjustable was responsible for directing the work of Bond Steel and where the Bond Steel crew was to work on any particular day.

¶ 19 Finally, Darvin Hidalgo and John Stacks, Bond Steel ironworkers, testified that plaintiff provided them with instruction on a day-to-day basis and that no one from Lend Lease ever gave Bond Steel any instructions as to how to perform its work on the project.

¶ 20 Plaintiff filed a response in opposition to Lend Lease's motion for summary judgment, maintaining that Lend Lease retained control over the work at the project. Plaintiff argued that Lend Lease, as general contractor, retained control over the means and methods and operative details of the work and that it was therefore vicariously liable for plaintiff's injuries. Specifically, plaintiff contended that Lend Lease's safety professional was present on site full time and had the authority to inspect the work being performed...