Recio v. Gr-Mha Corp.
| Decision Date | 08 May 2006 |
| Docket Number | No. 1-05-1203.,1-05-1203. |
| Citation | 851 N.E.2d 106 |
| Parties | Elena RECIO, Individually and as Special Administrator of the Estate of Ceasar Recio, Jr., Deceased, Plaintiff-Appellant, v. GR-MHA CORPORATION, an Illinois Corporation; GR-MHA Corporation, d/b/a Ginger Ridge Apartments; Ginger Ridge Apartments; Ginger Ridge M.H.A.; Ginger Ridge Limited Partnership; Ginger Ridge Limited Partnership, d/b/a Ginger Ridge Apartments; Don DeVincent; Great Lakes Roofing and Construction Company, Inc., a Foreign Corporation; Signature Housing Solutions, Inc., a Foreign Corporation; and Signature Housing Solutions, LLC., an Illinois Limited Liability Company, Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Kenneth J. Allen & Associates, P.C., Valparaiso, IN (Kenneth J. Allen, Bryan L. Bradley, and William Lazarus, of counsel), for Appellant.
Litchfield Cavo, LLP, Chicago (Carrie A. Durkin and Renee H. Wiszowaty, of counsel), for Appellees GR-MHA Corporation, Ginger Ridge, Signature Housing Solutions.
Donohue Brown Mathewson & Smith, LLC, Chicago (Donald J. Brown, Karen Kies DeGrand, and Bryan J. Kirsch, of counsel), for Appellee Great Lakes Roofing and Construction Co., Inc.
Ceasar Recio, Jr. (Ceasar), was employed as a roofer by an unlicensed subcontractor, DTM Construction Company (DTM),1 on a remodeling project for GR-MHA Corp., the Ginger Ridge defendants, and the Signature Housing Solutions defendants (collectively, Ginger Ridge), which owned and operated an apartment complex. While carrying a bundle of shingles to the roof of a two-story Ginger Ridge apartment building, Ceasar apparently lost his balance, fell to the ground and was severely injured. The next day, Ceasar died from his injuries. His widow, plaintiff Elena Recio, brought this survival and wrongful death action against Ginger Ridge and Great Lakes Roofing & Construction Co. (Great Lakes), the contractor that had subcontracted roofing work to DTM, alleging that they were negligent in permitting Ceasar to climb a ladder while carrying a load of shingles—which, plaintiff asserts, is an unsafe work practice. Subsequently, without further amending her complaint, plaintiff raised additional theories of liability against Great Lakes based on its hiring an unlicensed subcontractor, in violation of the applicable municipal ordinances. The circuit court granted defendants' motions for summary judgment. For the reasons that follow, we affirm.
In her amended complaint, plaintiff alleged the following. The incident occurred on October 25, 2000. While in the performance of his job duties in connection with the Ginger Ridge project, Ceasar fell from the roof of the building where he was working to the ground below.2
In counts I (survival action) and II (wrongful death action) directed at Ginger Ridge, plaintiff alleged that Ginger Ridge owed Ceasar a duty "to use reasonable care in the operation, management, maintenance and/or control of the construction project to avoid injury and/or death to those on and around the site." Plaintiff further alleged that Ginger Ridge breached its duty of care by failing to exercise due care in the management, maintenance, supervision, and/or control of the construction site; allowing a dangerous condition to exist at the construction site; negligently warning or failing to warn Ceasar of the dangerous condition; negligently providing or failing to provide adequate safety equipment to prevent injury to Ceasar; negligently enforcing or failing to establish and enforce safe work rules at the construction site; negligently supervising or failing to provide competent and careful supervision of Ceasar's work; and/or failing to provide a safe workplace for Ceasar.
In counts III (survival action) and IV (wrongful death action) directed at Great Lakes, plaintiff alleged that DTM, which had employed Ceasar, was a subcontractor of Great Lakes. Plaintiff stated the same theory of negligence against Great Lakes as she did against Ginger Ridge.
Discovery depositions were taken of Daniel McKenna, president of DTM; Russell Peterson, the owner of Great Lakes; Don DeVincent, maintenance superintendent for Ginger Ridge; and Elsie James, property manager for Ginger Ridge.
McKenna testified that DTM was an independent corporation, distinct from Great Lakes. DTM had an established relationship with Great Lakes and was retained on many projects for Great Lakes. Typically, Great Lakes would send McKenna a "lead" about a potential construction project, and McKenna would then submit to Great Lakes his cost estimate. If DTM was hired to work on a project, McKenna, in the dealings with the property owner, would usually represent that he and his crew were employees of Great Lakes, since the owner had contracted with Great Lakes. McKenna was not sure if he made such representation to DeVincent.
McKenna further testified that for the Ginger Ridge project, Great Lakes similarly acted as, in essence, a broker. The subcontracting agreement between Great Lakes and DTM was oral. Aside from obtaining a building permit, Great Lakes was not involved in the project's operations. Great Lakes did not establish any rules or requirements for DTM to follow, and neither did Ginger Ridge. As was its custom on other projects, Great Lakes never sent anyone to monitor or inspect DTM's work and did not require DTM to conduct safety "toolbox talks" for its (DTM's) employees. However, McKenna stated that he approached Great Lakes about "toolbox talks" brochures pertaining to safety and, on his own initiative, conducted such talks with his employees. McKenna would then return signed forms to Great Lakes showing his employees' participation.
McKenna further testified that before the roofing work was to begin, DeVincent told him to start with the roofs in the worst shape. In all other respects, DTM had exclusive authority as to how the roofing project was to be accomplished. DTM employees did not consult with DeVincent or Great Lakes about the specifics of how the work would be performed. DTM used its own equipment and none of Great Lakes' or Ginger Ridge's equipment. DTM also purchased all construction materials used in the project. No materials came from Great Lakes. The supplier of roofing materials brought them to the site and lifted them up with a crane to the roofs.
The morning of the day of the incident, DTM determined that it did not have enough bundles of shingles on the roof to complete the job. One of DTM employees bought extra bundles of shingles from a local store and delivered them to the site. McKenna stated that it was DTM's practice under such circumstances to have the employees carry the bundles, weighing between 70 and 90 pounds, up a ladder to the roof. DTM had trained its workers to climb a ladder while carrying a bundle on the shoulder. McKenna further stated that it was an accepted custom and practice in the construction industry to deliver shingles to the roof in that manner. According to McKenna, Great Lakes never expressed concern about this practice. McKenna did not personally witness Ceasar's fall, but later learned from DTM employees that Ceasar fell while attempting to carry a bundle of shingles to the roof.
McKenna admitted that, at the time, DTM did not have a contractor's license, which was required in Calumet City, Illinois, where the Ginger Ridge complex was located. McKenna could not recall whether he informed Great Lakes of that fact. McKenna indicated that getting a Calumet City contractor's license was a routine matter, requiring completion of an application and payment of a fee. McKenna further indicated that DTM did have a Calumet City license in 1998, but let it lapse. Nothing in the record indicates that DTM would have been denied a license had it applied for it. Lastly, McKenna stated that Ceasar had been employed by DTM for approximately a month and a half.
Peterson, the owner of Great Lakes, testified that DTM did all of Great Lakes' shingle work. Peterson admitted that Great Lakes took out a building permit for the project, and thereby agreed that all work would be done "in accordance with all ordinances, rules and regulations of the City of Calumet City, Illinois." Peterson stated that he generally asked McKenna that DTM follow common safety procedures and on occasion provided him with brochures describing such procedures. Peterson testified consistently with McKenna that McKenna would return signed forms to him showing DTM employee participation in safety training. Great Lakes took no other steps to ensure that DTM had a safety program in place and the work was being done safely, but rather left that up to McKenna. Peterson, however, stated that if he saw DTM employees perform work unsafely, he would contact McKenna and request that work be done safely. Peterson also stated that Great Lakes did not take any steps to ensure DTM's compliance with Calumet City's ordinances, rules and regulations.
Peterson further testified that DTM, and not Great Lakes, provided all the equipment and materials to perform the work at Ginger Ridge, and DTM had sole discretion as to how the work would be performed. Peterson additionally testified consistently with McKenna that DTM workers would represent to be working for Great Lakes: "if somebody were to come to the job and ask—if * * * Calumet City's inspector[] comes on the job and says who is doing the job, [DTM] would say Great Lakes Roofing." Lastly, Peterson indicated that carrying certain materials, such as shingles, up a ladder is an accepted practice, but stated that he personally would not do it.
DeVincent, maintenance superintendent for Ginger Ridge, testified that prior to being employed by Ginger Ridge, he owned a construction company that did general contracting. DeVincent indicated that he had expertise in that area. When DeVincent was deciding...
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