2019 IL App (1st) 180941
Ill. App. Ct.2019Background
- Plaintiff John Foley, an ironworker employed by subcontractor Chicago Town, injured his back while pulling rebar from a disorganized pile at a small construction site. Foley sued general contractor Builtech for negligence and premises liability.
- Builtech retained a project superintendent (Bokar) who inspected the site daily, maintained a safety manual, ran weekly safety meetings, had a safety supervisor (Ribskis) and outside safety auditor, and had contractual authority to require subcontractors to follow Builtech’s safety rules and to stop unsafe work.
- Chicago Town ordered, accepted delivery, and physically stacked/restacked the rebar; its subcontract required compliance with Builtech safety rules and made Chicago Town responsible for unloading and safe storage.
- Witnesses disagreed about the condition of the rebar pile at the time of the accident (some said properly stacked; Foley said it was tangled and partially covered with dirt). Photographs in the record are undated and of unclear probative value.
- The trial court granted summary judgment for Builtech, finding no retained control sufficient to impose liability and no actual or constructive notice of a dangerous condition; the appellate court reversed and remanded, holding factual disputes precluded summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether general contractor retained sufficient control over subcontractor’s work to create a duty under Restatement §414 | Foley: Builtech retained supervisory control (safety program, daily superintendent inspections, authority to stop work, contract-required compliance), so it owed a duty and breached it by allowing unsafe storage/handling | Builtech: Contract and practice left operative means/methods and material handling to Chicago Town; mere safety program/occasional inspections do not create retained-control liability | Reversed summary judgment — factual dispute over retained control exists; trier of fact must decide |
| Whether Builtech had actual or constructive notice of dangerous condition (rebar pile) for premises-liability | Foley: Builtech’s daily inspections, site control over storage, and small site put it in position to know or discover unsafe stacking/covered rebar | Builtech: No employee saw or knew of the tangled/covered condition before the accident; Bokar’s presence alone is insufficient to impute notice | Reversed summary judgment — credibility conflicts and uncertain photographic evidence create factual issues about notice and discoverability |
| Whether proximate cause (breach causing injury) was established to survive summary judgment | Foley: If Builtech retained control and knew or should have known of the unsafe stacking, its failure to exercise control could have allowed the condition that caused his injury | Builtech: Even if it had ordered restacking, Foley freely chose to work alone and pull/tug bars contrary to safety guidance; no evidence Builtech’s actions caused the injury | Reversed — proximate-cause questions turn on disputed facts and inferences for the jury (court declined to decide as matter of law) |
| Whether general contractor is vicariously liable (master–servant) for subcontractor’s employees | Foley: alleged retained control could support direct liability under §414 and potentially implicate agency principles if control reached master–servant level | Builtech: Control did not extend to means and methods or create master–servant relationship; subcontractor retained operative control | Appellate court: vicarious/agency liability distinct from §414; factual record does not establish agency as a matter of law — primary question is §414 retained-control liability and factual disputes remain |
Key Cases Cited
- Carney v. Union Pacific R.R. Co., 2016 IL 118984 (Ill. 2016) (adopted Restatement §414 framework for retained-control construction negligence)
- Martens v. MCL Constr. Corp., 347 Ill. App. 3d 303 (Ill. App. Ct. 2004) (distinguishes supervisory/contractual safety program from retained means-and-methods control)
- Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491 (Ill. App. Ct. 2008) (denied summary judgment where factual dispute existed about retained control and notice)
- Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051 (Ill. App. Ct. 2000) (trier of fact decides whether contractor retained control sufficient to impose duty)
- Grillo v. Yeager Constr., 387 Ill. App. 3d 577 (Ill. App. Ct. 2008) (evidence of daily inspections and safety control can create factual issue on retained control)
- Cochran v. George Sollitt Constr. Co., 358 Ill. App. 3d 865 (Ill. App. Ct. 2005) (summary judgment affirmed where contractor did not exercise specific supervisory control over subcontractor’s means and methods)