Snow v. Power Construction Co., LLC
78 N.E.3d 587
| Ill. App. Ct. | 2017Background
- Plaintiff John Snow, a surveyor employed by Professionals, was injured when 14 sheets of drywall stacked vertically in a temporary corridor fell on him at the St. Alexius bed tower site. He had gone to check benchmarks and pulled the drywall slightly to look behind it; the stack then toppled.
- Owner contracted with PCEC as construction manager; PCEC had project agreements with Thorne (drywall subcontractor) and Professionals (surveyor). Master subcontract agreements with PCC (Power) and subcontractors allocated responsibility for materials and safety to subcontractors until final acceptance.
- Thorne employees stacked leftover drywall vertically against a brick wall the prior evening at the direction of PCC superintendent Meyer, who told them to keep materials out of ingress/egress but did not dictate stacking method. Witnesses testified it is industry custom not to move another subcontractor’s materials.
- Plaintiff admitted he did not check in with general contractor, left his field notes in his vehicle, believed (incorrectly) a benchmark was behind the drywall, and had not previously moved drywall or been trained to do so; he also admitted the boards would not have fallen but for his action.
- Defendants moved for summary judgment. Trial court granted summary judgment for PCC, PCEC, and Thorne, struck portions of plaintiff’s affidavit and expert Richard Hislop’s affidavit under Ill. S. Ct. Rule 191(a), and quashed plaintiff’s late notice to depose PCC’s president.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether PCC/PCEC retained control over subcontractors sufficient to create duty under Restatement §414 | Power retained control via safety program, safety director, and contract language requiring coordination and safety oversight | Contracts reserved only general rights (inspect, stop/start); subcontractors controlled means/methods and materials until final acceptance — no retained operative control | No duty: no retained control as matter of law; summary judgment for PCC/PCEC |
| Whether Thorne owed duty for stacking drywall (foreseeability) | Stacking drywall vertically was unsafe and foreseeable; Thorne failed to secure sheets | Industry custom and testimony showed tradespeople do not move others’ materials; plaintiff’s benchmark wasn’t obstructed; injury not foreseeable | No duty: not objectively foreseeable plaintiff would move another’s material; summary judgment for Thorne |
| Applicability of premises-liability / open-and-obvious / deliberate-encounter exception | Condition (stacked drywall) posed unreasonable risk; exception applies because plaintiff needed to inspect corridor | Drywall stacking was open and obvious; plaintiff’s conduct was not a reasonable deliberate encounter (benchmark not blocked); custom discouraged moving others’ materials | Open-and-obvious plus lack of deliberate-encounter: no duty under premises-liability; summary judgment affirmed |
| Whether trial court erred in striking portions of plaintiff’s and Hislop’s affidavits and quashing PCC president deposition | Affidavits and expert affidavit raised factual disputes; Karp deposition relevant to contract interpretation and safety practices | Portions of affidavits were conclusory, contradicted prior sworn testimony, or lacked factual foundation (Rule 191); Karp deposition noticed after discovery cutoff and contracts unambiguous | Court did not err: struck inconsistent/conclusory/unfounded affidavit portions under Rule 191(a); quash of deposition was not abuse of discretion |
Key Cases Cited
- Robidoux v. Oliphant, 201 Ill. 2d 324 (Ill. 2002) (summary judgment standard and affidavit requirements)
- Marshall v. Burger King Corp., 222 Ill. 2d 422 (Ill. 2006) (elements of negligence: duty, breach, proximate cause)
- Kotecki v. Walsh Constr. Co., 333 Ill. App. 3d 583 (Ill. App. Ct. 2002) (use of Restatement §414 for construction defects/retained control)
- Shaughnessy v. Skender Constr. Co., 342 Ill. App. 3d 730 (Ill. App. Ct. 2003) (no retained control where subcontractor free to perform work; summary judgment affirmed)
- Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835 (Ill. App. Ct. 1999) (general contractor not liable where subcontractor controlled operative details)