This is a tort suit brought in federal district court under the diversity jurisdiction by a bricklayer (and his wife, who is claiming loss of consortium). It is governed, so far as the substantive issues are concerned, by Illinois law. The plaintiff was seriously injured when he fell off a scaffold while working on the renovation of Soldier Field, the big Chicago athletic stadium. His employer was the A.L.L. Masonry company, but his suit is not against his employer — against which he could seek a remedy only under workers’ compensation law. It is against four corporations that, leagued in a joint venture called TBMK, were the general contractors for the renovation. A.L.L. Masonry was one of TBMK’s subcontractors. For simplicity, we shall pretend that the bricklayer is the only plaintiff and the joint venture the only defendant.
The district court initially granted summary judgment in favor of the defendant on the ground that the defendant owed no duty of care to the plaintiff because he was the employee of a subcontractor, and that in any event the plaintiff could not use the doctrine of res ipsa loquitur to prove the’s negligence because the defendant had lacked exclusive control over the scaffold from which the plaintiff fell. This court reversed, ruling that the defendant had assumed a duty of care to the plaintiff and that
exclusive
control is not an element of
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res ipsa loquitur.
A general contractor ordinarily is not liable to someone injured by the negligence of a subcontractor,
Gomien v. Wear-Ever Aluminum, Inc.,
But a general contractor usually is not in a good position to assure that his subcontractors exercise due care, since he does not hire, fire, train, or supervise their employees. He merely contracts for the subcontractors’ output, leaving them to determine how and by whom the output shall be produced.
Anderson v. Marathon Petroleum Co., supra,
But that is in general, and there are exceptions. The one pertinent here, as explained in our previous decision, see
The question then becomes whether the defendant breached its duty of care to the plaintiff, a subcontractor’s employee. The plaintiff relies for an affirmative answer on the doctrine of res ipsa loquitur (“the thing speaks for itself’), which allows a plaintiff to prevail in a negligence case by showing that even if there is no direct evidence of negligence, the circumstances of the accident indicate that it probably
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would not have occurred had the defendant not been negligent.
Dyback v. Weber,
As so often in tort law, an old case best illuminates the doctrine. In Byrne v. Boadle, 2 H. & C. 722, 159 Eng. Rep. 299 (Ex. 1863), a barrel of flour rolled out of the window of a warehouse and fell on a pedestrian, and the jury was allowed to infer that the accident had been due to negligence by the warehouse’s owner. The defendant could have negated the inference by proving that a stranger had (without fault on the defendant’s part) entered the warehouse and rolled the barrel out of the window in a spirit of malicious mischief, but he failed to prove that.
The parties manage to avoid telling us what the effect of the doctrine is in a lawsuit governed by Illinois law. Does the doctrine merely allow the trier of fact to infer negligence — is it in other words just an illustration of the use of circumstantial evidence to create a prima facie case? Or does it create a presumption of negligence that entitles the plaintiff to judgment unless the defendant presents evidence in rebuttal, or that even shifts the burden of persuasion to the defendant? In Illinois, as in most states, see Keeton et al.,
supra,
§ 40, pp. 258-59;
Restatement, supra,
§ 328D, comment b, it is just a type of circumstantial evidence (which raises the question, why treat it as a separate doctrine?).
Dyback v. Weber, supra,
The black-letter statement of the doctrine is that the thing that caused the plaintiffs injury must at the time of the accident have been under the defendant’s control. But as the Prosser treatise points out, Keeton et al., supra, § 39, pp. 249-51, this formulation (like so many black-letter statements of rules) should not be taken literally, as it implies that the doctrine could not be invoked in a case in which the brakes on a new car fail and the manufacturer is sued. Or imagine a duty to warn case in which the duty is to warn about a dangerous activity of someone else. (Suppose the dealer who had sold the car knew, the brakes were defective.)
Preoccupation with control derailed the district court’s first decision and continues to confuse. The scaffold was assembled by the subcontractor, but we know that the general contractor, the defendant, had assumed responsibility, jointly with its subcontractors, for the safety of the work site. And anyway no one was “controlling” the scaffold when the accident occurred. But both the subcontractor, who had assembled it, and the defendant, who had assumed responsibility for the work site, which included the scaffold, might have prevented the accident. We described this is in our first decision as a case of “joint control,”
*812 Consistent with our earlier discussion, a simpler, more perspicuous way to think about this case is in terms of duty rather than control. Did the defendant have a duty, dischargeable by inspection or otherwise, to make sure that its subcontractors’ scaffolds didn’t collapse unless the negligence of an employee who used (or rather misused) the scaffold after it had been properly assembled and inspected was responsible for the collapse? When the case was tried on remand, the magistrate judge, in instructing the jury, said that to find for the plaintiff the jury would have to find “that the injury was received from a scaffold which was under the defendant’s control ... [and] that in the normal course of events, the injury would not have occurred if the defendant had used ordinary care while the scaffold was under its control.” An instruction in terms of duty would have been clearer but is not what the plaintiff sought or seeks; and the magistrate judge cannot be criticized for instructing consistently with our previous opinion. Rather, the plaintiff argues that a further instruction, making clear that the scaffold didn’t have to be under the defendant’s exclusive control for the doctrine of res ipsa loquitur to be applicable, should have been given, consistent with our previous opinion, and that in any event the verdict was so far against the weight of the evidence that he is entitled to another trial.
A difficulty in understanding the evidence has arisen, however, from the lawyers’ regrettable failure to include in the record a diagram or photographs (other than some unreadable copies of photographs) that would have given us judges an intelligible picture of the scene and circumstances of the accident. A duplicate of the scaffold was exhibited at trial, but no photo or drawing was made of it. We have pointed out that when the appearance of something is material to a case — it could be a copyrighted picture, a trademark, or, as in this case, the scene and instrumentality of an accident — it is better to show us a picture than to try to describe the object or scene just in words. E.g.,
Torrez v. TGI Friday’s, Inc.,
The plaintiff was laying concrete blocks around the frame of a 13-to 14-foot-high doorway in the stadium. There were two scaffolds, one on each side of the doorway. Both were 10 feet above the concrete floor and two or three feet apart from each other. By laying planks across the scaffolds through the doorway one could walk from one scaffold to the other. And that is what the plaintiff did. But when he reached the other scaffold he tripped and fell off it. He has no clear recollection of the accident, since he fell head first onto the concrete floor beneath the scaffold. The only witness to the accident testified to seeing the plaintiff standing on the scaffold for a moment before it gave way beneath him and then trying to “run up” the falling plank (a plank of the scaffold, not the planks he had laid across the two scaffolds) to avoid falling. What the witness seems to have meant (his testimony is unclear) is that the plank started to fall from one end of the scaffold, forming momentarily an angle with the scaffold, and that the plaintiff scrambled for a purchase on the plunging plank before it fell all the way to the ground.
It’s unclear what caused the plank to give way. Maybe the plaintiff jarred it *813 loose when he laid his two planks over it. Or maybe the planks that formed the floor of the scaffold had not been laid properly on their supporting crossbar and one gave way, and we’ll assume that that’s what happened; if the plaintiff was responsible for the fall of the plank that he was standing on, he has no possible case.
The scaffold had been assembled by A.L.L. Masonry several hours before the accident. The scaffold had no middle rail, and the plaintiff speculates that had there been one he might have grabbed it when he fell and by doing so broken his fall. There is also some suggestion that a middle rail would have blocked the plaintiff from getting from one scaffold to the other by laying planks.
If we ignore for the moment the absence of a middle rail, it is apparent that the jury’s verdict was consistent with and indeed compelled by the evidence and that the error (if that is what it was) in instructing the jury concerning the defendant’s control of the scaffold was harmless.
Either the plaintiff caused the accident, or the accident was caused by improper assembling of the scaffold — and the assembler was the subcontractor, the plaintiffs employer, rather than the defendant, the general contractor. The defendant had assumed a duty to supervise the measures taken by its subcontractors for the protection of their workers, but as in suits against grocery stores complaining of falls caused by debris on the grocery’s floor the fulfillment of the duty did not require continuous or repetitive inspections. See
Tomczak v. Planetsphere, Inc.,
No evidence concerning the standard of care in a “dual control” case, or the particular safety hazards or accident experience in the Soldier Field renovation project, was presented that would have enabled an inference to be drawn that the defendant should have inspected every newly assembled scaffold before it was used for the first time. The defendant’s contract with its subcontractors stated: “All scaffolds are to be built under the supervision of a Competent Person. All scaffolds shall be checked daily, and tagged or labeled safe for use and before each use for safety compliance by a competent person.” This was a reasonable delegation of responsibility to the subcontractor, and so the general contractor did not breach its duty of care by not checking all the scaffolds when they were first assembled.
Cochran v. George Sollitt Construction Co.,
The record discloses that the defendant was assiduous in inspecting scaffolds, including those of A.L.L. Masonry, and on several occasions ordered A.L.L. to change the scaffold because: “sometimes fall protection would be missing or ... cross bracing.” In fact the defendant required safer scaffolds than OSHA required. It would be perverse to penalize it for its preoccupation with the safety of scaffolds by making it strictly liable for any misassembly of a particular scaffold by A.L.L. It is not suggested that the defendant was negligent in hiring A.L.L. or should have terminated it because of safety problems involving its scaffolds.
*814 The magistrate judge’s failure, of which the plaintiff complains, to give a “joint control” instruction to the jury was thus a harmless error, and for the additional reason that, as has belatedly become apparent, the doctrine of res ipsa loquitur is a red herring in this ease. The question is not whether and in what sense the defendant “controlled” the scaffold but whether it failed to make a timely inspection of it. Suppose a food inspector negligently failed to discover contamination in a chicken-processing plant, and as a result people who ate chickens slaughtered at the plant contracted salmonella. Would we say that the inspector had “controlled” the plant? That would be an unnatural usage, which could only confuse a jury. Maybe the plaintiff thinks that if a case rests on circumstantial evidence it has to be squeezed into the doctrine of res ipsa loquitur in order to withstand a motion for summary judgment. That is not true.
The plaintiffs expert wanted to testify that an OSHA policy statement indicated that the defendant was the “controlling employer” of all the workers at the site of the renovation project. The magistrate judge said “fine” but that the defendant would be permitted on cross-examination to cite a decision by the Occupational Safety and Health Review Commission,
Secretary of Labor v. Summit Contractors, Inc.,
The plaintiff decided not to ask the expert to testify about the matter and now complains about the judge’s ruling on the permissible scope of cross-examination. That is the wrong approach, and would have been even if using an expert witness to present or explain a regulation (the plaintiff treats the OSHA policy statement as having the force of a regulation) to a jury were proper. (It is not. “The meaning of federal regulations is not a question of fact, to be resolved by the jury after a battle of experts. It is a question of law, to be resolved by the court.”
Bammerlin v. Navistar Int’l Transportation Corp.,
Anyway the OSHA policy statement couldn’t have helped the plaintiff. It defines a controlling employer as “an employer who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them,” but adds that such an employer “is not normally required to inspect for hazards as frequently or to have the same level of knowledge of the applicable standards or of trade expertise as the employ
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er it has hired.” Under Illinois law, too, “even where the employer or general contractor retains the right to inspect the work done, orders changes to the specifications and plans, and ensures that safety precautions are observed and the work is done in a safe manner, no liability will be imposed on the employer or general contractor unless the evidence shows the employer or general contractor retained control over the ‘incidental aspects’ of the independent contractor’s work.”
Rangel v. Brookhaven Constructors, Inc., supra,
So there is no practical difference between the OSHA standard and the standard of Illinois tort law, but if there were the latter would control as this is not a suit to enforce OSHA regulations, though Illinois courts sometimes do look to such regulations for evidence of what due care should require.
Sobczak v. Flaska,
We turn last to the issue of the middle railing. Conceivably had there been one the plaintiff might have broken his fall by grabbing it. Even so, this possibility could not support a judgment of liability in tort. For the purpose of a middle rail is not to provide something to grab on to as one is falling off a scaffold; it is to prevent one from falling off the scaffold by slipping between the scaffold’s floor and the top railing. Even more obviously, it is not the purpose of a middle rail to prevent a worker from crossing over from one scaffold to another.
To be actionable in a tort suit, an injury resulting from the absence of a safety measure must be one that the measure was intended to prevent, as we noted in
Shadday v. Omni Hotels Management Corp.,
The judgment for the defendant is
Affirmed.