*1 remand with directions that the of sentence be amended to reflect robbery dangerous defendant’s conviction of armed with a 2(a)(1) (720 2(a)(1) (West weapon ILCS 18— 5/18 — 2000)). Affirmed as modified and remanded with directions. TURNER, JJ.,
COOK and concur. MOSS, Moss, Independent JOHN L. Adm’r the Estate John E. Deceased, Plaintiff-Appellant, COMPANY, v. ROWE CONSTRUCTION a/k/a (Laesch Son, Inc., Inc., Defendant-Appellee Electric, Cullinan and Defendant).
Third-Party Fourth District No. 4 - 03-0004 Opinion December filed *2 COOK, J., specially concurring.
Larry Dunne, Goldberg, (argued) and M. both of E. Weisman Kirsten Ltd., Cairo, Chicago, & for appellant. Weisman Erickson, (argued) Bollinger, Evan H. Johnson and Robert C. both of Dаvis, Johnson, Walsh, Ltd., Decatur, & for Murphy, appellee Griffith Company. Construction Anesi, Rodin, Bilshausen, Ozmon, No-
Curt Rodin and Ehren V both N. Ltd., Kohen, Chicago, &vak for amicus curiae. opinion of the
JUSTICE MYERSCOUGH court: delivered entered December the trial court Plaintiff complaint negligence. in plaintiffs single-count on appeals. reverse and remand. We
I. BACKGROUND Moss, 15, 1999, decedent, E. February plaintiffs On John while working killed as an Electric, for subcontractor Laesch (Laesch). Inc. Laesch contract to Rowe Construction (Rowe) Company to remove traffic control devices and foundations and install part new ones as Rowe’s contract with the of Il- State (IDOT) linois, Department Transportation improvements Parkway in Veterans Normal. Rowe,
Under contract between IDOT and Rowe was required maintain project: on the “Article Safety: VIII. Accident Prevention:
1. In the performance of this comply contractor shall [flederal, with all applicable [s]tate, local governing safety, and laws (23 ]635). health, and sanitation [§ CFR shall provide safeguards, safety devices!,] all protective equipment any determines, and take other needed actions itas or as the SHA Highway [State Agency] contracting may officer to be determine necessary reasonably protect employees the fife health of public protect and the property con- nection performance with the covered the contract. contract,
2. It is a of this shall condition be made a condition subcontract, of each pursuant contractor enters into contract, that the contractor and subcontractor shall permit any employee, performance contract, to work surroundings or under are unsanitary, conditions which hazard- *3 ous!,] detеrmined dangerous safety, or health or his/her (29 ]1926) construction and health [§ standards CFR [ejec- Labor, promulgated by Secretary the in accordance with (40 tion Safety 107 of the Work Act Contract Hours and Standards ]333).” [§ U.S.C.
Further, general required: contract (a) competent
“The furnish superintendent contractor shall a supervisor employed firm, by authority who has full to direct require- work in with the performance ments, accordance charge operations (regardless and is in of all construction work) performs who ***.”
Additionally: sublet, portion assigned!,]
“No of the contract shall be SHA disposed except otherwise with the written consent of the officer, contracting consent representative, or authorized such given when be relieve the contractor shall not construed to responsibility for the fulfillment of the contract.” their incorporated elements of the contract are These entirety, specifications, IDOT into the including the standard subcontract between Rowe Laesch. additionally stated in XVI:
The subcontract article [(Contractor’s directions follow [s]ubcontractor “The shall on the work storage of materials safety, clean-up[,] regarding site.” 15, 1999, the intersec- at February of Mоss occurred death Jr., Ruhrup, A1 Rowe’s and Fort Jesse Road. Parkway
tion Veterans basis, daily on a was on site project, for the superintendent of the accident. not at the time present was Moss, the subcontrac- (vice-president of Michael Laesch Decedent 7,000-pound tor), removing employees other Laesch were and two are installed. traffic control devices concrete foundations derrick, was employee truck-mounted another operating Laesch a was concrete, and the fourth dump truck to receivе the Moss operating as it designated steady load “ground were the men” guide dump it into the by the truck-mounted derrick and was lifted concrete, using “tag guide truck. than lines” to Rather standing next Laesch, direction of Moss and the other man were tight due to circum- guiding it with their hands foundation adjacent guy Those light pole stances caused wires. obstruc- truck closer prevented placing dump tions Michael Laesch from prohibited Laesch from the concrete foundation. Contractual day, equipment roadway during on the certain times of placing its limiting Additionally, ground upon which the placement options. outrigger placed muddy, supports derrick was was one of the for properly padded muddy truck-mounted derrick was not for the condi- tions, and the derrick was on a downward five- improperly placed degree slope. lift,
On attempted began spin the first the concrete and had to set attempt down. second was halted when the hydraulic (HOPS) warning overload protective system activated. HOPS is system indicating something on the truck-mounted derrick was result, dump in the lift proper attempt. As truck began tip, On the third the derrick and Laesch repositioned. attempt, yelled everyone away guy clear the area. into several Moss backed wires. he moved he the boom of the derrick and again, As was struck Rowe, killed. estate sued Moss’s defendant Parkway project (Project), alleging retained Veterans negligent, causing control of the work and Moss’s death. *4 did judgment Rowe on the that Rowe summary moved for basis being suf- not retain or exercise control the work done Laesch over liability granted on court the motion impose ficient to Rowe. judgment against plaintiff’s on entеred Moss complaint. framing the appeals, Plaintiff issues follows: 776
“(1) (Second) (‘Sec- Torts, Whether the Restatement of Section 414 414’), tion requires actually defendant to have exercised control over the ‘means and methods’ of a subcontractor’s work to be subject liability to a injured subcontractor’s employee, whether right safety the retention a to control is to cre- sufficient (2) ate at question liability; least a of fact as to and Whether present [defendant in right case exercised retained the and/or to exercise control over the work in a manner to be sufficient for it [sjection subject liability pursuant 414.” (Emphasis original.) appeal
This followed.
II. ANALYSIS The issue court specifically before the is more framed under sec- (Restatement tion of the Restatement Torts (1965)): duty Did defendant retain some degree control Further, the project? duty if defendant did retain that safety, control did defendant negligently exercise or fail exercise safety? case, control In the retention to control directly by Further, is answered the contracts. the exercise or the failure to exercise that duty presents genuinе issue of We, therefore, fact. summary judgment material reverse remand to the trial court for proceedings. further
A. Standard of Review grant standard of review a trial court’s of a motion for judgment de novo. if Summary inappropriate is question light a material of fact exists. All evidence viewed Curtis, most favorable to the nonmovant. Yackov. 339 Ill. App. 3d (2003). 301-02, 789 N.E.2d “Summary judgment remedy granted is a drastic should be doubt,
only [Cita- where the movant’s to it is clear and free of If present tion.] the facts in record more than one conclusion inference, movant, one including judg- unfavоrable to the summary ment Independent should be denied.” v. Mechanical Hutchcraft Industries, Inc., 351, 357, 726 N.E.2d (2000). Analytical Approach:
B. Erroneous The Issue Is Who Has Duty Safety To Control for case, trial court granting summary present as follows: reasoned “ ‘[R]etain control’ means the contractual and/or practices contractor/sub[ ] contractor must demonstrate means and methods over *5 the leads to sub[ which performance by ]contractor the address language specifically does injury. Here the contractual supervision of the means sub[ or methods Jcontractors the of structures; the that led to death removing work concrete plaintiff decedent.” not control
However, question. The issue is not the appropriate this is task, rather who the but performing the “means and methods” of of safety of the duty has the to control contractually physically and/or to determine First, must be reviewed language the contractual project. safety. facts then control for must what terms address the fulfilled physically to determine whether be reviewed contract. contracts, op- making parties At of all have the the time liability willing is and able to as- to determine what each portunity case, IDOT then In entered into contracts with and sume. safety on agreed accept to control with Laesch where Rowe Co., 342 App. v. Ill. project. Shaughnessy Skender Construction 730, (2003), disregarded 3d N.E.2d 937 the court contractual 794 “responsible to be requiring initiating, maintainingt,] supervising safety precautions all of contract and to programs performance in connection with the a of ac- employ superintendent prevention whose duties included the 732-33, cidents.” N.E.2d at 938. Shaughnessy, herе, so, do ignore We cannot the contract. To would make obligations safety meaningless nullity, especially contractual a
light of deposition testimony here. summary judgment, finding
The trial court that defendant granted did not control the “means methods” of the subcontractor’s work. However, viewed, must, in light when as we most favorable to 414(c) of plaintiff and when section is viewed with full consideration thereunder, it is not obligations ques- the contractual and the duties Rather, tion of “means and methods.” contracts establish defendant’s duty to of as to genuine control raise а issue material fact duty. negligently whether defendant exercised or failed exercise (Second) Torts, C. 414 and The Law Restatement Section c Comment (740 (Act) Act ILCS Since abolition the Structural Work (West 1994) 5,§ eff. through (repealed in Pub. Act 150/1 89— (Second) February 14, Torts 1995)), 414 of the Restatement injury liability questions has controlled in construction-related cases. Section states: contractor, independent
“One who work to an but entrusts work, liability for subject is part retains physical harm to employer others for whose owes a duty care, to exercise reasonable сaused his failure to exercise his control with reasonable care.” Restatement (1965). Torts at 387 Additionally, comment c to section states:
“In order for rule apply, [selection stated in this employer must degree have retained at least some of control over enough the manner in which the merely general It work is done. is not that he has resumed, to order or stopped inspect progress reports, suggestions its or to receive to make followed, necessarily recommendations which need not prescribe general right alteratiоns and deviations. Such a usually to employers, reserved but it does not mean that the contractor is work, controlled as to his methods of or as to operative detail. *6 There must be such retention supervision of a of that the entirely contractor is not way.” free to do the work in his own (1965). 414, c, Restatement of Torts Comment at 388 was, repealed Act in application, virtually a strict-liability upon statute founded broad of the concept “in-charge-of” analysis. (Trial The brief amicus curiae of the Illinois Lawyers Trial Association argues Lawyers) that seсtion 414 analysis analogous is to the Act. However, agree do not we section 414 the broad li- establishes ability case, existed the under Act. On the facts in this section 414 applies required this case the control section 414 under is by the the established terms of contract.
D. The Employer Contract Between Defendant Plaintiffs the Duty Safety Governs by Control Retained Defendant Co., v. 316, 325, Larson Commonwealth 33 Edison Ill. 2d 211 247, (1965), N.E.2d 253 supreme the court noted that purpose the Act give “broaden common-law added protection.” 414, but, A broad just does not exist section Larson, as in analysis uрon begins of a claim based section 414 establishing relationship review of the contracts between the vari- project. ous in entities involved interprets opinion Rogers in v. mistakenly
Defendant our West Co., (1993), App. 103, Construction 3d N.E.2d 623 799 stand for the are in a proposition that contractual irrelevant .claim upon Rogers, prior based section 414. In decided to the which was Act, repeal plaintiff was an of a subcontractor who in injured unloading bridge steel beams to be used ultrahazardous grant of repair appellate upheld work. The court the triаl court’s sum- court found that mary judgment the defendant. industry required everyone but practices bridge-building within the
779 site when to vacate pile-driving subcontractor work. The begin pile-driving the subcontractor contractor notifies an affidavit from the quoted upon and relied courts appellate trial and subcontractor had stated that the superintendent, defendant’s activity and aspects pile-driving over all control” “unrestricted a day once twice visiting the site was limited to supervision that his any other involvement progress. No evidence showed check physiсal in the activities site. the terms of the important, the facts never discuss Equally any contract with the No showed the terms of contract. evidence argu- Rather, to make a contractual plaintiff attempted defendant. Bridge for Road and upon Specifications ment “IDOT’s Standard based of an connecting that document the terms Construction” without 109-10, 252 2d 623 Rogers, App. actual contract in the case. Ill. at at 251. N.E.2d
However,
analysis
upon Rogers
reliance
is
because the
misplaced
Act,
Act. Under the
Rogers
superseded
repeal
of,”
“having
analysis
charge
was based on a broad definition of
required
Larson,
facts of
case.
33 Ill. 2d
intense review of the
each
251;
Associates,
321,
at
v.
&
N.E.2d
Hausam Victor Gruen
(1980). While,
Ill.
3d
under the Act’s
App.
N.E.2d 1051
liability,
showing
“having charge
nearly
broad
of” resulted
liability,
strict
such is not
case under section
Act, requires
Review of
review of the
postrepeal
legal
just
may
duty,
physical
establishment of
facts
example
duty.
manifestation of the
The best recent
of this
Robbins, Inc.,
v. Foster
Bokodi
Wheeler
(2000),
appellate
grant
N.E.2d 726
where the
court reversed a
sum-
The court
looked to the
mary
based
the contracts.
first
*7
general
contract between the builder and the
contractor and between
the
court
that the
general contractor and the
The
noted
subcontractor.
general
responsible
contractor
for the construction schedule and
Further,
subcontractor coordination.
the facts showed a substantial
general
in the
by
level of involvement
the
incidental activi-
site,
safety program
the
and a
including
specific
ties of
investigation for
designated
safety
individual whose sole function was
Bokodi,
hazards.
3d at
Regardless originates of whether of a contract from governmental regulations or is for an specifically written individual transaction, may ized it party. create a that is owed a third (1981). b, Restatement Contracts at 448 Comment Such is in the intent this case. facts demonstrate that contractually agreed to assume control the safety of the on the in the project workers contract between defendant incorporated IDOT. The terms of that agreement were in the subcontract, obligated which further to abide by subcontractor those terms.
Equally project is one important, originated and funded State of As a policy, may Illinois. matter of pubic State choose to establishing include various duties contractors as condi- tions for doing business with the state that not be may included private contracts in private between entities Even had business. Rowe delegate wished to or disclaim its the IDOT contract, did not have choice if it to do that wished business with the State of Illinois. Laesch, depositions vice-president Michael of subcontractor
Laesch; Ruhrup, Jr., A1 superintendent Rowe; site fоr defendant Ken- neth Wagoner, IDOT; IDOT, from James Threadgill, from all testimony Ruhrup contain had indicating authority and Rowe stop correct violations the work of the subcontrac- tor in performance of the Michael project. Laesch testified in his deposition:
“Q. you Mr. Ruhrup given Had some direction that related to safety, given way up, this was contracted for set would you had to directive? have followthat
A. We have would followed directive.” Jr., A1 testified Ruhrup, deposition: as follows his Now, “Q. Okay. you operation observe[d] if had a raising of one of Parkway thеse project concrete foundations on Veterans there were construction or a posi- workers construction worker ground zone,[’] you it, [‘]clear tioned not in called during picks, you the course of one of these would have level of stop authority operation see to it that man is moved way out of the of the load? say,yes, authority
A. I I would have the to.” would Threadgill, engineer project James IDOT associated case, deposition: testified as follows in his
781 equip- Rowe, contractor, feels that either the “Q. if as the And unsafe, by selected its subcontractor ment selected or the method work; correct? stop that then Rowe has A. Yes.” the contract authority had and under and
Ruhrup violation. or OSHA any and correct unsafe condition stop work author- contractor the clearly places upon general IDOT contracts, whether ity to control IDOT by the contractor or a subcontractor. performed of Repeal Since Interpreting E. Section 414 Comment c Cases Clear Terms the Act Have Not Involved Contractual The that section 414 and comment c sincе interpreted cases have have, repeal generally, to the exercise physical Act looked performing control of the work to determine whether a means analyzed akin to the one part way existed on the “charge Act claim to whether a defendant had of” the determine workplace. These recent have not included contractual cases such as those in this case. 245, Connaghan Caplice,
In
v.
325 Ill.
3d
“[I]t looks to likeme the Fourth District is kind of on the road of you actually do, you you what did not what if could have done *9 to, you would actually have wanted but what did on do this *** project!;] rule, why if anybody that’s then would towant do mean, you’ve I anything? just agot contract and other than humanitarian, know, you goodness your heart, you don’t hurt, somebodyget want to see but I meаn if that’s the rule then I guess the to you incentive take corrective action that have the *** right to do very good seems to me to be because the more ***you be, you’re going you do more hable to and the less do *** be[;] you’re going less liable to to me that like the looks analysis they’re followinghere.”
Cases where the contract
only general
has contained
statements
right
to control the
illogical
have led to this
conclusion
judge.
identified
A general right
to stop and start work has
been found
In
impose liability.
Shaughnessy,
insufficient
342 Ill.
App.
732,
938,
3d at
794 N.E.2d at
the apрellate court declined to as-
liability by affirming summary
sess
judgment despite contractual
terms
the contract requiring
general
responsible
safety
for
precautions
programs
employ safety
a
superinten-
responsible
dent
for prevention of accidents and evidence demonstrat-
ing
opinion
the defendant failed
do so.
While the
does not
quote
contract,
the language from the actual
the facts state that the
club,
racquet
contract between the
which hired
to be done
premises,
on its
and the
contractor was a “standard form
agreement
approved by the Associated General Contractors of
America.” Shaughnessy,
App.
732,
342 Ill.
3d at
Similarly, Rangel
App.
v. Broоkhaven
Ill.
835,
(1999),
3d
only general
favor of suit brought by of the construction site in a plaintiff alleged contractor. The owner’s the construction site’s general duty of control of sec- satisfied retained-eontrol element tion 414. The opinion includes no discussion Rather, between the various opinion defendants. purely upon question decided the factual of whether had owner actually any physical welding exercised machines that over the injury. general authority of a caused the This court concluded that the site did not control of impose owner to retain the work it welding as related to the subcontractors’ activities purposes Hutchcraft, section 414. 3d at App. 726 N.E.2d at 1178. however, contrary, Bokodi,
To the N.E.2d 726, issued the same day Hutchcraft, grant summary reversed *10 upon based set forth in specific safety duties the contract. The court’s attention to the as the contractual foundation 414 liability presents analytical break from the framework Bokodi, for cases under the Act. See 3d at N.E.2d at
Here, facts, accepts duty as noted in defendant safety by control specific contract language: governing safety; provide devices, all safeguards, safety protective equipment; take reasonably other needed actions necessary as it determines to protect contract; the life health of this employees; condition of condition subcontract; permit of each any employee shall to work in sur roundings or under dangerous conditions are hazardous his safety. health duty safety, the face this contractual to control considering court erred in only whether contrac tor the performance retained control over the means and methods over removing the concrete structures not this contractual the trial language. requires law court to review contractual safety to maintain language regarding contractor’s workers. 2003) Instructions, Civil, 55.02 Jury (Supp.
E Illinois Pattern No. Necessary To This Case Is Not Decide following the Lawyers point repeal Amicus Trial out that Act, Jury Pattern Instruc- Supreme adopted the Illinois Court Illinois 2003) 2003) (hereinafter (Supp. IPI Civil
tions, Civil, (Supp. No. 55.02 responsibility 55.02), alleging in cases for use No. 414: negligence under section control who retained some over party
“A ordinary care.” control with to exercise that has control in thе concept of recognizes the difficult IPI Committee 2003) 55.00: (Supp. No. to IPI Civil introduction no courts and among appellate the lack of consensus “Due to 1965, the subject Larson in on this since [s]upreme [c]ourt cases great difficulty.The com- the committee concept of ‘control’caused ‘safety’in these instruc- on the area of mittee chose to concentrate overriding that the consideration The committee believed tions. entity controlling ability of the throughout all of these cases is the ability stop that the job safety. apрear It would to affect overall to the be resumed until done permit and not it to unsafe work requirement entity both the controlling satisfies satisfaction entirely ‘not the contractor is demonstrates that of ‘control’ and ” 2003) (Supp. No. way.’ IPI Civil do the work in his own free to Introduction, 55.00, at 16. control, in this case rely we concept difficulty
Given agreed to take defendant of the contract where safety. control of responsibility
III. CONCLUSION as to whether of material fact remain genuine issues Because defendant and whether placed a duty, we or failed to exercise exercised physically remand. for defendant and finding reverse remanded. Reversed j.,
McCullough, concurs. COOK, concurring: specially JUSTICE 2003) No. (Supp. to IPI Civil the introduction whether question I introduction, the the law. As I understand reflects accurately 55.02 *11 it to permit and not unsafe work “ability stop mere retention entity” controlling done to the satisfaction until resumed 16) 2003) Introduction, (IPI 55.00, at is sufficient No. (Supp. Civil contractor, employer owner, general Every duty. of a imposition appar- introduction would ability, and the to have that appear would every casе. a ently impose “Such persuasive. still comment c
I believe not mean it does employers, but usually reserved right is work, or methods of is controlled as to his c, Comment of Torts detail.” Restatement operative “control” or equate c would not 388. Comment work in entirely “not free to do the his mean that the contractor is every case, when there is way.” only own I would not find parties. I something relationship more than the minimal between 2003) means it (Supp. that what IPI No. 55.02 when believe Civil says that retained some control over party “[a] [has] 2003) duty.” (Supp. the work has IPI No. 55.02. Civil REYNARD, re Petitioner-Appellant, OF MARY ANNE MARRIAGE REYNARD,Respondent-Appellee. CHARLES G.
Fourth No. 4 - 03-0015 District Opinion filed December