Attorneys: Johnson, Nicholas

Spring 2013

Often times, if a worker is injured while working on a construction project, the injured worker, in addition to its workers’ compensation claim against its employer, will seek recovery from the general contractor or another contractor on the project. The liability of the general contractor or another contractor in these cases typically hinges on the extent of control maintained over the project. The extent of control is typically defined by the project contracts, including the contract entered into between the owner of the property and the general contractor and the contract between the general contractor and its subcontractors.

In Tunberg v. Vacala Const., Inc. 2012 IL App (1st) 111521-U*, the court examined the liability of a contractor under the “voluntary undertaking doctrine.” In this case, the plaintiff, a foreman working for a mechanical contractor, was injured when he fell off a roof of a high school while attempting to throw materials off the roof.

The mechanical contractor had a direct contract with the school district to install air conditioning units on the rooftop. Another contractor had a contract with the school district, for “general trade work.” Neither contractor had a contractual relationship with each other on this project. Almost every contractor on the project had separate contracts with the owner and there was no “general contractor.”

The plaintiff sued the contractor for the general work based on the theory that it was responsible for safety on the jobsite. The plaintiff argued that the voluntary undertaking doctrine applied despite the contracts, because the contractor for the general work was acting as a general contractor and, thus, owed him a duty of care to maintain a reasonably safe working environment.

The plaintiff claimed that the other contractor’s safety director prepared reports for his vice president, project manager, and superintendents regarding the incident and stated that the plaintiff had “violated OSHA policies.” In the same report, he also stated, “we are ultimately responsible for safety on our site.” The plaintiff offered evidence that the contractor for the general work:

(1) had acted as general contractor on other jobsites and had a safety director visit this site, and

(2) voluntarily assumed a duty of care and protection toward him by undertaking the supervision of the site to insure the safety of all workers on the site.

The contractor for the general work presented evidence that after its safety director reviewed the contracts, he concluded that the statement of responsibility in his report was an error and that the contractor for the general work did not have the authority to stop the mechanical contractor’s work. It also provided evidence that its safety director only had the authority to report unsafe work to the mechanical contractor’s foreman, superintendent, or project manager. Finally, it showed that each contractor’s contract specified that each contactor was responsible for “all means and methods” of its own work, including obligations regarding the safety of its work.

In making its ruling, the court recognized that in the proper case the voluntary undertaking doctrine could apply; however, it found that it did not apply to this case. The court recognized that a voluntary undertaking theory of liability will apply if: (1) someone renders service to another and the undertaking is necessary for the protection of the other person’s safety, (2) it failed to exercise reasonable care, and (3) either the failure increased the risk of harm or harm is suffered because of the other person’s reliance on the undertaking.

The court determined that since the contractor for general work (1) never held safety meetings for other contractors and it never instructed other contractors on how to do their work, (2) did not voluntarily undertake the safety of the project, and (3) did not have unlimited authority to stop the work based on the language of the contracts between the owner and the contractors. Accordingly, the appellate court found in favor of the contractor for the general work, concluding that it did not voluntarily assume a duty to protect the plaintiff from unsafe work conditions.


*The “U” at the end of the case citation means that the opinion may not be used as precedent for another case.

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