In Wilkerson v. Schwendener, 379 Ill. App. 3d 491 (1st Dist. 2008), the Illinois Appellate Court examined whether the trial court properly granted summary judgment for a contractor where the plaintiff had alleged that the contractor retained control over the subcontractor’s work and failed to exercise reasonable care. Plaintiff maintained that, under the Restatement (Second) of Torts, Section 414, the contractor was liable.
The defendant was the general contractor hired to construct a retirement home. The plaintiff was employed as a subcontractor hired by the general contractor to perform the carpentry for the project. While installing floor joists for the second floor, plaintiff lost his balance and fell to the ground. At the time of the fall, plaintiff was not wearing any fall protection equipment. Apparently, plaintiff was balancing himself on top of the walls that framed the second floor level. Plaintiff was struck by a floor joist that a co-worker was passing to him, resulting in his fall and subsequent injury.
Plaintiff claimed that defendant was negligent. The general contractor countered by arguing that it did not retain sufficient control over the means and method of plaintiff’s work to incur any liability for the work of a subcontractor.
At issue was whether defendant’s contract, which required subcontractors 1) to comply with an extensive list of defendant’s safety regulations, 2) to hold weekly safety meetings and submit minutes, 3) to prepare and submit a safety plan to defendant, and 4) to attend defendant’s weekly safety-related meetings, was enough control over the work of the subcontractor to impute liability under Section 414 of the Restatement, which states,
One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.
Ultimately, the appellate court found that there was sufficient control because defendant had three supervisors on the work site that could have halted the work of the subcontractor, if its employees were performing any of their work in an unsafe manner. Notably, the defendant issued a letter to the subcontractor threatening to stop its work if it did not follow its safety program. The court stated that “defendant’s actions on the jobsite show defendant retained more than a general right of supervision.”
In the end, general contractors and construction managers should carefully review their contracts to ensure that subcontractors have as much “control” over their own work as the contract can allow. However, if a safety program and a site specific safety program is required pursuant to contract, general contractors must be cautious of threatening to or indicating that they will stop the work of the subcontractor because that may be sufficient control to trigger liability.
