In the recent Third District Illinois Appellate Court decision Moiseyev v. Rot’s Building and Development, No. 03-05-0761 (December 21, 2006), the court limited the definition of “control” under Section 414 of the (Second) of Torts in premises liability cases.
In Moiseyev, the plaintiff sued defendants Rot’s Building Development and Keith A. Rot, for construction negligence based on an injury arising out of a fall from a scaffold on a house that the plaintiff was working on. Plaintiff’s employer, OSI Construction, was the subcontractor and Rot’s Building Development was the general contactor. During the underlying litigation, the trial court granted the defendants’ motion for summary judgment based on the finding that “plaintiff could not show that the defendants had the requisite control over the means and methods of the subcontractor’s work that would create the necessary duty of care to render defendants liable for plaintiff’s injuries.” Thereafter, the plaintiff filed a motion to reconsider the summary judgment and for leave to file an amended complaint to include a new count of premises liability. The trial court denied both motions and the plaintiff appealed.
Under Section 414 of the Restatement (Second) of Torts:
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.
Courts have had trouble defining the term “control” and distinguishing between control which exposes a defendant to liability and control which is merely supervisory. In response, plaintiffs often relied heavily on an earlier Third District Appellate decision, Brooks v. Midwest Grain Products of Illinois, Inc., which adopted a broad definition of control. 311 Ill. App. 3d 871 (2000).
The Brooks court, in interpreting Section 414, stated that “under the retained control exception, an employer need only retain control of any part of the work in order to be subject to liability for a failure to exercise his control with reasonable care.” Id. , 311 Ill. App. 3d at 874. This decision overwhelmingly assisted plaintiffs in arguing that the slightest degree of control exercised by a project owner or general contractor over subcontractors triggered a duty to exercise reasonable care for the safety of the subcontractors’ employees. This decision further handicapped defendants in obtaining summary judgment when the involvement with the subcontractor’s work was limited to setting the work schedule and ensuring that the work was completed in a timely fashion.
In moving away from this broad standard of “control,” the court in Moiseyev held that the emphasis in determining whether one has sufficient control over subcontractors to trigger a duty of reasonable care should rest on the “degree of control over the manner in which the work is done and is a highly factual inquiry into the degree of control over the routine and incidental aspects of the work.”
By adopting the more recent trend of requiring actual control and direction of the incidental aspects of a subcontractors’ work before attaching a duty to protect an independent contractor’s employees, this decision is a victory for project owners and general contractors. This trend supports efforts to limit liability for workplace injuries to subcontractor employees to those directly in control of the subcontractor’s work and employees and recognizes the usual contractual separation of management of employees of independent contractors. As such, it will no longer be sufficient to find mere control over the basic portions of a subcontractor’s work to trigger a duty and potential liability for the safety of the subcontractor’s employee.
* * *
Kevin M. Casey is an Associate working in the General Litigation Department of Querrey & Harrow, Ltd. with a focus on premises liability, equestrian and fire claims. Should you have any questions regarding the contents of this article, please do not hesitate to contact Mr. Casey directly at 312-540-7052 or via kcasey@querrey.com.
