The Illinois Appellate Court in Calderon v. Residential Homes, 381 Ill. App. 3d 333 (1st Dist. 2008), recently held the mere presence of a general contractor on a work site does not create a duty pursuant to §414 of the Restatement (Second) of Torts, and thus, an injured employee of a subcontractor could not recover from the general contractor. In this matter, the plaintiff was an employee of a subcontractor hired to provide roofing services for the general contractor, Residential Homes. While working on a Saturday morning, not a normal workday, the plaintiff fell from a ladder as he carried shingles to the rooftop and sustained injuries. He alleged that the defendants were negligent in failing to provide a safe work place; provide a safe means to transport shingles; abide by OSHA safety standards; and secure the ladder.
Generally, one who entrusts work to an independent contractor is not liable for the acts of that independent contractor. The reasoning is that the person hiring an independent contractor does not supervise the work and thus is not in a position to prevent the negligent activity. However, the ultimate issue in Calderon was whether the defendant general contractor owed the plaintiff a duty pursuant to §414, which provides that a duty will arise if the defendant “retained control” over the work of the plaintiff.
Here, the plaintiff alleged that the general contractor had retained sufficient control over the safety of the worksite via the contract. Specifically, the agreement required all work to be completed in accordance with OSHA safety standards and the terms of the general contractor’s safety manual, which reiterated that the work needed to conform to OSHA standards. The court stated these provisions did not trigger a duty, as the general contractor had not retained a sufficient degree of control. The court further explained the mere existence of a safety manual does not create a duty per se; instead, it must sufficiently affect the means and method of work.
The plaintiff also maintained that in addition to the safety aspects, the general contractor contractually had reserved control over the means and methods of the work. The court did not agree. Although the contract provided that the general contractor was responsible for setting a construction schedule for the roofer and it provided various specifications with regard to the sheet metal and types of roofing nails to use, and all final decisions as to quality and completion would be made by the general contractor, the court stated that the provisions were nothing more than general supervisory rights and not a retention of control sufficient to impose a duty.
The last and maybe most compelling argument presented by the plaintiff was that the general contractor knew, or should have known, that Calderon had manually transported the shingles to the rooftop himself. That alleged knowledge of unsafe methods is a pre-condition to direct liability. However, knowledge will not be inferred where the general contractor did not have sufficient opportunity to observe the unsafe conditions.
Here, the plaintiff asserted that the superintendent’s daily presence at the development site showed that Residential Homes had knowledge of the manner in which work was being performed. Calderon testified that he frequently, as many as 20 occasions in the month prior to the accident, had carried shingle bundles onto the rooftop. He did so because he needed to complete his job on schedule. He would carry them over his shoulder rather than use a “laddervator,” a device that would have assisted him in performing the task safely, because it was at the roofer’s office approximately 10 minutes from the development site. He did not complain to anyone about the shingle company’s failure to place the shingles on the roof because he believed that the superintendent had witnessed him moving the shingles.
Conversely, the superintendent testified that although he would spend the entire day at the development, most of his time was spent in the trailer handling paperwork. However, he would drive around the development every day to check on progress. When he made his rounds, he would check on things but he did not supervise the work. Based on his inspections, he was able to deduce that some of the work was being performed on weekends. Further, he typically saw shingles being transferred to the rooftop by way of a boom crane or conveyer-type apparatus and did not recall seeing laborers transport the shingles to the rooftop. The court found that the mere fact that a superintendent maintained a daily presence at the jobsite did not serve to trigger a duty when the visits were designed to measure job progress.
