Restatement 414 Update

Federal Court Holds No "Control" by General Contractor
Summer 2006
While Illinois state court decisions “ping pong” back and forth on just what factors comprise enough “control” to create a duty, general contractors and construction managers may want to consider removal to federal court where circumstances allow. In the recent decision of Aguirre v. Turner Construction Co., et al., 2006 U.S. Dist. LEXIS 9816 (N.Dist.Ill. March 9, 2006 decided), the United States District Court for the Northern District of Illinois held that no duty was owed by the general contractor and construction manager under Restatement (2d) Section 414, despite contract safety language and an extensive safety program.

Aguirre’s backdrop was the Soldier Field renovation project. A joint venture served as the construction manager for the project. The construction manager’s contract required that it:

take all necessary precautions and institute programs necessary to ensure the safety of the public and of workers performing the Work on the job, and to prevent accidents or injury to persons on the Site…

The construction manager contracted with, among other subs, a masonry contractor. The masonry company contracted to “perform and furnish all the work, labor, services, materials, plant, equipment, tools, scaffolds, appliances and other things necessary for the work,” and agreed “that the prevention of accidents to workmen and property engaged upon or in vicinity of the Work is its responsibility.” The masonry contractor was required to and prepared its own site specific safety program and employed its own project manager to oversee the project and administer its own safety program. During the course of building a garage opening, a mason was injured when a poorly constructed scaffold gave way and fell, causing injuries.

The injured worker brought suit against the general contractor, claiming it was in control of the work site under Restatement (2nd) of Torts Section 414, 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 of reasonable care, which is caused by his failure to exercise his control with reasonable care.

In a motion for summary judgment, the construction manager argued no duty was created under section 414 of the Restatement (Second). The District Court agreed.

Similar to the analysis seen in most Section 414 state cases, the Court focused on the limiting language of Comment (c) of Section 414, which discussed the term “retained control.” Comment (c) provides:

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

Restatement (Second) of Torts 414, Comment (c) (Emphasis added). Under the above Comment, sufficient “retained control” was not shown over the operative details of the plaintiff’s work so as to impose a duty under Section 414.

Here, although the construction manager instituted an extensive safety program, the Court recognized the Illinois state court decision of Martens v. MCL Constr. Corp. where the Court found that enforcement of safety standards does not constitute control over the “incidental aspects” of subcontractor work. Distinguishing the Bokodi case, the District Court found the Martens line of cases more persuasive because “penalizing a general contractor’s efforts to promote safety and coordinate a general safety program among various independent contractors at a large jobsite hardly serves to advance the goal of work site safety,” quoting Martens, 807 N.E.2d at 492.

In addition, the court focused on the masonry contractor’s own obligations by contract. Here, the masonry contractor agreed to be responsible for its own workers’ safety, agreed to design its own safety program, and employ its own personnel to ensure compliance. The masonry company’s contract also provided that it controlled operative work details, including providing and setting up its own scaffolding equipment. As such, the construction manager had no duty of care because it did not have control over the operative details of the mason’s work or its workers’ safety. Thus, summary judgment was appropriate.

Given the Federal Court’s reasoned analysis favoring general contractors and construction managers, it is worth investigating early on (given there are time limitations) if removal to federal court is possible. In addition, general’s and construction managers should review their contracts to ensure that subcontractors have as much control shifted to them as possible. Where a safety program is employed by the general/construction manger, there should be requirements that the subcontractor develop and submit its own site specific safety program, to show the subs exclusive control over its own operative details on a particular project. If you have not done so, have an experienced construction lawyer review your contracts for any additional language that may help defeat a claim or at very best prevent being named a defendant. An ounce of prevention is worth a pound of cure!

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