Illinois Court Finds In Favor Of General Contractor In Worker Death Case, Following Section 414 Of The Restatement

By: Werner Sabo

A recent Illinois decision found in favor of a general contractor where the estate of a deceased construction worker alleged that the general contractor had breached a duty toward the worker and failed to prevent the worker’s death. In Meza v. F.H. Paschen, 2017 IL App (1st) 161569-U (Dec. 7, 2017), the worker was an employee of a fence company hired by the general contractor, Paschen, to furnish and install fencing and guardrails for a project in Chicago. The worker was operating a skid steer loader. He was run over and dragged by the skid steer loader, suffering fatal injuries. There were no witnesses to the incident.

The worker’s estate sued Paschen and others, alleging that Paschen “owed a duty to exercise reasonable care in its supervision, operation and control of the installation process at [the] construction site so as to prevent injury generally to those engaged in work on [the] construction site and specifically, the Plaintiff’s decedent.” Paschen moved for summary judgment, arguing that, pursuant to section 414 of the Restatement (Second) of Torts, plaintiff could not establish that Paschen owed a duty to the worker. After the court ruled in favor of Paschen, the estate appealed.

The appellate court issued its decision on the heels of the recent Illinois Supreme Court decision in Carney v. Union Pacific Railroad Co., 2016 IL 18984 (Oct. 20, 2016). In Carney, the court expressly adopted section 414. The Meza court followed Carney in finding no duty by Paschen, and explained how it came to that conclusion.

Generally, one who hires an independent contractor is not liable for harm caused by the independent contractor’s acts or omissions, because the hiring entity has no control over the details and methods of the independent contractor’s work, and, therefore, it is not in a good position to prevent negligent performance. Section 414 provides an exception and 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.” Restatement (Second) of Torts § 414 (1965).

Thus, pursuant to section 414, where the hiring entity retains some control over the independent contractor, the hiring entity may be liable for its own negligence.  Previous appellate court opinions had interpreted section 414 as providing a basis for  imposing vicarious liability against one who hired an independent contractor. But the court in Carney clarified that section 414 applies only to a hiring entity’s direct liability for its own negligence.  In other words, while Paschen might be liable for its own negligence based on its retained control over Industrial Fence or its work, if any, it is clear after Carney that, under section 414, Paschen cannot be held vicariously liable for Industrial Fence’s own negligence.

This “retained control” exception of section 414 is limited by comment c to that section, which explains:

“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 cmt. c (1965).

In Carney, the court rejected the argument that certain provisions in the parties’ contract (allowing defendant to terminate the contract if it deemed the independent contractor’s services to be unsatisfactory; requiring that the independent contractor’s work be done in a workmanlike manner to defendant’s satisfaction; and giving defendant the right to stop the work or make changes, as the interests of defendant may require) had given the defendant “unfettered control” over the independent contractor there. The court explained that those provisions were merely “part of the general rights reserved to someone, like defendant, who employs a contractor, rather than evidence that defendant retained control over the manner in which work by [that contractor] was performed.”

The Meza court then turned to the contract between Paschen and the fence company to determine whether Paschen retained sufficient control over its subcontractor’s work in order to owe a duty to the worker:

Paragraph 15, titled “INSPECTION AND DEFECTIVE WORK,” addresses the parties’ responsibilities regarding Industrial Fence’s work:

“Subcontractor agrees and understands that neither Contractor [Paschen] nor Architect will provide continuous or exhaustive inspection of Subcontractor’s Work and that Subcontractor is fully responsible for the materials, procedures, methods and techniques utilized and for providing completed Work to the full satisfaction of the Contractor and Architect. Neither failure to inspect the Work nor, upon inspection, failure to uncover defects in the Work shall be deemed acceptance of the Work by Contractor or Architect.”

Paragraph 19, titled “SAFETY,” states, in relevant part:

“b) Subcontractor understands and agrees that neither Contractor nor Architect will make continuous or exhaustive inspections to assure Subcontractor’s compliance with applicable safety rules, regulations or requirements. Subcontractor shall be solely responsible to assure the safety of its own equipment, appliances, material, and working conditions, techniques, and procedures, and Contractor is not responsible in any manner for the safety of Subcontractor’s Work. If the Subcontractor fails to correct unsafe procedures, acts or conditions within a reasonable time of notification by Contractor, however, Contractor may (but has no contractual obligation to do so) correct the unsafe practice and backcharge the Subcontractor for these costs. Repeated failures to correct unsafe practices may result in the termination of this Agreement. In the event Contractor receives a penalty from OSHA as a result of a violation of OSHA by Subcontractor and Contractor is cited under the multi-employer worksite rule, Subcontractor agrees to defend, indemnify and hold harmless Contractor for the imposition of any fines and/or penalties.”

Given these provision, the court concluded that nothing within the contract  established that Paschen retained control over any part of the fence subcontractor’s work. There was also no evidence that Paschen’s conduct was at variance with the agreement and actually retained control over any part of the subcontractor’s work or instructed them on how to do their work.

Finally, the court rejected the argument that the various safety meetings and jobsite orientations required by Paschen established a duty. The court stated that  “the existence of a safety program, safety manual or safety direction does not constitute retained control per se.”

This case, along with Carney, provide important protections for Illinois general contractors when a subcontractor’s employee is injured. It is important to note that the general can impose a rigorous safety program to minimize the chances of injuries. So long as the subcontractor is responsible for its own means and methods and safety program, that subcontractor will be responsible for the safety of its own workers.

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