Illinois Official Reports 

Appellate Court

LePretre v. Lend Lease (US) Construction, Inc., 2017 IL App (1st) 162320

Appellate Court 

Caption

WILLIAM LePRETRE, Plaintiff-Appellant, v. LEND LEASE (US) 

CONSTRUCTION, INC., a Corporation, Defendant-Appellee.

District & No. First District, First Division 

Docket No. 1-16-2320

Filed

Rehearing denied

June 26, 2017

July 31, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 13-L-13896; the 

Hon. Kathy M. Flanagan, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Steve A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of 

Chicago, for appellant.

Christian D. Ambler, of Stone & Johnson, Chtrd., of Chicago, for 

appellee.

Panel PRESIDING JUSTICE CONNORS delivered the judgment of the 

court, with opinion.

Justices Simon and Mikva concurred in the judgment and opinion.
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 OPINION 

¶ 1 Plaintiff William M. LePretre brought a cause of action against Lend Lease (US) 

Construction, Inc. (Lend Lease), and other defendants for injuries he allegedly sustained 

while working at a construction site at 515 North Clark Street in Chicago. Lend Lease filed a 

motion for summary judgment, and the trial court granted it, finding that Lend Lease owed 

no duty to plaintiff under which it could be subject to vicarious or direct liability. The trial 

court also denied plaintiff’s motion to reconsider, and plaintiff now appeals. We affirm.

¶ 2 BACKGROUND 

¶ 3 Plaintiff filed a nine-count complaint against Lend Lease and other defendants seeking 

damages for injuries he sustained when he slipped and fell while installing iron rebar on 

February 15, 2012. Count I was directed at Lend Lease, and it is the only count at issue in 

this appeal. Lend Lease was the general contractor for the project, and it retained Adjustable 

Forms, Inc. (Adjustable), as the concrete subcontractor, which in turn retained plaintiff’s 

employer, Bond Steel, to install and reinforce the iron rebar for the concrete pour. 

¶ 4 Plaintiff alleged that Lend Lease failed to make a reasonable inspection of the premises; 

improperly operated, managed, maintained, and controlled the premises; failed to provide 

plaintiff with a safe place to work; failed to warn plaintiff of the dangerous conditions there 

existing; failed to provide adequate safeguards; failed to supervise work being done on the 

premises; failed to provide a safe and proper excavation; and failed to provide safe and 

proper material to be placed within the excavation. 

¶ 5 Lend Lease filed a motion for summary judgment contending that it owed no duty under 

section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 

(1965)) because, although it retained some general supervisory powers, it did not control the 

incidental aspects of the work of Adjustable or Bond Steel. Lend Lease noted that in 

plaintiff’s discovery deposition, plaintiff attributed his injury to three factors: the rebar pieces 

that he was installing were too long, the workspace he was in was too confined, and there 

was loose, falling dirt. Lend Lease argued that the contract between it and Adjustable, and 

the one between Adjustable and Bond Steel, showed that it retained no control over the rebar 

length, the work space, or debris removal and did not direct or control plaintiff’s work. 

¶ 6 Lend Lease attached relevant portions of the contracts to its motion for summary 

judgment. These attachments showed that Lend Lease entered into a contract with the owner 

of the project, ClarGran, for the construction of Clark and Grand Hotels. Section 3.3.1 of the 

General Conditions of that contract provided: 

“The Contractor [Lend Lease] shall be solely responsible for and have control over 

construction means, methods, techniques, sequences, and procedures and for 

coordinating all portions of the Work under the Contract, unless the Contract 

Documents give other specific instructions concerning these matters ***.” 

¶ 7 Section 10.2.1 of the General Conditions provided: 

“The Contractor shall take reasonable precautions for the safety of, and shall provide 

reasonable protection to prevent damage, injury or loss to: 

1. employees on the Work and other persons who may be affected thereby ***.” 
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¶ 8 Lend Lease then entered into a subcontract with Adjustable for the concrete work on the 

project. Portions of this subcontract were attached to Lend Lease’s motion for summary 

judgment. “Exhibit B—Scope of Work” in the subcontract provided: 

“Subcontractor [Adjustable] shall provide all labor, material, equipment, supervision 

as required to complete all scope-of-work items on this Concrete Subcontract and 

related work, in accordance with the Drawings, Specifications and the Contract 

Documents (‘Work’).”

¶ 9 Article 15 of the subcontract provided: 

“Subcontractor agrees that the prevention of accidents to workers engaged upon or in 

the vicinity of the work is its responsibility, even if the Contractor [Lend Lease] 

establishes a safety program for the entire Project. Subcontractor shall establish and 

implement safety measures, policies and standards ***.” 

¶ 10 Article 16 provided: 

“Subcontractor shall, at its own expense: (a) keep the premises at all times free from 

waste materials *** and other debris accumulated in connection with the Work by 

collecting and removing such debris from the jobsite on a daily or other basis ***.” 

¶ 11 Adjustable then hired Bond Steel to perform the rebar reinforcement installation portion 

of the concrete work. Lend Lease attached portions of that subcontract to its motion for 

summary judgment, which indicated that the prevention of accidents and injuries shall be the 

primary concern of Bond Steel and that it should maintain a safe and healthful work 

environment with its safety program. The contract also noted that Bond Steel “shall submit a 

copy of [its] safety program together with the name and experience of [its] on-site safety 

representative.” The contract stated that Bond Steel agreed to comply with OSHA and all 

safety and health requirements imposed by Adjustable and Adjustable’s “Subcontractor 

Safety Handbook” and would conduct operations in a safe and healthy manner. 

¶ 12 Lend Lease noted that Adjustable hired Gerdau Ameristeel to design and provide all the 

reinforcing steel needed to complete the concrete work in accordance with the project 

construction documents. The purchase order was attached to the motion for summary 

judgment. 

¶ 13 Lend Lease also attached several deposition transcripts to its motion for summary 

judgment. Plaintiff stated in his discovery deposition that he was Bond Steel’s foreman on 

the project and was in charge of the Bond Steel crew. Plaintiff and his crew took directions 

with respect to what they would do on a daily basis from Adjustable’s superintendent, Eric 

Blank. Plaintiff testified that he did not take any direction as to how to install steel, what 

materials to use, or where to work from anyone employed by Lend Lease. Plaintiff testified 

in his deposition that Lend Lease never stopped Bond Steel’s work for safety reasons and did 

not provide safety direction specifically relating to the installation of the rebar. He further 

testified that Lend Lease conducted a site orientation for all new employees to discuss 

general safety. 

¶ 14 Plaintiff also testified that at the time of his accident, he and his crew were installing a 

27-foot long piece of rebar and that plaintiff believed the rebar was too long and the work 

space was too tight because he had to leverage the bars into place. Plaintiff testified that he 

complained to Blank about the length of the rebar and the size of the work space, and asked 

him to get shorter bars. Plaintiff testified that Blank did not heed his request because 
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Adjustable was pouring the concrete the next day around the rebar. Plaintiff testified that he 

never had any discussions with anyone from Lend Lease concerning any safety issues or 

construction methods. 

¶ 15 Phil Schwarz, Lend Lease’s general superintendent, testified that he did not know 

plaintiff and had not heard of the incident. He testified that Lend Lease’s primary function on 

the project was to coordinate the various subcontractors and monitor progress. 

¶ 16 Blank, Adjustable’s superintendent, testified that he was the top supervisory person on 

site and that he did not recall plaintiff or anyone else complaining to him about the tight work 

space or the length of the rebar used. Blank testified that he ordered the rebar for Bond 

Steel’s work by communicating with Gerdau Ameristeel directly. Blank testified that he 

never had any conversations with anyone from Lend Lease regarding rebar length, work 

space in the North Core, or loose dirt on the floor. 

¶ 17 Dan Bond, the head of safety for Bond Steel at the time of the incident, testified that 

plaintiff did not mention any safety concerns to him and that Bond never spoke to anyone at 

Lend Lease as to concerns about Bond Steel’s work or the conditions. Bond testified that 

Bond Steel had a “Site Specific Safety Manual” that required photographs to be taken at the 

scene of any accident or injury on the project. Bond testified that he was not aware of any 

photographs of the site of the incident or any report by plaintiff or anyone else of dirt on the 

floor. 

¶ 18 Sean Bond, the field superintendent for Bond Steel, testified that Bond Steel had no 

contractual relationship with Lend Lease and that for this project he dealt solely with Blank 

from Adjustable. He testified that Adjustable was responsible for directing the work of Bond 

Steel and where the Bond Steel crew was to work on any particular day. 

¶ 19 Finally, Darvin Hidalgo and John Stacks, Bond Steel ironworkers, testified that plaintiff 

provided them with instruction on a day-to-day basis and that no one from Lend Lease ever 

gave Bond Steel any instructions as to how to perform its work on the project. 

¶ 20 Plaintiff filed a response in opposition to Lend Lease’s motion for summary judgment, 

maintaining that Lend Lease retained control over the work at the project. Plaintiff argued 

that Lend Lease, as general contractor, retained control over the means and methods and 

operative details of the work and that it was therefore vicariously liable for plaintiff’s 

injuries. Specifically, plaintiff contended that Lend Lease’s safety professional was present 

on site full time and had the authority to inspect the work being performed and had the power 

to stop the work from being performed until he was satisfied that the means and methods 

used were safe. 

¶ 21 The trial court found that there was no evidence that Lend Lease retained control over the 

means and methods or operative details of the work of Bond Steel and plaintiff. It found that 

there was also no evidence that Lend Lease retained control over the safety of the job. The 

trial court noted that “having the authority to stop the work, a safety program, or a safety 

director, without more, are merely the general responsibilities of a general contractor and are 

insufficient to establish retained control.” The trial court further found that there was no 

evidence that Lend Lease engaged in the type of pervasive supervision that affects the means 

and methods of the work and gives rise to liability. Plaintiff now appeals. 
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¶ 22 ANALYSIS 

¶ 23 On appeal, plaintiff maintains that Lend Lease’s motion for summary judgment should 

not have been granted where Lend Lease retained supervisory control of the safety of the 

work being performed. Plaintiff contends that whether a general contractor retained sufficient 

supervisory control over the work is a question of fact for the jury to decide. Lend Lease 

responds that Lend Lease did not control the means and methods of the work and, therefore, 

is not liable. 

¶ 24 The purpose of summary judgment is to determine whether a genuine issue of material 

fact exists. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). A trial court should grant 

summary judgment where “ ‘the pleadings, depositions, and admissions on file, together with 

the affidavits, if any, show that there is no genuine issue as to any material fact and that the 

moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting 735 ILCS 

5/2-1005(c) (West 2002)). This court reviews a trial court’s grant of summary judgment 

de novo. Id. 

¶ 25 Plaintiff’s lawsuit against defendants was based on common-law negligence. “In any 

action for negligence, the plaintiff must present sufficient evidence to establish the defendant 

owed a duty to the plaintiff.” Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 

837 (1999). The court decides as a matter of law whether a duty exists, and if no duty exists, 

there can be no recovery. Id. at 837-38. 

¶ 26 The general rule in Illinois is that a party who entrusts an independent contractor will not 

be held vicariously liable for tortious acts or omissions committed by the independent 

contractor. Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362, 381 (2009). 

Because the hiring entity has no control over the details and methods of the independent 

contractor’s work, it is not in a good position to prevent negligent performance, and liability, 

therefore, should not attach. Rather, the party in control—the independent contractor—is the 

proper party to be charged with that responsibility and bear the risk. Fonseca v. Clark 

Construction Group, LLC, 2014 IL App (1st) 130308, ¶ 26; Pestka v. Town of Fort Sheridan 

Co., 371 Ill. App. 3d 286, 300 (2007). This does not mean that one who hires an independent 

contractor is absolutely immune from tort liability for a plaintiff’s injuries. Rather, as section 

414 of the Restatement (Second) of Torts explains, a hiring entity may be liable for its own 

negligence where it retains some control over the independent contractor: 

“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). 

¶ 27 Accordingly, if sufficient control is exercised over the independent contractor, then the 

general rule no longer applies. Comment a of section 414 provides: 

“a. If the employer of an independent contractor retains control over the operative 

detail of doing any part of the work, he is subject to liability for the negligence of the 

employees of the contractor engaged therein, under the rules of that part of the law of 

Agency which deals with the relation of master and servant. The employer may, 

however, retain a control less than that which is necessary to subject him to liability 

as master. He may retain only the power to direct the order in which the work shall be 

done, or to forbid its being done in a manner likely to be dangerous to himself or 
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others. Such a supervisory control may not subject him to liability under the 

principles of Agency, but he may be liable under the rule stated in this Section unless 

he exercises his supervisory control with reasonable care so as to prevent the work 

which he has ordered to be done from causing injury to others.” Restatement 

(Second) of Torts § 414 cmt. a (1965). 

¶ 28 Many appellate court decisions, as well as the trial court decision in this case, have cited 

section 414 of the Restatement to impose both vicarious liability and direct liability against 

the employer of an independent contractor. E.g., Lederer v. Executive Construction, Inc., 

2014 IL App (1st) 123170, ¶ 49; Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, 

¶ 123. As our supreme court has recently held, however, the rule in section 414 only 

articulates a basis for imposing direct liability. Carney v. Union Pacific R.R. Co., 2016 IL 

118984, ¶ 36. Because an employer of an independent contractor is typically not answerable 

for the contractor’s negligence, “the employer’s liability must be based upon his own 

personal negligence.” Restatement (Second) of Torts, ch. 15, topic 1, intro. note, at 371 

(1965). Section 414 sets forth one way in which an employer of an independent contractor 

may be negligent and therefore directly liable for physical harm to others. Restatement 

(Second) of Torts § 414 (1965). 

¶ 29 Our supreme court in Carney stated that the first sentence of comment a above explains 

when section 414 does not apply. Carney, 2016 IL 118984, ¶ 38 (citing Aguirre v. Turner 

Construction Co., 501 F.3d 825, 829 (7th Cir. 2007)). If the control retained by the employer 

is such that it gives rise to a master-servant relationship, the employer may be liable for the 

negligence of the contractor’s employees under the laws of agency. Id. However, agency law, 

under which an employer may be vicariously liable for the torts of its employees, is not the 

same as when an employer is directly liable for its own negligence. In other words, “ ‘section 

414 takes over where agency law ends.’ ” Id. (quoting Aguirre, 501 F.3d at 829). 

¶ 30 The issue of a defendant’s retained control may be decided as a matter of law where the 

evidence is insufficient to create a factual question. Id. ¶ 41. “The best indicator of whether 

the defendant retained control sufficient to trigger the potential for liability under section 414 

is the written agreement between the defendant and the contractor.” Id. (citing Cain v. Joe 

Contarino, Inc., 2014 IL App (2d) 130482, ¶ 76). “But even if the agreement provides no 

evidence of retained control by the defendant, such control may yet be demonstrated by 

evidence of the defendant’s conduct at variance with the agreement.” Id. 

¶ 31 In the case at bar, there was no contract between Lend Lease and Bond Steel, plaintiff’s 

employer. Rather, there was a contract between Lend Lease and Adjustable for the concrete 

work on the project. Adjustable then entered into a subcontract with Bond Steel to reinforce 

the iron rebar before pouring concrete. Accordingly, plaintiff relies on the contract between 

Lend Lease and the owner of the building, ClarGran, as well as the contract between Lend 

Lease and Adjustable, to support his argument that Lend Lease retained control of the safety 

of the project. Plaintiff points to the language in the ClarGran contract that states Lend Lease 

would be solely responsible for and have control over construction means, methods, 

techniques, sequences, and procedures and for coordinating all portions of the work under the 

contract. He also points to the section that states Lend Lease “shall take reasonable 

precautions for the safety of, and shall provide reasonable protection to prevent damage, 

injury, or loss to *** employees on the Work and other persons who may be affected 

thereby.” The Safety Requirements of the contract indicated that each subcontractor “shall 
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establish a Site Specific Safety Program (SSSP) in detail commensurate with the 

requirements of the project.” They also indicated that all employees were to attend a safety 

orientation. Plaintiff also notes that the contract between Lend Lease and Adjustable states 

that Adjustable shall “stop any part of the Work that Contractor deems unsafe until corrective 

measures satisfactory to Contractor have been taken” and that “Contractor will review the 

Safety and Health Program prior to the start of the work.” 

¶ 32 Plaintiff maintains that, based on these provisions, Lend Lease retained control over the 

safety of the work. We disagree. These provisions cited by plaintiff are part of the general 

rights reserved to someone, like Lend Lease, who employs a contractor, rather than evidence 

that Lend Lease retained control over the manner in which work by Adjustable was 

performed. See id. ¶ 46 (provisions in the contract that allowed the defendant to terminate the 

contract if the defendant deemed the independent contractor’s work to be unsatisfactory, 

requiring the work by the independent contractor to be done in a workmanlike manner to the 

satisfaction of the defendant, and giving the defendant the right to stop the work or make 

changes, as the interests of defendant may require, were 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 [an independent contractor] was 

performed”). “A general contractor’s rights to stop work and order changes are general rights 

of supervision and not a retention of control over the incidental aspects of the work.” 

Fonseca, 2014 IL App (1st) 130308, ¶ 28 (citing Calderon v. Residential Homes of America, 

Inc., 381 Ill. App. 3d 333, 346 (2008)). As stated in comment c to section 414 of the 

Restatement (Second) of Torts: 

“c. 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). 

¶ 33 Moreover, a general right to enforce safety does not amount to retained control under 

section 414. Joyce v. Mastri, 371 Ill. App. 3d 64, 74 (2007). “The mere existence of a safety 

program, safety manual, or safety director is insufficient to trigger [section 414].” Madden, 

395 Ill. App. 3d at 382. “Even if the general contractor retains the right to inspect work, 

orders changes to the plans, and ensures that safety precautions are observed and the work is 

done safely, the general contractor will not be held liable unless the evidence shows that the 

general contractor retained control over the incidental aspects of the independent contractor’s 

work.” Fonseca, 2014 IL App (1st) 130308, ¶ 28 (citing Rangel, 307 Ill. App. 3d at 839). 

¶ 34 Here, the contract placed control of job safety with Adjustable. Specifically, the contract 

between Lend Lease and Adjustable indicated that Adjustable was to provide all labor, 

material, equipment, and supervision as required to complete “all scope-of-work items on 

this Concrete Subcontract and related work.” It also made clear that “the prevention of 

accidents to workers engaged upon or in the vicinity of the work is its responsibility, even if 
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the Contractor [Lend Lease] establishes a safety program for the entire Project.” It further 

stated that Adjustable “shall establish and implement safety measures, policies and 

standards,” and at its own expense keep the premises at all times free from waste materials 

and “other debris accumulated in connection with the Work by collecting and removing such 

debris from the jobsite on a daily or other basis.” Accordingly, we find nothing within the 

contracts indicating that Lend Lease retained control such that Adjustable was not entirely 

free to do the work in its own way. See Carney, 2016 IL 118984, ¶ 46 (the contract placed 

control of job safety with independent contractor where independent contractor was required 

to keep the job site free from safety and health hazards and ensure that its employees were 

competent and adequately trained in all safety and health aspects of the job). 

¶ 35 We find the analysis in the recent case of Fonseca to be helpful. In Fonseca, the plaintiff 

was the contractor for RG Construction, a drywall subcontractor of Clark Construction. After 

he was injured at the building in question, he ultimately sued Clark Construction and Maron 

Electric, another subcontractor, for negligence, alleging that Maron Electric failed to remove 

its construction debris from the area where he was working, causing him to fall, and that 

Clark Construction failed to properly supervise the work being done on the construction site. 

The trial court granted Clark Construction’s motion for summary judgment, finding that 

Clark Construction did not owe a duty under section 414 of the Restatement (Second) of 

Torts because Clark Construction did not control the means and methods or operative details 

of Maron Electric’s work. 

¶ 36 On appeal, this court agreed, finding that although the Clark contract provided Clark 

Construction with general supervisory authority, Clark Construction did not exercise this 

authority and in no way altered or directly supervised the work of Maron Electric. Fonseca, 

2014 IL App (1st) 130308, ¶ 29. This court looked in part at the language in the Maron 

subcontract which stated that Maron Electric assumed the entire responsibility and liability 

for work, supervision, labor, and materials used in conjunction with the construction of the 

building and that Maron Electric was responsible for cleaning and removing all debris from 

its work area. This court also relied on deposition testimony that indicated it was Maron 

Electric’s responsibility to inspect its own work and clean its own debris and that Clark 

Construction never stopped Maron Electric’s work. Maron Electric controlled the means and 

methods of its own work during construction of the building. Thus, this court found that 

Clark Construction did not retain control over Maron Electric’s work. Id. 

¶ 37 The contract provisions in Fonseca were similar to those of the case at bar. In Fonseca, 

300 LaSalle LLC, the owner of the building, and Clark Construction executed a contract 

which stated in part: 

“ ‘[Clark Construction] shall be solely responsible for and have control over 

construction means, methods, techniques, sequences and procedures and for 

coordinating all portions of the Work under Contract Documents or otherwise 

required by good construction practice or by any applicable code. Contactor 

understands and acknowledges that although certain construction means, methods, 

techniques, sequences and procedures necessary for the completion of the Project 

may be referenced in the Contract Documents, it shall remain responsible for and 

have control over the construction means, methods, and techniques necessary to 

comply with such sequences and procedures.’ ” Id. ¶ 4. 

¶ 38 Section 3.3.2 of the contract stated: 
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“ ‘[Clark Construction] shall be responsible to [300 LaSalle] for acts and 

omissions of [Clark Construction’s] employees, suppliers, consultants, Subcontractors 

and Sub-Subcontractors and their respective agents and employees, and all other 

persons or entities performing portions of the Work.’ ” Id. ¶ 5. 

¶ 39 Section 10.2.1 of the same contract stated: 

“ ‘[Clark Construction] shall be responsible for initiating, maintaining and 

supervising all safety precautions and programs in connection with the Work, 

including safety of all persons and property during performance of the Work. This 

requirement shall apply continuously throughout the course of the Work and shall not 

be limited by normal working hours. Clark Construction shall take all reasonable 

precautions and safety measures, including those listed in the Contract Documents 

(which are presumably deemed reasonable), for the safety of, and shall provide 

reasonable protection to prevent damage, injury or loss to: 

 1. All employees on, and persons performing, the Work and all other persons who 

may be affected thereby.’ ” Id. ¶ 6. 

¶ 40 Clark Construction and Maron Electric also executed a subcontract, which stated in part: 

“ ‘[Maron Electric] shall perform all work and shall furnish all supervision, labor, 

materials, plant, scaffolding, tools, equipment, supplies and all other things necessary 

for the construction and completion of the work described in Exhibit B and work 

incidental thereto, in strict accordance and full compliance with the terms of the 

Contract Documents (which are hereby incorporated by reference) and this 

Subcontract and to the satisfaction of [Clark Construction] and [300 LaSalle].’ ” Id.

¶ 7. 

¶ 41 The Maron subcontract also stated: 

“ ‘[Maron Electric] hereby assumes the entire responsibility and liability for all 

work, supervision, labor and materials provided hereunder, whether or not erected in 

place, and for all plant, scaffolding, tools, equipment, supplies and other things 

provided by [Maron Electric] until final acceptance of work by [300 LaSalle] as 

defined by the Contract Documents.’ ” Id. ¶ 8. 

¶ 42 The Maron subcontract also stated that Maron Electric “ ‘shall clean its work and remove 

all debris resulting from its work in a manner that will not impede either the progress of the 

Project or of other trades.’ ” Id. ¶ 9. Exhibit D of the Maron subcontract stated that the 

contract included daily cleanup of all trash and debris in its work area and that Clark 

Construction had the right to reject the work of Maron Electric if it did not conform to the 

requirements of the Maron subcontract. An 18-page safety and health manual was 

incorporated in the Maron subcontract, which stated that “ ‘[a]ll subcontracting personnel are 

required to follow all of [Clark Construction’s] safety and health policies, in addition to their 

own company program.’ ” Id. ¶ 10. The safety manual established that Clark Construction 

had a safety manager for the project, and that Maron Electric was required to attend a safety 

orientation conducted by Clark Construction’s safety manager prior to starting work. The 

safety manual required “ ‘toolbox talks’ ” with the site’s workers using forms provided by 

Clark Construction and that Maron Electric was required to attend monthly safety meetings. 

Id. 
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¶ 43 Looking at these provisions, this court found that because the Maron subcontract stated 

that Maron assumed the entire responsibility and liability for work, supervision, labor, and 

materials used in conjunction with the project, Maron Electric was responsible for cleaning 

and removing all debris from its work area, and Maron Electric was bound by all laws, codes, 

ordinances and regulations applicable to the Maron subcontract through general law or the 

Clark contract, the facts showed that Clark Construction did not have control over the way 

Maron Electric conducted its work. This court further looked at the deposition of the senior 

safety manager of Clark Construction, who stated she walked around the jobsite to make sure 

that people were working safely but did not recall ever stopping anyone work, and the 

deposition of the senior superintendent of Clark Construction, who stated it was Maron 

Electric’s responsibility to clean its own debris, Clark Construction never stopped Maron 

Electric’s work, and Maron Electric controlled the means and methods of its own work 

during construction of the building. Id. ¶ 29. 

¶ 44 Similarly in the case at bar, Phil Schwarz, Lend Lease’s general superintendent, stated in 

his deposition that the subcontractors determined their own means and methods by which 

they performed their work and that Lend Lease delegated its trade-specific safety and 

workmanship to the subcontractors. Eric Blank, Adjustable’s superintendent did not recall 

ever hearing anyone from Lend Lease instructing anyone from Adjustable or Bond Steel how 

to do their work and testified that if there was debris in the work area, Adjustable or Bond 

Steel workers were responsible for cleaning up. Ironworkers for Bond Steel testified that the 

only time someone from Lend Lease spoke to them was during the safety orientation on their 

first day. Plaintiff testified that he and his crew took directions from Eric Blank, Adjustable’s 

superintendent, and that they did not take any direction from anyone employed by Lend 

Lease as to how to install steel, what materials to use, or where to work. He also testified that 

Lend Lease never stopped Bond Steel’s work for safety reasons and did not provide safety 

direction specifically relating to the installation of the rebar. 

¶ 45 As in Fonseca, we find that the contract provisions, coupled with the various deposition 

testimonies, confirm that Lend Lease’s conduct was insufficient as a matter of law to 

establish that it retained supervisory control over the safety of the work such that it owed a 

duty to plaintiff. We note, as did our supreme court in Carney, that “[t]o hold otherwise 

would penalize a defendant’s safety efforts by creating, in effect, strict liability for personal 

injury to any job site employee.” Carney, 2016 IL 118984, ¶ 61. See Connaghan v. Caplice, 

325 Ill. App. 3d 245, 250 (2001) (“the right to stop the work, tell the contractors to be 

careful, and change the way something [is] being done if [the defendant] felt something was 

unsafe” does not establish sufficient retention of control for purposes of section 414); Fris v. 

Personal Products Co., 255 Ill. App. 3d 916, 924-25 (1994) (imposing duty under section 

414 where the defendant retained only a general right to require that work be done in a safe 

manner would result in strict liability for all injuries to employees of independent 

contractors). 

¶ 46 Plaintiff’s reliance on Lederer does not convince us otherwise. In Lederer, a case that 

was called into question by our supreme court in Carney, the subcontracts required the 

subcontractors to attend weekly coordination meetings with the general contractor, and the 

safety manual specifically prohibited the use of “stilts” by the general contractor or the 

subcontractors. Lederer, 2014 IL App (1st) 123170, ¶¶ 57-58. The court found that although 

the mere existence of a safety program, safety manual, or safety director is insufficient, 
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standing alone, to impose liability under the retained control exception, the general contractor 

specifically prohibited one means or method of performing the work, which was enough to 

subject it to liability. Evidence in the record showed that laborers looked to the general 

contractor to remedy a safety hazard and that the general contractor had a strong presence on 

the site inspecting safety precautions. Id. These facts are not present in the case at bar. 

Rather, the facts show that Lend Lease did not provide safety guidelines as to the installation 

of the rebar, did not communicate with Bond Steel or its employees on how to install the 

rebar, and employees did not look to Lend Lease to remedy any sort of alleged safety hazard. 

Accordingly, we reject plaintiff’s reliance on Lederer and maintain that Lend Lease did not 

retain enough control over the work on this project to subject it to liability under section 414 

of the Restatement (Second) of Torts. 

¶ 47 In light of our holding, we need not consider plaintiff’s further arguments. Plaintiff’s 

second argument, that Lend Lease failed to exercise its supervisory control with reasonable 

care, is based on the fact that Lend Lease retained enough control to bring it within the 

purview of section 414, which we have found it did not. Restatement (Second) of Torts § 414 

cmt. c (1965) (“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.”). And 

plaintiff’s third argument is based on vicarious liability through the laws of agency. 

However, as we explained above, section 414 takes over where agency law ends. Carney, 

2016 IL 118984, ¶ 38 (if the control retained by the employer is such that it gives rise to a 

master-servant relationship, the employer may be liable for the negligence of the contractor’s 

employees under the laws of agency, however, agency law is not the same as when an 

employer is directly liable for its own negligence—so “ ‘section 414 takes over where agency 

law ends’ ” (quoting Aguirre, 501 F.3d at 829)). Comment a of section 414 explains that if 

the employer of an independent contractor retains control over the operative detail of doing 

any part of the work, he is subject to liability for the negligence of the employees under the 

rules of that part of the law of agency that deals with the relation of master and servant. 

Restatement (Second) of Torts § 414 cmt. a (1965). It further states that the employer may, 

however, “retain a control less than that which is necessary to subject him to liability as 

master,” which is supervisory control discussed in section 414. Id. Since we have found there 

was not enough evidence to establish supervisory control under section 414, it therefore 

follows that there was not enough evidence to establish control over the operative details of 

the work such that there was a master-servant relationship under the laws of agency. 

¶ 48 CONCLUSION 

¶ 49 Accordingly, for the foregoing reasons, we affirm the judgment of the circuit court of 

Cook County. 

¶ 50 Affirmed.