FIRST DIVISION

December 29, 2008

No. 1-07-1883

NATIVIDAD F. GARCIA, ) Appeal from the

) Circuit Court of

Plaintiff-Appellant, ) Cook County.

v. )

)

WOOTON CONSTRUCTION, LTD., a )

Corporation; ) No. 04 L 8684

)

Defendant-Appellee )

)

(Smithfield Properties Development,) 

L.L.C., a Limited Liability ) The Honorable 

Company; Harris Management, Ltd., ) Kathy M. Flanagan,

a Corporation; and Zalk Josephs ) Judge Presiding.

Fabricators, L.L.C., a Limited )

Liability Company, Defendants). )

)

JUSTICE GARCIA delivered the opinion of the court.

The plaintiff in this construction negligence case,

Natividad Garcia, injured his back while employed by JP Cullen &

Sons, an ironworking subcontractor, doing work on a condominium

project. The plaintiff appeals the grant of summary judgment in

favor of the defendant, Wooton Construction, Ltd., the general

contractor of the project. We are presented with two questions:

(1) whether Wooton retained sufficient control over the work by

Cullen to impose a duty of reasonable care under section 414 of
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the Restatement (Second) of Torts (Restatement (Second) of Torts

§414 (1965)) and (2) whether a material question of fact exists

as to the proximate cause element of the plaintiff's negligence

claim against Wooton. For the reasons that follow, we find the

facts give rise to a duty of care and it is for a jury to decide

the question of proximate cause. Accordingly, we reverse and

remand. 

BACKGROUND

In August 2002, a condominium complex known as "Kingsbury on

the Park" in Chicago was being developed. The property was owned

by Smithfield Properties Development, L.L.C. Wooton

Construction, Ltd., the general contractor, was a subsidiary of,

or otherwise affiliated with Smithfield. 

Wooton contracted with Zalk Josephs Fabricators, L.L.C., to

fabricate structural steel. Zalk subcontracted with the

plaintiff's employer, JP Cullen & Sons, to erect the steel. 

Ross Nasca was Wooton's superintendent on the Kingsbury

project; Bob Robertson was the head of Wooton's safety department

and Harles Epps was Wooton's safety director. William Dohnke was

Cullen's general foreman. Kary Eckhardt was Cullen's "raising

gang" foreman and the plaintiff's direct supervisor. Rudy

Saunders was the union steward.

Shortly before his lunch break on August 28, 2002, the
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plaintiff, an ironworking apprentice with the Cullen raising

gang, was in the process of unloading a crane basket containing

approximately 10 kegs of bolts. Each keg weighed between 100 and

200 pounds. The plaintiff was standing inside the basket and was

handing the kegs to another Cullen employee, Larry Dempsey, when

the plaintiff felt something "pop" in his back and he experienced

severe pain. He reported the injury to Dohnke. 

On September 4, 2002, the plaintiff went to Northwestern

Hospital and was eventually diagnosed with a herniated disc. The

plaintiff underwent surgery to repair the herniated disc, but was

not "cleared" by his doctor to return to ironworking.

On August 2, 2004, the plaintiff filed a one-count

construction negligence complaint in the circuit court of Cook

County, naming Wooton, Smithfield, and Harris Management, Ltd.,

as defendants. The plaintiff filed a first-amended complaint on

September 20, 2005, adding Zalk as a defendant. Wooton,

Smithfield, and Zalk filed a third-party complaint for

contribution against Cullen on July 27, 2006. 

On August 10, 2006, the plaintiff filed a second-amended

complaint. The plaintiff alleged the defendants committed nine

instances of negligence, only two of which are pertinent to the

issues before us: (1) the defendants failed to provide a crane or

other mechanical device to move the kegs of bolts and (2) the
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1 Smithfield and Zalk filed separate motions for summary

judgment. Subsequently, the plaintiff voluntarily dismissed

Smithfield. Zalk's motion was granted but is not raised on

appeal. 

4

defendants permitted the plaintiff to move the kegs manually

where they knew or should have known a crane or other device was

necessary. 

Ultimately, Wooton filed a motion for summary judgment.1

Wooton contended it did not owe a duty to the plaintiff because

it did not retain control over Cullen's work under section 414 of

the Restatement (Second) of Torts. Wooton also argued the

plaintiff could not establish its acts or omissions proximately

caused the plaintiff's injury. 

Amongst the evidence attached to Wooton's motion and the

plaintiff's response are depositions from the plaintiff, Nasca,

Dohnke, William Harris Smith, the president of Smithfield, and

ironworkers Lawrence Dempsey, Michael Barrett, and Truman

"Derrick" Keene III, all of whom were employed by Cullen. Also

attached are the contract between Wooton and Zalk, the

subcontract between Zalk and Cullen, and Wooton's "Sub-Contractor

Safety Orientation Packet" (safety packet). 

Section 2.1 of the Wooton-Zalk contract states that Zalk
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"shall perform and furnish all labor, supervision, services,

appliances, materials, equipment, tools, scaffolds, hoisting,

transportation, storage and all other things necessary to

prosecute and complete the Work." The agreement between Zalk and

Wooton provided that a crane for subcontractor's use would be

provided. Section 2.7 provides that Zalk "agrees that the

prevention of accidents to workers engaged upon or in the

vicinity of the Work is its responsibility, even if [Wooton]

establishes a safety program for the entire Project. 

Subcontractor shall establish and implement safety measures,

policies and standards conforming to those required or

recommended by governmental or quasi-governmental authorities

having jurisdiction and by [Wooton] and [Smithfield]."

The Zalk-Cullen subcontract indicates Cullen is to "Furnish

Supervision, Labor, Equipment, Consumable Materials, Electrical

Power, Hoisting, and Rigging to unload and erect structural steel

and Precast." Cullen was not to furnish a crane. Cullen also

agreed to be bound by the Wooton-Zalk contract, which was

incorporated into the subcontract. 

Wooton leased the crane for the jobsite and, as acknowledged

in Wooton's brief, "the general practice in the construction

industry" is for the general contractor to have "ultimate control

of job site cranes." Cullen employees Lawrence Dempsey, William
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Dohnke, Truman Keene and Michael Barrett in their depositions

expressed dismay over Cullen not having exclusive use of the

crane. Cullen did supply its own lifting basket and rigging for

the crane. 

Wooton's safety packet consists of 13 pages and contains 17

specific topics, including a dress code, protective equipment,

"fall protection," and "general safety regulations." The safety

packet generally provides the workers must wear shirts, long

pants and work boots. They must utilize hard hats, protective

eye wear, and, where necessary, earplugs. It also prohibits the

use of illegal drugs, alcohol, firearms, and cameras. It directs

how ladders and scaffolds are to be utilized and sets forth seven

regulations regarding the use of "Cranes and Rigging," including

that only authorized personnel may operate cranes and that the

"Capacities of rigging equipment shall not be exceeded." The

final page states the packet is "to be given to every employee

prior to beginning work." It also states that employees are

required to sign a form demonstrating "completion of the safety

and health orientation." No employee may begin work prior to

completing orientation.

Smithfield president, William Harris Smith, testified that

Wooton's superintendent, Ross Nasca, was the highest-ranking

Wooton employee on the jobsite daily. Nasca's duties included
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being familiar with the daily progression of the job and making

sure the work stayed on schedule. 

Smith testified Wooton's safety packet was part of Wooton's

overall safety plan. Wooton required each subcontractor to

comply with the safety packet and OSHA regulations. Nasca had

authority to require compliance with the safety packet and OSHA. 

If Nasca thought work was being performed unsafely, he had the

authority to stop the work, but "[t]hat is all he would be

authorized to do." He could keep the work stopped until the work

could be completed safely.

Ross Nasca testified his duties as the superintendent

included compiling the job schedule, monitoring the progress of

the work, and ensuring the work stayed on schedule. Nasca

testified that Wooton safety employees, Robertson and Epps, were

responsible for placing the project safety packet in the hands of

the foreman of each subcontractor. The foremen were expected to

share the information with their employees. He described the

packet as outlining "generic" rules Wooton thought to be

important. Subcontractors were also required to hold weekly

"toolbox talks," to discuss safety measures. The subcontractor

foremen would decide the topic of the talks. Sign-in sheets for

the talks were required to be given to Nasca. 

If a subcontractor employee felt a work condition was
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unsafe, he or she was free to talk to Nasca about the concern. 

Nasca would do what he could to remedy it. 

Nasca explained there was only one crane available on the

Kingsbury project. Wooton leased the crane, which was operated

by employees of another company controlled by Smithfield. Nasca

testified Cullen "controlled" the crane, but Nasca, as the

superintendent, could make the crane available to other

subcontractors. Nasca and Cullen would make decisions regarding

the availability of the crane. Nasca explained: 

"[W]e gave them [Cullen] the crane with

the idea that they had a hundred percent use

of the crane; so whatever I would have to

schedule as far as other subcontractors would

have to be done, A, during their break, lunch

period, or we would have to cover the premium

time for our vendor as opposed to paying

their raising gang. You know, if I take--if

I was to theoretically take the crane away

from them, now I have all their ironworkers,

they're looking at me saying, well, you owe

me for that. That's a path that's, you know,

I would not go down." 

According to Nasca, Cullen never complained about the
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unavailability of the crane. Rather, the other subcontractors

complained about Cullen having first priority. 

Nasca also testified that the Cullen employees were

responsible for their own safety. Nasca was not involved in how

they "rigg[ed]" or lifted their bolts. He also did not direct

the Cullen employees on how to move the kegs of bolts. "How they

move their bolts around is up to them." However, Nasca had never

seen kegs of bolts moved in any manner other than with a crane.

William Dohnke, Cullen's general foreman, testified that

neither Nasca nor any other Wooton employee told the Cullen

employees how to perform their jobs. However, Nasca could stop

the work if he saw an unsafe practice or if the work did not

match the project specifications. 

Dohnke was required by Wooton and Cullen to complete weekly

safety reports. Saunders, the union steward, also conducted

weekly safety meetings. All ironworkers were required to attend

but no minutes were kept.

Dohnke also testified about the crane. According to Dohnke,

Wooton provided the "hook" but Cullen provided the "basket" and

"chokers." Dohnke denied that Nasca limited other

subcontractor's use of the crane to times when Cullen would not

otherwise be using it. Dohnke testified that Nasca would take

the crane away from Cullen without limitation. Nasca's taking of
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the crane sometimes prevented Cullen from completing the cranedependent work Cullen had started. Dohnke complained to Nasca

about this practice on several occasions before the date of the

plaintiff's injury. Dohnke told Nasca the unavailability of the

crane was putting his employees' safety at risk. 

On the day the plaintiff was injured, Nasca told Dohnke he

was taking the crane but would return it after lunch. Dohnke did

not know whether Nasca meant right after lunch or hours later. 

Because the crane was being taken, the plaintiff could not use

the preferred, but more time-consuming, method of using a choker

and the crane to unload the kegs from the basket. Instead, the

plaintiff unloaded the kegs manually. This was done at the

direction of Kary Eckhardt, the raising gang foreman. Eckhardt

also directed the plaintiff to empty the basket before the lunch

break. 

The plaintiff testified in his deposition that Nasca never

told him how to do his work but, on several occasions, stopped

workers who were not properly tied-off. The plaintiff often saw

Wooton's "safety person" on the jobsite. The person would

regularly check to see that workers were wearing the necessary

safety equipment and that they were "tied on." He attended

weekly safety meetings that were conducted by his union steward. 

According to the plaintiff, Nasca set a "crane schedule"
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that would permit other subcontractors to use the crane while the

Cullen employees were on a break, such as lunch. On the day of

his injury, the plaintiff was manually unloading the kegs of

bolts at the direction of his foreman, Kary Eckhardt. Eckhardt

told the plaintiff to hurry and finish moving the kegs of bolts

by lunch because another subcontractor needed to use the crane. 

The plaintiff would have preferred to "cinch" the kegs

individually with the crane to unload them. This method involved

less manual lifting, because the crane did the work, but took

more time. According to the plaintiff, it is not unusual for an

iron worker to have to lift a single keg of bolts, but it was

unusual for a worker to have to unload multiple kegs from a crane

basket. In his view, he would not have been injured if he had

not been in a rush to finish emptying the basket by lunch. 

Lawrence Dempsey was working with the plaintiff when he was

injured. Eckhardt instructed that the basket had to be unloaded

before lunch because another subcontractor needed the crane. 

Dempsey also explained the usual way to unload the basket was to

use the crane to individually lift them out. However, Dempsey

and the plaintiff were unloading it manually because they were in

a hurry to finish before lunch. Dempsey testified it was

"unusual" for the general contractor to supply the crane, which

the Cullen raising gang needed to perform its work. Dempsey
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testified that Nasca had "supreme say so" on the job. Although

he had several conversations with Nasca, he did not recall

whether Nasca ever told him how to do his job.

Derrick Keene testified that nobody from Wooton ever told

him how to do his job. However, if Nasca would have told him to

stop his work for a safety reason, Keene would have listened. 

According to Keene, the Cullen employees were not free to do

their job in the manner in which they preferred when the crane

was absent. Instead, they had to use unsafe practices contrary

to their training. Prior to the plaintiff's injury, Keene

complained to Nasca because the unavailability of the crane

required Keene to manually move a 20-foot "perimeter angle."

According to Keene, Nasca "blew off" his complaint. 

Michael Barrett testified the customary way to unload a

basket in the ironworking industry is to use a "choker" and a

crane to lift the kegs individually. This was why ironworkers

usually supplied their own cranes: so they could lift things

safely. Wooton's control of the crane caused problems because

Wooton would let other subcontractors use it. When this

happened, the Cullen employees either had to manually lift items

or risk being "shut down." That the crane was unavailable at

times was a problem for Cullen during the whole job. Screaming

matches between the employees from Cullen and the employees from
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Wooton would often result.

Barrett testified he was "working the phones" with the crane

operators on the day the plaintiff was injured. He was about 10

feet from the plaintiff and also near Nasca and Eckhardt. 

Barrett heard Nasca tell Eckhardt that Wooton was taking the

crane. "[Q]uite a few swear words" and "an argument" resulted. 

In response to Eckhardt's protests, Nasca told him that the

Cullen employees would have to "lift the stuff manually" because

he was pulling the crane. 

The trial court granted Wooton's motion for summary

judgment, finding Wooton retained only a general right of

supervision, which was insufficient to invoke a duty of care

under section 414. Without explaining its reasoning, the court

also found the plaintiff failed to present evidence to establish

proximate cause. This timely appeal followed. 

ANALYSIS

Summary judgment is proper if "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." 735 ILCS 5/2-1005(c) (West 2006); Purtill v. Hess, 111

Ill. 2d 229, 240, 489 N.E.2d 867 (1986). Wooton, as the moving

and successful party on the summary judgment motion, does not
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(and cannot) challenge the facts in this case as presented to the

circuit court below, as summary judgment "is not designed to try

an issue of fact, but rather to determine whether one exists." 

Rivan Die Mold Corp. v. Stewart Warner Corp., 26 Ill. App. 3d

637, 640-41, 325 N.E.2d 357 (1975). We construe what is

contained in the papers on file most liberally in favor of the

opponent. Rivan Die Mold Corp., 26 Ill. App. 2d at 640. 

"If, from a review of the pleadings and evidentiary material

before the trial court, a reviewing court determines that *** the

summary judgment was based upon an erroneous interpretation of

the law, a reversal is warranted." Pagano v. Occidental Chemical

Corp., 257 Ill. App. 3d 905, 909, 629 N.E.2d 569 (1994).

In its written order granting summary judgment, the trial

court gave two grounds. First, Wooton owed no duty of care to

the plaintiff. See Rangel v. Brookhaven Constructors, Inc., 307

Ill. App. 3d 835, 838, 719 N.E.2d 174 (1999). Second, in any

event, the plaintiff could not show that his injury was

proximately caused by Wooton's alleged breach of its duty of

care. See City of Chicago v. Beretta U.S.A. Corp., 213 Ill. 2d

351, 395-96, 821 N.E.2d 1099 (2004) ("the lack of proximate cause

may be determined by the court as a matter of law where the

facts" are legally insufficient). Our review is de novo.

Purtill, 111 Ill. 2d at 240.
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I. Duty

The general rule is that one who employs an independent

contractor is not liable for the independent contractor's acts or

omissions. Section 414 provides an exception to this general

rule.

"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, at 397 (1965).

 This exception, known as the "retained control exception,"

was recognized by our supreme court in Larson v. Commonwealth

Edison Co., 33 Ill. 2d 316, 211 N.E.2d 247 (1965). In order for

this exception to apply, it must be shown that the general

contractor retained sufficient control over the work of the

subcontractor so that the law recognizes the existence of a duty

to exercise that "supervisory control with reasonable care." See

Aguirre v. Turner Construction Co., 501 F.3d 825, 831 (7th Cir.

2007) (duty of care arose where "specific alternative design
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requirements on the scaffold from which [the plaintiff] fell"

were imposed by general contractor). Whether Wooton retained a

level of control sufficient to give rise to a duty of reasonable

care is a question of law. Rangel, 307 Ill. App. 3d at 837. 

At oral argument, the plaintiff made clear that his

negligence claim is based on comment c of section 414 where a

duty of care is recognized when a general contractor "retained

*** some degree of control over the manner in which the work [of

the subcontractor] is done." Restatement (Second) of Torts §414,

Comment c, at 388 (1965). In essence, the plaintiff contends a

sufficient degree of control over the work by Cullen was

exercised by Wooton's control over the only crane available at

the work site. The Cullen raising gang, of which plaintiff was a

part, required the use of a crane to perform its work. The

contract between Wooton and Zalk, which was incorporated into the

contract between Zalk and Cullen, expressly provided that Wooton

would provide the crane and, in accordance with industry

practice, would control its use. Dempsey, from the Cullen

raising gang, testified it was unusual for Cullen not to have

provided its own crane.

We understand the gravamen of the plaintiff's claim to be

that Wooton, in controlling the use of the crane, had a duty to

exercise reasonable care in taking the crane from use by Cullen. 
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In other words, before Wooton removed the crane from the Cullen

raising gang, Wooton had a duty to ensure that the raising gang

had completed its crane-dependent work. More specifically,

because the safe and customary practice in the steel raising

industry was to use the crane to remove multiple kegs of bolt

from a transporting basket, Wooton should have made clear at the

time it announced the "taking" of the crane, that Cullen complete

the unloading of the basket with the crane before relinquishing

the crane to Wooton. With Wooton assuming control over the only

crane at the work site and in light of the conceded need for the

use of the crane for the raising gang to perform its work, it

follows that Wooton retained some degree of control over the

manner in which the work of the Cullen raising gang was done. 

See Restatement (Second) of Torts §414, Comment c, at 388 (1965). 

Our conclusion is amply supported by the facts in the record. 

Dempsey testified that Nasca had "supreme say so" on the

job. Nasca testified that Wooton, as the general contractor, in

line with industry practice, controlled the use of the crane. 

Dohnke told Nasca that the unavailability of the crane was

putting his employees' safety at risk. According to Keene, he

complained to Nasca that the unavailability of the crane forced

him to move a 20-foot "perimeter angle" manually but that Nasca

"blew off" his complaint. Nasca himself testified that he had
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never seen kegs of bolts moved manually, but he had never seen

more than one moved in any manner other than with a crane. As

Wooton acknowledges in it brief, it is "standard practice in the

steel erection industry to load and unload kegs of bolts with

the use of a crane." Nasca also admitted that the Cullen

raising gang required the use of a crane to do its work. 

Just prior to the incident involving the plaintiff, Nasca

told Dohnke, Cullen's general foreman, that Wooton was taking

the crane and would return it after lunch. It appears Dohnke

conveyed Nasca's intention to take the crane to Eckhardt,

Cullen's raising gang foreman, who in turn directed the

plaintiff and Dempsey to manually unload the basket full of kegs

of bolts to relinquish the crane quickly to Wooton. Consistent

with the industry standard, the preferred, but more timeconsuming, method of unloading kegs of bolts is by use of a

choker and crane. Nasca did not condition his taking of the

crane on completing the unloading of the basket in line with the

safe and preferred method by use of the crane. In the course of

unloading the basket, after it appears several kegs had been

lifted out of the basket by the plaintiff, the plaintiff

suffered the herniated disk. 

Given that Wooton had "supreme say so" over the use of the

crane, and that Wooton told Cullen that it was taking the crane
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after Wooton through Nasca had been told that the Cullen raising

gang was forced to engage in unsafe practices when the crane was

unavailable, it was foreseeable that Cullen would direct that

the unloading of the basket full of kegs of bolts be done in a

manner that would provide the crane to Wooton in as short a time

as possible, that is, by manually unloading the basket, rather

than taking the safer but more time-consuming method of using

the choker and crane. 

Wooton's control over the use of the crane--equipment that

all acknowledge the raising gang needed to perform its work--

supports a finding that Wooton had a duty of care to reasonably

exercise its control over the use of the crane so as not to

expose the raising gang to foreseeable danger of harm. Wooton's

control over the use of the crane is not unlike the alternative

design of scaffolding imposed by the general contractor in

Aguirre. In Aguirre, the scaffolding used by the plaintiff and

from which he fell, was constructed in accordance with "specific

alternative design requirements" imposed by the general

contractor. Aguirre, 501 F.3d at 831. In effect, the general

contractor controlled the subcontractor's "means and methods of

doing it work" by directing that the subcontractor do its work

with scaffolding devised by the general contractor. Here,

Wooton controlled the "means and methods" of the work contracted
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to be done by the Cullen raising gang, by Wooton depriving

Cullen of the use of the crane to do crane-dependent work. See

Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051,

1059, 728 N.E.2d 726 (2000) (general contractor should have been

aware of the unsafe, manual hoisting method being used by the

plaintiff to lift the metal sheets). 

The circumstances leading to the injury sustained by the

plaintiff in unloading the kegs of bolts manually are not unlike

the circumstances leading to the injury to the plaintiff in

Bokodi. In Bokodi, the plaintiff, a subcontractor employee,

sued the general contractor after he injured his back lifting

sheets of metal siding. Although the plaintiff would have

preferred to use a mechanical device to lift the metal sheets,

he used a "manual well wheel and handline" at the time of his

injury. Bokodi, 312 Ill. App. 3d at 1054. In Bokodi, we found

the contractual language and the general contractor's actions

demonstrated sufficient control to trigger a duty of care under

section 414. In that case, the general contractor held weekly

safety meetings and had the authority to stop a subcontractor's

work if an unsafe practice was suspected. Further, the contract

between the general contractor and the subcontractor required

the subcontractor to comply with 29 specific safety measures and

the general contractor hired a full-time safety manager to
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ensure the subcontractor's compliance. We emphasized that the

general contractor should have been aware of the unsafe, manual

hoisting method being used by the plaintiff to lift the metal

sheets. Bokodi, 312 Ill. App. 3d at 1063. We concluded the

general contractor "went to great lengths to control the safety

standards at the work site," despite contractual language that

indicated the subcontractor was to maintain control of its work

and the safety of its employees. Bokodi, 312 Ill. App. 3d at

1063. The evidence of Wooton's control over the means and

methods of the Cullen raising gang's work is considerably

stronger than the control exerted by the general contractor in

Bokodi. 

Here, direct evidence was presented of Wooton's exercise of

control over the unloading of the kegs of bolts by the

plaintiff. Barrett testified that Wooton through Nasca directed

that the basket full of kegs of bolts be unloaded manually. 

While Barrett's version of the conversation between Wooton and

Cullen may stand alone among those within earshot of that

conversation, at this junction we take the evidence and all

reasonable inferences to be drawn from the evidence in the light

most favorable to the plaintiff. 

Based on the facts in the record, we conclude, as the court

did in Aguirre, that the general contractor, Wooton, "retained
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sufficient control over the safety of [the crane-dependent work]

and construction to give rise to a duty of reasonable care under

section 414 of the Restatement. Of course, this holding does

not mean [Wooton is] liable for [the plaintiff's] injuries; [the

alleged breach of that duty] remains a question for the jury." 

Aguirre, 501 F.3d at 831.

We find the cases on which Wooton primarily relies, Rangel,

Shaughnessy v. Skender Construction Co., 342 Ill. App. 3d 730,

794 N.E.2d 937 (2003), and Martens v. MCL Construction Corp.,

347 Ill. App. 3d 303, 807 N.E.2d 480 (2004), to be

distinguishable on their facts. In Rangel, we affirmed summary

judgment in favor of the general contractor because there was no

evidence the general contractor constructed the scaffolding from

which the plaintiff fell. In fact, the evidence was that only

the subcontractor controlled the use of the scaffolding and that

the subcontractor told the plaintiff to use the scaffolding in

an unsafe manner. Rangel, 307 Ill. App. 3d at 839. In

Shaughnessy, the plaintiff fell after a rotten wooden board he

used as a "bridge" over a gap broke. The evidence showed the

subcontractor had furnished its own equipment, including a more

safe way for the plaintiff to perform his work. No evidence was

presented that the general contractor was aware of the unsafe

practice the plaintiff undertook. Shaughnessy, 342 Ill. App. 3d
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at 738. In Martens, the plaintiff was injured in a fall. His

claim of negligence against the general contractor was one of

"failing to provide fall protection." Martens, 347 Ill. App. 3d

at 306. The plaintiff never presented any facts to connect his

falling to any control, either by contract or by "operational

control," exercised by the general contractor. Martens, 347

Ill. App. 3d at 318-20. Accordingly, we reject Wooton's

position that this case is more like Shaughnessy, Martens, and

Rangel than like Aguirre and Bokodi.

We reverse the trial court's determination that the facts

in this case did not give rise to a duty of care on the part of

Wooton owed to the plaintiff.

II. Proximate Cause

A plaintiff in a negligence case must present some evidence

that the defendant's alleged negligence proximately caused his

or her injury. Harrison v. Hardin County Community Unit School

District No. 1, 197 Ill. 2d 466, 476, 758 N.E.2d 848 (2001). 

Wooton's only contention regarding a showing of proximate cause

is that it was Eckhardt that directed the plaintiff to unload

the basket manually. This is true, but Wooton fails to consider

that the chain of events that resulted in the injury to the

plaintiff began with Wooton's demand that Cullen relinquish

control of the crane. We reject Wooton's contention that as a
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24

matter of law, a finder of fact could not find Wooton, as the

agent that put in motion the chain of events at issue, to have

proximately caused the plaintiff's injuries. See Espinoza v.

Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 118, 649

N.E.2d 1323 (1995) (the facts of the case were not "sufficiently

one-sided" that the court could determine the issue of proximate

cause as a matter of law); Pasko v. Commonwealth Edison Co., 14

Ill. App. 3d 481, 490, 302 N.E.2d 642 (1973) ("evidence supports

the submission to the jury the question" of the defendant's

negligence). 

The plaintiff presented sufficient evidence to support his

claim that he would not have lifted the kegs manually but for

Wooton's control over the crane, which it sought to take from

Cullen to give to another subcontractor. Dohnke and Barrett

both testified that Nasca was aware that the Cullen raising gang

engaged in unsafe practices when the crane was unavailable, and

Barrett testified that Nasca told Eckhardt that the Cullen

employees would have to "lift the stuff manually." 

The trial court erred in granting summary judgment on the

element of proximate cause. 

CONCLUSION

For the reasons stated above, we reverse the trial court's

grant of summary judgment and remand this matter for further
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proceedings.

Reversed and remanded.

R. GORDON, P.J., and WOLFSON, J., concur.
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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

____________________________________________________________________

NATIVIDAD F. GARCIA,

Plaintiff-Appellant,

v.

WOOTON CONSTRUCTION, LTD., a Corporation; 

Defendant-Appellee

(Smithfield Properties Development, L.L.C., a Limited Liability Company; 

Harris Management, Ltd., a Corporation; and Zalk Josephs Fabricators, L.L.C., 

a Limited Liability Company, Defendants).

________________________________________________________________

No. 1-07-1883

 Appellate Court of Illinois

First District, First Division

Filed: December 29, 2008

_________________________________________________________________

JUSTICE GARCIA delivered the opinion of the court.

R. GORDON, P.J., and WOLFSON, J., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County

Honorable Kathy M. Flanagan, Judge Presiding

_________________________________________________________________

For PLAINTIFF-APPELLANT Daniel V. O'Connor

Jeffrey S. Jordan

ANESI, OZMON, RODIN, NOVAK &

KOHEN, LTD.

161 North Clark Street, 21st Floor

Chicago, IL 60601

For DEFENDANT-APPELLEE Stephen A. Rehfeldt

MULHERIN, REHFELDT &
1-07-1883

27

VARCHETTO, P.C.

211 South Wheaton Avenue, Suite 200

Wheaton, Illinois 60187