FIRST DIVISION

JulyMonth 21__, 2003

No. 1-01-4356

JAMES SHAUGHNESSY,				)	Appeal from the

							)	Circuit Court of

	Plaintiff-Appellant,		)	Cook County.

							)

	v.						)	98 L 1610

							)

SKENDER CONSTRUCTION COMPANY,		)	Honorable

and GARBE IRON WORKS, INC.,		)	Martin S. Agran,

							)	Judge Presiding.

	Defendants-Appellees.		)

	JUSTICE SMITH delivered the opinion of the court:

	Plaintiff James Shaughnessy appeals orders granting summary

judgment for defendants Skender Construction Company (Skender)

and Garbe Iron Works, Inc. (Garbe).  Plaintiff argues that the

trial court erred in granting summary judgment because section

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

Torts §414 (1965)) and "direct negligence" established a duty of

care in this case.  We disagree and affirm the summary judgment

orders of the trial court.

	This litigation arose after plaintiff was injured while

working at a construction site at the Oak Brook Racquet Club. 

The racquet club hired Skender as the general contractor for

renovations, and Skender subcontracted with Garbe for the

fabrication and erection of a structural steel and metal deck.  Garbe then subcontracted with F.K. Ketler Company(Ketler)1 for the erection of the steel.  Ketler, an independent contractor,

employed plaintiff as an ironworker.  On October 30, 1997,

plaintiff placed a wooden board over a gap and tried to use the

board as a bridge, but the board broke.  Plaintiff fell several

feet to the basement floor of the racquet club and was injured.

	Plaintiff filed an amended complaint alleging negligence

against defendants.2  Defendants Skender and Garbe filed motions for summary judgment, arguing that they lacked a duty to

plaintiff because they did not retain sufficient control over

Ketler's work.  The record before the trial court included the

parties' contracts and subcontracts.

	The contract between the racquet club and Skender was a

standard form agreement approved by the Associated General

Contractors of America.  The contract provided that Skender would

supervise and direct the work and be responsible for and control

the construction means, methods, techniques, sequences and procedures for coordinating all portions of the work, unless the

contract provided otherwise.  Skender also agreed to be

responsible for initiating, maintaining and supervising all

safety precautions and programs in connection with the

performance of the contract and to employ a superintendent whose

duties included the prevention of accidents.

	The subcontract between Skender and Garbe indicates that the

scope of Garbe's work was to furnish all labor, equipment,

material and supervision necessary to install the structural

steel and metal deck.  The subcontract between Garbe and Ketler

indicates that the scope of Ketler's work was to furnish all

labor, equipment and supervision to unload and erect at the

jobsite the structural steel and metal deck.

	Discovery depositions of several witnesses revealed the

following information.

	William Guinea, a Skender project manager, testified that he

served as a liaison between Skender and the architects, owners

and various subcontractors. Guinea spent about 75% of his time in

the office and visited Skender's smaller projects, like the

racquet club construction site, either weekly or biweekly. 

Skender employed Larry Williams, a superintendent assigned to the

racquet club project, to schedule and coordinate the trades on

the site and ensure that the project was built to plans, on time and within budget.  Superintendent Williams was at the site on a

daily basis.  Guinea had no personal dealings with anyone from

Ketler.

	Guinea acknowledged that, contractually, superintendent

Williams had the authority to stop the work if he detected unsafe

practices or conditions, but Skender did not employ a safety

person for the project.  Guinea also acknowledged that, pursuant

to the contract between Skender and Garbe, Skender had

discretionary authority to provide equipment to a subcontractor

if requested, but Guinea had no knowledge that Skender provided

any equipment to any subcontractor at the racquet club project.

	Guinea explained that the racquet club remained open to

patrons during the renovation project, but construction workers

were told to use a separate service entrance on the east side of

the building to access the work area in the basement of the club. 

The east entrance led to an interior stairwell that led to the

basement.  However, because it was not feasible to move

structural steel into the basement through that east entrance, an

opening was cut into the south wall of the building at grade

level.  Guinea testified that the means and methods of moving the

structural steel into the basement were not in the plans and

specifications of the project but, rather, were the

"responsibility" of "Skender and their subcontractors."  Guinea did not know how any equipment was moved in or out of the south

wall opening.

	Alfredo Vasquez, a Skender laborer, testified that the dual

purpose of the south wall opening was to let light in and to

bring large material and equipment into the work area.  Vasquez's

duties included opening the south wall in the morning and then

closing it at the end of the work day.  Vasquez secured the

opening by nailing a plywood board over it and placing barricades

with caution tape in front of the plywood.  The day before the

incident, Vasquez placed a ladder in the basement and used it to

remove dirt from the work area.  According to Vasquez, Skender

superintendent Williams was not at the project site prior to

plaintiff's fall.

	Gerald Erskine testified that he was employed by Ketler for

10 years and, as a foreman, was responsible for instructing

Ketler employees on their duties and overseeing the placement of

materials and equipment.  Erskine was the foreman of Ketler's

four-person crew at the racquet club project, and plaintiff was

injured on Ketler's first day at that site.  Prior to arriving at

the site, Erskine's Ketler supervisor told him to use the south

wall opening to bring the steel into the basement.

	Erskine testified that when he arrived at the site, Skender

superintendent Williams showed him where to store steel after it was unloaded from a truck and which areas of the parking lot not

to block.  Superintendent Williams also told Erskine that all

construction workers must use the east entrance to access the

stairway to the basement.  Thereafter, Erskine instructed his

crew to use that east entrance and told them to unload the truck

and where to store the steel.  Meanwhile, Erskine went inside the

basement and determined where to hang his rigging, which included

lifting devices and needed to be moved into the basement before

the steel was brought in.  Shoring towers were in place inside

the basement to support the ceiling.  Erskine also inspected the

south wall opening and the work area.

	Erskine testified that he instructed his crew to use a rope

to lower their rigging into the basement through the south wall

opening.  Skender did not direct Ketler to move its rigging

through the south wall opening.  While plaintiff and Ketler crew

member Robert Petrouski brought the rigging to the wall opening,

Erskine and two other crew members used the east entrance and

proceeded to the basement.  As Erskine entered the basement work

area, he saw the end of plaintiff's fall.

	Erskine testified that he learned after plaintiff's fall

that plaintiff wanted to untie the rigging that he and Petrouski

had lowered into the basement.  To reach the basement, plaintiff

planned to climb down a basement shoring tower located about five feet from the south wall opening.  To reach the tower, plaintiff

placed a board to span the gap between the tower and the ledge of

the wall opening.  The board, however, broke in two pieces and

appeared to be rotten inside.  Erskine testified that plaintiff's

use of the board was an unsafe practice and plaintiff could have

instead used the east entrance stairway or the extension ladder

on Erskine's Ketler truck.  Moreover, plaintiff did not have to

access the basement because Erskine and the two other crew

members intended to assist plaintiff and untie the rigging once

they got inside the basement.

	Plaintiff testified that he worked for Ketler as an

ironworker for a few months before the October 30, 1997 incident. 

When plaintiff arrived at the project, a Skender employee told

him to park his vehicle on the street rather than in the parking

lot.  Plaintiff received all his work orders from Erskine and

never spoke with Skender superintendent Williams.  Plaintiff

provided his own hand tools, and Ketler provided the rigging.

	Plaintiff testified consistently with Erskine regarding the

unloading of the steel and the lowering of the rigging into the

basement.  Plaintiff added that he picked up from the ground an

eight-foot-long four-by-four board, which was used on the truck

that delivered the steel.  Plaintiff slapped the board against a

beam to see if it was sound and did not hear any cracks.  No one told plaintiff to use the board, and only his coworker Petrouski

was in the area when plaintiff placed the board to span the gap. 

Moreover, plaintiff did not tell anyone from Skender that he was

using the board in that manner.

	Plaintiff testified that he took two steps on the board and

was only on it for a "fraction of a second" before it broke. 

Plaintiff thought only his coworker Petrouski saw him fall. 

Plaintiff acknowledged that Ketler would have supplied any ladder

plaintiff needed, as Ketler had done in the past.  Plaintiff,

however, stated that he did not see a ladder in the immediate

area and Erskine had gone somewhere else.

	Robert Petrouski, a Ketler crew member, testified generally

consistently with plaintiff and Erskine.  Petrouski, however,

stated that he learned of the existence of the east entrance

about one week after plaintiff's fall.  Petrouski added that he

looked for a ladder prior to the incident, but Erskine's truck

was not in the area.  According to Petrouski, he looked about a

15-yard radius from the work area and saw the Skender

superintendent in the parking lot.  When Petrouski asked the

superintendent whether a ladder was available to get in the

basement, the superintendent responded "no" and told Petrouski to

"just get the job done."  When Petrouski returned to the work

area, plaintiff had already placed the board and stepped on it.  Only plaintiff, Petrouski and a crane operator were in the area

when plaintiff fell.  Petrouski confirmed that no one from

Skender provided him with any equipment or told him how to

perform his job.

	Allen Malinowski, a Ketler crew member, was present when

Skender superintendent Williams showed Erskine where to store the

steel.  Although Williams indicated that the steel would be

brought in through the south wall opening, that information was

obvious because the steel was too large to use any other opening. 

Malinowski testified that after Erskine told plaintiff and

Petrouski to lower the rigging, Erskine, Malinowski and another

crew member left the area "to get some other material or

whatever."  According to Malinowski, the crew knew that the day's

work entailed getting the steel into the building, and although

"[t]here [were] no real directives at that point," there was a

"lot of assumption."

	Peter Mitacek, a foreman of subcontractor Robinette

Demolition, Inc., testified that he was not present when the

Ketler crew was at the jobsite.  Although Skender was involved in

scheduling and checking the progress of the work and could stop

work that did not conform with plans, Skender did not tell

Robinette Demolition, Inc., how to actually do its job.  Rather,

Mitacek as foreman "would run the job."

	The circuit court granted summary judgment in favor of

defendants, and plaintiff appealed.  The purpose of summary

judgment is not to try a question of fact, but to determine

whether one exists.  Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517 (1993).  Summary judgment is appropriate only

where the pleadings, depositions, admissions and affidavits show

that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law.  735 ILCS 5/2-

1005(c) (West 1996); Vickers v. Abbott Laboratories, 308 Ill. App. 3d 393, 399 (1999).  However, where material facts are disputed, the trial court must view all evidence in the light

most favorable to the nonmoving party and draw all reasonable

inferences from the facts presented in favor of the nonmovant. 

In re Estate of Hoover, 155 Ill. 2d 402, 410-11 (1993).  While the summary judgment procedure should be encouraged as an aid in

the expeditious disposition of a lawsuit, it is a drastic means

of disposing of litigation and therefore should be allowed only

when the right of the moving party is clear and free from doubt. 

Purtill v. Hess, 111 Ill. 2d 229, 240 (1986).  We review a grant of summary judgment de novo.  Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).

	On appeal, plaintiff contends that defendants' conduct and

the contract terms establish that defendants retained sufficient control over the work to give rise to a duty to plaintiff under

section 414 of the Restatement (Second) of Torts.

	As a general rule, one who employs an independent contractor

is not liable for the acts or omissions of the latter.  Rangel v. Brookhaven Constuctors, Inc., 307 Ill. App. 3d 835, 838 (1999).  A recognized exception to this rule is articulated in section 414

of the Restatement (Second) of Torts.  Under this exception, one

who employs an independent contractor but retains control of any

part of the work is subject to liability for physical harm to

others that is caused by the employer's failure to exercise his

control with reasonable care.  Restatement (Second) of Torts §414

(1965).

	Prior to 1994 in Illinois, negligence liability in the

context of construction-related injuries was analyzed under the

terms of the Structural Work Act (740 ILCS 150/1 et seq. (West 1994)), which coexisted with common law negligence principles, as

expressed in section 414.  Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1057 (2000).  In 1994, however, the Structural Work Act was repealed and survived by the common law

negligence principles found in section 414.  Pub. Act 89-2, §5,

eff. February 14, 1995; Bokodi, 312 Ill. App. 3d at 1057-58.  Section 414 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).

	Comment c to section 414 explains the "retained control exception":

		"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, at 388 (1965).

	To state a claim for negligence under section 414, the

plaintiff must allege that the defendant owed him a duty and

breached that duty, and that plaintiff's injury was proximately

caused by the breach.  Kotecki v. Walsh Construction Co., 333 Ill. App. 3d 583, 587 (2002).  Whether a duty exists is a

question of law and, under section 414, turns on whether the

defendant controlled the work in such a manner that he should be

held liable.  Kotecki, 333 Ill. App. 3d at 587.  Because plaintiff fails to raise a fact question on whether Skender or

Garbe exerted sufficient control over Ketler to be held liable,

the trial court properly determined that no material facts were

at issue and properly awarded summary judgment to defendants.

	The evidence does not indicate that Skender or Garbe

controlled the manner by which plaintiff completed his work

assignment.  Specifically, Ketler foreman Erskine stated that

Ketler furnished its own rigging and equipment for the project

and that a ladder was always available on Ketler's truck. 

Moreover, before his crew commenced work, Erskine inspected the

work area, determined where to hang his rigging and informed his

crew that workers had to use the east service entrance.  Erskine,

not Skender, instructed the Ketler crew to lower the rigging into the basement through the south wall.  In addition, Erskine never

expected plaintiff to untie the rigging in the basement, because

Erskine and the other crew members undertook that task.

	Plaintiff admitted in his deposition that, aside from his

own hand tools, Ketler supplied all the equipment and that

Erskine gave plaintiff and his coworkers their assignments. 

According to plaintiff, the only information he received from a

Skender laborer was that plaintiff could not park his vehicle in

the racquet club parking lot.  Plaintiff also conceded that no

Skender or Garbe employee saw plaintiff place the board over the

gap and attempt to use the board as a bridge.  Plaintiff said

that he never spoke to any Skender or Garbe representative and

that no one from there told him how to perform his work. 

Furthermore, Skender superintendent Williams' statement to

Petrouski to "just get the job done" hardly indicates that

Skender retained control over plaintiff's work.

	Plaintiff's argument that Skender, Garbe and Ketler's

contractual relationship created an issue of control is

unpersuasive in light of the deposition testimony.  The excerpts

of the contracts on which plaintiff relies establish only that

Skender and Garbe reserved a general right to stop, start and

inspect the progress of the work.  See Kotecki, 333 Ill. App. 3d at 588 (no duty to plaintiff established based on general contractor's reservation in contract of general right to

supervision, which did not refer to a right to direct the

specific work of the independent contractor); Rangel, 307 Ill. App. 3d at 838-39 (same).  The undisputed facts establish,

however, that Ketler was free to perform the work in its own way

and only Ketler exercised control of plaintiff's work.  Plaintiff

fails to establish that Skender and Garbe retained an amount of

supervision such that plaintiff, an ironworker employed by a

subcontractor, was not free to complete the work either in his

own way or according to his employer's instructions.

	Plaintiff's reliance on Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051 (2000), and Brooks v. Midwest Grain Products of Illinois, Inc., 311 Ill. App. 3d 871 (2000), for an opposite conclusion is misplaced.  In Bokodi, this court held that the general contractor defendants' active control,

supervision and constant monitoring raised an issue of fact

regarding whether defendants should have been aware of the unsafe

lifting method that led to the plaintiff's injury.  Bokodi, 312 Ill. App. 3d at 1063.  Specifically, the defendants undertook

extensive efforts to control safety standards and employed a

full-time safety manager "whose sole function was to seek out

safety hazards."  Bokodi, 312 Ill. App. 3d at 1062.  The safety manager inspected the work site and enforced safety regulations by instructing workers to put on hard hats, harnesses or

lanyards.  Bokodi, 312 Ill. App. 3d at 1054.  Moreover, any employee of the general contractor had the authority to stop the

work of any subcontractor if safety violations were witnessed. 

Bokodi, 312 Ill. App. 3d at 1054.

	Plaintiff Bokodi, an employee of a subcontractor, and his

foreman were using a manual pulley to lift metal sheets.  Bokodi, 312 Ill. App. 3d at 1054.  The foreman's position on the ground,

however, made it difficult for him to assist the plaintiff, who

was above ground in a "manlift."  Bokodi, 312 Ill. App. 3d at 1054.  The foreman instructed the plaintiff to alter the pulley,

which forced plaintiff to change his position in the "manlift." 

Bokodi, 312 Ill. App. 3d at 1054-55.  After lifting and installing a few more sheets, plaintiff injured his back. 

Bokodi, 312 Ill. App. 3d at 1055.  Notably, when the plaintiff began work at the project a week before his injury, he saw

electric lifting equipment at the site and asked his foreman and

a union steward if he could use that equipment.  Bokodi, 312 Ill. App. 3d at 1055.

	Similarly, in Brooks, the record indicated that material facts were at issue regarding whether the general contractor

defendant retained sufficient control over the burn and welding

work performed by plaintiff, an employee of an independent contractor.  311 Ill. App. 3d at 874.  Specifically, the

defendant required a permit before burn work could begin, and

defendant's project engineer was present at the time of the

accident to answer a question about how the work was to be

performed.  Brooks, 311 Ill. App. 3d at 874.  Moreover, the defendant's project engineer clearly observed plaintiff working

on a suspended platform without a safety harness.  Brooks, 311 Ill. App. 3d at 875.  The court stated that it was reasonable to

infer that the plaintiff could not proceed with his duties until

he received confirmation from the defendant's project engineer

that the plaintiff was performing the work correctly.  Brooks, 311 Ill. App. 3d at 874-75.

	Here, neither Skender nor Garbe undertook anything

resembling either the pervasive supervision and monitoring seen

in Bokodi or the control seen in Brooks.  Moreover, no one from Skender or Garbe saw plaintiff engage in the unsafe practice that

led to his injury or even had notice that plaintiff intended to

engage in such conduct.  Plaintiff, who was injured on his first

day at the jobsite, admitted that he was only on the board for a

"fraction of a second" before the board broke and that only his

coworker was in the area.

	We believe this case is more like Rangel, 307 Ill. App. 3d at 837, where the plaintiff was an employee of a drywall subcontractor, who told plaintiff to step on braces extending

from a scaffold to position drywall into place.  The plaintiff

was injured when he fell after a brace he stepped on gave way. 

Rangel, 307 Ill. App. 3d at 837.  This court found that the subcontractor provided all supplies and directions to its

employees; plaintiff was injured when he followed the

subcontractor's instructions for performing the work; there was

no evidence that the general contractor was aware that the work

was being done in an unsafe manner before the plaintiff was

injured; and the general contractor's general reservation of the

right of supervision did not translate into the control over

details of the subcontractor's work necessary to expose the

general contractor to liability.   Rangel, 307 Ill. App. 3d at 839.  Similarly, the evidence here established that Ketler was

entirely free to perform the work in its own way where Ketler's

foreman decided to move Ketler's rigging into the basement

through the south wall opening and gave plaintiff all his work

instructions.  Moreover, there was no evidence that Skender or Garbe knew or had notice of the hazardous method plaintiff

employed to descend into the basement.  See also Kotecki, 333 Ill. App. 3d at 588-89.

	We reject plaintiff's contention that Rangel3 was an "aberration" and was "addressed" by Bokodi and Brooks.  Neither Bokodi nor Brooks criticized Rangel.  Rather, Bokodi distinguished Rangel on its facts (Bokodi, 312 Ill. App. 3d at 1061-63), and Brooks , which never discussed Rangel but, rather, distinguished another case (Brooks, 311 Ill. App. 3d at 875).  Because the evidence here fails to indicate sufficient control by defendants

over Ketler's or plaintiff's work, plaintiff fails to raise an

issue that defendants owed a duty to plaintiff under the retained

control exception of section 414.  Accordingly, plaintiff fails

to raise a factual question necessary to survive summary

judgment.

	Next, plaintiff contends that defendants are liable for

"direct negligence," alleging, inter alia, that Garbe provided the defective wood which plaintiff walked on and that Skender

directed Ketler to move material and equipment through the wall opening but failed to provide a ladder and failed to inform

plaintiff of an alternate access to the basement.  Plaintiff's

"direct negligence" arguments, however, lack merit.  As discussed

above, construction-related common law negligence liability of

general contractors for employees of independent contractors is

analyzed under section 414 of the Restatement (Second) of Torts. 

Plaintiff cites no relevant authority to support his arguments

concerning "direct negligence."

	The judgment of the circuit court is affirmed.

	Affirmed.

	GORDON, P.J., and O'MALLEY, J., concur.