NO. 4-03-0004

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JOHN L. MOSS, Independent Administrator	)	Appeal from  

of the Estate of JOHN E. MOSS, Deceased,)	Circuit Court of

		Plaintiff-Appellant,		)	McLean County	

		v.						)	No. 00L195

ROWE CONSTRUCTION COMPANY, a/k/a		)	

CULLINAN & SON, INC., a Delaware		)	

Corporation,						)	

		Defendant-Appellee,			)	

		and						)	Honorable

LAESCH ELECTRIC, INC.,				)	G. Michael Prall,

          Third-Party Defendant.	)	Judge Presiding.

		JUSTICE MYERSCOUGH delivered the opinion of the court:

		In December 2002, the trial court entered summary

judgment for defendant on plaintiff's single-count complaint in

negligence.  Plaintiff appeals.  We reverse and remand.

I. BACKGROUND

		On February 15, 1999, plaintiff's decedent, John E.

Moss, was killed while working as an employee for subcontractor

Laesch Electric, Inc. (Laesch).  Laesch was under contract to

Rowe Construction Company (Rowe) to remove traffic control

devices and foundations and install new ones as part of Rowe's

contract with the State of Illinois, Department of Transportation

(IDOT) for improvements to Veterans Parkway in Normal.

	     Under the general contract between IDOT and Rowe, Rowe

was required to maintain control of safety on the project:

		"Article VIII. Safety:  Accident Prevention: 

			1.  In the performance of this contract the contractor shall comply with all applica

ble [f]ederal, [s]tate, and local laws gov

erning safety, health, and sanitation (23 CFR

[§]635).  The contractor shall provide all

safeguards, safety devices[,] and protective

equipment and take any other needed actions

as it determines, or as the SHA [State High

way Agency] contracting officer may determine

to be reasonably necessary to protect the

life and health of employees on the job and

the safety of the public and to protect prop

erty in connection with the performance of

the work covered by the contract.

			2.  It is a condition of this contract,

and shall be made a condition of each subcon

tract, which the contractor enters into pur

suant to this contract, that the contractor

and any subcontractor shall not permit any

employee, in performance of the contract, to

work in surroundings or under conditions

which are unsanitary, hazardous[,] or danger

ous to his/her health or safety, as deter

mined under construction safety and health

standards (29 CFR [§]1926) promulgated by the

Secretary of Labor, in accordance with

[s]ection 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. [§]333)."

Further, the general contract required: 

			"The contractor shall furnish (a) a

competent superintendent or supervisor who is

employed by the firm, has full authority to

direct performance of the work in accordance

with the contract requirements, and is in

charge of all construction operations (re

gardless of who performs the work) ***." 

Additionally:  

			"No portion of the contract shall be

sublet, assigned[,] or otherwise disposed of

except with the written consent of the SHA

contracting officer, or authorized represen

tative, and such consent when given shall not

be construed to relieve the contractor of any

responsibility for the fulfillment of the

contract."

These elements of the general contract are incorporated in their

entirety, including the IDOT standard specifications, into the

subcontract between Rowe and Laesch.

		The subcontract additionally stated in article XVI: 

			"The [s]ubcontractor shall follow the

[c]ontractor's directions regarding safety,

clean-up[,] and storage of materials on the

work site."

		The death of Moss occurred on February 15, 1999, at the

intersection of Veterans Parkway and Fort Jesse Road.  Al Ruhrup,

Jr., Rowe's superintendent for the project, who was on the site

on a daily basis, was not present at the time of the accident. 

		Decedent Moss, Michael Laesch (vice-president of the

subcontractor), and two other Laesch employees were removing

7,000-pound concrete foundations upon which traffic control

devices are installed.  Laesch was operating a truck-mounted

derrick, another employee was operating a dump truck to receive

the concrete, Moss and the fourth employee were the "ground men"

designated to steady the load as it was lifted by the truck-

mounted derrick and guide it into the dump truck.  Rather than

using "tag lines" to guide the concrete, at the direction of

Laesch, Moss and the other man were standing next to the founda

tion guiding it with their hands due to the tight circumstances

caused by an adjacent light pole and guy wires.  Those obstruc

tions prevented Michael Laesch from placing the dump truck closer

to the concrete foundation.  Contractual terms prohibited Laesch

from placing its equipment on the roadway during certain times of

day, limiting placement options.  Additionally, the ground upon

which the derrick was placed was muddy, one of the outrigger

supports for the truck-mounted derrick was not properly padded

for the muddy conditions, and the derrick was improperly placed

on a downward five-degree slope.

		On the first attempted lift, the concrete began to spin

and had to be set down.  The second attempt was halted when the hydraulic overload protective system (HOPS) activated.  HOPS is a

warning system on the truck-mounted derrick indicating that

something was not proper in the lift attempt.  As a result, the

dump truck was repositioned.  On the third attempt, the derrick

began to tip, and Laesch yelled for everyone to clear the area. 

Moss backed away into several guy wires.  As he moved again, he

was struck by the boom of the derrick and killed.  Moss's estate sued defendant Rowe, the general contractor for the Veterans

Parkway project (Project), alleging defendant retained control of

the work and was negligent, causing Moss's death.

		Rowe moved for summary judgment on the basis that Rowe

did not retain or exercise control over the work being done by

Laesch sufficient to impose liability on Rowe.  The trial court

granted the motion and entered judgment for Rowe and against Moss on plaintiff's complaint.  Plaintiff appeals, framing the issues as follows:

		"(1)  Whether the Restatement (Second) of

Torts, Section 414 ('Section 414'), requires

a defendant to have actually exercised con trol over the 'means and methods' of a sub contractor's work to be subject to liability

to a subcontractor's injured employee, or

whether the retention of a right to control safety is sufficient to create at least a

question of fact as to liability; and (2) 

Whether [d]efendant in the present case exer cised and/or retained the right to exercise

control over the work in a manner sufficient

for it to be subject to liability pursuant to

[s]ection 414."  (Emphasis in original.)  

This appeal followed.

II. ANALYSIS

	     The issue before the court is more specifically framed under section 414 of the Restatement (Restatement (Second) of

Torts §414 (1965)):  Did defendant retain some degree of duty to control safety on the project?  Further, if defendant did retain

that duty to control safety, did defendant negligently exercise

or fail to exercise that duty to control safety?  In this case,

the retention of the duty to control safety is answered directly

by the contracts.  Further, the exercise of that duty or the

failure to exercise that duty presents a genuine issue of mate

rial fact.  We, therefore, reverse summary judgment and remand to the trial court for further proceedings.

A. Standard of Review

		The standard of review of a trial court's grant of a

motion for summary judgment is de novo.  Summary judgment is inappropriate if a material question of fact exists.  All evi

dence is viewed in the light most favorable to the nonmovant. 

Yacko v. Curtis, 339 Ill. App. 3d 299, 301-02, 789 N.E.2d 1274, 1276 (2003).

		"Summary judgment is a drastic remedy that

should be granted only where the movant's right to it is clear and free of doubt. 

[Citation.]  If the facts in the record pres ent more than one conclusion or inference,

including one unfavorable to the movant,

summary judgment should be denied." 

Hutchcraft v. Independent Mechanical Indus tries, Inc., 312 Ill. App. 3d 351, 357, 726 N.E.2d 1171, 1176 (2000).

B. Erroneous Analytical Approach:  The Issue

Is Who Has the Duty To Control for Safety

		In granting summary judgment in the present case, the

trial court reasoned as follows:

			"'[R]etain control' means the contrac

tual language and/or practices of the con

tractor/sub[]contractor must demonstrate

control by the general contractor over the

means and methods of performance by the sub-

contractor of the job which leads to the

injury.  Here the contractual language does

not specifically address supervision of the

means or methods of the sub[]contractors

removing concrete structures; the work that

led to the death of plaintiff decedent."

However, this is not the appropriate question.  The issue is not

control of the "means and methods" of performing the task, but

rather who contractually and/or physically has the duty to

control safety of the project.  First, the contractual language must be reviewed to determine what terms address the duty to

control for safety.  The facts must then be reviewed to determine

whether the duty was physically fulfilled under the contract.

		At the time of making the contracts, all parties have

the opportunity to determine what liability each is willing and

able to assume.  In this case, Rowe entered into contracts with

IDOT and then with Laesch where Rowe agreed to accept the duty to

control safety on the project.  In Shaughnessy v. Skender Con struction Co., 342 Ill. App. 3d 730, 794 N.E.2d 937 (2003), the court disregarded contractual language requiring the general

contractor 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 superinten

dent whose duties included the prevention of accidents." 

Shaughnessy, 342 Ill. App. 3d at 732-33, 794 N.E.2d at 938.  We cannot ignore the contract.  To do so, here, would make the

contractual obligations for safety a meaningless nullity, espe

cially in light of the deposition testimony here.

		The trial court granted summary judgment, finding that

defendant did not control the "means and methods" of the subcon

tractor’s work.  However, when viewed, as we must, in the light

most favorable to the plaintiff and when section 414(c) is viewed

with full consideration of the contractual obligations and the

duties thereunder, it is not a question of "means and methods." 

Rather, defendant's contracts establish a duty to control safety

and raise a genuine issue of material fact as to whether defen dant negligently exercised or failed to exercise that duty.

C. The Law of Restatement (Second) of Torts, 

Section 414 and Comment c

		Since the abolition of the Structural Work Act (Act)

(740 ILCS 150/1 through 9 (West 1994) (repealed in Pub. Act 89-2,

§5, eff. February 14, 1995)), section 414 of the Restatement (Second) of Torts has controlled questions of liability in

construction-related injury cases.  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 reason

able care, which is caused by his failure to

exercise his control with reasonable care." 

Restatement (Second) of Torts §414, at 387

(1965).

Additionally, comment c to section 414, states:

			"In order for the rule stated in this

[s]ection 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 pre scribe alterations and deviations.  Such a

general right is usually reserved to employ

ers, 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).

		The repealed Act was, in application, virtually a

strict-liability statute founded upon the broad concept of "in-

charge-of" analysis.  The brief amicus curiae of the Illinois Trial Lawyers Association (Trial Lawyers) argues that section 414

analysis is analogous to the Act.  However, we do not agree that

section 414 establishes the broad liability that existed under

the Act.  On the facts in this case, section 414 applies to this

case as the control required under section 414 is established by

the terms of the contract.

D. The Contract Between Defendant and Plaintiff's Employer

Governs the Duty of Control of Safety Retained by Defendant

		In Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 325, 211 N.E.2d 247, 253 (1965), the supreme court noted that the

purpose of the Act was to "broaden the common-law duty and to

give added protection."  A broad duty does not exist under

section 414, but, just as in Larson, analysis of a claim based upon section 414 begins with review of the contracts establishing the relationship between the various entities involved in the project.  

	     Defendant mistakenly interprets our opinion in Rogers v. West Construction Co., 252 Ill. App. 3d 103, 623 N.E.2d 799 (1993), to stand for the proposition that contractual terms are

irrelevant in a claim based upon section 414.  In Rogers, which was decided prior to the repeal of the Act, the plaintiff was an

employee of a subcontractor who was injured unloading steel beams

to be used in ultrahazardous bridge repair work.  The appellate

court upheld the trial court's grant of summary judgment for the

defendant.  The trial court found that safety practices within

the bridge-building industry required everyone but the pile-

driving subcontractor to vacate the work site when the general

contractor notifies the subcontractor to begin pile-driving work. 

The trial and appellate courts quoted and relied upon an affida

vit from the defendant's job superintendent, who stated that the

subcontractor had "unrestricted control" over all aspects of the

pile-driving activity and that his supervision was limited to

visiting the site once or twice a day to check on progress.  No

evidence showed any other involvement by the defendant in the

physical activities of the site.  

		          Equally important, the facts never discuss the terms of

the contract.  No evidence showed the terms of any contract with

the defendant.  Rather, the plaintiff attempted to make a con

tractual argument based upon "IDOT's Standard Specifications for Road and Bridge Construction" without connecting that document to

the terms of an actual contract in the case.  Rogers, 252 Ill. App. 2d at 109-10, 623 N.E.2d at 251.

		However, reliance upon Rogers is misplaced because the analysis in Rogers is superseded by the repeal of the Act.  Under the Act, analysis was based on a broad definition of "having

charge of," which required an intense review of the facts of each

case.  Larson, 33 Ill. 2d at 321, 211 N.E.2d at 251; Hausam v. Victor Gruen & Associates, 86 Ill. App. 3d 1145, 408 N.E.2d 1051 (1980).  While, under the Act's broad liability, a showing of

"having charge of" resulted in nearly strict liability, such is

not the case under section 414.

		Review of section 414, postrepeal of the Act, requires

review of the legal establishment of the duty, not just the

physical facts that may be the manifestation of the duty.  The

best recent example of this is in Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 728 N.E.2d 726 (2000), where the appellate court reversed a grant of summary judgment

based upon the contracts.  The court first looked to the contract

between the builder and the general contractor and between the

general contractor and the subcontractor.  The court noted that

the general contractor was responsible for the construction

schedule and subcontractor coordination.  Further, the facts showed a substantial level of involvement by the general contrac

tor in the incidental activities of the work site, including a

specific safety program and a designated individual whose sole

function was investigation for safety hazards.  Bokodi, 312 Ill. App. 3d at 1062, 728 N.E.2d at 734-35.

		Moreover, when viewed in the context of Bokodi and the facts in this case, the Rogers case is distinguishable and inapplicable.  First, where Rogers did not explore the terms of the actual contract, the facts here specifically mandate safety

control by the terms of the contract between IDOT and Rowe, which

incorporates specifications.  Further, that general contract is a

part of the subcontract with Laesch.  Second, the issue is one of

creation of a duty for determining tort liability.  In this case,

the standard specifications were specifically incorporated in the

general contract and in the subcontract. 

	     Regardless of whether language of a contract originates

from governmental regulations or is specifically written for an

individualized transaction, it may create a duty that is owed to

a third party.  Restatement (Second) of Contracts §304, Comment

b, at 448 (1981).  Such is the intent of the contract in this case.  The facts demonstrate that defendant contractually agreed

to assume the duty to control the safety of the workers on the

project in the contract between defendant and IDOT.  The terms of

that agreement were incorporated in the subcontract, which

further obligated the subcontractor to abide by those terms.

		Equally important, the project is one originating and

funded by the State of Illinois.  As a matter of pubic policy,

the State may choose to include various terms establishing duties

upon contractors as conditions for doing business with the state

that may not be included contracts between private entities in

private business.  Even had Rowe wished to delegate or disclaim its duty for safety under the IDOT contract, Rowe did not have

that choice if it wished to do business with the State of Illi

nois.

	     The depositions of Michael Laesch, vice-president of

subcontractor Laesch; Al Ruhrup, Jr., site superintendent for

defendant Rowe; Kenneth Wagoner, from IDOT; and James Threadgill, from IDOT, all contain testimony indicating that Ruhrup and Rowe

had the authority to stop or correct any safety violations in the

work of the subcontractor in performance of the project.  Michael

Laesch testified in his deposition:  

			"Q.  Had Mr. Ruhrup given you some di

rection that related to safety, given the way

this job was contracted for or set up, would

you have had to follow that directive?

			A.  We would have followed that direc

tive."

Al Ruhrup, Jr., testified as follows in his deposition:

			"Q.  Okay.  Now, if you had observe[d] a

raising operation of one of these concrete

foundations on the Veterans Parkway project

and there were construction workers or a

construction worker positioned on the ground

not in the [']clear zone,['] as you called

it, during the course of one of these picks,

would you have a level of authority to stop

the operation and see to it that that man is moved out of the way of the load?

			A.  I would say, yes, I would have the

authority to."

James Threadgill, an IDOT engineer associated with the project in

this case, testified as follows in his deposition:

			"Q.  And if Rowe, as the contractor,

feels that either the equipment selected or

the method selected by its subcontractor is

unsafe, then Rowe has the right to stop that

work; correct?

			A.  Yes."

		Ruhrup and Rowe had the authority and duty under the

contract to stop work and correct any unsafe condition or OSHA

violation.  IDOT clearly places upon the general contractor the

duty and authority to control safety under IDOT contracts,

whether the work is performed by the contractor or a subcontrac

tor.

E. Cases Interpreting Section 414 and Comment c

Since the Act Have Not Involved Clear Contractual Terms

		The cases that have interpreted section 414 and comment

c since the repeal of the Act have, generally, looked to the physical exercise of control of the means of performing work to

determine whether a duty existed on the part of the defendant

akin to the way one analyzed an Act claim to determine whether a

defendant had "charge of" the workplace.  These recent cases have

not included contractual terms such as those in this case.  

		In Connaghan v. Caplice, 325 Ill. App. 3d 245, 757 N.E.2d 971 (2001), a homeowner who provided the ladder that

collapsed causing injury did not retain or exercise sufficient

control over the incidental aspects of the independent contractor

performing carpentry to defeat the defendant's motion for summary

judgment as a matter of law.

		In Bieruta v. Klein Creek Corp., 331 Ill. App. 3d 269, 770 N.E.2d 1175 (2002), the plaintiff was injured by a fall in a

trench on the defendant's land.  The defendant was also the

general contractor for construction on the land.  The plaintiff

was subcontractor's employee and was excavating with a backhoe on

the premises.  On the question of liability for the injury to the subcontractor's employee, the appellate court affirmed summary judgment for the general contractor, noting that there was no

contract between the general contractor and the subcontractor and

no other evidence of any control or direction by the general

contractor of "operative details" of the subcontractor's work. 

Bieruta, 331 Ill. App. 3d at 276, 770 N.E.2d at 1181.

		In Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1074, 793 N.E.2d 68, 75 (2003), no evidence was presented and no

contract established that the defendant retained control.  The

appellate court concluded that the defendant never directed the

"operative details" of the work performed, and the facts estab

lished that the defendant relied upon the plaintiff's employer to

be responsible for safety. 

		The standard under which section 414 cases are to be

reviewed since the repeal of the Act has been somewhat confused.  For example, the trial judge in this case, during argument on

summary judgment, questioned the case law:  

			"[I]t looks to me like the Fourth Dis

trict is kind of on the road of what did you

actually do, not what could you have done if

you would have wanted to, but what did you

actually do on this project[;] *** if that's

the rule, then why would anybody want to do

anything?  I mean, you've got a contract and

other than just the humanitarian, you know,

the goodness of your heart, you don't want to

see somebody get hurt, but I mean if that's

the rule then I guess the incentive to take

corrective action that you have the right to

do seems to me to be not very *** good be

cause the more *** you do the more liable

you're going to be, and the less you do the

less liable you're going to be[;] *** to me

that looks like the analysis they're follow

ing here."

		Cases where the contract has contained only general

statements on the right to control the job have led to this

illogical conclusion identified by the trial judge.  A general

right to stop and start work has been found insufficient to

impose liability.  In Shaughnessy, 342 Ill. App. 3d at 732, 794 N.E.2d at 938, the appellate court declined to assess liability by affirming summary judgment despite contractual terms in the contract requiring the general contractor to be responsible for

safety precautions and programs and to employ a safety superin

tendent responsible for prevention of accidents and evidence

demonstrating that the defendant failed to do so.  While the

opinion does not quote the language from the actual contract, the

facts state that the contract between the racquet club, which

hired the work to be done on its premises, and the general

contractor was a "standard form agreement approved by the Associ

ated General Contractors of America."  Shaughnessy, 342 Ill. App. 3d at 732, 794 N.E.2d at 938.  The court concluded that plaintiff

failed to raise a fact question about whether the general con

tractor exerted sufficient control over the plaintiff. 

Shaughnessy, 342 Ill. App. 3d at 740, 794 N.E.2d at 944.  Fur ther, the court dismissed the argument over the contractual

relationship by pointing to deposition testimony indicating that

the excerpts of the contract cited only established a general

right to stop, start, and inspect the progress of the work. 

Shaughnessy,  342 Ill. App. 3d at 738, 794 N.E.2d at 943.  

	     Similarly, in Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 719 N.E.2d 174 (1999), only a general contractual term was quoted:  "'The General Contractor shall have

the right to exercise complete supervision and control over the

work to be done by the Subcontractor, but such supervision and

control shall not in any way limit the obligations of the Subcon

tractor.'"  Rangel, 307 Ill. App. 3d at 838, 719 N.E.2d at 177.  However, this language is not comparable to the specific mandate

for safety contained in the contracts in this case.

		In Hutchcraft, this court, while reversing summary judgment in favor of two subcontractors, granted summary judgment

to the owner of the construction site in a suit brought by an

employee of the general contractor.  The plaintiff alleged that the construction site's owner's general duty of control satisfied

the retained-control element of section 414.  The opinion in

cludes no discussion of the terms of any contract between the

various defendants.  Rather, the opinion was decided purely upon

the factual question of whether the owner had actually exercised

any physical control over the welding machines that caused the

injury.  This court concluded that the general authority of a

site owner did not impose a duty to retain control of the work

for safety as it related to the subcontractors' welding activi ties for purposes of section 414.  Hutchcraft, 312 Ill. App. 3d at 359, 726 N.E.2d at 1178.

		To the contrary, however, Bokodi, 312 Ill. App. 3d 1051, 728 N.E.2d 726, issued the same day as Hutchcraft, reversed a grant of summary judgment based upon the specific safety duties

set forth in the contract.  The court's attention to the contrac

tual terms as the foundation of section 414 liability presents a break from the analytical framework for cases under the Act.  See Bokodi, 312 Ill. App. 3d at 1063, 728 N.E.2d at 735.

		Here, as noted in the facts, defendant accepts the duty

to control safety by specific contract language:  governing safety; provide all safeguards, safety devices, and protective

equipment; take any other needed actions as it determines reason

ably necessary to protect the life and health of employees;

condition of this contract; condition of each subcontract; shall

not permit any employee to work in surroundings or under condi

tions that are hazardous or dangerous to his health or safety. 

In the face of this contractual duty to control safety, the trial

court erred in considering only whether the general contractor

retained control over the means and methods over the performance

of the job of removing the concrete structures and not this

contractual language.  The law requires the trial court to review the contractual language regarding the general contractor's duty

to maintain safety of workers.

F. Illinois Pattern Jury Instructions, Civil, No. 55.02 (Supp.

20030) 

Is Not Necessary tTo Decide This Case

		Amicus Trial Lawyers point out that following the repeal of the Act, the Illinois Supreme Court adopted Illinois

Pattern Jury Instructions, No. 55.02 (Illinois

Pattern Jury Instructions, Civil, No. 55.02, Ill. Dec. Advance

Sheet No. 44 (October 30, 2002), at 6 (IPI No. 55.02)) (Supp. 2003) (heriein

after IPI Civil (supp.Supp. 2003) No. 55.02) for use in cases alleging

contractor responsibility for negligence under section 414:

			"A party who retained some control over

the safety of the work has a duty to exercise

that control with ordinary care."

The IPI Committee recognizes the difficult concept of control in the introduction to IPI Civil (Sup.p. 2003) No. 55.020:

			"Due to the lack of consensus among the

appellate courts and no [s]upreme [c]ourt cases on theis subject since Larson in 1965, the concept of 'control' caused the committee

great difficulty.  The committee chose to

concentrate on the area of 'safety' in these

instructions.  The committee believed that

the overriding consideration throughout all

of these cases is the ability of the control

ling entity to affect overall job safety.  It

would appear that the ability to stop unsafe

work and not permit it to be resumed until

done to the satisfaction of the controlling

entity satisfies both the requirement of

'control' and demonstrates that the contrac

tor is 'not entirely free to do the work in

his own way.'"  IPI civiCivil (sSupp. 2003) No.

55.00, Introduction, at 16.

Given the difficulty with this concept of control, we rely in

this case upon the language of the contract where defendant

agreed to take responsibility for control of safety.

III. CONCLUSION

		Because genuine issues of material fact remain as to

whether the contract placed a duty to control safety on defendant

and whether defendant physically exercised or failed to

exercise that duty, we reverse the finding of summary judgment

for defendant and remand.

		Reversed and remanded.

		MCCULLOUGH, J., concurs.

		COOK, J., specially concurs.

		JUSTICE COOK, specially concurring:

		I question whether the introduction to IPI 55.02

accurately reflects the law.  As I understand the introduction,

the retention of the mere "ability to stop unsafe work and not

permit it to be resumed until done to the satisfaction of the

controlling entity" (IPI Civil (Supp. 2003) No. 55.020,

Introduction, at 16) is sufficient for the imposition of a duty. 

Every owner, general contractor, and employer would appear to

have that ability, and the introduction would apparently impose a

duty in every case.

		I believe comment c to section 414 is still persuasive.  "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."  Restatement (sSecond) of

Torts §414, Comment cIPI No. 55.02, at 388.  Comment c would not equate that general right with "control" or to mean that the contractor is

"not entirely free to do the work in his own way."  I would not

find a duty in every case, only when there is something more than

the minimal relationship between the parties.  I believe that is

what IPI Civil (Supp. 2003) No. 55.02 means when it says that

"[a] party who [has] retained some control over the safety of the

work has a duty."  IPI Civil (Supp. 2003) No. 55.02.