In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-1985

JOSE A. AGUIRRE and

MARIA L. AGUIRRE,

Plaintiffs-Appellants,

v.

TURNER CONSTRUCTION COMPANY,

BARTON-MALOW COMPANY, KENNY

CONSTRUCTION COMPANY, and TBMK,

Defendants-Appellees.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 C 515—Suzanne B. Conlon, Judge.

____________

ARGUED NOVEMBER 6, 2006—DECIDED SEPTEMBER 7, 2007

____________

Before RIPPLE, WILLIAMS, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Jose Aguirre was injured when he

fell from a scaffold while working for a masonry subcontractor on the Soldier Field renovation project in Chicago.

Aguirre and his wife brought negligence claims based on

section 414 of the Restatement (Second) of Torts and res

ipsa loquitur against the general contractors in charge of

the renovation. Aguirre maintains the defendants owed

him a duty of reasonable care based on their extensive

oversight of all project safety. The district court granted
2 No. 06-1985

summary judgment for the defendants after concluding

they had not retained sufficient control over the subcontractor’s work to give rise to any duty of care toward

Aguirre or supply a basis for liability on a res ipsa loquitur

theory. Because we conclude that these holdings are

inconsistent with the requirements of Illinois negligence

law, we reverse.

I. Background

Jose Aguirre was injured when he fell from a scaffold

while working as a bricklayer on the renovation of Soldier

Field in Chicago. Aguirre was an employee of A.L.L.

Masonry (“A.L.L.”), one of numerous subcontractors

working on the renovation project. The project was overseen by the defendants, collectively known as the joint

venture TBMK. Aguirre maintains that his fall was the

result of design and/or construction defects in the scaffold. He and his wife brought negligence and loss of consortium claims against the defendants based on section

414 of the Restatement (Second) of Torts, which permits

direct liability against a general contractor who retains

sufficient control over a subcontractor, and on res ipsa

loquitur, which permits circumstantial evidence of liability against a defendant in control of the instrumentality

of the injury. The defendants moved for summary judgment on the ground that they, as the general contractors,

owed no duty under either theory to Aguirre, an employee

of a subcontractor.

Discovery proceeded to determine the extent of control

TBMK retained over A.L.L.’s work. This discovery demonstrated that although the contract between TBMK and

A.L.L. stated that A.L.L. remained “solely responsible

for the safety of [its] employees,” TBMK also played an

active part in overseeing the safety of the renovation

project. For example, TBMK promulgated an extensive
No. 06-1985 3

125-page safety program that all subcontractors were

required to follow, and it hired a safety coordinator and

other personnel to oversee that program. TBMK also held

monthly safety meetings, required subcontractors to hold

regular safety meetings that TBMK could monitor, and

required subcontractors to prepare their own site-specific

safety programs. TBMK personnel walked the work site

daily to monitor compliance with these safety requirements. The safety coordinator and his employees had and

sometimes exercised the authority to halt any subcontractor work being performed in an unsafe manner.

TBMK’s safety program, which is part of its contract

with A.L.L., included 23 rules specifically pertaining to

the erection of scaffolding. Those rules imposed both

design requirements, such as guardrail and plank specifications, and safety precautions, such as regular inspection and fall protection. The district court found that

although “TBMK was not required to inspect all of the

scaffolding, [it] did do so.” The scaffold from which Aguirre

fell had been specifically altered from the standard design

based on an irregularity in the area where the work was

being performed. Although no TBMK employee inspected

the scaffold prior to Aguirre’s fall, TBMK had worked

with A.L.L. to create and approve its alternate design.

The district court granted summary judgment for the

defendants on both the section 414 and res ipsa loquitur

theories of liability. First, the court stated that under

Illinois law res ipsa loquitur requires a defendant to be

in exclusive control of the instrumentality of the injury.

Thus, the court concluded, this theory could not be used

because A.L.L. employees constructed the scaffold from

which Aguirre fell. Turning to section 414 of the Restatement, the court determined that although TBMK exercised

extensive authority over work site safety, TBMK could

not be liable because “the contract between TBMK and

A.L.L. provided that A.L.L. controlled operative work
4 No. 06-1985

details. . . . [and] its workers’ safety.” The court noted that

“A.L.L. was contractually required to comply with TBMK’s

safety program, design its own safety program tailored

to TBMK’s safety standards, and employ personnel to ensure compliance.” Thus, the court held, no duty of care

could exist “because [TBMK] did not have control of the

incidental details of A.L.L.’s work or its workers’ safety.”

The plaintiffs appealed.

II. Discussion

We review de novo a district court’s grant of summary

judgment, viewing the evidence in the light most favorable to the nonmoving party. Healy v. City of Chicago, 450

F.3d 732, 738 (7th Cir. 2006). Summary judgment is

appropriate when “the pleadings, depositions, answers

to interrogatories, 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 judgment as a matter of law.” FED. R. CIV.

P. 56(c). When we must decide an unsettled question of

state law while sitting in diversity, as we are here, we are

obligated to determine how the highest court of that state

would rule. Hinc v. Lime-O-Sol Co., 382 F.3d 716, 720 (7th

Cir. 2004). We review de novo a district court’s interpretation of the content of state law. Id. (citing Salve Regina

Coll. v. Russell, 499 U.S. 225 (1991)).

A. Section 414 Liability

The Restatement (Second) of Torts, 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
No. 06-1985 5

reasonable care, which is caused by his failure to

exercise his control with reasonable care.

The “retained control” theory of negligence liability

described in section 414 was adopted by the Illinois

Supreme Court in Larson v. Commonwealth Edison Co.,

211 N.E.2d 247 (Ill. 1965). However, some confusion has

arisen recently among Illinois intermediate appellate

courts regarding whether section 414 states a theory of

vicarious liability or direct liability. See, e.g., Cochran v.

George Sollitt Const. Co., 832 N.E.2d 355, 361 (Ill. App. Ct.

2005). Although the Illinois Supreme Court has yet to

lend its guidance on this issue, we are confident it

would interpret section 414 in accordance with its plain

language and accompanying commentary, which clearly

state a theory of direct liability for a general contractor’s

own negligence, not a basis for imposing vicarious liability on a general contractor for the negligence of a subcontractor.

The bulk of the existing confusion stems from comment

a to section 414, which states:

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 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
6 No. 06-1985

care so as to prevent the work which he has ordered to

be done from causing injury to others.

Some courts, including the district court in this case, have

mistakenly read this comment as first laying out when

section 414 applies, see, e.g., Cochran, 832 N.E.2d at 361

(“As comment a to section 414 clarifies, the general

contractor, by retaining control over the operative details

of its subcontractor’s work, may become vicariously liable

for the subcontractor’s negligence . . . .”), then explaining

that no liability can exist if the general contractor

“retain[s] 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 others.” See Aguirre v.

Turner Constr. Co., 2006 WL 644009 at *3 (N.D. Ill. Mar.

9, 2006).

Properly read, comment a does just the opposite. The

first sentence does not explain the scope of section 414,

but rather merely refers to the principles of vicarious

liability within the Restatement of Agency. Where the

level of retained control gives rise to a master-servant

relationship, the master will be liable for the torts of his

servant; this is no-fault vicarious liability and it is based

on the principles of agency law, not negligence law. When

comment a continues with “[t]he employer may, however,

retain a control less than that which is necessary to

subject him to liability as master” and “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 others,” the commentators are

demarcating the boundary between agency law (which if

applicable imposes vicarious liability) and the negligence

principles encompassed in section 414.

As the next sentence of the comment explains, section

414 takes over where agency law ends by providing a

theory of direct liability based on the existence of a duty of
No. 06-1985 7

1 We note that at oral argument the Aguirres acknowledged that

their section 414 claim is a direct liability claim; they abandoned

any vicarious liability claim.

reasonable care. That duty is triggered when the employer—usually a general contractor—has retained

supervisory control over the independent contractor

without retaining control over all operative details of a

project. As comment b explains, the rule stated in section

414 “is usually, though not exclusively, applicable when

a principal contractor entrusts a part of the work to

subcontractors, but himself or through a foreman superintends the entire job.” Comment b elaborates that negligence liability arises in this situation if the general

contractor “knows or by the exercise of reasonable care

should know that the subcontractors’ work is being [done

dangerously], and has the opportunity to prevent it by

exercising the power of control which he has retained

in himself.” Liability also arises if the general contractor

“knows or should know that the subcontractors have

carelessly done their work in such a way as to create a

dangerous condition, and fails to exercise reasonable

care either to remedy it himself or by the exercise of his

control to cause the subcontractor to do so.”

Proceeding on the understanding that section 414 states

a theory of direct liability based on a general contractor’s

failure to exercise reasonable care, whether TBMK retained a level of control sufficient to give rise to a duty to

exercise reasonable care is a question of law.1 See Rangel

v. Brookhaven Constructors, Inc., 719 N.E.2d 174, 176 (Ill.

App. Ct. 1999). As comment c to section 414 explains:

In order for the rule stated in this Section to apply, the

employer must have retained at least some degree of

control over the manner in which the work is done. It

is not enough that he has merely a general right to
8 No. 06-1985

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.

Illinois courts have held that “an employer need only

retain the control of any part of the work in order to be

subject to liability for a failure to exercise his control with

reasonable care.” Brooks v. Midwest Grain Prods. of Ill.,

Inc., 726 N.E.2d 153, 155 (Ill. App. Ct. 2000) (emphasis

added).

In determining whether that level of control has been

retained, Illinois courts ask whether the principal merely

retained general oversight of work progress and safety or

actually engaged in detailed supervision and/or control of

subcontractors’ methods and means of performing work.

See, e.g., Ross v. Dae Julie, Inc., 793 N.E.2d 68, 72 (Ill.

App. Ct. 2003) (“[A] general right to ensure that safety

precautions are observed and that work is done in a safe

manner will not impose liability on the general contractor

unless the evidence shows that the general contractor

retained control over the means and methods of the

independent contractor’s work.”).

The most prominent and closely comparable case in

which a retained control duty of care was found to exist is

Bokodi v. Foster Wheeler Robbins, Inc., 728 N.E.2d 726 (Ill.

App. Ct. 2000). In Bokodi, the Illinois appellate court

found the existence of a duty based on the general contractor’s extensive oversight of safety on a large-scale construction project. Specifically, the general contractor provided
No. 06-1985 9

29 safety measures and procedures that subcontractors

were required to follow, employed safety personnel to

monitor the site for compliance with its safety guidelines,

gave its own employees broad powers to halt any subcontractor work based on a perception of an unsafe working

environment, required subcontractors to conduct safety

training meetings that the general contractor’s employees

could monitor, and required subcontractors to participate

in its own safety programs. Id. at 735.

Although TBMK attempts to diminish Bokodi’s force by

pointing to a number of recent cases that have found no

duty under section 414, the facts of those cases are easily

distinguishable. For example, in Martens v. MCL Construction Corp. the general contractor’s employees had no

authority to stop deficient work of subcontractors,

807 N.E.2d 480, 491 (Ill. App. Ct. 2004); in Kotecki v.

Walsh Construction Co. the general contractor engaged in

no oversight whatsoever of the work the plaintiff performed for the subcontractor, 776 N.E.2d 774, 778 (Ill.

App. Ct. 2002); and in Rangel the general contractor

promulgated no specific safety rules for the work in

question, 719 N.E.2d at 177. By contrast, a duty was found

to exist in Moorehead v. Mustang Construction Co., a case

more like Bokodi in that the general contractor had a

detailed safety program in place and regularly monitored

the subcontractor’s work site for compliance with its own

safety standards. 821 N.E.2d 358 (Ill. App. Ct. 2004).

Indeed, even in rejecting the existence of a duty, the

Martens court noted that “if a defendant’s safety program

sufficiently affected a contractor’s means and methods of

doing its work, then such program could bring the defendant within the ambit of the retained control exception.”

807 N.E.2d at 492. Accordingly, nothing in these cases

calls into question the application of Bokodi here.

The evidence of TBMK’s extensive safety oversight is

arguably even stronger than that of the general contrac-
10 No. 06-1985

tors in Bokodi and other similar Illinois cases. The record

establishes that TBMK required A.L.L. to follow 23 rules

specific to scaffold construction, that TBMK employees

regularly walked the site and could require A.L.L. to

correct any deficiencies observed in scaffolds, that TBMK

inspected many of A.L.L.’s scaffolds, and notably, that

TBMK imposed specific alternative design requirements on

the scaffold from which Aguirre fell. These undisputed

facts clearly establish that TBMK’s safety program

sufficiently affected A.L.L.’s means and methods of doing

its work so as to give rise to a duty of reasonable care. In

holding to the contrary, the district court emphasized that

TBMK did not control all “the incidental details of A.L.L’s

work or its workers’ safety.” As we have explained, however, this kind of overarching retention of operative control

described in comment a is necessary only when the claim

asserted is one for vicarious liability under agency law. By

contrast, section 414 describes the general contractor’s

duty of reasonable care that arises under negligence law

when “the [sub]contractor is not entirely free to do the

work in his own way,” see comment c, which was clearly

the case with regard to A.L.L.’s scaffolding.

The district court’s attempt to distinguish Bokodi on

contractual grounds is similarly inapposite. Although the

contract between TBMK and A.L.L. placed A.L.L. in

control of the operative details of its work, the same was

true in Bokodi. 728 N.E.2d at 735. Nonetheless, as the

district court recognized, the Bokodi court concluded that

this contractual term was contravened by the “great

lengths [the general contractor undertook] to enforce the

safety standards at the work site.” Id. Equally extensive

precautions taken by TBMK—specific safety and design

requirements, regular monitoring with authority to halt

unsafe work—evince the same level of control over the

details of A.L.L.’s scaffolding work, regardless of the

contractual language to the contrary. The contractual
No. 06-1985 11

assignment of oversight of employee safety to A.L.L. does

not control here for the same reason it did not in Bokodi,

i.e., because TBMK’s extensive safety oversight and

requirements affected the means and methods by which

A.L.L. sought to ensure the safety of its own employees.

Based on the remarkable similarities between Bokodi

and this case, we conclude that TBMK retained sufficient

control over the safety of scaffolding design and construction to give rise to a duty of reasonable care under section

414 of the Restatement. Of course, this holding does not

mean the defendants are liable for Aguirre’s injuries;

that remains a question for the jury.

B. Res Ipsa Loquitur

The doctrine of res ipsa loquitur allows for “proof of

negligence by circumstantial evidence when the direct

evidence concerning cause of injury is primarily within the

knowledge and control of the defendant.” Kolakowski v.

Voris, 415 N.E.2d 397, 400 (Ill. App. Ct. 1980) (internal

citation omitted). Illinois law provides that to prevail

under res ipsa loquitur, a plaintiff must demonstrate he

was injured: (1) in an occurrence that would not have

happened in the absence of negligence; and (2) by an

instrumentality under the management or control of the

defendant. Dyback v. Weber, 500 N.E.2d 8 (Ill. 1986).

Contrary to the district court’s assertion, the Illinois

Supreme Court has concluded that it is not necessary to

establish the defendant’s exclusive control over the instrumentality for the doctrine to apply. See Lynch v. Precision

Mach. Shop, Ltd., 443 N.E.2d 569, 573 (Ill. 1982). Rather,

“the key question is whether the probable cause [of the

injury] is one which defendant was under a duty to the

plaintiff to anticipate or guard against.” Id.

The plaintiff has alleged that his fall occurred when the

scaffold collapsed due to negligent design or construction.
12 No. 06-1985

As we have discussed, there is sufficient evidence in this

record that TBMK retained some control over both the

design and construction of A.L.L.’s scaffolding. Lynch held

that joint control of the sort TBMK and A.L.L. shared

over the scaffolding design and construction is not a bar

to the application of res ipsa loquitur in such a circumstance. Id. at 241. Accordingly, there is a genuine issue of

material fact as to both elements of res ipsa loquitur, and

the plaintiffs may proceed on that theory as well.

For the foregoing reasons, the district court’s grant

of summary judgment is REVERSED, and the case is

REMANDED for further proceedings consistent with this

opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-7-07