Construction Negligence-Significant Developments With Affect and Shape of Tort

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Statements or expression of opinions in this publication are those of the authors and not
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permission is prohibited.
Feature Article
David B. Mueller and Brian A. Metcalf
Cassidy & Mueller, P.C., Peoria

Construction Negligence: Significant Developments Which
Affect and Shape the Tort

Construction negligence claims coexisted with and antedate the demise of the Illinois Structural
Work Act (the Act) through the Illinois Supreme Court’s 1995 decision in Larson v. Commonwealth
Edison Co., 33 Ill. 2d 316 (1965). However, negligence causes of action were seldom used while the
Act’s strict liability provisions were viable. After the Act was repealed, the common law remedy
came into focus as the basis for construction injury recoveries from a variety of causes, including
many that are wholly unrelated to “scaffolds, hoists, stays, ladders, [or] supports.” 740 ILCS
150/1 (West) (1994).
The tort sprouts, grows and takes nourishment from Section 414 of the Restatement (Second) of
Torts. The genesis and evolution of Section 414 claims in Illinois have been discussed at length in
earlier articles on the subject. Complexities in Construction Negligence Litigation, IDC Quarterly
Vol. 13, No. 3; Recent Developments in Construction Negligence: An Update of Complexities in
Construction Negligence Litigation, IDC Quarterly Vol.
14, No. 2; Premises Liability Exposure in Construction Injury Cases, IDC Quarterly Vol. 15, No. 1 ;
Continuing Developments in Construction Negligence: A Further Update of Complexities in
Construction Negligence Litigation, IDC Quarterly Vol. 18, No. 2; and Vicarious Liability In
Construction Negligence Cases Misapprehension Leads To Mischief, IDC Quarterly Vol. 21, No. 3.
For the purposes of this discussion, the basic elements of the tort are summarized as follows:

• As a general rule, one who hires an independent contractor is not liable for torts committed
by the independent contractor in performance of the agreed upon undertaking. Gomien v. Wear-Ever
Aluminum, Inc., 50 Ill. 2d 19 (1971).
• An exception exists where the hiring party so controls the contractor’s work that the latter
is not free to decide how the work is done. This is the so-called “control” element of the tort
from which the hiring party’s duty arises. Interpretation of the term “control” as it is used in
Section 414, has vexed the courts in a myriad of cases over the last 20 years. Recently, a number
of courts have viewed “control” under Section 414 alternately in the context of “vicarious” and
“direct” liability. That bifurcation is discussed at length in this article. For the purposes of
this elemental summary, focus is upon the concept in its “direct” liability sense.
• Where the requisite “control” exists, a duty is imposed upon the hiring party to exercise
that “control” with
“reasonable care” as it relates to the “unsafe work condition” or hazardous employment practice.
• “Reasonable care” presupposes that the hiring party knew or had reason to know of the
dangerous condition or unsafe work practice.

Unfortunately, the Illinois Supreme Court has not considered construction negligence since its
passing recognition of the tort in Larson. Consequently, we are left with the disparate perceptions
of five appellate districts and six divisions of the first district. Synthesizing those decisions
is much like making bricks without straw, the result is difficult to hold together. Nonetheless,
some salient observations can and should be made in order to prevent the tort from becoming an
amorphous creature with neither form nor structure. That possibility is very real given the
appellate rejection of the pattern jury instructions which purport to define the claim and its
components. Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, ¶¶ 162-179, and Lee v. Six
Flags Theme Parks, Inc., 2014 IL App (1st) 130771, ¶ 86.
This article focuses upon four areas in which recent decisions alternatively: (1) misapprehend and
confuse the language and intent of Section 414 and (2) provide guidance as to the nature of
construction negligence claims, both conceptually and pragmatically in the real world of “hired
out” work.

Section 414 Does Not Create or Contemplate a Vicarious Liability Duty

Since Cochran v. Sollitt Construction Co., 358 Ill. App. 3d 865 (1st Dist. 2005) a number of
appellate courts have construed Section 414 as creating or recognizing (1) vicarious liability on
the part of the employing party and/or (2) “direct” liability, depending upon the degree of control
which is retained. In the authors’ view, this duty bifurcation misapprehends the intent of the
drafters of Section 414, as discerned from the clear language of Comment a to that section.
In Cochran, the plaintiff was an employee of the HVAC subcontractor and was working on overhead
ductwork when he fell from a ladder that was positioned on a plywood board resting on two milk
crates. He sued the general contractor on premises liability and construction negligence theories.
Cochran, 358 Ill. App. 3d at 867. In furtherance of the latter, he claimed that the general
contractor had “control” over the work of the HVAC subcontractor by virtue of the prime contract
with the owner that made Sollitt solely responsible for safety on the job, including compliance
with all applicable state and federal laws and regulations. Using that language, the plaintiff
contended that Sollitt had “control,” even though it was never exercised, and even though the
subcontract delegated that responsibility to the plaintiff’s employer. Id. at
871.
The court held that the concept of “retained control” involved numerous factors, only one of which
was the contract between the owner and the general contractor. In discussing the proper analysis,
it found that Section 414 recognizes two possible theories for liability. The first is mentioned in
Comment a when the “operative detail” which is retained by the defendant is so extensive that the
law of agency applies and the independent contractor is therefore viewed as the agent of the
general contractor. Alternatively, Section 414 deals with “direct liability” in which the level of
control is not so comprehensive as to establish vicarious liability, but is sufficiently extensive
to give rise to a duty on the part of the general contractor to exercise reasonable care for the
safety of the independent contractor’s employees.
Since Cochran, a number of courts have likewise indulged a construction of Section 414 that
presupposes it addresses both respondeat superior and direct liability in construction negligence
cases. See, e.g., Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d 333 (1st Dist.
2008); Wilfong v. L.J. Dodd Construction, 401 Ill. App. 3d 1044 (2d Dist.
2010); Madden v. F. H. Paschen, 395 Ill. App. 3d 362 (1st Dist. 2009); Diaz v. Legat Architects,
Inc., 397 Ill. App. 3d 13 (1st Dist. 2009); Pekin Ins. Co. v. Roszak/ADC, LLC, 402 Ill. App. 3d
1055 (1st Dist. 2010); Ramirez v. FCL Builders, Inc.,
2014 IL App (1st) 123663; Lee v. Six Flags Theme Parks, Inc., 2014 IL App (1st) 130771; and
O’Gorman v. F.H. Paschen,
2015 IL App (1st) 133472. As discussed in Cochran, the basis for that assumption is the reference
in Comment a to “the

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relation of master and servant” in the context of retention of “control over the operative detail
of doing any part of the work.” Cochran, 358 Ill. App. 3d at 874. Flowing from that assumption is
the further thought that references in Comment c to control over “methods of work, or, as to
operative detail” apply to vicarious liability, leaving a lesser degree of control for the
imposition of “direct liability,” under that section. Correspondingly, Comment b with its
requirements of reasonable care in the context of known or imputed dangers applies only to “direct
liability” inasmuch as vicarious liability makes the employer responsible for the acts and
omissions of the contractor without regard to its own neglect.
The author submits that a fair reading of Section 414 and its accompanying comments leaves no room
for the thought that the drafters intended to articulate a vicarious liability standard. In fact,
the language of Comment a compels the opposite conclusion. In Aguirre v. Turner Construction Co.,
501 F. 3d 825, 828 (7th Cir. 2007), the court discussed the language of Section 414 and determined
it did not create a basis for imposing vicarious liability on the general contractor. In that
respect, the opinion states:

The “retained control” theory of negligence liability described in section 414 was adopted by the
Illinois Supreme Court in Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 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., 358 Ill. App. 3d 865, 832 N.E.2d, 355, 361, 295 Ill.
Dec. 204 (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.

Aguirre, 501 F.3d at 828.

As the Aguirre court found, the first sentence in Comment a refers to the principles of vicarious
liability which can be found in the Restatement of Agency, 7.07 ,2.04 §§, as opposed to describing
the circumstances which give rise to a duty in tort law. The purpose of Section 414 is to carve out
a “duty” in instances where the control is retained short of that which is required for vicarious
liability. Id. at 829. Thus, the drafters separated tort law considerations from those which apply
to the master and servant relationship. That demarcation is clear in Comment b which refers to
“[t]he rule stated in this Section” in the context of a duty to exercise “reasonable care.” The
term “Section” is singular and applies to the language of section 414 in its entirety. Thus,
consideration of Comment b in conjunction with Comment a precludes vicarious liability, inasmuch as
exposure under respondeat superior principles is wholly derivative and exists without regard to the
exercise of reasonable care by the principal. Nor does the fabric of Illinois law, as it has
evolved, permit vicarious liability apart from the law of agency and partnership in which the
imputation of liability carries with it attendant defining rights and obligations of the parties
inter se.
“Agency” is a distinct legal theory with its own interrelated rules and principles. As it applies
to third party liability, whether in contract or tort, the principal’s exposure derives from the
conduct or fault of the agent, as opposed to the principal’s own acts or omissions. Thus, the
principal’s liability is vicarious. Because that liability results from the legal relationship of
principal to agent, as opposed to conduct of the former, the principal is entitled to
indemnification from

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the agent. Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461 (2008). In this respect,
agency law is the antithesis of contribution which presupposes the apportionment of fault.
In 1978, the Illinois Supreme Court recognized the inequity of common law indemnity when it
abolished the prohibition against joint tortfeasor contribution. Skinner v. Reed-Prentice Division
Package Machinery Co., 70 Ill. 2d 1 (1978). The next year, in 1979, the legislature adopted the
Joint Tortfeasor Contribution Act (740 ILCS 100/1 et seq.). Under that statute, fault is
apportioned among the parties who are “subject to liability in tort arising out of the same injury”
to the extent that the fault of each contributed to cause any damages which are awarded. 740 ILCS
100/2(a). In the event that one tortfeasor is required to pay more than his “pro rata share of the
common liability,” he is entitled to contribution from the others for the excess. 740 ILCS
100/2(b).
The public policy of fault apportionment which underpins contribution was the death knell of common
law or active/passive indemnification. Attempts to preserve common law indemnity in the face of
contribution and fault apportionment were consistently rejected, even in the instances where it was
clear that the indemnitee did nothing more than fail to discover, warn against or prevent the
indemnitor’s negligence. Frazer v. A. F. Munsterman, Inc., 123 Ill. 2d
245 (1988).
In Allison v. Shell Oil Co., 113 Ill. 2d 26 (1986) the Illinois Supreme Court had earlier applied
the reasoning of Frazer to bar a claim for implied indemnity in a construction injury case. There,
the owner and subcontractor were sued under the former Structural Work Act and common law
negligence for injuries sustained by an employee of Strange & Coleman who fell from a “2 foot by 12
foot board” that his employer failed to secure. Allison, 113 Ill. 3d at 28. The defendants brought
a third party complaint against Strange & Coleman for both implied indemnity and contribution. The
case was tried on those theories and the jury returned a verdict, inter alia, that the defendants
“were entitled to indemnification from Strange & Coleman.” Id. That verdict squarely posed the
issue of whether common law indemnity survived the adoption of the contribution statute. Responding
negatively, the court limited implied indemnity to its traditional theoretical mooring in cases of
vicarious liability, which are actually actions “in quasi – contract.” Id. at 32-
33. In other words, the court stated an implied right to indemnification arose in favor of an
employer or other party found to be vicariously liable for the negligence of an employee or other
party when the employer or other party did not contribute to the injury. Id. at 29. However, it
then specifically found that with the adoption of comparative fault and apportionment principles
“the need for implied indemnity upon an active – passive distinction has also evaporated,”
succinctly stating, “[a]ctive-passive indemnity is no longer a viable doctrine for shifting the
entire cost of tortious conduct from one tortfeasor to another.” Id. at 35.
Following Allison and Frazer, it is well accepted that one tortfeasor is liable for the negligent
acts and omissions of another tortfeasor only in instances where public policy dictates that result
based upon the pre-tort relationship of those parties. Travelers, 229 Ill. 2d at 472. In other
words, imputed liability as a result of a comparison of the conduct of the putative indemnitee and
indemnitor no longer exists.
In the real world of Illinois tort law, the thought that Section 414 permits vicarious liability
apart from fundamental agency relationships is an anachronism that the supreme court rejected 30
years ago. Allison, 113 Ill. 2d at 34. If the putative principal did anything more than hire the
subcontractor, it is liable for its own acts and omissions. On the other hand, if the principal did
nothing more than hire the purported agent, its liability is dictated and defined by the law of
agency, wholly apart from any conduct on its part. Travelers, 229 Ill. 2d at 472.

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permission is prohibited.
In a Contractual Sense “Control” is Determined
From the Agreement Between the Affected Parties

Control in Section 414 cases, including those which recognize vicarious liability, is found
conjunctively in: (1) the contractual rights and obligations of the entrusting and the entrusted
parties and (2) the exercise of those rights and obligations in performing the contracted work.
This portion of the article focuses upon the former, and in particular, upon the debate that has
arisen regarding which contract or contracts should be considered.
Section 414 is most commonly, if not exclusively, considered in the context of construction related
injuries. In that setting the most frequent scenario involves suit by an injured employee of a
subcontractor against the general contractor who allegedly “controlled” the employer’s work. Two
contracts are involved. First is the agreement between the general contractor and the owner that
sets forth the general contractor’s obligations to the owner. As it customarily obligates the
general contractor to perform all of the work on the job competently and safely, the “prime”
contract is the document preferred by plaintiffs to prove “control.” See, e.g., Moss v. Rowe
Constuction Co., 344 Ill. App. 3d 772 (4th Dist. 2004).
However, the general contractor has usually subcontracted away performance of the specialized work
out of which the injury arose. That subcontract traditionally obligates the subcontractor to
competently and safely perform its undertaking, including protecting the subcontractor’s employees
from injury. Understandably, the general contractor prefers to rely upon the subcontract in
defining its control of the work. See, e.g., Martens v. MCL Construction Corp.,
347 Ill. App. 3d 303 (1st Dist. 2004).
Absent express language to the contrary, “control” of a subcontractor’s work is determined in a
contractual sense from the subcontract which delineates and defines what the subcontractor is to
do. Customarily, that agreement also specifies that the subcontractor accepts full responsibility
for the safety of its employees. As the following discussion points out, the trend of focusing upon
the subcontract has dramatically reduced the evidentiary significance of the prime contract to the
point where it carries little or no weight.
In Martens, the court interpreted both the prime contract between the owner and the general
contractor, MCL, and the downstream subcontract for steel erection with the plaintiff’s employer,
F.K. Ketler, in the context of “control” under Section 414. In that analysis, the court recognized
that MCL “reserved a general right to control construction means, methods, techniques, sequences,
procedures and coordination of its work under the contract.” Martens, 347 Ill. App. 3d at 315. That
included responsibility “for initiating and supervising its safety program, which entailed citing
contractors for rule and regulation violations, maintaining reasonable safeguards, and designating
a safety director whose duty was to prevent accidents.” Id. at 316. On the other hand, the Ketler
subcontract placed control over the steel erection work with Ketler including “contractual control
of the supervision and safety of its ironworkers,” together with, inter alia, the requirement “that
Ketler’s foreman was responsible for putting the safety rules into practice.” Id. Comparing the two
contracts, vis a vis, the responsibilities of each for the safety of Ketler employees, the court
had little difficulty in finding that the generalized authority retained by the general contractor
did not amount to the type of “control” which is required to trigger a duty under Section 414.
Specifically, the court held that the generalized supervisory authority possessed by MCL did not
mean that Ketler was controlled as to the manner, means, methods or operative details of its steel
erection work. The identical result was reached by the reviewing court in Shaughnessy v. Skender
Construction Co., 342 Ill. App.
3d 730 (1st Dist. 2003), where the same type of broad authority was retained by the general
contractor, including the

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general contractor’s right to compel compliance with its safety program and in that regard, to
monitor the subcontractor’s compliance with that program.
Relying on the rationale that the general authority vested in a general contractor under a general
contract does not create the type of specific control which is required by Section 414, the Martens
court reasoned that if the language of the general contract in those cases was sufficient to
subject a general contractor to liability under Section 414 “then the distinction in comment c to
section 414 between retained control versus a general right of control would be rendered
meaningless.” Martens, 347 Ill. App. 3d at 316. Thus, it is consistently held that the overall
obligations imposed upon a general contractor under its contract with the owner do not give rise to
a legal duty in favor of a subcontractor’s employees under Section 414 where the subcontract
imposes those responsibilities directly and specifically upon the subcontractor. Rangel v.
Brookhaven Constructors Inc., 307 Ill. App. 3d 835 (1st Dist. 1999); Kotecki v. Walsh Construction
Co., 333
Ill. App. 3d 583 (1st Dist. 2002); Oshana v. FCL Builders, Inc., 2012 IL App (1st) 101628, ¶ 26;
and Rogers v. West
Construction Co., 252 Ill. App. 3d 103 (4th Dist. 1993).
Exceptions to the preceding rule are found in Moss v. Rowe Const. Co., supra, and Moorhead v.
Mustang Construction Co., 354 Ill. App. 3d 456 (3d Dist. 2004), where the prime contract placed
exclusive responsibility for safety upon the general contractor. In Moss, the general contract
prohibited delegation without the written consent of the owner, IDOT, stating in that regard, “[n]o
portion of the contract shall be sublet, assigned, or otherwise disposed of except with the written
consent of the SHA contracting officer, or authorized representative, and such consent when given
shall not be construed to relieve the contractor of any responsibility for the fulfillment of the
contract.” Moss, 344 Ill. App. 3d at 774.
In Moorhead the prime contract stated that the general contractor, Mustang, “shall be fully and
solely responsible for the jobsite safety.” Moorhead, 354 Ill. App. 3d at 461. When referring to
that provision the court found: “[t]he contract does not allow Mustang to replace its obligation to
control the safety of the project.” Id.
Falling between those cases that rely upon the prime contract to establish a duty on the general
contractor’s part to the employees of its subcontractors and those that look to the subcontractor
is Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663. In Ramirez, the court recognized that
while the relationship between the general contractor and the employees of a subcontractor is best
defined by the contract between those parties, the agreement between the general contractor and the
owner nonetheless has some probative value. This “middle of the road” approach probably reflects
the majority view in which both contracts will be admitted, discussed and argued.
Section 414 focuses upon the relationship between the party “who entrusts work to an independent
contractor” and the entrusted contractor who is to perform the work. Id. ¶ 120. All too often,
litigants and the courts lose sight of the direct nature of that relationship in considering the
former’s role in performing the overall work of which the entrusted job is a part. The fact that a
general contractor agrees to provide the owner with a finished product does not mean that it
accepts responsibility for how each of its subcontractors does their jobs or for injuries suffered
by the employees of those subcontractors in doing their jobs. If the rule were otherwise, then
questions of control would be answered by the general contractor’s agreement to do the work.
To the contrary, while of some evidentiary value in understanding the overall project, the prime or
general contract is subordinate to the subcontract pursuant to which a relevant portion of that
work is entrusted by the general contractor to a subcontractor. Oshana v. FCL Builders, Inc.,
supra, and Ramirez v. FCL Builders, Inc., supra. Instead of depending upon the overarching
obligations accepted by the general contractor in agreeing to do the work, the courts in Section
414

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cases focus upon the subcontract between the general contractor and the subcontractor in
ascertaining the nature and scope of the work which is entrusted.

Subcontracts Embody the Real World Delegation of Rights and Responsibilities

The rationale that supports the evidentiary priority accorded to subcontracts in construction
negligence cases is underpinned by recognition that the specialized work of subcontractors and
skilled tradesmen is customarily, if not uniformly, delegated to those with the technical knowledge
that is required to perform that work. Thus Comment c to Section 414 distinguishes between the
general contractor’s “general right to order the work stopped or resumed, to inspect its progress
or receive reports, to make suggestions or recommendations which need not necessarily be followed,
or to prescribe alterations and deviations” and its retention of “at least some degree or control
over the manner in which the work is done.” The former is inherent in the general contractor’s
undertaking with the owner. Kotecki, 333 Ill. App. 3d at 587. The latter reposes in the specialized
skills of the subcontractor which include how to safely perform its work. Martens, 347 Ill. App. 3d
at 316. As a general rule, the reality of delegation is found in the complementary language of the
general contract and the subcontract.
In the former, the general contractor customarily agrees to require its subcontractors to adhere to
the same responsibilities toward the owner as the general contractor has undertaken. Each
subcontractor then agrees to do so in its subcontract. Oshana v. FCL Builders, Inc., 2012 IL App
(1st) 101628 and O’Gorman v. F.H. Paschen, 2015 IL App (1st)
133472.
It is well recognized that delegation of specialized areas of the work is consonant with the
customs of the construction industry, where it is recognized that each subcontractor and trade
brings a different skill to the job. That reality was specially recognized in Rogers, 252 Ill. App.
3d at 103, 107, where the court acknowledged that the general contractor was entitled to rely upon
the “expertise and experiences” of its subcontractor, Oshana involved an ironworker employed by the
structural steel erection subcontractor, JAK Ironworks. He sued the steel fabrication contractor,
Suburban Ironworks, Inc., whose agreement with the general contractor, FCL Builders, Inc., included
both steel fabrication and erection. In referring to the plaintiff’s claims as they related to the
FCL/Suburban contract the court stated inter alia:

. . . Suburban’s scope of work in the initial FCL/Suburban subcontract included both steel
fabrication and erection. In that initial subcontract, Suburban agreed to furnish the necessary
management and supervision to perform and complete the contract; assumed responsibility to prevent
accidents to its agents, invitees and employees; agreed to take all reasonable safety precautions
with respect to the work to be performed under the contract; and agreed to maintain at all times a
qualified and skilled superintendent or foreman at the site of the work. Plaintiff and FCL contend
that those supervisory and safety duties, which Suburban had assumed toward FCL, were not passed on
to JAK in the Suburban/JAK subcontract. According to plaintiff and FCL, Suburban was responsible
for safety within the scope of its work, and steel erection was included within that scope.
Othana, 2012 IL App (1st) 101628, ¶ 24.

In affirming summary judgment in favor of Suburban, the court found:

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In response, Suburban acknowledges that it initially undertook, in accordance with industry custom
and practice, contractual responsibility for both the steel fabrication and erection work. However,
Suburban, in accordance with the terms of its initial subcontract with FCL, subcontracted out the
erection work to JAK, a competent subcontractor, and thereby delegated the supervisory and safety
responsibilities attendant to that erection work to JAK.

Id. ¶ 26.

The delegation that is recognized in Oshana, and Rogers, is in accord with construction custom and
practice and is also in line with numerous opinions that support summary judgment in favor of
general contractors who have subcontracted all aspects of the work out of which an accident occurs,
retaining only the type of general authority which does not trigger a duty under Section 414 of the
Restatement (Second) of Torts. See Steuri v. Prudential Insurance Co. of America, 282 Ill. App. 3d
753 (1st Dist. 1996) (finding general contractor delegated responsibility for the details of the
work to subcontractor); Moiseyev v. Rot’s Building and Development Inc., 369 Ill. App. 3d 338 (3d
Dist. 2006) (affirming entry of summary judgment in favor of general contractor where it has been
shown responsibility for details of the work delegated to subcontractor); Joyce v. Mastri, 371 Ill.
App. 3d 64 (1st Dist. 2005) (affirming summary judgment in favor of general contractor where
subcontractor was contractually responsible for jobsite safety and general contractor took no
active role in insuring safety); Martens, 347 Ill. App. 3d at 313 (stating that a contractor
unknowledgeable about the details of some task usually delegates that work to an independent
contractor); see also O’Gorman v. F.H. Paschen, 2015 IL App (1st) 133472.
Nor do the provisions of OSHA impose a non-delegable duty on general contractors contrary to
Illinois law. As held in Downs v. Steel & Craft Builders, Inc., 358 Ill. App. 3d 201 (2d Dist.
2005), an exception to that effect “would swallow the rule, because no matter what steps defendant
would take to shield itself from liability, the OSHA provisions inevitably would pierce defendant’s
armor, striking a fatal blow that otherwise would be blocked under the theories advanced by
plaintiff.” Downs, 358 Ill. App. 3d at 209.
Synthesizing the preceding authorities in the context of the realities of the multi-faceted
construction industry demonstrates the distinction between the general authority vested in the
general contractor under the prime contract with the owner and the implementation and effectuation
of that authority as it is delegated to the various subcontractors. By that delegation each of the
specialized trades is responsible for the “operative details” of its work while the general
contractor is obligated to the owner for the finished product.

For Liability to Attach the “Controlling” Party Must Have Actual or Constructive Knowledge of the
Hazardous Condition or Work Practice

Curiously, the battle lines in construction negligence cases under Section 414 of the Restatement
(Second) of Torts are almost always drawn exclusively on the “control” issue. While “control”
within the Restatement’s meaning of that term is the sine qua non before a legal duty arises, a
finding of “control” is akin to cocking the hammer on a gun. As set forth in the express language
of Section 414, the controlling “employer owes a duty to exercise reasonable care” and is “subject
to liability for physical harm to others . . . which is caused by his failure to exercise his
control with reasonable

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permission is prohibited.

care.” Thus, the cocked hammer is triggered by the negligence of the defendant in failing to
exercise “his control with reasonable care.”
Reasonable care takes into account the controlling party’s actual or constructive knowledge of the
hazardous condition or unsafe work practice which caused the injury. In that respect the following
language of Comment b is both instructive and controlling:

b. The rule stated in this Section 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. In such a situation, the principal contractor is subject to liability
if he fails to prevent the subcontractors from doing even the details of the work in a way
unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know
that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising
the power of control which he has retained in himself. So too, he is subject to liability if he
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 cause the subcontractor to do so. (Bold italics supplied).

Restatement (Second) of Torts § 414 cmt. B (1965).

The boldly emphasized language in the preceding quotation of Comment b is intended to highlight the
requirement of actual or imputed knowledge of the risk in question as a condition precedent to
liability. It is significant to understand that the knowledge which is required to “trigger” the
duty to prevent resultant injury is independent of the retained control which permits the defendant
to prevent that injury. In this respect the “duty” derived from “control” is remedial as opposed to
investigative. That is to say, the drafters of Section 414 do not appear to contemplate an
obligation on the part of a “controlling” party to affirmatively investigate or seek out hazardous
conditions or unsafe work practices with the objective of preventing them. This is in
contradistinction to the mandate under the Structural Work Act that a party “having charge of the
work” was obligated to correct any violations of which he “could have known.” Kennerly v. Shell Oil
Co., 13 Ill. 2d 431 (1958) and Smith v. Georgia Pacific Corp., 86 Ill. App. 3d 570 (3d Dist. 1980).
Whether tied to the overall work or the specific work which caused the injury, “reasonable care”
relates to what the defendant “knew or had notice of.” Rangel, 307 Ill. App. 3d at 838-839. As
otherwise expressed, a party having control of the work has preventive and/or remedial
responsibilities only as to those hazards of which he has actual knowledge or reason to know.
Bieruta v. Klein Creek Corp., 331 Ill. App. 3d 269 (1st Dist. 2002). There is no a priori
obligation to require safe practices or inspect the work of others to insure compliance with safety
standards. Hutchcraft v. Independent Mechanical Industries, Inc., 312 Ill. App. 3d 351 (4th Dist.
2000).
Appellate decisions under Section 414 have consistently required that a controlling
defendant have know- ledge of the risk before liability would attach. As succinctly stated in
Cochran, “[a]ccording to comment b to section 414, the general contractor’s knowledge, actual or
constructive, of the unsafe work methods or a dangerous condition is a precondition to direct
liability.” Cochran, 358 Ill. App. 3d at 879-80.
In Rangel, the plaintiff slipped as he stepped onto the third brace of a drywall scaffold. In
affirming summary judgment, the appellate court found inter alia the general contractor neither
knew nor had reason to know of the unsafe method of performing the work. Rangel, 307 Ill. App. 3d.
at 389.

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Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without
permission is prohibited.

Likewise in Shaughnessy, the court found that neither the general contractor nor the steel
fabrication contractor had either the opportunity or reason to know that the plaintiff would use a
defective board “to span the gap between the tower and the ledge of the wall opening.” Shaughnessy,
342 Ill. App. 3d at 734. In that respect, the court emphasized inter alia:

Moreover, no one from Skender or Garbe saw plaintiff engage in the unsafe practice that led to his
injury or even had noticed 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.

Id. at 739-40.

In Martens, the court emphasized the absence of evidence that the defendants were aware or had
reason to know that the “work was being done in an unsafe manner before the plaintiff was injured.”
Martens, 347 Ill. App. 3d at 319.
The same result was reached in Cochran There, the plaintiff fell from a ladder which he had
positioned on a piece of plywood “placed atop two milk crates set in a drainage pit.” Cochran, 358
Ill. App. 3d at 868. In affirming summary judgment based upon both the absence of control and lack
of knowledge of the hazard, the court stated:

Here, as noted, Cochran admitted that the unsafe ladder setup created by Anderson’s foreman
Wesselhoff was in existence for an hour at the most before his injury, which occurred in a
relatively remote location in the sub- basement of the hospital. None of Sollitt’s “competent
persons” had observed the unsafe setup during that short period of time. As we stated in Rangel, no
liability lies on such facts: “This unsafe method of performing the work, which led to [the
plaintiff’s] injury, was proposed by [his] employer just hours before the accident. Here,
*** there is nothing to suggest that the general contractor knew or had notice of the hazardous
method employed within this restrictive time period.”

Id. at 880.

The same outcome was compelled in Calderon, where the plaintiff, a roofer, fell off a ladder as he
was attempting to carry “a 60-pound bundle of shingles to the rooftop.” Calderon, 381 Ill. App. 3d
at 335. The accident took place on a Saturday when the defendant was not present and involved the
decision of the plaintiff and his employer not to use a “boom crane” or “conveyor-type apparatus”
for that purpose. Recognizing that claims under Section 414 require actual or constructive
knowledge of an unsafe work practice or hazardous condition, even if a control-based duty exists,
the court stated:

“[T]he general contractor’s knowledge, actual or constructive, of the unsafe work methods or a
dangerous condition is a precondition to direct liability.” Cochran, 358 Ill. App. 3d at 879-80.
When a general contractor has an insufficient opportunity to observe unsafe working conditions,
then knowledge will not be inferred and direct liability will not ensue. See Pestka, 371 Ill. App.
3d at 302-03; Cochran, 358 Ill. App. 3d at 880; Rangel,
307 Ill. App. 3d at 839.

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Statements or expression of opinions in this publication are those of the authors and not
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Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without
permission is prohibited.

Calderon, 381 Ill. App. 3d at 347.

Each of the preceding cases involved either a transient condition of short duration or an unusual,
if not unique, work practice adopted by the injured employee. Under those circumstances, the
defendant would neither know of the risk nor be expected to discover or anticipate it. However,
where the condition or practice is either open and obvious or continuous, its ubiquity will be
imputed to the general contractor thereby satisfying the knowledge requirement, despite professions
of ignorance. In Ramirez, the defendant knew that workers would have to manually move rolls of
heavy roofing membrane materials because it discontinued the use of ATVs for that purpose.
Likewise, in Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, the unprotected window
opening through which the deceased masonry laborer fell was an open and obvious hazard of which the
general contractor had constructive, if not actual knowledge. In Diaz v. Legat Architects, Inc.,
397 Ill. App. 3d 13 (1st Dist. 2009), the absence of a straight brace at the top level of a
scaffold was a defect which the general contractor actually observed.
Whether or not a defendant had actual or constructive knowledge of the dangerous condition or
unsafe work practice, therefore turns upon a nature and duration of the hazard and the contractor’s
exposure to it. Where the condition or practice is open and obvious or it is actually observed by
the defendant’s superintendent or project manager, it is no defense that those supervisory
employees lacked sophistication to appreciate the hazard. Diaz, 397 Ill. App. 3d at 36. On the
other hand, where the defendant contractor lacks the opportunity to observe the danger, knowledge
will not be imputed and liability will not follow. Lee v. Six Flags Theme Parks, 2914 IL App (1st)
130771.
In Lee, there was no evidence that “Six Flags personnel had any contact with the job site on the
date of the incident, knew the platform would be removed, or that [plaintiff] would remove his fall
protection gear.” Lee, 2014
IL App (1st) 130771, ¶ 105. Likewise, in Madden, 395 Ill. App. 3d at 364–65, the reviewing court
found as a matter of law that the defendant neither knew nor had reason to know that the plaintiff,
a high school maintenance worker, would be setting up a screen in proximity to an uncovered
orchestra pit. In O’Gorman, the plaintiff, an employee of the defendant’s masonry subcontractor,
stepped on a piece of wood with a nail embedded in it. While extracting the nail he lost his
balance and fell through an uncovered roof hatch to the floor below. In affirming summary judgment
in favor of the general contractor, the first district inter alia held that the defendant neither
knew nor should have known of debris on the roof which could or might precipitate the type of
injury which resulted. In that regard, the court held:

In the case at bar, we note that it is not clear whether the nail was even left by Old Veteran
employees or the precise day that the nail was left on the roof, as no one testified that he or she
was actually present when the nail was left on the roof. Additionally, none of defendant’s
employees went onto the roof until after plaintiff’s accident, when Swart went to the roof to try
to locate the nail. Accordingly, in the absence of any evidence as to actual or constructive
knowledge of Old Veteran’s allegedly unsafe work methods, there can be no direct liability against
defendant.

O’Gorman, 2015 IL App (1st) 133472 ¶ 101.

While it is difficult, and sometimes foolish, to synthesize the holdings in a large number of cases
for the purpose of distilling a series of rules to serve as guides for future cases, the effort is
probably worthwhile where, as here, the same

IDC Quarterly Volume 25, Number 4 (25.4.37) | Page 11
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Statements or expression of opinions in this publication are those of the authors and not
necessarily those of the association. IDC Quarterly, Volume 25, Number 4. © 2015. Illinois
Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without
permission is prohibited.

issue is certain to arise frequently in future cases. With the preceding admonitions in mind, the
following factors are juxtaposed as significant in determining whether a defendant had or lacked
sufficient actual or constructive knowledge of a hazardous condition or unsafe work practice to
satisfy the requirements of Section 414:

FACTORS INDICATING ACTUAL OR CONSTRUCTIVE KNOWLEDGE (1) Creation of the condition or practice;
(2) Defendant actually observed the condition or practice, or\

(3) The condition or practice was longstanding and/or ubiquitous on the jobsite;

(4) There is evidence that the defendant had a supervisory employee or employees in the vicinity
of the condition or practice.

FACTORS VITIATING ACTUAL OR CONSTRUCTIVE KNOWLEDGE

(1) The defendant did not have a presence on the jobsite while the practice or condition existed;

(2) The defendant was not in the vicinity and had no reason to be in the vicinity of the condition
or practice; (3) The condition or practice was a singular event of short duration;
(4) The condition or practice was created by the plaintiff shortly before the accident;

(5) The condition or practice was unique or uncommon in the sense that its existence would not be
expected or anticipated by the defendant.

There are undoubtedly other factors which will come to light in assessing the defendant’s actual or
constructive knowledge of a construction related risk. However, the overarching consideration is
the understanding that the defendant’s knowledge is an essential element of the plaintiff’s case.

Conclusion

Since the Structural Work Act was repealed in 1995, there have been well over 60 reported decisions
defining, evaluating, and delineating the boundaries of common law construction negligence under
Section 414 of the Restatement (Second) of Torts. Other than automobile and slip and fall cases, no
other area of tort law has come close to the volume of construction related appellate decisions
that consider how, when, if, and under what circumstances an injured party may recover from third
persons for injuries that were wrongfully caused. This article and its predecessors attempt to
provide a trail through an ever encroaching thicket of opinions that threaten to confound
comprehension of the tort and its elements. The present contribution to that effort focuses on four
areas that are central to an understanding of Section
414 as it was drafted, and as it has been and should be interpreted in Illinois. Until the Illinois
Supreme Court accepts another construction negligence case, and thereby articulates the parameters
of the tort, the attempt to synthesize to the law in this area is and must be ongoing.

IDC Quarterly Volume 25, Number 4 (25.4.37) | Page 12
Illinois Association of Defense Trial Counsel | www.iadtc.org | 800-232-0169
Statements or expression of opinions in this publication are those of the authors and not
necessarily those of the association. IDC Quarterly, Volume 25, Number 4. © 2015. Illinois
Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without
permission is prohibited.
IDC Quarterly Volume 25, Number 4 (25.4.37) | Page 13
Illinois Association of Defense Trial Counsel | www.iadtc.org | 800-232-0169
Statements or expression of opinions in this publication are those of the authors and not
necessarily those of the association. IDC Quarterly, Volume 25, Number 4. © 2015. Illinois
Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without
permission is prohibited.
About the Authors
David B. Mueller is a partner in the Peoria firm of Cassidy & Mueller, P.C. His practice is
concentrated in the areas of products liability, construction injury litigation, and insurance
coverage. He received his undergraduate degree from the University of Oklahoma and graduated from
the University of Michigan Law School in 1966. He is a past co- chair of the Supreme Court
Committee to revise the rules of discovery, 1983-1993, and presently serves as an advisory member
of the Discovery Rules Committee of the Illinois Judicial Conference. He was member of the Illinois
Supreme Court Committee on jury instructions in civil cases and participated in drafting the
products liability portions of the 1995
Tort Reform Act. He is the author of a number of articles regarding procedural and substantive
aspects of civil litigation and lectures frequently on those subjects.

Brian A. Metcalf is an associate with Cassidy & Mueller, P.C. He is a graduate of the U.S. Air
Force Academy and the St. Louis University School of Law. His practice concentrates in the field of
civil litigation in both state and federal courts focusing in the areas of products liability,
construction injury, civil rights litigation, and municipal tort liability.
About the IDC
The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in
Illinois who devote a substantial portion their practice to the representation of business,
corporate, insurance, professional and other individual defendants in civil litigation. For more
information on the IDC, visit us on the web at www.iadtc.org or contact
us at PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, idc@iadtc.org.

"The law is not an inflexible structure whose walls restrain progress. Rather, it needs to be nudged molded and shaped. An able advocate best represents his client by convincing the Courts of that fact."

John E. Cassidy. Sr. (1896-1984)
Firm Founder Illinois Attorney General (1938-1940)