In the closing days of October, the Illinois Supreme Court held that the defendants were not liable to the plaintiff for serious personal injuries to the plaintiff in Carney v. Union Pacific Railroad Company.
In Carney, the defendant agreed with a contractor to demolish and remove certain unused bridges. The agreement provided that all work to be performed by the contractor was to be completed to the railroad’s satisfaction. The railroad retained the right to stop or make changes in the work, and to terminate the contract immediately if the contractor’s services were unsatisfactory. The contractor enlisted the assistance of a bridge demolition company as sub-contractor for the removal. The contractor had allegedly never removed a similar plate girder bridge. While the bridge was being removed, a beam snapped, and the western girder fell towards the east, severely injuring the plaintiff. The plaintiff resolved his claims against the subcontractor and contractor, but proceeded against the railroad. The railroad moved for summary judgment; the trial court initially denied the motion, but then allowed reconsideration and granted summary judgment. The plaintiff then sought reconsideration, and the trial court reversed itself yet again, denying summary judgment. The railroad sought a supervisory order from the Supreme Court, and the Supreme Court directed the court to vacate its most recent order and reinstate summary judgment for the railroad. The Court of Appeal reversed. The Court held that whether or not the defendant owed a duty to plaintiff depended on to what degree it controlled the work. The Court noted that the defendant retained the right to terminate the agreement, remove any employee or equipment, or makes changes in the dimensions of the job. Under the circumstances, there was a material issue of fact as to whether the defendant had sufficient control to create a duty.
In an opinion by Justice Theis, the Supreme Court reversed. The plaintiff in Carney argued three theories for which the railroad was liable for the accident: Restatement Section 414, which governs negligence in exercising control over a project retained by the employer; Section 411, which addresses negligent selection of the contractor, and Section 343, which governs dangerous conditions known to or discoverable by the owner/occupier of land.
The majority agreed that the plaintiff had not stated a claim under Section 414. The plaintiff pointed to provisions allowing the railroad to terminate the contractor’s services if it deemed them unsatisfactory, requiring the contractor to perform in a workmanlike manner, and allowing the defendant to stop work or make changes. The majority held that these clauses were nothing more than the general rights reserved to anyone employing a contractor. The plaintiff cited clauses allowing the railroad to remove equipment used by the contractor which the railroad deemed unsafe for its right-of-way, but “[a] general right to enforce safety . . . does not amount to retained control.”
Nor did the railroad’s conduct prior to or following the accident suggest retained control. None of the employees at the scene testified to having received any instructions from the railroad’s employees before the girder fell. Railroad employees discussed next steps with employees of the contractor following the accident, but the railroad argued that the employees’ comments were merely “suggestions” which the contractor was free to disregard, and the railroad’s involvement was merely in the interests of promoting worker safety. This conduct, the majority found, was insufficient as a matter of law to establish a duty under Section 414.
The majority then turned to the claim of liability under Section 411 for negligent selection of the contractor. The plaintiff’s problem with Section 411, the majority found, was that the Section established a duty in relations to injuries “to third persons.” Although there was a triable dispute of fact as to whether the railroad had been negligent in its selection of the contractor, the majority held that the plaintiff was not a “third person” within the meaning of Section 411. Section 411 liability is intended to protect members of the general public who might be unaware of the risk to their safety. The plaintiff, on the other hand, was in a position to protect himself against the risks involved in the removal of the bridge.
Finally, the majority turned to Section 343, “dangerous conditions on the land.” The condition at issue was the steel plate extending several feet into the roadbed on which the plaintiff was standing at the time of the accident. But the steel plate was not a condition “on the land”; it was part of the bridge. Even assuming that the steel plate was “on the land,” there was no basis for concluding that the defendant had actual or constructive knowledge of how far it extended. Therefore, there was no basis for a finding of liability under Section 343.
Justice Kilbride dissented, arguing that the Appellate Court correctly found triable issues of fact with respect to all three theories of liability.