The employee of a lower-tier sub was injured, and sued the general contractor with a claim based on the GC’s general duty of safety on the site. The employee’s claim was based on three specific factors leading to his injury: the rebar pieces he was installing were too long, the workspace area was too confined, and there was too much loose, falling dirt. An Illinois appellate court has held that the GC’s general duty of safety does not create liability of the GC, when the specific causative factors are within the control of the lower-tier employer.
The employee claimed that the GC failed to –
• make a reasonable inspection of the premises.
• operate, manage, maintain and control the premises.
• provide plaintiff with a safe place to work.
• warn plaintiff of the dangerous conditions.
• provide adequate safeguards.
• supervise work being done.
• provide a safe and proper excavation.
• provide safe and proper material to be placed within the excavation.
The GC did, as is typical, have a general duty to maintain a safe worksite. But the GC had delegated via subcontract the duty of each sub to “establish and implement safety measures, policies and standards” for its own operations.
The plaintiff worker testified that he took direction from his own foreman and from the first-tier sub’s foreman, but not from any GC representative. He also testified that he complained to the first-tier foreman about the rebar size and confined space, but nothing was done. In short, none of his specific complaints were based on any actions of the GC, nor on any failure of the GC to act after being warned.
The court noted that a GC who engages an independent contractor (such as a sub) but retains “the control of any part of the [sub’s] work, is subject to liability for physical harm to others.” However, if the sub exercises sufficient control over the work, “then the general rule no longer applies.”
The court also noted that the issue of “retained control” by the GC could be decided as a matter of law, based on the subcontract language, assuming no evidence of retained control contrary to that subcontract language. Here, the sub was given by the subcontract terms, and was exercising in fact, control over the injured worker’s specific tasks and work area. There was no evidence that the GC in this instance had retained any control over the sub’s tasks or work area.
The court held: “a general right to enforce safety does not amount to retained control [under § 414 of the Restatement (Second) of Torts].” Further, “we find nothing within the contracts indicating that [the GC] retained control such that [the sub] was not entirely free to do the work in its own way.” Thus, the GC would not be liable to the worker based only on the general duty of safety, when the injury arose from factors within the subcontractor employer’s control.
The case is Lepretre v. Lend Lease US Constr., 2017 Ill. App. LEXIS 413 (June 26, 2017).