The Illinois Appellate Court recently found that where an employer has the power to inspect the work of a contractor, but not to control the manner of such work, that employer does not retain sufficient control over the work to give rise to a duty to the contractor’s employees.
Samuel Escareno v. Terra Cotta Commons Condominium Association, et al., 2014 IL App (1st) 120682-U, involved a construction site injury wherein Escareno, an employee of Sherwin Painters, Inc., was injured after falling off a ladder while trying to replace a window screen. The property was owned by Terra Cotta and managed by Kass Management Services, which hired Sherwin to provide paint and labor. Escareno sued Kass and Terra Cotta for his injuries, claiming that his employer, Sherwin, had sought permission to tie its ladders to the building due to high wind conditions, but the defendants refused, leading to the plaintiff’s eventual fall and injury.
Kass and Terra Cotta moved for summary judgment, arguing, in addition to the plaintiff’s contributory negligence, that because they did not retain control of Escareno’s work, they did not owe him any duty of care. In support of their motion, the defendants attached deposition testimony supporting the fact that Kass and Terra Cotta, despite their full-time presence on site, never provided Escareno instructions or directions on how to perform his work, nor did they provide him with any equipment. The trial court granted summary judgment in favor of Kass and Terra Cotta, and the plaintiff appealed.
On appeal, the plaintiff contended that Kass and Terra Cotta retained enough control over the job site sufficient to owe a duty of care to him and his co-workers. In affirming the trial court’s decision, the Appellate Court cited the Restatement (Second of Torts), which specifies that it is not enough to merely be able to order the work stopped or inspect its progress. Rather, to retain enough control to owe a duty of care to the plaintiff, Kass and Terra Cotta would have had to supervise the work and Sherwin’s employees — including the plaintiff — would not have had the freedom to perform the work in their own manner. As such, because no such control was ever exercised by Kass or Terra Cotta, no such duty of care ever arose between the defendants and plaintiff.
The Appellate Court’s April 9 opinion represents a victory for Illinois contractors as it focuses the necessary factors to create a duty of care upon work site conduct as opposed to general — and often boilerplate — language in a contract.