Blog

The Takeaway

A recent ruling by Illinois’ Second District Appellate Court[1] reinforced the fact that contract language granting a general contractor the general right to stop work—particularly if it does not give the general contractor control over the operative details of the subcontractor’s work—is insufficient to impose the requisite contractual control to establish a duty of care on that general contractor under Section 414 of the Restatement.

The ruling also upheld the well-established point of law that to attach liability under a premises liability theory under section 343, plaintiffs must provide some evidence of actual or constructive notice of the unsafe condition. Failure to do so warrants summary judgment.

Background

Plaintiff, Thomas W. Neisendorf, an employee of subcontractor Campton Construction, Inc. (“Campton”), filed suit against general contractor Abbey Paving Co, Inc. (“Abbey”) alleging he was injured when a trench wall collapsed on him at McHenry County’s government center. He alleged Abbey failed to erect, construct, or place a safe, suitable, and proper protective system for shoring walls to facilitate the construction/excavation project. He further alleged that Abbey had a duty to exercise reasonable care in its control over the project and had a nondelegable duty to provide a safe workplace. Id. at ¶ 5. Abbey moved for summary judgment, arguing that: (1) it owed no duty to plaintiff because it did not retain the requisite control over the operative details of Campton’s work, and (2) it had no actual or constructive notice of the alleged dangerous condition posed by the unsecured trench. Id. ¶ 51.

The circuit court granted Abbey’s motion for summary judgment. The court found there was no evidence Abbey’s contract with the county created an “automatic duty owed to plaintiff.” The court also found that Abbey did not retain any control over the “incidental aspects” of Campton’s work so as to give rise to a duty. Id. ¶ 55. In regard to the premises liability allegations brought pursuant to section 343, the court found that Campton not Abbey maintained responsibility for the trench work, and Abbey had no actual or constructive notice the trench presented an unsafe condition. Id. ¶ 56.

Neisendorf appealed

Analysis of Appellate Court Ruling

In his appeal, Neisendorf argued that there were material factual questions about: (1) whether Abbey retained sufficient control over Campton’s work to the point that it owed him a duty of care under section 414 of the Restatement, and (2) Abbey owed him a duty of care under section 343 Id. ¶ 58.

Did Abbey Owe Appellant a Duty of Care Under Section 414 of the Restatement

Neisendorf argued that the contract between the county and Abbey showed that Abbey owed him a duty because Abbey had the power to stop Campton from performing unsafe work. Furthermore, he claimed that Abbey had sufficient control to invoke a duty to exercise its supervisory control with reasonable care under section 414. Id.

The appellate court noted that the contract between McHenry County and Abbey provided that Abbey:

shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures, and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters.” Id. at ¶ 75.

The appellate court reviewed two cases with similar contract language. In Cochran v. George Sollitt Construction Company, 358 Ill. App. 3d 865 (1st Dist.), the court found no evidence that the general contractor controlled the operative details of the subcontractor’s work such that the subcontractor’s “employees were not entirely free to perform the work in their own way.” The court in Shaughnessy v. Skender Construction Co., 342 Ill. App. 3d 730 (1st Dist. 2003) affirmed summary judgment for the general contractor and subcontractor against the sub-subcontractor, holding that the contract “establish[ed] only that [the general contractor] and [the subcontractor] reserved a general right to stop, start and inspect the progress of the work.”

Based on the case law from those two cases, the appellate court rejected plaintiff’s argument. It found that the contract before it did not grant Abbey control over the operative details of Campton’s work; it had only the general right to stop work. These were insufficient to grant Abbey the requisite contractual control. Id. at ¶ 81.

Next, the appellate court rejected plaintiff’s argument that the fact that Abbey could stop work was in itself sufficient evidence of control under section 414 of the Restatement. Id. at ¶ 87. According to the appellate court, the evidence was undisputed that the power over safety issues that Abbey had over Campton was only a general power. Id. at ¶ 89.

Did Abbey Owe Appellant a Duty of Care Under section 343 of the Restatement

Neisendorf also argued that Abbey had actual or constructive notice of a dangerous condition such that it owed him a duty of care under section 343. Plaintiff claimed Abbey owed him a duty of care under section 343 because: (1) Abbey possessed the land where he was injured, and (2) the blueprints gave Abbey actual notice that the trench was over 5 feet deep and unsafe without shelving, shoring, or a trench box. The trial court had found that Abbey did not have actual notice that the trench presented an unsafe condition. The court noted that Campton, not Abbey, maintained responsibility for the trench work. Abbey was not consulted about nor did it have any involvement with the use of a trench box, shoring, or shelving. Furthermore, it found that Abbey was not involved in digging the trench and did not provide any equipment for the trench. The court stated that even if Abbey knew from blueprints or otherwise that the depth would be over 5 feet, there was no evidence that Abbey knew the trench was unsupported or unsecured or that shoring was required by law or contract. Id. at ¶ 98.

Thus, the appellate court concluded that Abbey had no constructive notice of anything being unsafe with the trench. It disagreed with plaintiff that there was a question as to how long the unsafe trench depth existed at the site. The court noted that the time between digging out the trench and its collapse was less than one hour. Abbey’s superintendent—the only Abbey person on site on the day of plaintiff’s accident—arrived about four minutes before the trench collapsed. The appellate court found that his presence at the site for such a limited period was not sufficient to create a material factual question concerning Abbey’s constructive notice of the dangerous condition. Id. at ¶ 103.

Conclusion

The justices found that the general contractor did not retain sufficient control over the subcontractor to impose liability under section 414 of the Restatement (Second) of Torts. Furthermore, it found that plaintiff failed to show actual or constructive notice of any unsafe condition under section 343 of the Restatement (Second) of Torts.

[1] Neisendorf v. Abbey Paving & Sealcoating, Co., Inc., 2024 IL App (2d) 230209