Heck v. SimplexGrinnell, LP

Filing 69

MEMORANDUM Opinion and Order Signed by the Honorable Sheila Finnegan on 2/23/2016: Defendant's Motion for Summary Judgment 35 is granted, and Judgment will be entered in favor of Defendant. Civil case terminated. [For further details see memorandum opinion and order.] Mailed notice. (is, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
GARY HECK,
Plaintiff,
v.
SIMPLEXGRINNELL LP
Defendant.

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No. 14 C 5491
Magistrate Judge Finnegan

MEMORANDUM OPINION AND ORDER
Defendant SimplexGrinnell LP entered a contract to install fire protection
equipment at a customer site, and subcontracted certain of the electrical work to
Hartmann Electric Co. Plaintiff Gary Heck, a Hartmann electrician, sustained injuries
when he fell over pipes while completing that work. He then brought this negligence
action, alleging that Defendant is liable for the injuries.1 Plaintiff asserts myriad theories
of negligence, each premised on alleged failures of Defendant: failure to inspect, failure
to provide a safe place to work, failure to properly maintain the room where the accident
occurred, failure to provide prior warning of dangerous conditions, failure to provide
“adequate safeguards” that might have prevented the injury, and failure to supervise his
work. (Doc. 1-1, at 3-4). Each theory necessitates that Plaintiff first demonstrate that
Defendant owed him a duty of reasonable care. Defendant has moved for summary
judgment, asserting that, as a general contractor, it owed no duty of care to Plaintiff
unless it retained control over his work, which it did not. Plaintiff disagrees, contending

1

Following removal of this diversity action from state court, the parties consented to the
jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).

that Defendant exercised sufficient control to create a duty. For reasons discussed
below, the Court grants Defendant’s motion for summary judgment.
BACKGROUND2
Defendant is in the “fire protection business.” (Doc. 46-1, at 9:11-13). In 2009, it
entered a “Building Services Agreement” with customer Griffin Capital for service and
ongoing inspection of its fire alarm system. (Doc. 46-5, at 37-49). Approximately two
weeks before Plaintiff’s accident in June 2012, Defendant entered into a “Services and
Goods Order Agreement” (the “Services Agreement”) with the customer for installation
of a “low air trouble alarm” in the customer’s “Fire Pump Room.” (Doc. 46-6; Doc. 49 ¶
8; Doc. 46-1, at 9:11-14).

The project entailed coordination of three individuals: a

sprinkler fitter, who would install a low-air pressure switch; an electrician, who would pull
electric wire from the switch to a fire alarm panel; and finally, a fire alarm technician,
who would connect and test the device. (Doc. 49 ¶¶ 20-22). Defendant employed
sprinkler fitters and fire alarm technicians to complete those portions of the project itself,
but it subcontracted the electrical work to Hartmann.

(Id. ¶¶ 9, 19).

No written

agreement was executed by Defendant and Hartmann in relation to this work.
Plaintiff, who had completed similar projects on numerous occasions during his
forty years as an electrician, spoke with Defendant’s employee Nick Lieggi about the
project.

(Id. ¶ 5; Doc. 46-1, at 23:12-14, 36:18-24; Doc. 49 ¶¶ 5, 27).

During a

telephone call, Lieggi provided the address of the project to Plaintiff, and told him that
2

The facts are taken from Plaintiff’s Response to Defendant’s Separate Statement of
Undisputed Facts (Doc. 45), Defendant’s Response to Plaintiff’s Statement of Additional Facts
(Doc. 49), Plaintiff’s deposition (Doc. 46-1), and exhibits submitted by the parties in support of
their factual statements. Unless otherwise specified, page numbers for all record citations are
drawn from the CM/ECF docket entries at the top of the filed document.

2

the job consisted of pulling a pair of wires from the low-air pressure switch to the fire
alarm control panel, and also what tools and materials he would need. (Doc. 49 ¶¶ 27,
28; Doc. 46-1, at 37:1-12, 37:22-23, 38:11-39:14). Lieggi also told Plaintiff that the fire
alarm technician would make connections and test the device on June 15, so Plaintiff
believed that he needed to finish the electrical work on June 14. (Doc. 49 ¶ 29; Doc.
46-1, at 107:16-108:6).
When Plaintiff arrived at the site on June 14, 2012, he saw Defendant’s sprinkler
fitter, Mike Styx, who had just finished installing the switch. (Doc. 49 ¶ 31; Doc. 46-1, at
42:17-43:6). Styx told him that it was “tight” in the Fire Pump Room. (Doc. 46-1, at
106:13-20). Aside from this interaction, no one else spoke with Plaintiff before or during
the course of his work, and Defendant provided him with no safety training or other
instructions before he began. (Doc. 45 ¶¶ 19, 21; Doc. 46-1, at 55:22-56:11). Plaintiff
brought his own tools and equipment, and before beginning, he surveyed the room and
concluded that running wire from the switch to the fire alarm panel would entail his
stepping over a fixed set of pipes. (Doc. 45 ¶¶ 11, 14, 15, 16; Doc. 46-1, at 47:2-9).
The pipes were on a “pad” and were approximately twelve to twenty-four inches off the
ground. (Doc. 46-1, at 45:5-24). Plaintiff believed that he could have benefitted from
assistance of another electrician to feed the wire and thereby avoid stepping over the
pipes, but he did not call Hartmann or Defendant to ask for help. (Doc. 46-1, at 41:8-17,
51:16-52:12, 108:7-18).
As Plaintiff ran the wire from the switch to the panel, he stepped over the pipes
“[h]alf a dozen” times. (Id. at 48:13-23). After working for about two hours, he climbed
over the pipes to free up wires, lost his balance, and fell. While falling, he injured his
3

right knee and left shoulder: he grabbed a jockey pump feed line to stop the fall, at
which time he heard his left shoulder “pop,” and when he released the line, he landed
on his knee. (Id. at 49:3-50:15, 54:22-24, 50:15-17; Doc. 45 ¶ 10; Doc. 49 ¶¶ 2-3).
DISCUSSION
A.

Summary Judgment Standard
Summary judgment is proper when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c). A “material fact” is a fact that
would “affect the outcome of the suit under the governing law.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine issue” of material fact exists when
“the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.”

Id.

However, if the evidence is merely colorable or there is not sufficient

evidence favoring the nonmoving party for a jury to return a verdict for that party, there
is no issue for trial and summary judgment may be granted. Id. at 249-50. The party
seeking summary judgment bears the burden of demonstrating that no genuine issue of
material fact exists.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

At the

summary judgment stage, a court’s function is not to “weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249. In making this determination, courts “draw all reasonable
inferences from the evidence in the light most favorable to the nonmoving party[.]”
Continental Cas. Co. v. Nw. Nat. Ins. Co., 427 F.3d 1038, 1041 (7th Cir. 2005) (quoting
Franklin v. City of Evanston, 384 F.3d 838, 843 (7th Cir. 2004)).
4

B.

Analysis
To state a claim for negligence, Plaintiff “must allege (and ultimately prove) that

the defendant owed him a duty and breached that duty, and that [his] injury was
proximately caused by the breach.” Kotecki v. Walsh Constr. Co., 333 Ill. App. 3d 583,
776 N.E. 2d 774, 777 (1st Dist. 2002). Turning to the duty issue, the general rule in
Illinois is that one who employs an independent contractor owes no duty of care to that
contractor. Martens v. MCL Constr. Corp., 347 Ill. App. 3d 303, 807 N.E. 2d 480, 488
(1st Dist. 2004). The reason is that “a principal [such as a general contractor] generally
does not supervise the details of an independent contractor’s work and, thus, is not in a
good position to prevent negligent performance, . . . .” Id. (citing Anderson v. Marathon
Petroleum Co., 801 F.2d 936, 938 (7th Cir. 1986)). In contrast, an “employee submits
to the employer’s right to monitor and direct the details of the work in exchange for
wages.” Id.
1.

Retained Control Exception under Section 414

Section 414 of the Restatement (Second) Torts “carves an exception to this
general rule where the general contractor . . . entrusts work to a subcontractor,
exercises the requisite level of control over the work, and fails to exercise that control
with reasonable care.” Henderson v. Bovis Lend Lease, Inc., 848 F. Supp. 2d 847, 850
(N.D. Ill. 2012) (citing Aguirre v. Turner Constr. Co., 582 F.3d 808, 810 (7th Cir. 2009));
see also Aguirre v. Turner Constr. Co., 501 F.3d 825, 829-30 (7th Cir. 2007) (“Aguirre
I”). Section 414 states:
One who entrusts work to an independent contractor, but who retains the
control of any part of the work, is subject to liability for physical harm to
others for whose safety the employer owes a duty to exercise reasonable
5

care, which is caused by his failure to exercise his control with reasonable
care.
Restatement (Second) of Torts § 414 (1965). The Supreme Court of Illinois recognizes
Section 414 as a statement of Illinois law, and Illinois courts apply it regularly in
negligence cases. Aguirre I, 501 F.3d at 828 (citing Larson v. Commonwealth Edison
Co., 33 Ill. 2d 316, 211 N.E. 2d 247 (1965) and discussing Illinois cases); Martens, 807
N.E.2d at 488-93 (also discussing Illinois cases applying Section 414).
Whether a duty of care exists based on retained control within the meaning of
Section 414 is a question of law to be decided by the Court. Aguirre I, 501 F.3d at 829;
Wilkerson v. Schwendener, 379 Ill. App. 3d 491, 884 N.E. 2d 208, 211 (1st Dist. 2008);
Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 719 N.E. 2d 174, 176
(1st Dist. 1999). It is only when there are underlying factual disputes that bear on
whether control was retained or the amount of control that was retained that a trial by
jury is necessary so the Court can determine whether a duty existed. Bokodi v. Foster
Wheeler Robbins, Inc., 312 Ill. App. 1051, 728 N.E. 2d 726, 732-33 (1st Dist. 2000)
(citing Weber v. N. Ill. Gas. Co., 10 Ill. App. 3d 625, 295 N.E. 2d 41, 51 (1st Dist. 1973)).
Comment c to Section 414 elucidates that, for the retained control exception to
apply, the general contractor:
must have retained at least some degree of control over the manner in
which the work is done. It is not enough that [the general contractor] has
merely a general right to order the work stopped or resumed, to inspect its
progress or to receive reports, to make suggestions or recommendations
which need not necessarily be followed, or to prescribe alterations and
deviations. Such a general right is usually reserved to employers, but it
does not mean that the [independent] contractor is controlled as to his
methods of work, or as to operative detail. There must be such a retention
of a right of supervision that the contractor is not entirely free to do the
work in his own way.
6

Restatement (Second) of Torts § 414, comment c.

“In other words, the owner or

general contractor must control not just the ends, but the means.” Stanley v. Ameren Ill.
Co., 982 F. Supp. 2d 844, 853 (N.D. Ill. 2013) (citing Fris v. Personal Products Co., 255
Ill. App. 3d 916, 627 N.E. 2d 1265, 1270 (3d Dist. 1994) (explaining that a general
contractor’s retention of “the right to inspect the work done and order changes to the
specifications and plans” and to “make sure safety precautions were observed, and that
the work was done in a safe manner” does not show retention of “any control over the
incidental aspects” of the subcontractor’s work such that a duty arises)).
2.

Contractual Language

In seeking summary judgment, Defendant focuses on the lack of evidence of
actual control over Plaintiff’s work, noting that it merely requested him to install electrical
wire and did not instruct him on the details of the work, provide any tools, materials or
training, control the premises, or observe his work. While Plaintiff disagrees, he also
asks the Court to consider certain contractual language that he believes supports his
position that Defendant retained sufficient control to create a duty of care. This Court
agrees that contractual language must be considered.

“To decipher whether an

employer retained control over an independent contractor, courts look to the contracts
that establish the relationship.” Id. (citing Joyce v. Mastri, 371 Ill. App. 64, 861 N.E. 2d
1102, 1110 (1st Dist. 2007) (“The best indicator of whether a contractor has retained
control over the subcontractor’s work is the parties’ contract, if one exists.”)).
In this case, there are no contracts that govern the relationship between
Defendant and its subcontractor Hartmann (who employed Plaintiff), or between

7

Defendant and Plaintiff himself. Accordingly, Plaintiff relies on language in the Services
Agreement that Defendant entered with its customer, Griffin Capital, two weeks before
the fire protection equipment was installed at Griffin Capital’s premises. Since it is
possible that this Services Agreement to which neither Hartmann nor Plaintiff was a
party may nonetheless reflect Defendant’s agreement to retain control over Plaintiff’s
work, the Court will examine its terms. See Moss v. Rowe Constr. Co., 344 Ill. App. 3d
772, 801 N.E. 2d 612, 617 (4th Dist. 2003) (finding control over subcontractors in a
contract between the project owner and the general contractor, even though the
subcontractors were not parties to that contract).
Plaintiff urges that the Services Agreement demonstrates that Defendant
retained control over Hartmann’s work because under the agreement:
●

Defendant was “responsible for all aspects of the job, namely
design, engineering, maintenance, repair, construction, installation, or
consulting or professional services;”

●

Defendant “agreed to perform its duties with [the] highest level of
professional skill, care and diligence;” and

●

Defendant “scheduled the work all under the time constraints set forth in
the [Services Agreement] that specifically stated time was of the essence.”

(Doc. 47, at 8).
As a preliminary matter, Plaintiff’s recapitulation of the Services Agreement’s
terms is not entirely accurate, so it is helpful to restate in their entirety the ”Services”
definition and the “Standard for Performance” provision. The agreement does not state,
for example, that Defendant “was responsible for all aspects of the job.”

Rather,

“Services” are simply defined as “any effort specifically required by this Order such as
design, engineering, maintenance, repair, construction, installation, or consulting or
8

professional services.” (Doc. 46-6, at 2). The agreement later sets forth the “Terms
Applicable to the Performance of Services” and the first such term provides the
following “Standard for Performance:”
Seller [Defendant] agrees to perform the Services to the specification of
Order in a first-class and workmanlike manner, and using the highest level
of professional skill, care and diligence. Seller shall perform the Services
to conformity with accepted standards of construction and safety, Owner’s
specifications and drawings, and the rules and regulations for the Project
(the “Building Rules and Regulations”) as may be promulgated by Owner
from time to time. By execution of this Order, Seller acknowledges receipt
of a copy of the [illegible] Rules.
(Id.). Although Plaintiff does not mention it, the agreement also required Defendant to
“at all times . . . comply with all applicable federal, state, municipal, and local laws,
orders, and regulations.” (Id.). Notably, while the agreement expressly recognized that
Hartmann would work on the project, it was silent as to how Defendant was to supervise
and oversee subcontractors (if at all). (Id. at 2, 4).
Relying on Moss, 801 N.E. 2d 614-18, Plaintiff urges that the contractual
provisions demonstrate that Defendant retained control and therefore owed him a duty
of care.

This Court disagrees.

Moss was a negligence action against a general

contractor for the death of a roadway construction worker, in which the general
contractor had signed a contract with the Illinois Department of Transportation (“IDOT”)
that had several safety-related provisions. Specifically, the general contract required
that the general contractor: (1) provide “all safeguards, safety devices[,] and protective
equipment and take any other needed actions as it determines, or as the [State
Highway Agency] contracting officer may determine to be reasonably necessary to
protect the life and health of employees on the job . . . ;” (2) forbid “any employee, in

9

performance of the contract, to work in surroundings or under conditions which are
unsanitary, hazardous[,] or dangerous to his/her health or safety . . . ;” and (3) furnish a
superintendent who “has full authority to direct performance of the work in accordance
with the contract requirements . . . .”

Id. at 613.

In light of these specific safety

provisions, the court concluded that the general contractor had “contractually agreed to
assume the duty to control the safety of the workers on the project in the contract
between defendant and IDOT.” Id. at 617.
In reaching this conclusion, the court contrasted the specificity of the contract’s
language with the more general contractual language in cases where courts found no
retained control.

Id. at 619-20.

Two such cases were Shaughnessy v. Skender

Construction Co., 342 Ill. App. 3d 730, 794 N.E. 2d 937, 937-43 (1st Dist. 2003) and
Rangel v. Brookhaven Constructors, Inc., 719 N.E. 2d at 177.

The Moss court

characterized Shaughnessy as involving a “standard form agreement” that established
only “a general right to stop, start, and inspect the progress of the work.” Moss, 801
N.E. 2d at 619. So too in Rangel, the Moss court explained that there was no specific
mandate for safety and only a general right because the contractual language stated:
“[t]he General Contractor shall have the right to exercise complete supervision and
control over the work to be done by the Subcontractor, but such supervision and control
shall not in any way limit the obligations of the Subcontractor.” 719 N.E. 2d at 177.
Plaintiff also relies on Aguirre I, 501 F.3d at 829, but there the Seventh Circuit
found sufficient evidence of retained control because of extensive safety provisions in
the contract. Finding “easily distinguishable” those cases where the general contractor
had “promulgated no specific safety rules” or had “no oversight whatsoever over the
10

work the plaintiff performed for the subcontractor,” the court pointed out that the general
contractor had adopted twenty-three specific safety requirements. Id. at 830-31.
The contractual language in the case at hand, like the language in Shaughnessy
and Rangel, at most can be read to reserve to Defendant a general right of control that
in no way impacts how Plaintiff was to perform the electrical work. Plaintiff has not
explained how the general language in the contract between Defendant and its
customer translated into specific safety requirements with which he was obligated to
comply, such that he was not free to do the work his own way. Instead, the terms upon
which he relies are broad, general standards, expressing no precise or particular
actions that he needed to take in relation to safety, and he points to no facts in the
record that demonstrate that the provision was the basis for any such requirements.
The contractual provisions do not, for example, require that Plaintiff perform the wiring
work consistent with certain specified safety protocols, with the assistance of other
electricians, or only in a manner dictated by Defendant.

Absent are provisions

regarding the use of particular safety equipment for passing over the pipes or other like
measures that would have impacted the means or methods of his work.
Although it is difficult to read in harmony each of the Illinois cases on retained
control under Section 414, what becomes clear is that even where contractual language
has considerable specificity with regard to safety measures, the plaintiff still must
demonstrate that the provisions impacted the means and methods of his work in order
for a duty of care to be found.

For example, in Martens, the court held that the

contractual language, despite some safety-specific provisions, was generalized
because it did not affect the plaintiff’s means and methods of work and, therefore, did
11

not demonstrate the general contractor had retained control. 807 N.E.2d at 490-91.
There, a steelworker who fell during the erection of condominiums argued that both the
general contractor and a subcontractor were liable for failing to provide fall protection.
Id. at 482. In finding an absence of retained control, the court looked to three contracts
between (1) the project owner and general contractor, (2) the general contractor and a
subcontractor, and (3) the subcontractor and a sub-subcontractor (which was the
plaintiff’s employer). Id. at 483.
The general contract stated that the general contractor was “responsible for
initiating, maintaining and supervising all safety precautions and programs in connection
with the performance of the Contract.” Id. The general contractor was also “to give
notices and comply with applicable laws, ordinances, rules and regulations bearing on
the safety of persons or property or their protection from damage, injury or loss; erect
and maintain, as required by existing conditions and performance of the contract,
reasonable safeguards for safety and protection; and designate a member of [the
general contractor] at the site whose duty was to prevent accidents.”

Id.

In the

subcontract, the subcontractor “warranted that it was familiar with and in compliance
with all applicable laws, regulations and rulings, including Occupational Safety and
Health Administration (OSHA) and workers’ compensation” and “agreed to abide by [the
general contractor’s] directives, policies and procedures, including safety procedures.”
Id. This subcontract excluded as one of subcontractor’s responsibilities the provision of
OSHA safety cables.

Id.

Finally, the contract between the subcontractor and the

plaintiff’s employer obligated the employer to furnish the safety cables and also a copy
of its safety manual to the general contractor. Id.
12

Notwithstanding the presence of these safety-related provisions, the court found
no retained control by the general contractor and the subcontractor over the subsubcontractor. It reasoned that the general contractor had reserved only a general right
of control, and although the general contractor was obligated to initiate and supervise a
safety program along with other safety-related obligations, these measures did not
“equate . . . with control over the means and methods of [the plaintiff’s employers’] steel
erection work, particularly where [the employer] maintained contractual control of the
supervision and safety of its ironworkers.” Id. at 490. The court did not specifically
analyze the subcontract, but its reliance on Shaughnessy for the proposition that “a
general statement of control” did not mean an independent contractor “was controlled
as to his methods of work or as to operative detail” suggests that, as with the general
contract, the subcontract’s terms simply were too general to demonstrate retained
control over the sub-subcontractor’s work. See id.
In an attempt to distinguish the case, Plaintiff points out that the Martens plaintiff
failed to connect his fall to the general contractor’s control (in other words, he did not
prove causation), and notes that the plaintiff’s employer had retained safety
responsibilities for its employees. These distinctions make no difference. First, the
court’s inquiry into the contractual language focused only upon its terms. The court
understandably did not consider facts related to causation when assessing whether the
contractual language created a duty of care. See id. at 490-92.
Second, although the plaintiff’s employer had assumed responsibility for the
plaintiff’s safety, that fact entered the court’s analysis only to bolster its reading of the
general contract as establishing merely a general right of control by the general
13

contractor. See id. at 490. Although Defendant’s contract contains no provision that
placed responsibility for safety with Hartmann, the language of the contract
nevertheless remains highly general about safety measures.

In contrast, when the

court in Bokodi, 728 N.E. 2d at 735, found retained control “despite defendants’
statement in the agreement that the subcontractors were to be in control of their work,”
it did so because the subcontractor’s agreement provided twenty-nine required safety
measures and procedures that were indicia of operational control. In the case at hand,
even reading the silence of the contract to mean that Defendant (and not Plaintiff’s
employer) had control over safety, still absent are provisions like those in Bokodi that
would impact the means and methods of Plaintiff’s work.
Plaintiff also points to Ryan v. Mobil Oil Corp., 157 Ill. App. 3d 1069, 510 N.E. 2d
1162 (1st Dist. 1987) for the proposition that a general contractor’s duty is triggered
under Section 414 if the contractor has the “power to forbid work from being done in a
manner likely to be dangerous.” Id. at 1168 (quoting Pasko v. Commonwealth Edison
Co., 14 Ill. App. 3d 237, 302 N.E. 2d 642, 648 (1st Dist. 1973)). Neither Ryan nor
Pasko is persuasive. First, unlike the plaintiffs in those cases, Plaintiff points to no
evidence that Defendant had the power to forbid his work from being done in a manner
that it believed to be dangerous. Second, the courts in Ryan and Pasko failed to heed
the guidance of comment c of Section 414, which states (in part): “[i]t is not enough that
[the general contractor] has merely a general right to order the work stopped . . . or to
prescribe alterations or deviations.” For this reason, several courts have criticized the
holdings in these cases. See Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 793 N.E. 2d
68, 74 (1st Dist. 2003) (“In light of Ryan’s cursory examination of comment a and failure
14

to consider comment c, we choose to follow the more recent line of cases, which
incorporate comment c of section 414 into the duty analysis.”); Martens, 807 N.E. 2d at
493 (“Like the Ross court, we choose to follow the more recent line of cases, which
incorporate comment c of section 414 into the duty analysis.”); Lee v. Six Flags Theme
Parks, Inc., 2014 IL App. (1st) 130771, at ¶ 85 (criticizing the court in Pasko for not
drawing a “clear distinction between direct liability and vicarious liability” and noting that
the case has been superseded “by our more recent decisions”).
This Court finds from the Restatement and more recent Illinois cases that the
general power to stop work from being done in a dangerous manner is insufficient to
create a duty under Section 414. Instead, an absence of specific safety language is
determinative as far as retained control on the basis of contract is concerned. Recently,
language considerably more specific than the language upon which Plaintiff relies has
been found insufficient to demonstrate retained control. See Fonseca v. Clark Constr.
Group, LLC, 2014 IL App. (1st) 130308, at ¶¶ 6, 28-30 (no retained control where
general contractor was “responsible for initiating, maintaining and supervising all safety
precautions and programs in connection with the Work, including safety of all persons
and property during performance of the Work[,]” and was to “take all reasonable
precautions and safety measures, including those listed in the Contract Documents . . .
for the safety of, and shall provide reasonable protection to prevent damage, injury or
loss to . . . ” persons performing the work, because these provisions did not
demonstrate retained control over “the incidental aspects of the independent
contractor’s work.”).

15

Lastly, Plaintiff argues that Defendant retained control because it “had an
ongoing responsibility to report unsafe conditions in the Fire Pump Room per its own
safety rules.” In making this argument, Plaintiff relies on a requirement in a different
contract: the Building Services Agreement that Defendant entered into with its customer
in 2009, almost three years before the accident. (Doc. 46-5, at 37-49). Under this
agreement, Defendant’s employees would have been required to report to their
superiors any “unsafe conditions” that they noticed in or near the Fire Pump Room while
fulfilling Defendant’s inspection and service obligations. (See generally Doc. 49 ¶¶ 3438). Plaintiff notes that this was for the protection of everyone in the room.
Assuming Defendant owed a duty of care to Plaintiff, then certainly evidence of
Defendant’s knowledge of unsafe conditions in the Fire Pump Room and failure to
report them as required under the Building Services Agreement with its customer would
bear on whether its breached a duty. But this reporting requirement in the Building
Services Agreement does not speak to the issue of whether Defendant retained control
over the means and methods of Plaintiff’s work and hence is irrelevant to the
antecedent question of whether Defendant owed a duty.
2.

Supervisory and Operational Control

The absence of specific safety requirements in the contract does not end the
Court’s inquiry. Even where the contract does not demonstrate retention of control,
“Illinois courts ask whether the principal . . . actually engaged in detailed supervision
and/or control of subcontractors’ methods and means of performing work.” Aguirre I,
501 F.3d at 830; Cain v. Joe Contarino, Inc., 2014 IL App. (2d) 130482, at ¶ 86 (“a court
can find retained control despite the contract language if the parties’ course of conduct
16

demonstrates such control.”); Stanley, 982 F. Supp. 2d at 853 (“[T]he contractual
language is not dispositive if the facts show that in practice the employer nevertheless
exercised control.”) (citing Bokodi, 728 N.E.2d at 735, which explained that a duty
existed “despite defendants’ statement in the agreement that the subcontractors were to
be in control of their work,” because “defendants went to great lengths to control the
safety standards at the work site”).3
In determining whether a general contractor retained sufficient supervisory or
operational control to create a duty of care, courts look for “a substantial level of
involvement in the incidental activities at the work site,” such as safety meetings,
walkthroughs, and constant work-site monitoring. See Bokodi, 728 N.E.2d at 735. In
this case, there is virtually no such evidence in the record.

Plaintiff was not in

Defendant’s employ and was free of Defendant’s direction and supervision while
completing the work. He not only determined how to accomplish his work based on his
3

This Court need not decide whether a duty would exist where a contract provided for the
exercise of sufficient control but the general contractor never exercised it. The Seventh Circuit
has noted in this regard:
The importance placed on retained control through contract language by the
Moss court, rather than on indicia of control such as supervisory authority or the
authority to stop work for safety violations, has been the subject of live debate
among state appellate courts. Compare [Shaughnessy, 794 N.E.2d at 943-44]
(analyzing actual indicia of control with less emphasis on contract language), with
[Moss, 801 N.E.2d at 615] (relying exclusively on contract language and
criticizing the Shaughnessy approach as making “contractual obligations for
safety a meaningless nullity”), with [Martens, 807 N.E.2d at 490] (highlighting
Moss’ misconstruction of Shaughnessy, criticizing its reliance on contract
language alone, and advocating a more balanced approach).
Schreiber v. Idea Eng’g & Fabricating, 117 F. App’x 467, 471-72 (7th Cir. 2004). At the time the
Seventh Circuit made this statement, the “Moss court’s emphasis on contract language alone
appear[ed] to be the minority position in states interpreting section 414, with only Arizona
following a similar path.” Id. at 473 n.2 (citing Lewis v. N.J. Riebe Enters., Inc., 170 Ariz. 384,
825 P.2d 5, 12 (1992)).

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own judgment, skill, and experience, Plaintiff also at all times used his own tools and
equipment and provided his own wires and materials. These facts point to an absence
of retained control. Gregory v. Beazer E., 384 Ill. App. 3d 178, 892 N.E. 2d 563, 573
(1st Dist. 2008) (concluding that “it is clear that [the general contractor] did not retain the
degree of control necessary to impose liability . . .” because the general contractor did
not employ, direct, or supervise the plaintiff or provide him tools, and the plaintiff did not
look to the general contractor for direction or supervision).
Plaintiff does not dispute these facts, alleging only that Defendant’s employee
Nick Lieggi told him about the nature of the work—its location, that it involved running
wire from the switch to the panel, and that it should be completed in one day’s time—
and that Plaintiff would need certain tools and materials. That Defendant’s employee
explained the nature of the project in this manner does not come close to retaining the
degree of control needed to create a duty. Just as the court in Connaghan v. Caplice
reasoned, “[a]lthough [D]efendant provided the . . . plan and specifications, [D]efendant
did not direct [P]laintiff in the incidental aspects of [P]laintiff’s work.” 325 Ill. App. 3d
245, 757 N.E. 2d 971, 976 (2d Dist. 2001). Further persuasive in this regard is Welch v.
Millikin University, where the court held that a schedule to a contract for building
security that set forth hiring requirements and rates of pay (with which the subcontractor
that employed the guards was obligated to comply) did not demonstrate retained control
over the subcontractor. As the court explained, such matters merely reflected what one
party “wanted” and the other “agreed it could perform . . . .” 2015 IL App. (4th) 141012U, at ¶¶ 76-77. Likewise, most of the facts to which Plaintiff points in this case are

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aspects of the job to which his employer apparently agreed – that is, what was the
project, where, and its date of performance.
At bottom, the record establishes that Plaintiff received no training or instructions
on how to complete the wiring, was not supervised on site by Defendant, and relied on
his own experience to determine how to complete the wiring work. The only “directions”
he received were about the basic details of the project and what tools and materials he
needed. It cannot be said these statements satisfy the requirement of “control,” and
thus, the evidence is clear that Defendant did not retain supervisory or operational
control over Plaintiff’s work.
3.

OSHA and Expert Testimony

After Defendant filed the pending motion for summary judgment, Plaintiff
deposed Defendant’s expert, Steven Zebich, a professional and structural engineer.
Plaintiff then sought and was granted leave to file a supplemental opposition brief,
relying on the expert’s testimony in an effort to defeat summary judgment. In his expert
report, Zebich opined that OSHA policy indicates that the primary responsibility for the
safety of construction employees rests with an employee’s employer (here, Hartmann),
though OSHA will hold a general contractor responsible for violations that it could
reasonably have been expected to prevent by reason of its supervisory capacity. He
went on to state that OSHA recognizes several factors that affect what may be
considered a reasonable standard of care for a general contractor at a work site, but the
measures that a general contractor must take to satisfy its duty is less than what is
required of an employer to protect its own employees. (Doc. 59 ¶¶ 3-5).

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During the deposition, Plaintiff’s counsel questioned Zebich about this opinion as
follows:
Q:

In Opinion 7 toward the end, you state, “OSHA further recognizes
that the extent of the measures of a general contractor must
implement to satisfy its duty of reasonable care is less than what is
required of an employer with respect to protecting its employees,”
correct? (Objection, calls for a legal conclusion.)

A:

Yes.

Q:

So in this case [Defendant] was a general contractor, correct?

A:

Yes.

Q:

And so in this case [Defendant] did have a duty as a general
contractor to its employees, correct?

A:

Yes.

Q:

And do you agree that [Defendant] also had the duty of reasonable
care to [Plaintiff]? (Same objection.)

A:

Yes.

(Id. ¶¶ 6-7). Based on this testimony, Plaintiff urges there is evidence that (1) “the
standard of care required the defendant to abate the hazard in the [Fire Pump Room],”
and (2) “the defendant owed the plaintiff a duty of reasonable care.” (Doc. 60, at 4-5).
Defendant responds that Zebich’s testimony must be disregarded, since whether a duty
existed is an ultimate question of law for the Court to decide, and in any event, Illinois
law is clear that OSHA standards do not create a duty of care. (Doc. 61, at 1-4).
As a preliminary matter, it is irrelevant to the antecedent duty question whether
the standard of care required Defendant to “abate the hazard.” This testimony would
instead bear on whether a breach occurred if Defendant had a duty of care. As for
Zebich’s “yes” answer to the question of whether Defendant owed a duty, this Court
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agrees that it is inadmissible testimony on an ultimate issue of law reserved to the
Court. See Thompson v. Gordon, 241 Ill. 2d 428, 948 N.E. 2d 39, 45 (2011) (“Whether
a duty is owed presents a question of law for the court to decide.”). As the Seventh
Circuit has explained, district courts properly disregard an expert’s testimony on “purely
legal matters” like duty because “expert testimony as to legal conclusions . . . is
inadmissible.” See Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d
557, 564 (7th Cir. 2003); see also Bela Seating Co. v. Poloron Prods., Inc., 297 F.
Supp. 489, 506 (N.D. Ill. 1968) (“opinions as to legal conclusions from a[n] . . . expert
are never binding upon the Court.”).
Even were the Court to consider Zebich’s testimony on the duty issue, it would
give the testimony little weight and still find that Defendant owed no duty to Plaintiff
under the circumstances.

It appears that Zebich based his opinion solely on the

existence of certain OSHA regulations. But as the court in Recio v. GR-MHA Corp.
explained, OSHA regulations serve only as evidence that a defendant has breached its
duty of care; independently, they do not create such a duty. 366 Ill. App. 3d 48, 851
N.E. 2d 106, 115-16 (1st Dist. 2006) (citing Feldscher v. E & B, Inc., 95 Ill. 3d 360, 370
(1983) and Ross, 793 N.E. 3d at 75); see also Lee, 2014 IL App. (1st) 130771, at ¶ 77
(provision requiring compliance with OSHA regulations did “not create a duty of care.”).
Plaintiff cites to a litany of cases where courts considered OSHA and analogous
state regulations in negligence actions, but he overlooks that not one of the cases relied
on the regulations to find that a duty existed.

Instead, the cases explain that the

factfinder may properly consider such regulations when determining what the duty of
care entailed and whether it was breached. Schultz v. N.E. Ill. Commuter R.R. Corp.,
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201 Ill. 2d 260, 775 N.E. 2d 985-86 (2002) (discussing OSHA standards as evidence of
the standard of care); Sobczak v. Flaska, 302 Ill. App. 3d 916, 706 N.E. 2d 990, 926
(1st Dist. 1998) (“the OHSA sections . . . were given to the jury to establish the standard
of care . . . .”); Bates v. Kenny/Precision Joint Venture, No. 89 C 181, 1991 U.S. Dist.
LEXIS 6665, at *15-16 (N.D. Ill. May 15, 1991) (OSHA regulations provide “some, but
not conclusive, evidence of a standard of care.”); Clements v. Schless Constr. Co., 8 Ill.
App. 3d 291, 290 N.E. 2d 21, 26 (2d Dist. 1972) (analogous state rules “serve a useful
function in establishing the proper standard of care to be exercised by the Defendant.”);
LePage v. Walsh Constr. Co., 126 Ill. App. 3d 1075, 468 N.E. 2d 509, 510 (3d Dist.
1984) (state rules could be “a basis for establishing a standard of care . . . .”). Thus, in
sum, neither Zebich’s testimony nor the OSHA regulations establish that Defendant
owed a duty of care to Plaintiff under the retained control exception to a general
contractor’s limited liability to independent contractors. Absent such a duty, Plaintiff’s
negligence claims fail, and the Court need not reach the questions of whether
Defendant breached a duty and whether that breach caused Plaintiff’s damages.
CONCLUSION
For the reasons stated above, as a matter of law, Defendant did not owe a duty
of reasonable care to Plaintiff. Defendant’s Motion for Summary Judgment (Doc. 35) is
granted, and Judgment will be entered in favor of Defendant.
ENTER:

Dated: February 23, 2016

__________________________
SHEILA FINNEGAN
United States Magistrate Judge

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