Foran Glennon Palandech Ponzi & Rudloff

April 2015

Contractual delegation of safety duties on construction project defeats direct liability under Section 414, despite coordinating and scheduling work

Blair T. Titcomb

In a construction negligence case asserting direct liability under Section 414 of Restatement (Second) Torts, the First District Appellate Court in Illinois affirmed the lower court’s grant of summary judgment in favor of the general contractor, finding that the general contractor owed no duty to plaintiff.  Despite its activities scheduling and coordinating work, the general contractor did not retain control over the subcontractor’s work sufficient to impose direct liability because it contractually delegated its responsibility for jobsite safety to its subcontractor.

Factual Background.  Plaintiff was injured while working on a project involving the construction of an elevator shaft.  While exiting through the hatch to access the roof, Plaintiff stepped on a piece of wood with a nail embedded therein.  While pulling the nail from his foot, Plaintiff lost his balance and fell through the hatch opening to the floor below.  The City of Chicago (“City”) entered into a contract (“O/GC Agreement”) with Defendant F.H. Paschen, S.N. Neilsen, Inc. (“Paschen”) to serve as a general contractor on the project.  Paschen subcontracted with Old Veteran Construction, Inc. (“Old Veteran”) (which was not a party to the appeal) to act as a masonry subcontractor on the project.  Plaintiff filed suit against both Paschen and Old Veteran, alleging that Old Veteran left the piece of wood with the nail embedded, near the roof hatch, and Plaintiff was injured due to Old Veteran’s negligent actions. Plaintiff further alleged that Paschen supervised and controlled Old Veteran’s work and its compliance with safety procedures.  Paschen filed a motion for summary judgment, based on the absence of a legal duty owed to Plaintiff.  The trial court granted summary judgment in Paschen’s favor.  Plaintiff appealed and the First District affirmed.

Discussion.  On appeal, Plaintiff argued that Paschen exerted sufficient control over Old Veteran’s work for direct liability under section 414.  Plaintiff argued that there were questions of fact as to whether (1) Paschen and the City intended close supervision and control under the O/GC Agreement and (2) Paschen took an active role in scheduling and coordinating the work and in safety matters.  As such, Plaintiff asserted that Paschen was directly liable under Section 414.

Plaintiff first argued that the lower court erred in disregarding a provision in the O/GC Agreement which stated that the City’s consent to Paschen’s use of a subcontractor did not “relieve the Contractor from his obligations, or change the terms of the Contract.”  The First District rejected this argument.  Although Paschen had work safety responsibilities under the O/GC Agreement, Paschen expressly delegated the safety responsibilities to Old Veteran in its Subcontract.  The Subcontract stated as follows:

Subcontractor agrees and understands that neither Contractor nor Architect will make continuous or exhaustive inspections to assure Subcontractor’s compliance with applicable safety rules, regulations, or requirements. Subcontractor shall be solely responsible to assure the safety of its own equipment, appliances, material, and working conditions, techniques, and procedures, and Contractor is not responsible in any manner for the safety of Subcontractor’s work.

Plaintiff further argued that Paschen took an active role in scheduling and coordinating the work and in safety matters.  The First District rejected this argument and found there was no evidence that anyone from Paschen ever directed the manner in which Old Veteran workers performed their work.  The First District reiterated that Old Veteran retained control of its work in its contract with Paschen.  Further, the First District found that Paschen did not purport to control the safety standards at the work site, as there was no evidence that anyone from Paschen office conducted safety meetings or attempted to control safety in any way.  Finally, there was no evidence that Paschen was aware of any debris left on the roof.  As Paschen had no actual or constructive knowledge of Old Veteran’s unsafe work methods, there could be no direct liability against Paschen.  For these reasons, the First District affirmed the trial court’s grant of summary judgment in favor of Paschen.

Conclusion.  The First District’s decision demonstrates the significance of contract language limiting the scope of work and safety responsibilities, as well as the nature of a party’s onsite activities, in defending against direct liability claims under Section 414 of Restatement (Second) of Torts. The First District’s analysis in O’Gorman also serves as a reminder to design professionals seeking to avoid or limit liability for construction site injuries. While including a disclaimer of liability in the design contract is best, design professionals should carefully review any modified form design contracts to ensure that no provision may be construed as delegating to a design professional a duty to oversee even a portion of construction site work and safety.  In addition, design professionals should limit their onsite activities and communications to avoid any action or statement which may be construed as assuming work safety duties.

The case is O’Gorman v. F.H. Paschen, S.N. Nielsen, Inc., 2015 IL App (1st) 133472 (1st Dist. Mar. 20, 2015).