                                       2019 IL App (1st) 180941
                                             No. 1-18-0941
                                       Opinion filed July 23, 2019

                                                                                     Second Division


                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           FIRST DISTRICT


     JOHN FOLEY,                                          )     Appeal from the Circuit Court
                                                          )     of Cook County.
            Plaintiff-Appellant,                          )
                                                          )
     v.                                                   )     No. 16 L 2809
                                                          )
     BUILTECH CONSTRUCTION, INC.,                         )     The Honorable
                                                          )     Kathy M. Flanagan,
            Defendant-Appellee.                           )     Judge, presiding.
                                                          )


            JUSTICE HYMAN delivered the judgment of the court, with opinion
            Justice Pucinski concurred in the judgment and opinion.
            Justice Mason dissented, with opinion.

                                              OPINION

¶1          An employee of a subcontractor was injured while moving rebar used for concrete

     installation. He sued the general contractor, Builtech Construction, Inc., for negligence. After

     discovery closed, Builtech moved for summary judgment, arguing it had neither actual nor

     constructive notice of any dangerous condition at the jobsite. The trial court granted summary

     judgment. We reverse and remand for further proceedings.

¶2          We hold that the issue of whether Builtech retained sufficient control over the

     subcontractor’s work to trigger liability for its employee’s injury presents a question of fact,
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     precluding summary judgment. Builtech had a project superintendent who inspected the jobsite

     daily, its own safety measures in place, a safety manual, ongoing training, and a safety

     supervisor monitoring safety at the worksite who was authorized to halt the subcontractor’s

     unsafe work practices. Builtech also employed an outside safety auditor who worked closely

     with the safety supervisor. The contract between Builtech and the subcontractor required the

     subcontractor to comply with Builtech’s own safety rules. Because a material question of fact

     arises regarding the issue of compliance with Builtech’s own safety rules, summary judgment is

     inappropriate.

¶3                                             Background

¶4                                     Second Amended Complaint

¶5           While attempting to retrieve buried rebar on the jobsite, John Foley was injured. Foley’s

     second amended complaint alleged construction negligence in that Builtech had the authority to

     stop the work, refuse the work and materials, “and/or order changes in the work, in the event the

     work was being performed in a dangerous manner or for any other reason.” Foley also alleged

     that Builtech had a duty to exercise reasonable care at the site, including providing proper and

     safe placement of the rebar, and failed to (i) provide a safe workplace, (ii) inspect and supervise

     the work, (iii) warn of dangerous conditions, and (iv) provide adequate space to store the rebar.

¶6           A second count, “Premises Liability,” alleged Builtech had a duty to maintain the jobsite

     and through its negligence caused the premises “to become and remain in a dangerous

     condition.” Builtech “improperly operated, managed, maintained, and controlled” the worksite;

     failed to properly move the rebar, allowing it to be moved and buried; failed to reasonably

     inspect and warn Foley of the dangerous condition; and failed to provide space to adequately

     store the rebar.


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¶7                                                Depositions

¶8            Builtech retained two subcontractors, Chicago Town and Precision Excavation, Inc., to

       do the foundation work. Precision would excavate the site, while Chicago Town was to perform

       concrete services for the building’s foundation. The concrete structures were reinforced with

       steel rebar; Chicago Town’s work included placing rebar into the forms, pouring concrete into

       the forms, and then stripping the forms. The rebar was stacked on-site.

¶9                                                    Bob Bokar

¶ 10          Builtech’s superintendent for the project, Bob Bokar, had a storefront office across from

       the jobsite. Bokar supervised all the subcontractors on the jobsite and was part of the safety

       department. Eliminating jobsite hazards was part of Bokar’s duties. Bokar, on a daily basis,

       inspected the workplace, arriving at the jobsite around 6 a.m. Builtech had the authority to direct

       people how to properly lift heavy items on the jobsite. Part of Bokar’s job was to stop a worker

       from improperly lifting a heavy item. If Bokar determined a subcontractor’s “means and

       methods” were unsafe, he had the authority to stop the subcontractor and direct safety or work

       method changes. Chicago Town employees were required to comply with all decisions made by

       Builtech regarding safety requirements.

¶ 11          Builtech had an auditor who would periodically inspect the jobsite to identify unsafe

       conditions or work methods and then notify Bokar of any concerns. John Ribskis, Builtech’s

       safety supervisor, accompanied the auditor and possessed the authority to require workers to

       change unsafe work means and methods.

¶ 12          Builtech’s safety manual required subcontractors to comply with its “means and

       methods” provisions, including lifting and material handling. Builtech held weekly meetings for

       its subcontractors on various safety topics.


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¶ 13          Bokar took photographs of the jobsite, “usually daily.” During the deposition he testified

       about photographs taken on May 11 and May 15. Bokar stated he did not take photographs to try

       to document where the incident occurred.

¶ 14          Chicago Town ordered the rebar for the concrete work and scheduled delivery. Chicago

       Town workers unloaded the rebar, but Bokar controlled its storage on-site. Further, if Chicago

       Town wanted to store the rebar in a location or manner that could have been hazardous to

       workers, Bokar would “not allow that” and had authority to tell Chicago Town to “re-store or re-

       organize their rebar.”

¶ 15          Bokar approved certain areas to store the rebar, which required communication with

       Chicago Town. The standing agreement for subcontractor work included as a general condition

       of all work performed: “the subcontractor shall store its materials within the locations as

       approved by the contract.” In Bokar’s experience this was a “smaller” jobsite with limited space.

       The project was small enough not to need assistant superintendents.

¶ 16          When Foley’s counsel asked Bokar about Builtech’s safety rules, “hypothetically, if

       Chicago Town argued with you, *** your direction would trump Chicago Town’s?” Bokar

       answered, “[a]bsolutely.” Bokar stated he had authority to inspect the rebar at any time. If he

       inspected and found the rebar “tangled up,” he would have told Chicago Town. The excavating

       company brought sand in a dump truck to use as backfill. If the excavators left dirt or “spoils”

       (mounds of dirt) on the site, he would have required them to clean it up as improper and

       potentially unsafe.

¶ 17          The rebar was delivered to the jobsite on May 1, 2015. Two Chicago Town employees,

       Ismael Ramirez, a carpenter, and Juan Alfaro, a laborer, and others moved the rebar from the




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       delivery spot to a spot closer to the building. They tried to stack the rebar so that it would not

       tangle.

¶ 18             Bokar did not see Foley lifting rebar on May 21, nor did he see Foley hurt himself. Foley

       told Bokar he “twinged” his back. Bokar had him fill out an incident report form.

¶ 19                                      Michael Chapman Deposition

¶ 20                Michael Chapman, the owner and president of Chicago Town, testified that he

       decided where to store the rebar on the jobsite but Bokar had the authority to tell Chapman to

       move the rebar or to stop work if necessary. Sometime between May 4 and May 15, Ramirez,

       Alfaro, and another carpenter moved and restacked the rebar.

¶ 21                                      Jonathan Ribskis Deposition

¶ 22             Jonathan Ribskis, who had been Builtech’s project manager/safety coordinator, testified

       remotely from North Carolina. For this project Ribskis acted as the safety coordinator, generally

       responsible for safety on the jobsite. He conducted occasional safety audits on-site, inspecting

       the subcontractors’ work methods and making recommendations. Bokar was on the jobsite on a

       daily basis; a project manager was not on-site daily but “no less than every other week.” One of

       Bokar’s duties was to determine safety concerns. The project manager had the authority to stop a

       subcontractor performing unsafe work or to change the means or method of lifting.

¶ 23             The means and methods of work were each subcontractor’s responsibility. The general

       contractor was responsible for coordinating the work between the subcontractors and for alerting

       the subcontractors about unsafe storage. Builtech had the authority to instruct Chicago Town to

       restack or move the rebar if it believed Chicago Town had stacked the rebar in an unsafe manner

       or location.




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¶ 24          Builtech had a safety manual, an “Injury & Illness Prevention Program,” and weekly

       safety meetings at the jobsites.

¶ 25          A safety inspector hired by Builtech for a safety program prepared a report for Builtech,

       “Construction Hazard Identification and Risk Assessment 2015.” Section 13, labeled

       “Ergonomics,” addressed “identification and assessment of hazardous manual tasks:” If Builtech

       saw a subcontractor lifting with poor or dangerous form, it had the authority to stop him. Another

       section, “Lifting and Material Handling,” contained bullet points on safe lifting.

¶ 26          Before Foley’s accident, Ribskis was unaware of any complaints about where or how

       safely the rebar was stacked. Ribskis stated “at that time it was an average size project.”

¶ 27          Ribskis identified four color photographs that, according to the Chicago Town attorney,

       were taken “sometime in May of 2015.” The undated photographs show four views of the rebar

       in various piles next to a brick wall. Ribskis did not think the way the rebar was stacked in any of

       the photographs was a “deviation of the safety standard.”

¶ 28                                       Patrick Burns Deposition

¶ 29          Patrick Burns was the estimator/project manager for Precision Excavating. Precision’s

       contract with Builtech required compliance with all safety rules and regulations and to keep daily

       work reports. Precision would dig according to the blueprints, and then the concrete company

       would come in to pour footings. Burns agreed that the photographs showed mounds of dirt.

       Burns stated the jobsite was small and without room to “spread out.” He heard one of the

       ironworkers complain that it was not easy to walk around because of the small jobsite,

       excavations, and rebar “all over.” On this job, Precision did not create any mound of dirt that

       could have inadvertently covered any materials nearby. Precision did not move any of the piles

       of rebar.


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¶ 30                                    Ismael Ramirez and Juan Alfaro

¶ 31          Ramirez and Alfaro each testified through a Spanish interpreter. Ramirez was a union

       carpenter working for Chicago Town for 30 years, the last 12 years as a foreman. Ramirez went

       though Occupational Safety and Health Administration (OSHA) safety training. Whenever

       Chicago Town started a new job, the superintendents for the general contractors held a safety

       orientation. In Ramirez’s experience, the chain of command was Mike Chapman, Bob Bokar,

       and then Ramirez. Only ironworkers were permitted to handle the rebar.

¶ 32          Alfaro was a laborer with Chicago Town for five years. The carpenters and laborers from

       Chicago Town would not move the rebar pile unless the ironworkers or Chapman told them to do

       so. Alfaro was on-site and saw Foley on “six or eight” occasions around the time of the accident,

       which occurred somewhere in the middle of those days. The following exchange was had:

                       “Q. Did you see Mr. Foley pulling rebar and hurting his back?

                       A. I saw him pulling it, but I don’t know if that’s the moment when he injured

              himself.

                       Q. Were you present—when you saw Mr. Foley pulling rebar, did you see him

              pulling it from a stack of rebar?

                       A. Yes.

                       Q. At the time you saw Mr. Foley pulling the rebar from the stack of rebar, was

              the stack organized in bundles of rebar that were tied together or was it all loose rebar?

                       A. It was all tied together and it was in one place and it was all stacked on top of

              each other, but it was all organized in that one place.

                       Q. When you say ‘tied together,’ did it have metal ties with—tying various,

              bundles of rebar?


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                       A. Yes. It’s a wire—it’s tied—held together by a wire and they all have a number,

              and that’s the way that it’s sent from the factory.”

¶ 33          Alfaro was told to move the rebar; he asked Foley how they wanted it stacked. Ramirez

       told him what to do.

¶ 34                                        John Foley Deposition

¶ 35          As the general contractor, Builtech oversaw the whole project. If Bokar directed Foley to

       have the workers wear their safety vests or use rebar caps for safety, Foley had to comply. If

       Bokar had determined the rebar was tangled and Foley should not have worked on it until it was

       safe, Foley would have had to wait. If Foley had a safety concern and Chapman was not present,

       he would have told Bokar about his concern. Before Foley’s injury, Bokar pointed out the lack of

       safety caps on the rebar and that one of the ironworkers was not wearing a safety vest.

¶ 36          Chicago Town ironworkers were not on the site when the rebar was delivered, and Foley

       did not know who decided where to put it. When Foley arrived on the morning of his injury, the

       rebar had been moved to a different spot from the last time he saw it, some 5 to 10 days before.

       The pile was a “tangled mess.” Standard procedure would require tagging the rebar, separating it

       by size, and then stacking it on wooden four-by-fours. But the rebar was neither sorted nor

       stacked properly, and some of the tags were missing. Foley had to pull the rebar he needed out of

       the pile, as it was “hidden” under the pile. Foley explained the rebar was not completely buried

       but there was “a fair amount” of dirt covering some of the pile. Under union rules, laborers were

       not allowed to handle the rebar, and Foley was not allowed to ask laborers for help in handling

       the rebar.

¶ 37          Foley opined that there was plenty of room to stack the rebar but the way it was moved

       “was like somebody was in a hurry.” On that morning, Foley was told that Builtech and


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       Chapman wanted to pour concrete by noon, so he “had to just work at it and get the rebar out.”

       Foley had been working about 45 minutes before he injured himself.

¶ 38                                             Photographs

¶ 39          Included in the record were several exhibits comprising photographs of the jobsite from

       different angles and on different days. While most of the photographs are in black and white,

       four color photographs depict the rebar stack identified by Ribskis. Only the color photographs

       elucidate the assembly of the rebar stack, but the dates the photographs were taken are unclear.

¶ 40                            Contract Between Builtech and Chicago Town

¶ 41          The first paragraph, “Scope of Work,” of Builtech’s contract with Foley’s employer,

       subcontractor Chicago Town, specified Chicago Town would “furnish all labor, material, service

       and equipment.” Chicago Town also “assume[d] all duties, obligations, liabilities and

       responsibilities” related to its work that Builtech assumed via its contract with the “Owner.”

¶ 42          Paragraph 12 (“Insurance Requirements and Indemnification”) states that Chicago Town

       “shall *** indemnify and save harmless” Builtech, the “Owner,” and the architect for any

       liability for injuries to Chicago Town or its employees resulting from negligence.

¶ 43          Regarding safety, paragraph 18 (“Safety”) provides Chicago Town “shall at all times

       comply with all safety rules, regulations, and requirements” of “applicable codes, ordinances,

       and specifications.” Paragraph 18 also provides Chicago Town would be responsible for

       damages that occurred as a result of its fault or negligence and would “protect the materials and

       work from deterioration and damage during construction.” Further, paragraph 18 states that

       “[n]othing contained herein shall be construed as imposing liability on [Builtech] or Owner” for

       Chicago Town’s obligation to ensure safety at the jobsite. Another provision requires Chicago

       Town to “comply with all decisions of the Contractor or Owner relative to safety requirements”


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       and that Chicago Town “shall be liable for maintaining strict adherence to all safety regulations,

       including full-time maintenance of fully adequate safety standards to protect the general public,

       work force and any and all parties.”

¶ 44          Paragraph 18 adds: “In order to provide safety controls to protect the life and health of

       employees and other persons, to prevent damage to property, materials, supplies and equipment

       ***, [Chicago Town] will take *** such additional measures as [Builtech] may determine to be

       reasonably necessary for the purpose.” Additionally, “[n]othing contained herein shall be

       construed as imposing liability on [Builtech] or Owner for the obligation of Chicago Town to

       take all measures necessary to ensure the safety of its employees, agents and other persons at the

       job site for matters related to the work contemplated.”

¶ 45          Regarding deliveries of equipment or material, paragraph 25 (“Deliveries of Equipment

       or Material”) makes Chicago Town responsible for the “handling, unloading and safe storage” of

       material delivered to the project site. Builtech “may cooperate with the unloading of said

       materials” but would not be responsible for any shortage and would be paid for its services.

¶ 46                                          Summary Judgment

¶ 47          The trial court found the contract between Chicago Town and Builtech did not indicate

       control over incidental aspects of the work or the safety of the project. According to the trial

       court, the responsibility for the delivery, handling, unloading, and storage of the rebar was

       Chicago Town’s, not Builtech’s. The trial court cited comment c to section 414 of the

       Restatement (Second) of Torts, that “[t]here 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.” Restatement (Second) of

       Torts § 414 cmt. c (1965). The trial court also cited Maggi v. RAS Development, Inc., 2011 IL

       App (1st) 091955, ¶ 44.


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¶ 48          Additionally, the trial court found no evidence that Builtech had actual or constructive

       notice of any dangerous condition regarding the pile of rebar, specifically that there was tangled

       rebar hidden under the pile.

¶ 49                                               Analysis

¶ 50          The purpose of summary judgment is not to try a question of fact but to determine the

       existence of any genuine issue of fact. Northern Illinois Emergency Physicians v. Landau,

       Omahana & Kopka, Ltd., 216 Ill. 2d 294, 305 (2005). Summary judgment is appropriate where

       the pleadings, depositions, and admissions on file, as well as any affidavits and exhibits, when

       viewed in the light most favorable to the nonmoving party, demonstrate that there is no genuine

       issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS

       5/2-1005(c) (West 2014); Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d 286, 299 (2007)

       (citing Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 312 (2004)).

¶ 51          To survive summary judgment, the nonmoving party does not have to prove his or her

       case but must present some factual basis that arguably entitles the party to a judgment. Robidoux

       v. Oliphant, 201 Ill. 2d 324, 335 (2002). The court may draw inferences from undisputed facts;

       however, if reasonable persons could draw divergent inferences from those facts, the motion for

       summary judgment should be denied, and the trier of fact should decide the issue. Martinez v.

       Mobil Oil Corp., 296 Ill. App. 3d 607, 611 (1998). “Although the use of a summary judgment

       procedure is encouraged as an aid in expeditious disposition of a lawsuit, it is a drastic means of

       disposing of litigation and should only be allowed when the right of the moving party is clear

       and free from doubt.” Id.

¶ 52          We review a grant or denial of summary judgment de novo. Weather-Tite, Inc. v.

       University of St. Francis, 233 Ill. 2d 385, 389 (2009).


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¶ 53                                                 Control

¶ 54            Foley asserts the record contains substantial evidence that the general contractor,

       Builtech, retained contractual control over the work of the subcontractor, Chicago Town, and

       negligently failed to exercise its control by allowing unsafe material storage and handling to

       occur.

¶ 55            The party in control is the proper party to be charged with the responsibility of preventing

       negligent performance. Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶ 32. Carney

       addressed the issue of the existence of a duty on the part of one who hires a subcontractor in the

       context of a construction-related injury and expressly adopted section 414 of the Restatement

       (Second) of Torts for negligence cases involving construction-related injuries. Id. ¶¶ 33-36. To

       state a claim for negligence under section 414, the plaintiff must allege that the defendant owed

       him a duty, that the defendant breached that duty, and that plaintiff’s injury was proximately

       caused by the breach. Id. Whether the duty exists is a question of law and turns on whether the

       defendant controls the work in such a manner that he should be held liable. Martens, 347 Ill.

       App. 3d at 315.

¶ 56            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 care, which is caused by his failure to

       exercise his control with reasonable care.” (Emphasis added.) Restatement (Second) of Torts

       § 414 (1965). Comment c to section 414 of the Restatement states “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.” Id. § 414 cmt. c.




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¶ 57          “The best indicator of whether a defendant retained control sufficient to trigger the

       potential for liability under section 414 is the written agreement between the defendant and the

       contractor.” Carney, 2016 IL 118984, ¶ 41. But even if the agreement provides no evidence the

       defendant retained control, evidence of the defendant’s conduct at variance with the agreement

       may still demonstrate that control. Id. For example, “ ‘[a] general contractor may retain control

       over the independent contractor’s work by contract, ‘supervisory, operational, or some mix

       thereof.’ ” Lederer v. Executive Construction, Inc., 2014 IL App (1st) 123170, ¶ 56 (quoting

       Martens, 347 Ill. App. 3d at 318). A party retaining some control over the safety of the work then

       has a duty to exercise its control with ordinary care. Id.

¶ 58          In construction negligence cases, the trier of fact determines the extent of supervision of a

       contractor’s control over a subcontractor’s work. Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill.

       App. 3d 1051 (2000). In Bokodi, the subcontractor’s employee sued the general contractor after

       suffering a back injury. Id. at 1057. This court held “[i]n a construction negligence action, the

       trier of fact must determine whether a contractor retained such control over the work of the

       subcontractors that the contractor was required to supervise and its failure to supervise in any of

       the ways ascribed in the complaint was a proximate cause of the injury.” Id. at 1059.

¶ 59          Another case where this court concluded that whether a general contractor retained

       sufficient control to trigger section 414 liability presented a fact question is Grillo v. Yeager

       Construction, 387 Ill. App. 3d 577, 594 (2008). The contract between the contractor and the

       owner gave the contractor control of the operative details and safety at the construction site,

       specifying the contractor was solely “responsible for all safety precautions and programs.”

       (Internal quotation marks omitted.) Id. Trial testimony established the contractor was on-site on a

       daily basis, inspecting the jobsite and actively supervising the subcontractors. Id. The plaintiff


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       testified he would be told to stop what he was doing and to start something else. Id. This court

       held there was sufficient evidence of retained control to present a question of fact for the jury to

       decide. Id. at 595. This court further held that even if the defendant contractor did not exercise

       sufficient control to owe the plaintiff a duty under section 414 of the Restatement, the evidence

       showed the contractor, as possessor of the land, owed the plaintiff a duty under section 343 of

       the Restatement. Id.

¶ 60          The contract between Builtech and Chicago Town gave Builtech the power to stop the

       work of Chicago Town’s employees. Bokar testified that in any disagreement about safety rules,

       his direction would “absolutely” overrule Chicago Town’s. Bokar controlled the rebar storage on

       the jobsite. According to Bokar, he had authority to inspect the rebar at any time and if he found

       the rebar “tangled up” he would have told Chicago Town. He also would not have allowed

       Chicago Town to store materials in an unsafe location or manner and would have required the

       excavating company to clean up any dirt or “spoils” that were improper and potentially unsafe.

¶ 61          Builtech relies on Carney, 2016 IL 118984, arguing the contract made Chicago Town

       solely responsible for its own work and jobsite materials. In Carney, a subcontractor’s

       employee/son sued the owner railroad that hired the contractor. Id. ¶ 5. The owner railroad

       invited a scrap contractor to bid on a bridge demolition, and the scrap contractor, in turn,

       contacted Carney Group, Inc., with which it had a 20-year business relationship. Id. Carney’s

       president attended the prebid meeting on a “handshake agreement.” Id. When the railroad

       accepted the bid, the railroad and the contractor entered into a “Purchase and Removal

       Agreement” whereby the contractor would purchase the bridge and provide all the labor, tools,

       and material necessary to remove the bridge. Id. ¶ 6. The railroad was unaware of any agreement

       between the contractor and Carney. Id. The son of Carney’s president was injured after being


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       called in to help with a bridge demolition. Id. ¶ 8. His complaint against the defendant railroad

       alleged negligence in failing to discover and disclose to either the contractor or the plaintiff the

       presence of a dangerous condition. Id. ¶ 10. The complaint further alleged the railroad retained

       control over the work and safety of the demolition project but negligently failed to develop a

       plan and supervise the work. Id. The Illinois Supreme Court found no evidence that the railroad

       retained at least some degree of control over how the independent contractor performed the

       demolition work. Id. ¶ 91.

¶ 62          Carney, however, confined its analysis to whether the railroad retained control over the

       work of its contractor “such that direct liability might attach under section 414 [of the

       Restatement].” Id. ¶ 40. “The issue of a defendant’s retained control may be decided as a matter

       of law where the evidence is insufficient to create a factual question.” Id. ¶ 41.

¶ 63          In contrast to the facts in Carney, here the witnesses’ testimony was not unequivocal

       regarding the amount of control Builtech had over the project but, rather, presents a genuine

       issue of material fact. Builtech’s safety manager, Ribskis, testified that Builtech as the general

       contractor retained responsibility for ensuring the jobsite workers’ safety and, further, that

       everyone from Builtech was responsible for safety “even if it’s not their daily responsibility.”

       Ribskis admitted that if a subcontractor were performing work in an unsafe manner, Builtech

       would have the authority to stop the work. Additionally, under the contract Builtech had

       authority over Chicago Town’s work; Builtech’s safety manual contained requirements Chicago

       Town had to follow. “The party who retains control is the logical party upon whom to impose a

       duty to ensure worker safety. Penalizing a general contractor’s efforts to promote safety and

       coordinate a general safety program among various independent contractors at a large jobsite

       hardly serves to advance the goal of work site safety.” Martens, 347 Ill. App. 3d at 318.


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¶ 64          Significantly, “the existence of a safety program, safety manual or safety director does

       not constitute retained control per se; the court must still conduct an analysis pursuant to the

       section 414 retained control exception.” Id. In Martens, the subcontractor informed the

       contractor it could not comply with a particular rule and instead insisted on the OSHA standard

       for ironworkers, as incorporated into the contractor’s safety manual. Id. But the subcontractor

       rejected the general contractor’s suggestion regarding the rule and kept control of its own

       methods. Id. Thus the contractor did not retain or exercise authority over the subcontractor’s

       method of operation. See Cochran v. George Sollitt Construction Co., 358 Ill. App. 3d 865, 878-

       79 (2005) (summary judgment affirmed where defendant did not (i) employ full-time safety

       manager, (ii) conduct safety meetings for subcontractors, (iii) require superintendent to do a

       daily “walk-through,” (iv) get involved in specific details of subcontractors’ safety means,

       (v) actively inspect for safety violations, or (iv) empower all employees to halt subcontractors’

       work on observing safety violations).

¶ 65          Indeed, only the party with retained control “over incidental aspects of the work” should

       be charged with the responsibility of preventing negligent performance. Fonseca v. Clark

       Construction Group, LLC, 2014 IL App (1st) 130308, ¶ 29. For example, in Fonseca, the

       defendant contractor did not have any control over the way the subcontractor did its work—the

       subcontractor’s foreman directed and supervised the subcontractor’s employees, the

       subcontractor was responsible for cleaning up its own debris, the contractor never stopped the

       subcontractor’s work, and the subcontractor controlled “the means and methods of its own work

       during construction of the building.” (Emphasis added.) Id. The language of the subcontract, the

       employees’ depositions about the actual practice at the site, and the subcontractor’s foreman’s

       affidavit and testimony all indicated the defendant contractor did not retain sufficient control


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       over the subcontractor’s work to trigger section 414 of the Restatement (Second) of Torts. Id.

       ¶ 31. Thus, as a matter of law, the defendant did not owe a duty to exercise reasonable care, and

       the appellate court affirmed the grant of summary judgment. Id. ¶ 31.

¶ 66          Nor did the general contractor retain sufficient control of the subcontractor’s employee so

       as to impose liability in Snow v. Power Construction Co., 2017 IL App (1st) 151226. There, the

       plaintiff was a surveyor for a subcontractor hired by the general contractor and was injured when

       he tried to move several sheets of leftover drywall that had been stacked by a different

       subcontractor. Id. ¶ 1. The evidence showed the custom and practice was that one subcontractor

       was not permitted to move the materials of another subcontractor. Id. ¶ 24. Under the contracts,

       the defendants’ safety program included employing a safety director and requiring the

       subcontractors to have “competent supervision,” conduct weekly “toolbox talks,” and have a

       general safety manual. Id. ¶ 54. Each subcontractor was responsible for all labor, materials, tools,

       equipment, and supervision and “to do all things necessary for the proper and complete

       performance of the work.” Id. ¶ 55. Thus, the general contractor did not retain control of the

       subcontractor’s employee’s performance or method sufficient to impose a duty on the general.

       Id.

¶ 67          The evidence in Fonseca and Snow did not approach the degree of supervision or

       inspection demonstrated in the testimony by Builtech’s witnesses and Foley. We decide the issue

       of whether the amount of the contractor’s control triggers potential liability as a matter of law

       only when the evidence presented is insufficient to create a factual question. Wilkerson v. Paul

       H. Schwendener, Inc., 379 Ill. App. 3d 491, 497 (2008). The actual practice of Builtech

       demonstrates enough close control to survive the summary judgment motion.




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¶ 68          Under these facts, we will follow the approach of Wilkerson, where this court held

       summary judgment to be improper. In Wilkerson, a genuine issue of material fact existed as to

       whether (i) general contractor retained sufficient control of subcontractor’s work and safety on

       the construction site and (ii) whether the general contractor knew or should have known of the

       dangerous condition created by the subcontractor, triggering liability under the plaintiff’s

       premises liability theory. Id.; see also Bokodi, 312 Ill. App. 3d 1051 (general contractor

       promulgated multiple safety measures for subcontractors to follow); Aguirre v. Turner

       Construction Co., 501 F.3d 825, 829 (7th Cir. 2007) (same).

¶ 69          Regarding duty, the dissent writes that Builtech “clearly” retained control over safety to a

       degree sufficient, as a matter of law, to render it potentially liable for its own negligence under

       section 414 (Restatement (Second) of Torts § 414 cmt. a, at 387 (1965)). Infra ¶ 94. But the

       dissent reframes the issue. As the dissent sees it, the issue is “whether Foley has raised a genuine

       issue of material fact as to whether (i) Builtech breached its duty and (ii) whether that breach was

       a proximate cause of his injury.” Infra ¶ 96; see also Nowak v. Coghill, 296 Ill. App. 3d 886, 892

       (1998) (tow truck driver failed to establish homeowner’s duty to shovel snow on driveway). The

       dissent then concludes that there was no evidence of proximate cause and Foley loses.

¶ 70          Generally, the existence of proximate cause presents a question of fact for the jury.

       Nowak, 296 Ill. App. 3d at 895. Liability may not be based on speculation, imagination, or mere

       conjecture. Id. Nor does the bare possibility of a causal connection raise a factual inference. Id. at

       896. But where the facts support more than one logical conclusion, circumstantial evidence can

       be sufficient to establish proximate cause to overcome summary judgment, as long as the

       inference may reasonably be drawn. Id. (citing Mort v. Walter, 98 Ill. 2d 391, 396-97 (1983)).




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¶ 71          Consider Nowak, 296 Ill. App. 3d 886. The plaintiff failed to establish the duty element

       of his negligence claim, which, by itself, entitled the defendants to summary judgment. Id. at

       895. The court went on to address the proximate cause element. Id. Circumstantial evidence

       failed to establish with reasonable certainty that the defendant’s acts proximately caused the

       plaintiff to fall because the evidence was unclear as to exactly where the plaintiff fell and as to

       other possible causes including wet surfaces nearby. Id. at 898. We found it unreasonable to infer

       the plaintiff was on the pile of snow on the edge of the driveway when he fell and, therefore, it

       was unreasonable to infer that the snow pile caused his fall. Id. at 897. Here, Foley injured his

       back while pulling at the rebar; if Builtech had a duty as the dissent suggests, the question of

       proximate cause of Foley’s injury remains a question of fact.

¶ 72          The dissent also relies on Gerasi v. Gilbane Building Co., 2017 IL App (1st) 133000.

       Infra ¶ 105. In Gerasi, nothing in the defendant’s contract with the owner of the premises

       required the defendant to supervise the subcontractors’ work—there was “no evidentiary basis

       for [the plaintiff’s] contention that [the defendant] was obligated to do more than it did to ensure

       that contractors complied with its safety plan.” Gerasi, 2017 IL App (1st) 133000, ¶ 57. Without

       these obligations, we held that the plaintiff could not predicate the defendant’s liability on its

       failure to enforce its safety plan. Id. Here, however, the facts present a question as to whether

       Builtech breached its duty by negligently failing to supervise and/or keep the jobsite safe as it

       had agreed to do and whether that breach was the proximate cause of Foley’s injury.

¶ 73                                          Vicarious Liability

¶ 74          Builtech also cites a case in which the trial court found neither vicarious nor direct

       liability. In LePretre v. Lend Lease (US) Construction, Inc., 2017 IL App (1st) 162320, no

       written contract existed between the general contractor and the plaintiff’s employer. The general


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       contractor retained a concrete subcontractor, which in turn retained plaintiff’s employer to install

       rebar for the concrete pour. Id. ¶ 3. The general contractor did not provide safety guidelines as to

       the installation of the rebar and did not communicate with the plaintiff’s employer or any of its

       employees regarding how to install the rebar, and employees did not look to the general

       contractor to remedy any sort of alleged safety hazard. Relying on Carney, the LePretre court

       pronounced that if the control retained by the employer gave rise to a master-servant

       relationship, the employer might be liable for the negligence of the contractor’s employees under

       the laws of agency; “[h]owever, agency law, under which an employer may be vicariously liable

       for the torts of its employees, is not the same as when an employer is directly liable for its own

       negligence.” Id. ¶ 29.

¶ 75          Comment a to section 414 explains, “If the employer of an independent contractor retains

       control over the operative detail of doing any part of the work, he is subject to liability for the

       negligence of the employees of the contractor engaged therein, under the rules of that part of the

       law of Agency which deals with the relation of master and servant.” Restatement (Second) of

       Torts § 414 cmt. a, at 387 (1965). The Carney court, interpreting this comment, stated: “The first

       sentence of comment a does not explain when section 414 applies. Rather, it explains when

       section 414 does not apply.” Carney, 2016 IL 118984, ¶ 38. Citing Aguirre v. Turner

       Construction Co., 501 F.3d 825, 829 (7th Cir. 2007), the Carney court explained: “If the control

       retained by the employer is such that it gives rise to a master-servant relationship, thus negating

       the person’s status as an independent contractor, the employer may be liable for the negligence

       of the contractor’s employees under the law of agency. Agency law, under which an employer

       may be vicariously liable for the torts of its employees, is distinct from the principles

       encompassed in section 414, under which an employer is directly liable for its own negligence.”


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       Carney, 2016 IL 118984, ¶ 38. In other words, “section 414 takes over where agency law ends.”

       (Internal quotation marks omitted.) Id.; see LePretre, 2017 IL App (1st) 162320, ¶ 28

       (recognizing Carney’s holding that section 414 only articulates basis for imposing direct

       liability).

¶ 76           Comment a continues:

                     “The employer may, however, retain a control less than that which is necessary to

                     subject him to liability as master. He may retain only the power to direct the order in

                     which the work shall be done, or to forbid its being done in a manner likely to be

                     dangerous to himself or others. Such a supervisory control may not subject him to

                     liability under the principles of Agency, but he may be liable under the rule stated in

                     this Section unless he exercises his supervisory control with reasonable care so as to

                     prevent the work which he has ordered to be done from causing injury to others.”

                     (Emphasis added.) Restatement (Second) of Torts § 414 cmt. a, at 387 (1965).

       In other words, in a case where agency principles do not apply to impose vicarious liability on a

       principal, an exercise of supervisory control without reasonable care taken may create liability.

¶ 77           But where, as here, the evidence of control is not clear-cut, we must reverse. The

       question is whether a general contractor retained sufficient control over the safety aspects of a

       project to be liable to an independent contractor’s employee for the general contractor’s failure to

       properly exercise that control. LePretre distinguishes the facts in Lederer, 2014 IL App (1st)

       123170, which was called into question by our supreme court in Carney. The facts in Lederer,

       however, suggest factors courts should consider in deciding the extent of a general contractor’s

       liability. The Lederer court found that although the mere existence of a safety program, safety

       manual, or safety director is insufficient, standing alone, to impose liability under the retained


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       control exception, the general contractor specifically prohibited one means or method of

       performing the work—using stilts for drywall work—which was enough to subject it to liability.

       The evidence showed that laborers looked to the general contractor to remedy a safety hazard

       and that the general contractor had a strong presence on the site inspecting safety precautions.

¶ 78          Although “[d]efendant’s mere presence at the job site, without more, is insufficient

       evidence of retained control for purposes of section 414” (Carney, 2016 IL 118984, ¶ 55), we are

       presented with more evidence that requires fact-finding regarding each party’s role. The two

       Chicago Town workmen testified through an interpreter, and their deposition transcripts are at

       times confusing. Also, the photographic exhibits may be probative. According to Bokar, they

       were not taken after Foley was injured to document where and how the accident happened, so

       they must have been taken before and show disarray of the rebar. The witnesses’ testimony

       regarding Builtech’s supervisory authority raises a question as to how much retained control it

       had both under the contract and as demonstrated by Bokar’s, Ribskis’, and Foley’s deposition

       testimony. And a question of fact remains as to whether this case involves less than a specific

       prohibition of one means or method of performing the work (Lederer) or more than the complete

       lack of supervision seen in the other cases discussed (Carney, Fonseca, Snow,).

¶ 79                                          Premises Liability

¶ 80          Additionally, Foley argues that his injury on the construction site was due to unsafe

       material storage and material handling. Foley asserts a question of fact exists as to whether

       Builtech had actual or constructive notice of the dangerous condition of the rebar.

¶ 81          Relying on Carney, 2016 IL 118984, ¶ 55, Builtech responds that Bokar’s “mere

       presence” at the job site does not impute actual or constructive notice under Restatement

       Sections 343 or 414. But the evidence establishes far more involvement by Builtech than the


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       No. 1-18-0941


       defendant’s involvement in Carney, where only one person had any interaction with anyone from

       the defendant railroad. Id. ¶ 55. Without more, there was no issue of fact regarding whether the

       railroad retained the control necessary to trigger potential liability. Id. ¶ 44. This case presents a

       different scenario.

                       Section 343 of the Restatement (2d) of Torts entitled “Dangerous Conditions

                  Known to or Discoverable by Possessor” provides: “A possessor of land is subject to

                  liability for physical harm caused to his invitees by a condition on the land if, but

                  only if, he

                       (a) knows or by the exercise of reasonable care would discover the condition, and

                  should realize that it involves an unreasonable risk of harm to such invitees, and

                       (b) should expect that they will not discover or realize the danger, or will fail to

                  protect themselves against it, and

                       (c) fails to exercise reasonable care to protect them against the danger.”

                  (Emphasis added.) Restatement (Second) of Torts § 343 (1965).

¶ 82          The reporter’s notes indicate section 343 should be read together with section 343A, the

       companion section:

                  “Known or Obvious Dangers

                       (1) A possessor of land is not liable to his invitees for physical harm caused to

                  them by any activity or condition on the land whose danger is known or obvious to

                  them, unless the possessor should anticipate the harm despite such knowledge or

                  obviousness.” Restatement (Second) of Torts § 343A (1965).




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       No. 1-18-0941


       The word “known” denotes not only knowledge of the existence of the condition but also an

       appreciation of the danger of the condition, “and the probability and gravity of the threatened

       harm must be appreciated.” Restatement (Second) of Torts § 343A(1) cmt. b (1965).

¶ 83          Regarding sections 343 and 343A of the Restatement (Second) of Torts, the Illinois

       Supreme Court discussed the lower courts’ position that these sections should govern a

       defendant’s possible liability to those lawfully on his or her premises in Ward v. K Mart Corp.,

       136 Ill. 2d 132, 151 (1990).

                       “We recognize that the Restatement speaks to the more general question of

                  liability, and not specifically to the existence of a duty. But we think the principles

                  expressed there are consistent with the general duty of reasonable care owed to

                  invitees and licensees, and they are relevant to the resolution of whether an injury was

                  reasonably foreseeable. We emphasize, however, that since the existence of a duty

                  turns in large part on public policy considerations, the magnitude of the burden of

                  guarding against the injury, and the consequences of placing that burden upon the

                  defendant, as well as the likelihood of injury and the possible serious nature of such

                  an injury must also be taken into account.” Id.

¶ 84          Builtech contends it had no actual or constructive notice because the tangled rebar was

       “hidden” in the pile. But Bokar testified that he inspected the jobsite daily looking for potential

       safety hazards. Witnesses agree the site itself was “small,” and Bokar stated there was no need

       for him to have an assistant superintendent to help oversee the project. The excavator’s witness

       stated there was little room to maneuver on the small site, and he had overheard at least one

       ironworker complaining about the inconvenience of having to get around the excavating being

       done and the partial foundations that were being built in stages. Alfaro and Ramirez each stated


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       No. 1-18-0941


       the rebar piles were properly stacked; Foley stated the rebar had been moved and was in disarray.

       There are genuine issues of material fact as to whether the rebar was stacked in a safe manner or

       had dirt covering it and whether Builtech’s oversight of the jobsite would have revealed an

       unsafe condition.

¶ 85          The dissent theorizes that if Builtech had seen the “tangled mess” of rebar when Bokar

       inspected the site before Foley’s injury and directed Chicago Town to again restack the tangled

       rebar, “nothing would have prevented Foley from doing exactly what he did when he was

       injured: Foley was free to decide to perform the task alone, to refrain from calling for assistance,

       and to pull on tangled pieces of rebar in an attempt to untangle them.” Infra ¶ 110. The dissent

       concludes that this hypothetical scenario demonstrates that Builtech’s conduct did not

       proximately cause Foley’s injury. But this argument instead suggests that the condition of the

       rebar proximately caused Foley’s injury—had Builtech ordered the rebar restacked, it would not

       have been tangled, and Foley would have been able to pull out the rebar he needed, avoiding

       injury. And Builtech was responsible for the conditions at the jobsite.

¶ 86          The dissent concludes, “Liability under the foregoing scenario would not attach unless a

       Builtech employee in the normal course of his or her duties observed a subcontractor’s employee

       performing a task in an unsafe manner and failed to stop it” (infra ¶ 110). This creates an

       impossible standard because, absent firsthand observation of the employee, no contractor would

       be liable for any injury caused by negligence on a jobsite.

¶ 87          Whether a contractor retained control sufficient to trigger liability presents a question of

       fact, and the deposition testimony shows Builtech had an employee specifically monitoring

       safety at the worksite, who was authorized to halt unsafe work practices. Testimony indicated

       that any Builtech employee was empowered to stop a subcontractor’s employees who were doing


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       No. 1-18-0941


       a dangerous task and Builtech required Chicago Town to comply with Builtech’s own safety

       rules. “[T]he question whether the particular connections and activities in a given case were such

       that an owner could be deemed to have charge was a question of fact for the jury to determine.”

       Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 322 (1965) (large number of contractors

       involved in alteration work in several buildings; defendant liable only if it “had charge” of

       construction operations under Structural Work Act (Ill. Rev. Stat. 1957, ch. 48, ¶ 69)).

¶ 88          The dissent cites premises liability cases affirming summary judgments for defendants

       that required evidence supporting an inference “that a landowner who did not create a dangerous

       condition on its premises either knew or should have known of that condition.” Infra ¶ 111

       (citing Carney, 2016 IL 118984, ¶ 94, Hanna v. Creative Designers, Inc., 2016 IL App (1st)

       143727, and Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1038-39 (2000)). But in each

       of these cases, no evidence of notice was produced. In contrast, here, the witnesses contradict

       one another on several points, and Bokar testified as to his own daily involvement in the project.

       The evidence presented raises an issue of whether Builtech retained sufficient control over the

       subcontractor’s work to trigger liability for its employee’s injury. After reviewing de novo the

       pleadings, depositions, exhibits, and admissions on file and construing the pleadings,

       depositions, admissions, and affidavits strictly against the movant and liberally in favor of the

       opponent (Martinez, 296 Ill. App. 3d at 611), we cannot say, as a matter of law, that Builtech

       was entitled to summary judgment. There was sufficient evidence of retained control to present a

       question of fact.

¶ 89          Reversed and remanded.

¶ 90          JUSTICE MASON, dissenting:




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¶ 91          I respectfully disagree with my colleagues’ conclusion that genuine issues of material fact

       exist as to whether Builtech retained control over safety at the work site where Foley was

       injured. Supra ¶ 2. It clearly did. What is missing in this case is any evidence that Builtech

       breached its duty to Foley or that such breach was a proximate cause of Foley’s injury. Nor is

       there any evidence that Builtech had notice of a dangerous condition on its property so as to

       support a claim for premises liability. Because these are essential elements of Foley’s claims, I

       would affirm summary judgment in favor of Builtech. Accordingly, I respectfully dissent.

¶ 92          At the outset, I note that Builtech did not control the “means and methods” of Chicago

       Town’s work at the site and so is not vicariously liable for Chicago Town’s negligence. I do not

       equate control over “means and methods,” i.e., how the subcontractor completes the work it has

       agreed to perform, with the ability to stop work being performed in an unsafe manner.

       Notwithstanding conclusory deposition testimony to the contrary, under its contract with

       Builtech (who, as general contractor, performed no work of its own on the project), Chicago

       Town agreed to furnish “all labor, material, service, and equipment” and was responsible for the

       handling, unloading, and safe storage of materials necessary to the work it agreed to perform.

       Chicago Town decided how much and what type of rebar to order, how to store the rebar on-site,

       the method for placing the rebar in the foundation frames, when and how to pour concrete, and

       when and how to strip the rebar from the frames. Chicago Town determined which and how

       many of its employees would be sent to the site to perform the work. Finally, Chicago Town was

       also responsible for the safety of its employees on the site. Under these circumstances, as a

       matter of law, Builtech did not control the “means and methods” of Chicago Town’s work. See

       Carney, 2016 IL 118984, ¶ 38 (“If the control retained by the employer is such that it gives rise

       to a master-servant relationship, thus negating the person’s status as an independent contractor,


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       the employer may be liable for the negligence of the contractor’s employees under the law of

       agency.”). Consequently, although Foley asserted in the trial court that Builtech could be

       vicariously liable under agency principles for Chicago Town’s negligence, this contention,

       abandoned on appeal, is wrong as a matter of law.

¶ 93          But under the evidence in this case and under the law, Builtech clearly retained control

       over safety sufficient to potentially implicate direct liability for its own negligence under section

       414. “One who entrusts work to an independent contractor, but who retains 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 care, which is caused by his failure to exercise his control with

       reasonable care.” Restatement (Second) of Torts § 414 (1965). The terms of its contract with the

       owner, the provisions of its safety manual, and the testimony of its employees all establish that

       Builtech had general supervisory authority over the work of subcontractors at the site and the

       authority to stop that work if it was being performed in an unsafe manner and that subcontractors

       were obligated to adhere to such directions. There is also no dispute that Builtech owed a duty of

       care to those on the premises, including Foley, to use reasonable care in exercising its retained

       control over safety. Builtech had, in fact, exercised that authority before the date of Foley’s

       injury when Bokar directed that safety caps be placed on the strips of rebar and directed a

       Chicago Town employee to don a safety vest. See Wilkerson, 379 Ill. App. 3d at 497 (“Although

       the contract between [the subcontractor] and defendant seemingly left to [the subcontractor]

       control of the operative details of its work and the safety of its employees, defendant’s actions on

       the jobsite show defendant retained more than a general right of supervision. The best evidence

       of this is the December 12, 2002, letter asserting defendant’s discretionary authority to stop [the

       subcontractor’s] work.”).


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¶ 94          Given this evidence, the majority correctly invokes Wilkerson but, instead of finding that

       a duty exists, concludes that issues of fact remain on that question and reverses. I disagree with

       this analysis. The control retained by Builtech was sufficient, as a matter of law, to render it

       potentially liable for its own negligence under section 414. Restatement (Second) of Torts § 414

       cmt. a, at 387 (1965) (one who hires an independent contractor “may retain only the power ***

       to forbid [the work] being done in a manner likely to be dangerous to himself or others. Such a

       supervisory control may not subject him to liability under the principles of Agency, but he may

       be liable under the rule stated in this Section unless he exercises his supervisory control with

       reasonable care so as to prevent the work he has ordered to be done from causing injury to

       others.”); Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1063 (2000) (general

       contractor “went to great lengths to control the safety standards at the work site”).

¶ 95          The existence of a duty under section 414 is not the real issue in this case. Rather, the real

       issue is whether Foley adduced any evidence that anything Builtech did or failed to do within the

       scope of its retained control over safety proximately caused or contributed to his injury. In other

       words, the issue is whether Foley has raised a genuine issue of material fact as to whether

       (i) Builtech breached its duty and (ii) whether that breach was a proximate cause of his injury.

       He has not. The existence of a duty without evidence of a breach or proximate cause is fatal to

       Foley’s claim. See Carney, 2016 IL 118984, ¶ 26 (“the plaintiff must plead and prove the

       existence of a duty owed by the defendant to the plaintiff, a breach of that duty, and injury

       proximately resulting from the breach”); Milevski v. Ingalls Memorial Hospital, 2018 IL App

       (1st) 172898, ¶ 28 (same); Snow, 2017 IL App (1st) 151226, ¶ 49 (same); see also Illinois Pattern

       Jury Instructions, Civil, No. 55.03 (2011) (plaintiff in construction negligence case has burden to

       prove that (i) defendant retained some control over the safety of the work, (ii) defendant acted or


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       failed to act in specified ways, and in so acting or failing to act, was negligent in that manner in

       which it exercised, or failed to exercise, its retained control, (iii) plaintiff was injured, and

       (iv) defendant’s negligence was a proximate cause of plaintiff’s injuries).

¶ 96          In order to establish the existence of a genuine issue of material fact on the issues of

       breach and proximate cause, it was incumbent on Foley to point to some evidence in the record

       supporting the reasonable inference that Builtech knew or should have known of the condition of

       the pile of rebar before his injury and, in the exercise of its retained control over safety, was in a

       position to prevent that injury. Restatement (Second) of Torts § 414, cmt. b, at 387-88 (1965)

       (general contractor may be liable for its own negligence if it “fails to prevent the subcontractors

       from doing even the details of the work in a way unreasonably dangerous to others, if [it] knows

       or by the exercise of reasonable care should know that the subcontractors’ work is being so done,

       and has the opportunity to prevent it by exercising the power of control which [it] has retained”);

       Restatement (Second) of Torts § 343 (1965) (landowner may be liable for injury to invitee by

       condition on land, but only if landowner “(a) knows or by the exercise of reasonable care would

       discover the condition, and should realize that it involves an unreasonable risk of harm to

       invitees, and (b) should expect that they will not discover or realize the danger, or will fail to

       protect themselves against it, and (c) fails to exercise reasonable care to protect them against the

       danger”). The evidence shows that when the rebar was delivered, Chicago Town employees,

       consistent with the provisions of its subcontract with Builtech, accepted delivery and stacked the

       material on the site. When directed to do so by Builtech to accommodate excavation work,

       Chicago Town employees moved the rebar and restacked it. The Chicago Town employees

       involved in this task testified that they restacked the rebar properly. There is absolutely no

       evidence in the record that Builtech was obligated to or actually did supervise or direct the


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       manner in which this task was performed. Accordingly, if there was a dangerous condition as a

       result of the way in which the rebar was stacked, that condition was created solely by Foley’s

       coworkers. Moreover, Foley readily admitted that he recognized that the rebar he attempted to

       pull from the pile was tangled and knew from his 20 years’ experience as an ironworker how he

       should go about removing pieces from the pile and, in particular, what he should not do in an

       effort to accomplish that task.

¶ 97           The question then is whether Builtech, in advance of Foley’s injury, knew or should have

       known of an unsafe condition in the stacked rebar so that it can potentially be held liable for

       (i) failing to exercise its retained control over safety by directing that the rebar again be restacked

       or (ii) a dangerous condition on the land. 1

¶ 98           On this point, Foley offers only speculation. There is no evidence that before the date

       Foley was injured any Builtech employee (or any Chicago Town employee, for that matter)

       noticed or was advised of any unsafe condition with respect to the rebar stored on the site. If

       Bokar had seen tangled rebar on the site, he would have directed Chicago Town to restack it.

       Foley himself admitted that, when he arrived early on the morning of May 21, he noticed nothing

       dangerous about the pile of rebar. Before Foley started working, he did not observe that the

       stacked rebar was “buried” or a “tangled mess.” It was only after 45 minutes, during which Foley

       removed about two dozen pieces of rebar from the stack, that he noticed that shorter pieces

       “hidden underneath” were tangled. See Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d

       286, 302-03 (2007) (general contractor not liable as a matter of law for injury to employee of

       subcontractor when employee was injured shortly after he began loading I-beams on a trailer and

               1
                Because Builtech performed no work of its own at the site and Chicago Town was responsible
       under its contract for the handling, unloading, and safe storage of the rebar, only Chicago Town would
       have been responsible for restacking the material.


                                                        - 31 -
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        no one from general contractor was present); Cochran, 358 Ill. App. 3d at 879-80 (where unsafe

        ladder setup had been in place for only an hour before plaintiff’s injury and there was no

        evidence that any of general contractor’s employees observed or knew of setup before accident,

        summary judgment in favor of general contractor affirmed).

¶ 99           Foley points to photographs in the record of the pile of rebar, but the originals of the

        photos have not been provided to this court, the black and white photographs are indecipherable,

        the color photos are far from clear, and no witness was able to state when those photographs

        were taken. That being the case, it is impossible to say whether the photographs accurately

        reflect how the materials appeared on the date of Foley’s injury. Moreover, if the photos were

        taken after Foley’s injury, they show only how the rebar appeared after Foley had removed two

        dozen pieces of rebar to discover the shorter, tangled rebar hidden underneath. Consequently,

        because no witness was able to say when the photographs were taken and what they depict, their

        admissibility is questionable, and their relevance is marginal, at best.

¶ 100          Under these facts, any finding that Builtech breached its duty to exercise control over

        safety or is responsible for a dangerous condition on the premises because it knew or should have

        known of the unsafe condition of the rebar would be based not on evidence but on speculation. A

        trier of fact would have to speculate that even though (i) no Builtech employee saw a dangerous

        condition on the property before or on May 21, (ii) no one, including no employee from Chicago

        Town, had advised Builtech of a dangerous condition regarding the rebar before May 21, and

        (iii) Foley himself, an experienced ironworker, saw no dangerous condition when he arrived on

        May 21, Builtech should have known through some unidentified source about the tangled rebar.

        No verdict in Foley’s favor based on such speculation could stand. See Milevski, 2018 IL App




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        (1st) 172898, ¶ 27 (“[M]ere speculation, conjecture, or guess is insufficient to withstand

        summary judgment.” (Internal quotation marks omitted.)).

¶ 101           Further, beyond the lack of evidence that Builtech breached its duty to oversee safety on

        the work site, there is likewise a complete absence of any evidence that such failure proximately

        caused Foley’s injury. Foley was injured when, contrary to his 20 years of experience and

        training as an ironworker, he attempted to pull a piece of rebar that had become tangled with

        other pieces and did so in a way that injured his back. Foley admitted that he required no training

        or supervision to move the rebar and that he had previous experience in separating rebar when

        pieces had become tangled. In violation of the provisions of Builtech’s safety manual (“If the

        load is awkward or heavy to lift, get help”; “Do not jerk the load”), Foley admitted that in

        attempting to remove rebar from the pile he both jerked it and then pulled as hard as he could to

        try to free it. In other words, Foley did exactly what Builtech’s safety manual told him not to do

        and, as a result, injured himself.

                        “Q. So when you were jerking it, that’s when you felt the pop in your neck?

                        A. Yeah, but sometimes that’s the only way you can get bars out if you jerk them

                    hard enough.”

¶ 102           Foley admitted that, upon discovering the tangled rebar, he could have called Mike

        Chapman, Chicago Town’s owner, and asked for another ironworker to assist him but decided

        not to because he knew Chapman wanted to start pouring concrete by noon that day. 2 Further,

        although Chicago Town had two laborers on-site, union rules prevented anyone but ironworkers

        from handling rebar, and Foley did not pursue obtaining permission for the laborers to help him.


                2
                 Foley testified: “I was trying to do right by Mike without having to *** let him get his laborers
        out there and give me a hand.”


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        And according to Foley, he did not see any Builtech employee on the work site that morning. So

        the conclusion is unavoidable that Foley decided to perform a task in an unsafe manner and at a

        time when no Builtech employee was present to observe him, much less prevent him from doing

        so.

¶ 103          Accordingly, just as discussed above regarding the existence of a breach, any conclusion

        that Builtech’s conduct proximately caused Foley’s injury would be based on improper

        speculation that, even though no Builtech employee saw Foley handling the rebar in an unsafe

        manner, Builtech could have somehow prevented Foley’s injury. See Nowak v. Coghill, 296 Ill.

        App. 3d 886, 895 (1998) (“[P]roximate cause can only be established when there is a reasonable

        certainty that defendant’s acts caused plaintiff’s injury. [Citation.] Although a plaintiff need not

        prove his case at the summary judgment stage of the proceedings, if he fails to present sufficient

        evidentiary facts to support the elements of his cause of action, including the proximate cause

        element, then summary judgment in favor of the defendant is appropriate.”).

¶ 104          We recently addressed similar issues and affirmed summary judgment in favor of a

        general contractor in Gerasi v. Gilbane Building Co., 2017 IL App (1st) 133000. In that case,

        Gerasi, an electrical subcontractor’s employee, was injured when he attempted to provide

        temporary power for a welder by connecting the equipment to an available breaker in the

        building’s electrical system. The breaker was defective (a fact unknown to Gilbane, the general

        contractor), and Gerasi, contrary to Gilbane’s safety manual, failed to use available protective

        equipment for his eyes, face, and hands. Gerasi was a journeyman electrician and had performed

        such temporary power connections hundreds of times before without wearing protective

        equipment. No Gilbane employee observed Gerasi at the time of the accident. As here, Gerasi




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        sued Gilbane as the general contractor, alleging that it had a duty to stop work being performed

        in an unsafe manner and failed to provide safety gear and a safe place to work.

¶ 105          For purposes of the analysis we assumed that the general contractor retained control over

        safety sufficient to trigger potential liability under section 414. Id. ¶ 52. We then assessed the

        evidence to determine whether “Gilbane negligently breached a duty within the scope of its

        retained control and [whether] its breach proximately caused Gerasi’s injuries.” Id. ¶ 53.

¶ 106          As to Gilbane’s alleged negligence in enforcing its safety plan, we noted that nothing in

        Gilbane’s contract with the owner of the premises required it to provide full-time supervision of

        subcontractors’ work on the project. We found that Gilbane’s preparation of a detailed safety

        plan, the commitments it obtained from subcontractors to adhere to that plan, and its weekly

        safety meetings with subcontractors all fulfilled the duty Gilbane owed pursuant to its retained

        control over safety. Id. ¶ 57. We further found that, “in the undisputed absence of any

        requirement that Gilbane personally supervise tie-ins to ensure that they conformed to its safety

        plan ***, nothing that Gilbane did or failed to do contributed to Gerasi’s accident.” Id. ¶ 60.

¶ 107          We also observed that Gerasi had adduced no evidence that Gilbane knew or should have

        known that the subcontractor’s employees were performing power connections in an unsafe

        manner or that there were defects in the breakers that posed a hazard to electricians so as to

        implicate premises liability. Id. ¶ 64. Gilbane’s construction manager was not required to be on-

        site full time, and there was no evidence he ever personally observed any electrician performing

        a temporary power connection in an unsafe manner or that he should have known that

        electricians were not using safety equipment when they were doing so. Id. (“Thus, at bottom,

        Gerasi’s claim is based on the circumstances that Gilbane did not insist on a procedure for a

        temporary tie-in that had never before been used and did not warn Gerasi of a dangerous


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        condition that Gilbane did not know or have reason to know existed.”). We ultimately concluded

        that no genuine issue of fact existed regarding Gilbane’s breach of duty or proximate cause,

        either as to its retained control over safety or regarding Gerasi’s premises liability claim, and

        affirmed summary judgment in Gilbane’s favor. Id. ¶ 67.

¶ 108          The analysis in Gerasi applies with equal force to this case. As in Gerasi, pursuant to its

        contract with the owner, Builtech was not obligated to provide full-time supervision on-site. So

        when the majority observes that “[p]art of Bokar’s job was to stop a worker from improperly

        lifting a heavy item” (supra ¶ 10), the unspoken assumption is that Builtech had a duty to

        provide full-time supervision on the site, which is refuted by the terms of its contract with the

        owner. Likewise, the terms of Builtech’s contract with the owner did not prevent Builtech from

        delegating primary responsibility for work site safety to the various subcontractors it hired to

        work on the project. See LePretre, 2017 IL App (1st) 162320, ¶ 44 (noting that general

        contractor had delegated its responsibility for trade-specific safety and workmanship to its

        subcontractors). Bokar testified that he visited the site every day but spent the majority of his

        time in Builtech’s office across the street coordinating the schedules of subcontractors on the

        project. Also, just as in Gerasi, Builtech had an extensive safety manual that it required its

        subcontractors to adhere to, and Bokar conducted weekly safety meetings. Builtech’s manual

        covered all aspects of work site safety, including the proper methods workers should use for

        lifting heavy material. Foley’s experience and training as an ironworker taught him that he

        should not attempt to pull or jerk tangled pieces of rebar, and he admitted that the piece of rebar

        he was attempting to remove from the pile moved only slightly when he initially pulled it.

        Instead of getting help, Foley continued to pull and jerk the rebar in an effort to remove it,

        causing his injury. Just like the plaintiff in Gerasi, Foley was an experienced ironworker


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        handling rebar as he had hundreds of times before, no one from Builtech observed him handling

        the rebar, and nothing Builtech did or failed to do contributed to the unsafe manner in which he

        chose to handle it. 3

¶ 109           That Builtech’s conduct did not proximately cause Foley’s injury is best illustrated by

        assuming that, as Foley contends, Builtech should have seen the “tangled mess” of rebar when

        Bokar inspected the site either before or earlier in the day of Foley’s injury. If, as a result,

        Builtech directed Chicago Town to again restack the tangled rebar, nothing would have required

        Builtech to oversee that task, and nothing would have prevented Foley from doing exactly what

        he did when he was injured: Foley was free to decide to perform the task alone, to refrain from

        calling for assistance, and to pull on tangled pieces of rebar in an attempt to untangle them.

        Liability under the foregoing scenario would not attach unless a Builtech employee in the normal

        course of his or her duties observed a subcontractor’s employee performing the task in an unsafe

        manner and failed to stop it. This is precisely the evidence that is missing in this case.

¶ 110           Although the majority posits that this creates an “impossible standard” (supra ¶ 87), it is

        no more impossible than in countless premises liability cases in which the plaintiff must adduce

        evidence from which it can be inferred that a landowner who did not create a dangerous

        condition on its premises either knew or should have known of that condition. Absent such

        evidence, summary judgment is proper. See, e.g., Carney, 2016 IL 118984, ¶ 94 (“no evidence

        was presented that defendant knew or should have known the extent to which the transition plate

        on the Polk Street bridge extended into the roadbed”; summary judgment against plaintiff


                3
                 Indeed, Builtech’s safety manual has the same provisions regarding provision of temporary
        power at issue in Gerasi. If Foley had been an electrician performing a temporary power connection and
        no one from Builtech observed him or had reason to know that he was performing the task in an unsafe
        manner, Gerasi would be indistinguishable from this case.



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        affirmed); Hanna v. Creative Designers, Inc., 2016 IL App (1st) 143727, ¶¶ 10, 14 (stylist at hair

        salon injured when flip-top counter fell on her shoulder; no evidence that operator of salon had

        actual or constructive notice of any defect in the countertops; summary judgment against

        plaintiff affirmed); Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1038-39 (2000)

        (plaintiff injured as a result of water on surface of roller skating rink; no evidence adduced of

        how long water had been on surface; “[u]nder these circumstances, liability cannot be imposed

        upon the owner for the presence of a substance that no one had knowledge of immediately prior

        to the occurrence. To do so would be to make the owner the insurer of the safety of the plaintiff”

        (citing Olinger v. Great Atlantic & Pacific Tea Co., 21 Ill. 2d 469, 476 (1961))).

¶ 111          Foley can point to no affirmative duty imposed on Builtech, either under its contracts

        with the owner and Chicago Town or under the law, to supervise the activities of all employees

        on the work site to make sure they were performing their respective tasks safely. Imposing

        liability under the circumstances here would effectively render Builtech the insurer of the safety

        of all subcontractors’ employees on the work site and would penalize it for implementing safety

        manuals and otherwise exercising supervisory control over safety. See Carney, 2016 IL 118984,

        ¶ 61. Builtech did not create the allegedly unsafe condition of the rebar, and the record contains

        absolutely no evidence that Builtech knew or should have known of that condition before Foley

        was injured.

¶ 112          Whether viewed as a failure to raise a genuine issue of material fact as to (i) Builtech’s

        breach of duty or (ii) the proximate relationship between that breach and his injury, or both,

        Foley’s claims premised on negligence and premises liability fail as a matter of law and were

        properly resolved on summary judgment.




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                                  No. 1-18-0941


Cite as:                 Foley v. Builtech Construction, Inc., 2019 IL App (1st) 180941


Decision Under Review:   Appeal from the Circuit Court of Cook County, No. 16-L-2809;
                         the Hon. Kathy M. Flanagan, Judge, presiding.


Attorneys                Steven A. Berman, of Anesi, Ozmon, Rodin, Novak & Kohen,
for                      Ltd., of Chicago, for appellant.
Appellant:


Attorneys                Dustin J. Karrison, of Purcell & Wardrope, Chtrd., of Chicago,
for                      for appellee.
Appellee:




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