                                         2014 IL App (1st) 123170
                                               No. 1-12-3170
                                       Opinion filed August 29, 2014
                                                                    FIFTH DIVISION
     ______________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             FIRST DISTRICT

     ______________________________________________________________________________

     ROGER LEDERER,                                       ) Appeal from the Circuit Court
                                                          ) of Cook County.
                                                          )
           Plaintiff-Appellant,                           )
                                                          )
     v.                                                   ) No. 09 L 221
                                                          )
     EXECUTIVE CONSTRUCTION, INC.,                        )
                                                          ) The Honorable
           Defendant-Appellee and Third-Party Plaintiff   ) Kathy M. Flanagan,
                                                          ) Judge, presiding.
     (Midwest Interstate Electrical Construction Company, )
     Defendants, and Alliance Drywall and Acoustical      )
     Company, Third-party Defendant).                     )
     ______________________________________________________________________________

            JUSTICE PALMER delivered the judgment of the court, with opinion.
            Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.


                                                 OPINION


¶1          Plaintiff, Roger Lederer, appeals the circuit court's July 26, 2012, grant of summary
     judgment in favor of defendant-appellee Executive Construction, Inc. (Executive). On appeal,
     Lederer contends that the circuit court erred in granting summary judgment because section 414
     of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965)) established a
     duty of reasonable care in the present case. Plaintiff argues that the undisputed facts established,
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     as a matter of law, that the degree of control Executive exercised over the construction project
     imposed a duty of reasonable care upon Executive. Plaintiff also argues that, as a matter of law,
     a duty of reasonable care was imposed upon Executive as it had notice of the dangerous
     condition. For the reasons that follow, we reverse the circuit court's ruling and remand for
     further proceedings.
¶2                                          I. BACKGROUND 1
¶3          Executive was the general contractor for the construction of an office space on several
     floors of an existing building located at 115 South LaSalle Street (the project) in Chicago,
     Illinois, for BMO Capital Markets (BMO). Executive subcontracted with Midwest Interstate
     Electrical Construction Company (Midwest) for the electrical work at the site. Executive also
     subcontracted with third-party defendant, Alliance Drywall and Acoustical Company (Alliance),
     for the drywall and acoustical ceiling work at the site. Plaintiff, a drywall taper employed by
     Alliance at the site, was working on the ceiling of a conference room on the thirty-seventh floor
     on July 22, 2008, which was his second day on the job. While performing the work, plaintiff
     stood on stilts to reach the ceiling, and he fell after allegedly tripping over an exposed and
     unguarded electrical conduit or pipe protruding from the floor in the conference room.
¶4          Following the accident, plaintiff filed a personal injury action against Executive and
     Midwest in 2009. Against Executive, plaintiff alleged negligence for failing to ensure that
     warning cones were placed over the electrical conduit, failing to remove construction debris from
     the area, failing to warn plaintiff about the conduit, allowing plaintiff to use stilts in performing
     the drywall work, failing to require the use of a scaffold, and otherwise failing to provide a safe
     workspace and follow job safety rules. Against Midwest, plaintiff alleged that it failed to place
     warning cones over the conduit, failed to remove construction debris, failed to warn plaintiff
     about the conduit, and failed to follow and enforce its own job safety rules. Executive and
     Midwest both filed third-party complaints against Alliance and counterclaims against plaintiff
     for contributory negligence. Executive filed a counterclaim for contribution against Midwest.
¶5          Executive moved for summary judgment pursuant to section 2-1005 of the Illinois Code
     of Civil Procedure (the Code) (735 ILCS 5/2-1005 (West 2010)) as to plaintiff's complaint.
     Executive argued that it owed no duty of care to plaintiff under section 414 of the Restatement

            1
              The factual allegations are drawn from the complaint, discovery documents filed in the
     circuit court, and briefing on the motion to dismiss and attached exhibits.
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     (Second) of Torts as it did not retain sufficient control over plaintiff's methods of work or
     operative details to impose such a duty, and it had no knowledge of the allegedly unsafe
     conditions. Plaintiff countered that the evidence showed that Executive retained supervisory
     control over the operative details of his work, had the authority to halt work being done in an
     unsafe manner and had notice that he was using stilts and of the unsafe conditions, and the use of
     stilts was prohibited by Executive's safety manual. In connection with the motion, Executive and
     plaintiff submitted the pertinent construction contracts, safety manuals, and other documentation,
     along with the deposition testimony of plaintiff and several individuals employed by the parties.
¶6                            A. The Contracts and Safety Manuals Involved
¶7          Executive had a master contract with BMO that permitted Executive to subcontract
     portions of the work it did not customarily perform. In a letter that was included with the master
     contract attached to Executive's motion for summary disposition, Executive vice president Glenn
     Kamin set forth Executive's proposal for the project and wrote that the services that Executive
     would provide included "Project Control Coordination and Supervision." The letter indicated
     that Executive "controls construction activities closely. These activities include subcontractor
     supervision, quality of workmanship, sequencing of work, material deliveries, documentation of
     decisions, and adherence to the schedule." Further, the letter stated that the proposed cost the
     project included, among other things, "Full time site supervision," "Project Management," "First
     aid supplies & equipment," and "Safety program & OHSA compliance."
¶8          Executive and Alliance entered into a master subcontract agreement and a subcontract
     work order. The master subcontract agreement provided that Alliance "shall perform all work as
     authorized and described in Work Orders" and that "all work shall be performed in accordance
     with all OSHA Standards, Subcontractors' Safety Programs, [and] ECI's [Executive's] Safety
     Program."    The subcontract further provided that Alliance "shall furnish all supervision,
     materials, plant, scaffolding, hoisting, tools, equipment, supplies and all other things necessary
     for the construction and completion of the work described in the specific project Work Order."
     Alliance agreed assume all the obligations and responsibilities that Executive had assumed
     toward BMO. Additionally, the subcontract required Alliance to "coordinate with other work
     and shall carefully examine other work, determine whether it is in fit, ready and suitable
     condition for the proper and accurate performance of the Work hereunder, use all means
     necessary to discovery any defects in such other work, and before proceeding with the Work

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       hereunder, report promptly any such improper conditions and defects to ECI in writing and allow
       ECI a reasonable time to have such improper conditions and defects remedied."
¶9            The subcontract work order between Executive and Alliance set forth Alliance's scope of
       work for the project and authorized Alliance to provide "all labor, materials, tools, equipment
       and supervision required" to complete the work. The scope of work included providing for "all
       access and scaffolding arrangements necessary to complete the work," coordinating work with
       the other subcontractors, attending weekly coordination meetings, and complying "with all
       building rules and regulations."
¶ 10          Attached to the Alliance/Executive contracts was a document entitled "contractor rules
       and regulations" for the building, which included "EXHIBIT 'G' CONTRACTOR'S SAFETY
       REQUIREMENTS." This document provided that the contractor was required to prepare and
       implement a project safety program, "shall require all Subcontractors at any tier to adhere to the
       Project Safety Program as well, and shall ensure its Subcontractor's actions, policies and
       programs do not interfere with the Project Safety Program." The document indicated that the
       contractor would have a project superintendent responsible for implementing and enforcing the
       safety program, while the subcontractors would have a safety representative who would also
       ensure compliance with the project safety program, train their employees, conduct weekly "tool
       box" meetings, and submit written minutes to the project safety coordinator. It also provided that
       project employees were required to comply with the project safety program and the
       subcontractor's safety program, safely utilize tools and equipment, and alert supervisors of
       hazards and dangerous conditions.
¶ 11          Executive and Midwest also entered into a master subcontract agreement and subcontract
       work order for the project, which, with the exception of the type of work, were identical to those
       entered into between Executive and Alliance.
¶ 12          In addition, Executive's own safety manual provided that the "supervisor and
       management are to enforce all safety rules" and the supervisor, project manager, and safety
       coordinator were "responsible for inspecting the jobsite on a regular basis" for unsafe conditions.
       It provided that subcontractor employees "should be properly warned when in a dangerous
       situation," and should warn others when they are aware of such a situation and "report any
       dangerous or unsafe condition to his supervisor or a safety representative." Additionally, the



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       manual provided that "[t]he use of stilts is not permitted by an ECI or subcontracted employee on
       ECI job sites."
¶ 13                                        B. Deposition Testimony
¶ 14          Executive's superintendent for the project, Anthony Urso, testified in his deposition that
       there was a safety preplanning and coordination meeting with the subcontractors before
       construction began on the project. Executive had a safety coordinator, Melissa Kamin, who
       reviewed safety policies and ran the safety coordination meeting. She was not on-site on a daily
       basis, but visited occasionally.
¶ 15          Urso explained that his role as superintendent was to "oversee the project as a whole
       [and] to oversee the schedule" and report back to his office regarding "manpower, job site duties,
       scheduling, [and] job coordination." He did not specifically coordinate the work being done
       between Alliance and other contractors as far as instructing them which rooms they had to work
       in. Urso testified that he would not say that he had "overall control" of the work done at the
       jobsite, but he "would give opinions and/or reiterate our schedules." When asked if Executive
       scheduled the drywall workers to work in the same room as the electricians at the same time,
       Urso responded that this would be "micromanaging, which we didn’t micromanage the project."
       Urso gave subcontractors general date guidelines based on the master schedule for the project,
       which Executive created. The foremen from the subcontractors reported to him on a regular
       basis and Executive had weekly coordination meetings with the subcontractors. Safety was one
       of the topics discussed, in addition to the course and schedule of the work. At the weekly
       meetings, Urso "reiterate[d] that we want everybody to abide by ECI's safety policies. If you
       were to put a potential hazard there, that you're responsible for protecting that."
¶ 16          Urso testified that he was familiar with Executive's safety manual and indicated that it
       should have been sent to all subcontractors. However, Urso testified that Executive did not have
       a specific policy regarding stilts and he did not instruct any subcontractors not to use them; he
       did not recall seeing anyone use stilts at the project and if he had, he would not have instructed
       them to stop using stilts. He affirmed that part of his responsibility as superintendent was to
       ensure "the subcontractors are abiding by what's in the safety policy," and ensure the
       subcontractors complied with their contractual obligations and the building's safety policies.
¶ 17          Urso was at the jobsite on a day-to-day basis. He did weekly safety inspection walk-
       throughs of the jobsite, where he inspected the work of Executive and the subcontractors, the

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       conditions of the jobsite, and looked for any unsafe or hazardous conditions created by Executive
       or a subcontractor. If he noticed a potential safety hazard, such as the accumulation of debris, he
       or someone from Executive would talk to the subcontractor about addressing it. If he "noticed
       any potential hazards due to a specific subcontractor, [he] would approach them and have them
       follow up with the proper safety procedures to draw attention to or protect these hazards." He
       affirmed that hazards included electrical conduit feeds protruding from the floor, which were
       installed by the electrical subcontractor. He testified that for one or two instances of an electrical
       conduit feed being left unguarded, he would "follow up with a verbal to their foreman." If it was
       a persistent problem, then he would make a written report or note and call Executive's safety
       coordinator.
¶ 18          When asked if he felt he had the right to stop subcontractors working with inadequate
       lighting, Urso answered, "I don’t feel I have the right to stop their work." When asked if he had
       the right to stop work that was being done in an unsafe manner where it needed "immediate
       attention for somebody's personal welfare," Urso responded, "[i]f I feel there is an urge to safety,
       I would generally pull them away from that task until it's corrected." When asked whether he
       would have to go through the workers' foreman or if he could address the workers directly, Urso
       explained that, "[i]t really depends on the safety situation. If I see immediate danger, then I
       would address the immediate instance and then go to their site foreman." He testified that "if it
       was something critical where I saw somebody was going to potentially get hurt immediately, I
       may step in and say, hey, step away from what you're doing, just out of avoiding any injuries. If
       it was not something critical, it would probably be brought up to their site foreman." Urso
       testified that he had never stopped a subcontractor's work for safety reasons. He testified that
       subcontractors were expected to report any unsafe conditions they observed.
¶ 19          Urso testified that it was Midwest's responsibility to protect any hazards it created and
       Midwest used three-foot-high orange safety cones to cover protruding electrical conduit. He did
       not expect other subcontractors besides Midwest to cover an exposed conduit if they saw one. It
       was not "100 percent expected" that an Executive employee would cover an exposed conduit, but
       Urso explained "these were topics that we discussed at our safety coordination meetings to
       protect—as a whole, protect."
¶ 20          Urso testified that on July 21, 2008, he encountered plaintiff for the first time during
       Urso's walk-through of the jobsite that morning, and plaintiff remarked to him that the site was

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       "congested." According to Urso, plaintiff made this comment when they were near the freight
       elevator and lobby area on the thirty-seventh floor, and not in the conference room specifically
       (where the accident later occurred). Urso responded, "we will look into it." Urso testified that
       there were construction materials in the vicinity which probably belonged to a variety of
       subcontractors. Urso did not recall whether he went into the conference room at issue that day,
       but he explained that the conference room was directly off the entrance by the freight elevator
       and "[e]verybody that walked onto the site through the freight looked directly into that room."
       The conference room was missing one wall, so Urso did not need to physically walk into the
       room to see into it. Urso observed that there were boxes pushed up against the conference room
       walls; he did not recall the boxes being a tripping hazard as they were stacked neatly against the
       walls and "you could walk through the center of the room." He did not recall any other materials
       being stored in that room. With regard to the piece of electrical conduit which protruded from
       the floor in the conference room, he testified that he never observed it being left uncovered or
       unguarded. Urso also did not receive any complaints about insufficient lighting at the jobsite and
       he believed that there were temporary strands of lighting in the hallway starting by the freight
       elevator area and down the hallway, and light would enter the conference room from the
       hallway.
¶ 21          He did not talk to plaintiff on the day of the accident on July 22, 2008. Urso testified that
       following the accident, he "didn't give any subcontractors any different specific directions." He
       generally "reiterate[d] our safety policies." He testified that "[w]e follow up weekly with our
       safety policies with all subs irregardless [sic] of incidents." However, when asked whether
       Executive took any remedial action after the accident, Urso testified that "[g]enerally, ECI has a
       policy. They will no longer allow stilts on projects." He did not know the specific date that the
       policy went into effect.
¶ 22          Plaintiff testified in his deposition that he worked for Alliance for almost three years
       before the accident, and had worked in as a drywall taper and finisher for over 20 years. He
       testified that it was common for drywall finishers to work close to other contractors and he was
       aware that potential safety hazards could arise. He had used stilts since he was 14 years old; he
       was 57 years old at the time of the deposition. He affirmed that it was customary in his industry
       to use stilts to do his job, he used them in approximately 50% to 60% of his work, and he felt
       knowledgeable and qualified to use them.

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¶ 23          Plaintiff began working at the project on July 21, 2008, and the accident occurred the
       next day on July 22. He denied receiving a safety manual from Alliance, Executive, or any other
       contractor for the project. He used stilts at the project, which were made of aluminum and were
       strapped to his legs and could be adjusted in height. Plaintiff testified that Alliance provided him
       with the stilts and he was issued stilts when he began working for Alliance. He testified that
       Alliance provided him with several tools in addition to stilts, but he was responsible for bringing
       them to the jobsite. Alliance provided scaffolds at the site.
¶ 24          Plaintiff testified that on July 21, 2008, there were hazardous conditions everywhere at
       the jobsite because of various construction materials on the floor. Plaintiff complained to Urso,
       the superintendent for Executive, to Alliance's foreman, John Alonzo, and to the electrical
       foreman. He testified that he first complained to Urso that "this has got a whole bunch of stuff
       in here. It's very dangerous." Plaintiff asked if Urso could have some workers clean it up, but
       Urso "looked at me [plaintiff] and smiled and said I'll see what I can do about it and then he left."
       He testified that he spoke with Urso for 5 to 10 minutes on July 21. Plaintiff testified that he
       then went to Alonzo and told him that "[t]here's a lot of stuff in here," and Alonzo instructed two
       Alliance carpenters to clean up Alliance's materials. Plaintiff also asked the electrical foreman if
       he could "clean his stuff up," but he told plaintiff to talk to the general contractor. Plaintiff
       testified that even though the Alliance workers cleaned up, he did not feel that his complaints
       were fully remedied, but if he refused to keep working, he would lose his job. However, he
       conceded that no one at Alliance or Executive specifically told him that he would be laid off if he
       refused to work in potentially hazardous conditions.
¶ 25          While at the jobsite, plaintiff observed electrical conduit protruding from the floors in
       several rooms where electricians were working. He observed that the electricians would place
       safety cones on the conduit, take the cones off to pull wires, and then replace the cones. He also
       observed that the electricians would take the cones and place them outside the rooms where they
       were working. Although he observed that some cones were removed from the conduits, he did
       not complain to anyone. He had used stilts around conduit protrusions before.
¶ 26          Plaintiff testified that on July 21, he "jumped all over" while working that day on the
       thirty-seventh floor, which had several conference rooms and a lobby by the elevator. He
       worked on stilts for a little bit of the time. He did not observe an electrical conduit protruding
       from the floor in the conference room (in which the accident occurred the next day) because

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       there were no lights on in the room. He did not believe that room had an electrical conduit
       protruding from the floor, unlike the other conference rooms on the thirty-seventh floor, because
       the room was smaller. He did not observe any orange cones on the floor in the conference room.
       He worked in there for about one hour.
¶ 27           Plaintiff testified that on the day of the accident, July 22, 2008, he worked for two to
       three hours before the accident occurred. Plaintiff testified that, before he took his break that
       day, he noticed a safety cone outside the conference room where the accident later occurred. He
       saw it a couple hours before the accident occurred. Plaintiff did not speak to Urso or make any
       complaints to the electricians on July 22. Plaintiff testified that the other Alliance drywall taper,
       Miguel Sandoval, told him he was going to use the scaffold in the lobby area and told plaintiff to
       use the stilts. Plaintiff indicated that Alonzo and David Ferrarini, Alliance's superintendent, saw
       him using stilts, and they did not instruct him to stop using them. Plaintiff never complained
       about using stilts instead of a scaffold.
¶ 28           He did not walk through the conference room at issue beforehand to ensure it was safe.
       According to plaintiff, he did not observe a scaffold in the room. He testified that he did not
       move or restack boxes in the conference room before beginning work there, but he later
       conceded that it was possible that he moved or stacked boxes or other items in that room: "It
       could have been possible because I did that after break. So I could have been down off my stilts
       and looked in that room."      He testified that he asked Alonzo to check the conference room at
       issue before he began working in there. He testified that Alonzo was "cleaning a room here and
       there, and he'd say, yeah, this one's cleaned out," and Alonzo would direct plaintiff to the next
       room in which he was to start working. When Alonzo "pointed that was the next room," plaintiff
       construed this to mean it was safe to go in the conference room.
¶ 29           Plaintiff testified that he worked in the conference room for approximately five minutes
       before he tripped over the protruding electrical conduit with his right foot and fell. He explained
       that he knew that was what he tripped over because there were boxes hiding it, and it was "the
       only thing in the room that would have tripped me like that." After he fell, Ferrarini came in the
       room and unstrapped the stilts. Plaintiff testified that the conduit was in the center of the
       conference room, but he did not see the conduit before the accident because there was no safety
       cone on it and there were "all kinds of cabinets around it" and "all kinds of stuff" in the way,
       including boxes. He believed there were two or three other people in the room at the time, and

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       he knew that there were at least "two [people] because the electricians were working on that, had
       the cone off." He did not observe them remove the cone and he did not know how long the
       conduit was uncovered. He testified that there was a safety cone outside of the room. According
       to plaintiff, there was no lighting in the conference room and the only light came from outside
       the room, but he did not complain to anyone about the lack of lighting.
¶ 30          Sandoval, the drywall taper working with plaintiff, testified that he received a safety
       manual from Alliance. He received instructions from Alonzo and he never spoke with any
       Executive employees about his work. Sandoval also used stilts at the project "[n]early every
       day." Alliance provided scaffolds and stilts, but the workers brought the stilts with them. He
       indicated that no one from Alliance directed him to use stilts; it was his own choice. He was
       familiar with electrical conduits protruding from the floor and he tried to avoid them; he
       expected an orange cone to be placed over an exposed conduit.
¶ 31          According to Sandoval, on the day of the accident, Alonzo instructed Alliance employees
       that morning regarding that day's work. Sandoval and plaintiff worked in the conference room at
       some point. Sandoval indicated that there were boxes and other items in the room, and he and
       plaintiff stacked them against the wall. He indicated that there was a big light in the room and he
       had no difficulty seeing. Sandoval saw the electrical conduit protruding from the floor. When
       asked if plaintiff also saw it, Sandoval testified, "Oh, yeah, he saw it," and indicated that he and
       plaintiff gestured to each other regarding the conduit. Sandoval testified that they placed a
       scaffold over the conduit. Sandoval complained to Alonzo regarding the unguarded conduit, and
       he testified that plaintiff also told Alonzo. Sandoval testified that Alonzo responded that "he was
       going to talk to either the electricians or the foreman." Alonzo did not instruct them to stop
       working because of the conduit, but Alonzo advised them "to make sure that it was safe, that we
       weren't going to fall or anything" and to "stay away from it." Sandoval testified that they worked
       on the ceiling in the conference room for about one hour and he worked on stilts while plaintiff
       used the scaffold. He indicated that other workers were in and out of the room during that time
       to get supplies, but he did not know if anyone from Executive was there and there were no
       electricians working on the conduit. Alonzo then told Sandoval to go work on a different floor;
       when Sandoval left, the scaffold was no longer over the conduit.           The accident occurred
       sometime after Sandoval left.



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¶ 32          Alliance's foreman Alonzo 2 testified that he first observed the conduit in the conference
       room about one week before the accident. There was no safety cone over it, so he found a safety
       cone and placed it over the conduit because "we were going to be having to go in there in the
       next day or so." He believed that the cone was still there the day before the accident. Plaintiff or
       Sandoval, or both, complained to him about the conference room because of all the materials in
       the room on the day before the accident and the day of the accident. The room contained boxes,
       cinderblock, and woodworking materials. He, Sandoval, and plaintiff had to move the materials
       out of the way. He testified that he did not "know if I specifically gave them instructions to do it
       or not, but *** it would have been implied. But, yes, they were—they had to work in that room,
       so, yes, they had to clear out the area." He indicated that the condition of the conference room
       was "inconvenient but it wasn't unworkable." Alonzo testified that none of the materials were
       blocking, hiding, or obstructing access to the electrical conduit protrusion.
¶ 33          According to Alonzo, on the day of the accident, he passed by the conference room at
       5:50 a.m. and observed no cone over the conduit. He observed the conduit again shortly after 6
       a.m. when Alliance had its morning meeting. "Miguel [Sandoval] and I were standing in the
       room. I don't remember if Roger [Lederer] was there or not. But since I—the cone was not there
       and I looked around, I did not see the cone anywhere, I told Miguel to be careful of the conduit
       when they were working in there." He instructed plaintiff and Sandoval to work in that room
       that day, but did not specify whether to use scaffolds or stilts. He did not instruct them to protect
       the conduit because "as soon as I left that room, I went to find either a—either ECI [Executive]
       or Midwest to b*** about what—about removal of the cone and/or not having something there."
       However, while on his way to alert someone from Executive or Midwest, Alonzo "ran into my
       supervisor [John Becker], b*** at him, and we were both on our way to go find somebody when
       the accident occurred." Alonzo was not present when plaintiff's accident occurred.
¶ 34          Alonzo testified that he had previously spoken with Urso, who "kept telling me to get in
       that room and tape it, and I told him when he cleared out his unneeded or unused materials out of
       this room that we would go in there and work." He testified that he spoke to Urso at "the
       Monday job meeting prior to that week and then the job meeting" of the week of the accident.
¶ 35          Alliance's superintendent of the project, Ferrarini, testified that it was his responsibility to
       regularly inspect the jobsite, coordinate Alliance's work with other contractors, ensure Alliance
              2
                  John Alonzo's deposition was not included in the lower court record in its entirety.
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       completed the scope of work, and ensure Alliance employees complied with Alliance's safety
       manual. He never saw Executive's safety manual. He testified that Alliance conducted weekly
       "toolbox talks," Alonzo instructed Alliance employees at the beginning of every workday, and
       Alliance was responsible to take precautions for its workers' safety, post warning signs and
       protect unsafe area of its own work, and notify someone of a dangerous condition if created by
       another contractor. Ferrarini indicated that Alliance and its employees had the expertise to
       perform the drywall work and use the required tools, they did not need instructions, and no one
       from Executive instructed him how to perform the work.            Stilts were commonly used on
       construction projects and no one from Executive indicated that they were not permitted.
¶ 36           Ferrarini did not believe that Alliance provided stilts, but workers brought their own, and
       Alliance supplied scaffolds, ladders, and roll-and-folds at the project. He indicated that it was
       "up to the taper" whether to use stilts or a scaffold. He affirmed that if an Alliance employee
       observed an unguarded conduit protruding from the floor, the employee should not use stilts until
       the condition was remedied. He had the authority to stop the employee and remedy the issue.
¶ 37            The day before the accident, Ferrarini did not recall observing any unkempt conditions in
       the conference room. He also did not observe an orange cone in the room.
¶ 38           The day of the accident, Ferrarini was near the area outside the conference room doing a
       walk-through approximately five to ten minutes before the accident occurred. Plaintiff was
       working on stilts and taping ceilings in the area adjacent to the conference room. Ferrarini saw
       the electrical conduit protruding from the floor in the conference room that day. He believed he
       mentioned something to plaintiff and said "[t]here was something coming out of the floor, for
       him to look out for it if he was going in there." Plaintiff responded, "okay."
¶ 39           Ferrarini testified that he was "on his way" to tell electricians about the exposed conduit,
       but he "didn't see anyone at the time before [the accident] happened." He heard a "big boom"
       and then entered the conference room to find plaintiff lying on some boxes. Ferrarini unstrapped
       plaintiff's stilts.   Plaintiff told Ferrarini that he tripped on the electrical conduit that was
       protruding from the floor. Ferrarini observed a piece of conduit protruding about six inches up
       from the floor in the middle of the room. It was about six feet from boxes that were stacked
       along one wall. There were also two dumpsters and a stack of cinderblocks against another wall,
       and a scaffold in the room. The lighting conditions in the room were "fair" as there was



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       temporary lighting in the room and the hallway. Nothing obstructed Ferrarini's view of the
       conduit. Ferrarini testified that either he or Alonzo reported the accident to Executive.
¶ 40          The superintendent for Midwest, John Shannon, testified that Midwest was responsible
       for completing all electrical construction for the project, including installation of the electrical
       conduit in the floors, and it did not need instructions in how to perform work.              Midwest
       customarily placed safety cones over protruding conduit. Had he observed an unguarded conduit
       during his daily walk-throughs of the project, he would have "flagged that right away."
¶ 41                                        C. Circuit Court Decision
¶ 42          The circuit court granted summary judgment in favor of Executive, holding that
       Executive did not owe a duty of care to plaintiff and was not vicariously or directly liable under
       section 414 of the Restatement (Second) of Torts. The circuit court reasoned that the evidence
       showed that Executive only had a general right to order work stopped, to inspect its progress, and
       to make suggestions, and retained no control over the operative details or methods of the work of
       plaintiff or Alliance, which was insufficient to impose liability under section 414. The court also
       held that the evidence failed to show that Executive had notice of the alleged dangerous
       conditions (the use of stilts and/or the unprotected conduit). Thus, plaintiff failed to raise a
       genuine issue of fact as to control or notice.
¶ 43          Plaintiff moved for reconsideration. The circuit court denied the motion, finding that
       plaintiff was merely reasserting his previous arguments. This appeal followed.
¶ 44                                              II. ANALYSIS
¶ 45                                          A. Standard of Review
¶ 46          "[S]ummary judgment is proper only where the pleadings, depositions, 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 a judgment as a matter of law." Mashal v. City of
       Chicago, 2012 IL 112341, ¶ 49 (citing 735 ILCS 5/2-1005(c) (West 2000)). The court strictly
       construes the pleadings, depositions, admissions, and affidavits against the movant and liberally
       in favor of the opponent. Id. We review the circuit court's decision de novo. Outboard Marine
       Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90, 102 (1992). In reviewing a circuit court's
       decision on a motion for reconsideration, we employ an abuse of discretion standard, unless the
       motion only asked the circuit court to reexamine its application of the law to the particular case


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       as it existed at the time of judgment, in which case the standard of review is de novo.
       Belluomini v. Zaryczny, 2014 IL App (1st) 122664, ¶ 20.
¶ 47                          B. Section 414 of the Restatement (Second) of Torts
¶ 48          Plaintiff's personal injury claim is based in negligence, which requires plaintiff to prove
       "the existence of a duty owed by the defendant to the plaintiff, the breach of that duty, and the
       injury proximately caused by that breach." Cochran v. George Sollitt Construction Co., 358 Ill.
       App. 3d 865, 873 (2005). "Whether a duty exists is a question of law to be determined by the
       court." Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1069 (2003).
¶ 49          Although a general contractor is usually not liable for the negligence of an independent
       contractor that it employs, (Joyce v. Mastri, 371 Ill. App. 3d 64, 73 (2007)), section 414 of the
       Restatement (Second) of Torts has carved out a "retained control" exception which "provides for
       both vicarious and direct liability, depending on the degree of control that the defendant retains
       over its independent contractor." Madden v. F.H. Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d
       362, 380-81 (2009) (citing Restatement (Second) of Torts § 414, at 387 (1965)). Section 414
       provides:
                       "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." Restatement (Second) of Torts
                   § 414 (1965).
¶ 50          The comments following this section further clarify the distinction between vicarious and
       direct liability. Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 44. As explained
       in comment a:
                   "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. 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
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                   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."            Restatement
                   (Second) of Torts § 414, cmt. a (1965).
¶ 51          Thus, a general contractor may be held vicariously liable for a subcontractor's negligence
       "under the principles of agency where the employer retains control over the operative detail of
       any part of the contractor's work." Martens v. MCL Construction Corp., 347 Ill. App. 3d 303,
       314 (2004).    Alternatively, it may be found directly liable "[i]f the employer retains only
       supervisory control, i.e., power to direct the order in which work is done, or to forbid its being
       done in a dangerous manner, *** unless he exercised supervisory control with reasonable care."
       Id. at 314. Comment b further explains the concept of direct liability:
                   "The rule stated in this Section is usually, though not exclusively, applicable when a
                   principal contractor entrusts a part of the work to subcontractors, but himself or
                   through a foreman superintends the entire job. In such a situation, the principal
                   contractor is subject to liability if he fails to prevent the subcontractors from doing
                   even the details of the work in a way unreasonably dangerous to others, if he 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 he has retained in himself. So too, he is subject to liability if he knows
                   or should know that the subcontractors have carelessly done their work in such a way
                   as to create a dangerous condition, and fails to exercise reasonable care either to
                   remedy it himself or by the exercise of his control cause the subcontractor to do so."
                   Restatement (Second) of Torts § 414, cmt. b (1965).
¶ 52          However, comment c provides that an general contractor is not liable where:
                   "he 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 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." Restatement (Second) of Torts § 414, cmt. c (1965).

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¶ 53          By way of example, in Martens, the court affirmed summary judgment for the defendant
       construction manager because the contract's reservation of a general right of control was
       insufficient, standing alone, to subject the general contractor to liability. Martens, 347 Ill. App.
       at 316. The contract between the owner and the defendant gave the latter control over the
       construction means, methods, and coordination of the work, and the defendant was responsible
       for initiating and maintaining a safety program, which included appointing a safety director,
       maintaining safeguards, and citing subcontractors for violations. Id. at 307. However, the sub-
       subcontractor maintained control over the steel erection work and safety of its workers, and its
       safety manual indicated that the sub-subcontractor's foreman was responsible for enforcing the
       safety rules. Id. at 316. The plaintiff, an ironworker employed by the sub-subcontractor, was
       injured after falling from a steel beam. Id. at 306, 320.
¶ 54          The Martens court held that the defendant did not have control over the sub-
       subcontractor's method of operation because the parties had agreed that the sub-subcontractor
       would not comply with the defendant's general tie-off safety rule, and instead would follow a
       different rule and retain the authority to order when its workers would tie off. Id. at 318.
       Further, the defendant did not maintain an extensive work site presence and neither its safety
       director nor its project manager had the right to stop unsafe work or instruct or supervise the sub-
       subcontractors' workers. Id. at 317. No one from the defendant company was present when the
       accident occurred, whereas the sub-subcontractor's foremen were present and supervising the
       work. Id. at 317-18. Thus, the Martens court held that the sub-subcontractor was free to
       perform the work its own way and only the sub-subcontractor exercised control over the
       plaintiff's work. Id. at 319. See also Cochran, 358 Ill. App. 3d at 868-80 (finding no genuine
       issue of material fact as to liability where the general contractor was contractually responsible for
       construction methods and creating and implementing a safety program, its superintendent
       coordinated the subcontractors' work and had the right to halt unsafe work and have it corrected,
       but otherwise did not actively inspect for safety violations or control the operative details of the
       subcontractor's work, and the unsafe condition was created by the subcontractor, was in a remote
       location of the jobsite, was not viewed by the general contractor, and it existed only for a short
       time before the accident); Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 34-35 (2009)
       (holding that the general contractor could be directly liable because it retained sufficient control
       over the project's safety where it was contractually responsible for safety, for designating a

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       competent superintendent and a person responsible for preventing accidents, for construction
       methods and procedures, and for coordinating the work. Also, the subcontractor was required to
       follow the general contractor's safety directions, the general contractor had the authority to stop
       unsafe work and have the problem remedied.)
¶ 55          Turning to the facts of the case at bar, we disagree with the circuit court's conclusion that
       Executive did not retain sufficient control to be held liable under section 414. We hold that there
       was sufficient evidence based on the undisputed facts for the circuit court to find as a matter of
       law that Executive had more than merely a general right of supervision, and was therefore
       potentially subject to liability under section 414.
¶ 56          A general contractor may retain control over the independent contractor's work by
       contract, "supervisory, operational, or some mix thereof. *** A party who retains some control
       over the safety of the work has a duty to exercise that control with ordinary care." Martens, 347
       Ill. App. at 318. Thus, we first examine the relevant contracts involved. " '[T]he best indicator
       of whether a contractor has retained control over the subcontractor's work is the parties' contract,
       if one exists.' " Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d 333, 343
       (quoting Joyce, 371 Ill. App. 3d at 74). In terms of contractual control, the subcontracts between
       Alliance and Executive, and Midwest and Executive, required the subcontractors to "report
       promptly any such improper conditions and defects to ECI in writing." They were obligated to
       perform the work in accordance with Executive's safety program and attend weekly coordination
       meetings. The rules and regulations attached to the contracts required Executive to create and
       implement a safety program, required all subcontractors to adhere to it, and required Executive to
       appoint a project superintendent who was responsible for implementing and enforcing the
       program. Subcontractors were required to have a safety representative to ensure compliance and
       train employees, and also hold weekly "tool box" meetings. All project employees were required
       to advise supervisors or a safety representative of any hazards or dangerous conditions.
¶ 57          As further evidence of Executive's involvement, its own safety manual provided that the
       supervisor and management were required to follow all safety rules, inspect the jobsite regularly
       for unsafe conditions, and warn subcontractor employees of a dangerous situation. Significantly,
       the manual specifically prohibited the use of stilts by Executive or subcontractor employees.
       Although "[t]he mere existence of a safety program, safety manual, or safety director is
       insufficient," standing alone, to impose liability under the "retained control" exception (Madden,

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       395 Ill. App. 3d at 382), the manual demonstrates that Executive specifically prohibited one
       means or method of performing the work. A general contractor "need only retain control over
       any part of the work in order to be subject to liability for a failure to exercise his control with
       reasonable care." Diaz, 397 Ill. App. 3d at 34. Moreover, "[t]he power to forbid work from
       being done in a manner likely to be dangerous to himself or others is given as an illustration of
       the type of power retained by an employer which could subject him to liability." (Internal
       quotation marks omitted.) Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1063-
       64 (2000).
¶ 58           Additionally, other indicia of control are present in this case.                   Besides Executive's
       contractual responsibility to create and implement a safety program and require the
       subcontractors' compliance, Executive also retained the authority to stop unsafe work and order
       it remedied. Urso testified that he had the authority to stop unsafe work if he felt there was an
       immediate threat to safety. In addition to managing the overall coordination of the work, Urso
       was responsible for ensuring that the subcontractors complied with Executive's safety policies.
       He had the authority to follow up with a subcontractor if he observed any safety hazards and
       bring it into compliance. He maintained a strong worksite presence and conducted weekly safety
       inspections of the jobsite. Further, during Executive's weekly coordination meetings, Urso
       discussed safety topics and reiterated that the subcontractors were to abide by Executive's safety
       policies. Executive also had a safety coordinator who visited the jobsite occasionally. We also
       note that, according to Urso, Executive's own laborers had the authority to cover an unguarded
       conduit if they saw one. Further, we find it significant that, immediately before the accident,
       Alliance's foreman, Alonzo, was "on his way" to inform someone from Executive of the
       unprotected conduit when the accident happened. That Alonzo looked to Executive to remedy
       the safety hazard is further demonstration of the level of supervisory control which Executive
       retained over the jobsite. And, according to Urso (and despite the fact that Executive's safety
       manual already indicated that the use of stilts was not permitted), Executive began prohibiting
       the use of stilts sometime after the accident occurred. 3
¶ 59           Analogizing our case to Martens helps illustrate why we find that Executive had
       sufficient control to be subject to liability under section 414. In contrast to Martens, where the
               3
                  While this evidence would probably be considered to be a subsequent remedial measure, an exception to
       that evidentiary bar is found when it is offered to show control. See Larson v. Commonwealth Edison Co., 33 Ill. 2d
       316, 323-24 (1965); Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955, ¶ 72.

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       sub-subcontractor obtained a specific exception to the defendant's general tie-off rule, Alliance
       was not entirely free to perform the work its own way.          Alliance agreed to be bound by
       Executive's safety policies and the parties did not contractually agree that Alliance would be
       exempt from a specific policy (such as the prohibition on using stilts). The parties here did not
       agree that Alliance would follow its own rule instead, or would retain sole control over a specific
       safety issue. Also, Executive maintained a larger jobsite presence than the defendant in Martens,
       which included regular inspections for safety hazards and weekly meetings where safety issues
       were addressed. Further, unlike in Martens, Executive had the right to stop unsafe work if there
       was an immediate threat to safety, or otherwise notify the subcontractor of a hazard and bring it
       into compliance with its safety manual. And as noted, the Alliance foreman was on his way to
       inform Executive about the unguarded conduit when the accident occurred.
¶ 60          In sum, we find that plaintiff presented sufficient undisputed evidence to establish as a
       matter of law that Executive retained sufficient supervisory control such that it had a duty to
       exercise this control with reasonable care, and it could therefore be held liable pursuant to
       section 414.
¶ 61          Plaintiff also contends on appeal that the circuit court erred in concluding that Executive
       lacked notice of the unsafe conditions.
¶ 62          As previously set forth, comment b to section 414 provides that a general contractor is
       liable if "he knows or by the exercise of reasonable care should know" that the subcontractors are
       performing their work in an unreasonably dangerous way and he has the opportunity to prevent
       it, or if he "knows or should know that the subcontractors have carelessly done their work in
       such a way as to create a dangerous condition, and fails to exercise reasonable care" in
       remedying it or having the subcontractor remedy it. Restatement (Second) of Torts § 414, cmt. b
       (1965). As such, "the general contractor's knowledge, actual or constructive, of the unsafe work
       methods or a dangerous condition is a precondition to direct liability." Cochran, 358 Ill. App. 3d
       at 879-80.
¶ 63          In Cochran, for example, the court found that the general contractor did not have notice
       of an unsafe ladder setup as it existed only for an hour before the accident, it was located in a
       remote area of the jobsite, and none of the general contractor's "competent persons" had
       observed it during that time period. Cochran, 358 Ill. App. 3d at 880. On the other hand, in
       Diaz, the court held that the plaintiff established a prima facie case as to notice of a dangerous

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       condition where the prime contractor's superintendent inspected the scaffold twice on the day of
       the accident, but lacked the training and experience to recognize a problem with the scaffold, and
       the prime contractor was contractually obligated to furnish a "competent superintendent." Diaz,
       397 Ill. App. 3d at 35-36.
¶ 64          In the present case, we conclude that plaintiff provided sufficient evidence to establish as
       a matter of law that Executive knew or should have known of the dangerous conditions. Unlike
       in Cochran, and contrary to Executive's assertion, the evidence indicated that the alleged
       conditions (the unprotected conduit and general congestion or clutter in the area) existed for
       longer than an hour. According to plaintiff, it was the presence of not only the unguarded
       electrical conduit, but also the general congestion and clutter of the space and the lack of lighting
       that contributed to his accident. According to plaintiff's deposition testimony, the congested
       conditions existed the day before and the day of the accident. Further, plaintiff complained to
       Urso about the conditions the day before the accident. Urso noted that there were construction
       materials in the vicinity, but apparently took no further action. Sandoval indicated that the
       conduit was unguarded as he and plaintiff were cleaning the conference room before doing
       drywall work on the morning of the accident, and then they worked on the drywall for about one
       hour before Sandoval moved to a different floor. Plaintiff testified that he worked for about two
       or three hours before the accident happened. According to Alonzo, the conduit did not have a
       cone over it as of 5:50 a.m. on the day of the accident. Alonzo's testimony also shows that Urso
       was made aware of the congested condition of the conference room a week or two before the
       accident when Urso urged Alliance to complete the drywall work in that room but Alonzo told
       him that they would not complete the work until the room was cleaned out.
¶ 65          In further distinction from the circumstances in Cochran, the dangerous conditions here
       were not located in a remote location of the building that was unfrequented by others. Rather, it
       was in a highly trafficked, visible area of the jobsite because the conference room was located
       near the freight elevator. Although Executive contends that plaintiff's comment to Urso referred
       only to the area near the freight elevator, the evidence, including Urso's testimony, reflects that
       the conference room was located directly off the freight elevator entrance and was missing one
       wall, so one could see into the room without having to enter it. Additionally, unlike in Diaz,
       where the supervisor was not knowledgeable about scaffolds, Urso possessed the knowledge that



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       the accumulation of debris or an unguarded conduit protruding from the floor could constitute
       potential safety hazards.
¶ 66                                        III. CONCLUSION
¶ 67          For the reasons stated above, we reverse the circuit court's order granting defendant's
       motion for summary judgment, and remand to the circuit court for further proceedings consistent
       with this opinion.
¶ 68          Reversed and remanded.




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