An Overview of the History of General Contractor Liability and Evaluation of Current Trends
By Andrea Kmak
Since 1995, when the Illinois Structural Work Act (also known as the “Scaffold Act”)1 was repealed, and to the present day, Illinois courts have been tasked with applying common law negligence principles in construction-related injury cases. While common law negligence has existed for many years, it was seldom applied during the existence of the Scaffold Act, which set forth statutory guidelines to utilize in such actions.
Since the Scaffold Act was repealed, courts have applied the common law principles set forth in Section 414 of the Restatement of Torts when determining the existence of a duty and liability among various contractors on a job. While the law set forth in Section 414 is similar in theory to that which existed in the Scaffold Act, the overall lack of case law applying and interpreting Section 414 has resulted in a variety of case law trends over the years. Of late, recent rulings have exhibited a movement away from general contract liability in construction negligence cases.
1907 – 1995: The Illinois Structural Work Act (“Scaffold Act”)
The Scaffold Act was enacted in 1907 to regulate safety and decrease injuries at construction sites, and to provide a civil remedy in the event of an incident.2 To recover under the Scaffold Act, an injured party was tasked with proving: 1) that he or she was part of the class of workers that the Illinois legislature intended to protect,3 2) that the defendant(s)4 owed him or her a duty of reasonable care, and 3) that the defendant(s) willfully failed to comply with the provisions of any provisions of the Act.5 These are relatively straightforward criteria for a plaintiff to prove in a construction accident.
Over the course of the next eighty-eight years, Illinois case law further developed the application of these principles in construction liability cases. One issue that arose was the imposition of a duty on a party, such as a general contractor, who may not be directly supervising or have control over plaintiff’s work on a construction site. Accordingly, owners and general contractors began to challenge the imposition of a duty on all parties involved in work on a construction site, but many were not successful in doing so.
For instance, in Claffy v. Chicago Dock and Canal Co., the court found that despite hiring a subcontractor to perform certain work on its premises, the owner that hired the contractor retained control and supervision of the construction site by the presence of its architect, and thus owed a duty to the injured plaintiff under the Scaffold Act.6 In 1924, the court in Griffiths & Son, Co. v. National Fireproofing Co. carried this notion a step further, and held that the owner of a site “and every contractor and subcontractor are equally bound by the act to comply with its provisions and cannot evade liability to persons injured by willful violation of the act, by an agreement with a contractor or subcontractor.”7 Simply put, each owner or contractor had a duty to workers at the site under the Act, regardless of control over the activities at the site. Further, the negligent conduct of a plaintiff, if any, could not be considered.8
Defendants in several cases that followed Caffy and Griffiths & Son, Co., challenged these decisions. At the same time, courts began to incorporate Section 414 of the Restatement of Torts into their assessments of liability in construction cases, prior to the repealing of the Scaffold Act. For example, in Gannon v. Chicago, M.S.P. & P.R. Co., the Appellate Court for the First District reversed a judgment in favor of plaintiff and against defendant owner of the construction site in which plaintiff was injured.9 The Illinois Supreme Court subsequently found that the “person in charge of the construction under which a worker sustained injuries” should be liable,10 and it remanded the case to the trial court level for determination of whether the owner of the premises or the subcontractor was “in charge.” If the defendant owner “had charge” by “retaining control and supervision” of the work being performed by the employee of the subcontractor, then the defendant owner owed a duty to the plaintiff under the Scaffold Act.11 Toward the end of the Scaffold Act era and after it was repealed in 1995, courts continued to develop this new principle, which proved to be a sigh of relief for numerous general contractors over the past several years and to the present day.
1995 – Present: Common Law Negligence Under Section 414
Since 1995, Plaintiffs in construction accident cases have been tasked with proving negligence under Illinois common law principles.12 Under Illinois common law, plaintiffs are required to prove the existence of a duty on the defendant(s), the breach of that duty, and “a compensable injury proximately caused by that breach.”13
Since the Scaffold Act was repealed, the biggest point of contention has been whether a general contractor owes a duty to employees of independent contractors at all. Logically speaking, one who hires an independent contractor “usually does not supervise the details of the contractor’s work,” and is thus “not in a good position to prevent the contractor from acting negligently.”14 Therefore, in order to determine whether a general contractor owes a duty of care to a plaintiff, courts must first determine whether the general contractor controlled the work at the site in such a manner that it should be held liable.15 The Restatement seeks to answer the question as to what degree of “control” is necessary so as to impose a duty on a general contractor.
As a general rule, a party who entrusts an independent contractor will not be held vicariously liable for tortious acts or omissions by the contractor.16 Section 414 of the Restatement contains an exception to this rule and states that if a general contractor retains the control of any part of the work, it is subject to liability for physical harm to others for whose safety it owes a duty to exercise reasonable care, which is caused by its failure to exercise said control with reasonable care.17 The comments to this rule contain an exception to this exception, and provide that in order for Section 414 to apply, the employer must have retained at least some degree of control over the manner in which the work is done.18 It is not enough that a general contractor has the mere right to order work stopped or resumed, to inspect progress, to make suggestions or recommendations, or to prescribe alterations and deviations.19
The issue of whether a general contractor retained sufficient control over a subcontractor’s work to give rise to the existence of a duty is an issue of fact reserved for a trier of fact, unless the evidence presented is insufficient to create a factual question.20 Given this, a significant percentage of general contractor liability case law has involved the disposition of a case at summary judgment after the critical analysis of whether there was a question of fact as to the existence of a duty on a general contractor. Therefore, Illinois case law in this area focuses heavily on an analysis of every detailed fact surrounding the construction site and relationships between general contractors and subcontractors,21 and these decisions have demonstrated a trend moving away from imposing a duty of care on general contractors, and thus an overall decrease in general contractor liability.
Before general contractors experienced this overall shift and relaxed relief from liability in such cases, there were a handful of cases in which the general contractor was still found to have a duty to plaintiff employee of a subcontractor, and was therefore liable for plaintiff’s injuries. For instance, in Bokodi v. Foster Wheeler Robbins, Inc., the Appellate Court for the First District held that the general contractor was “in charge of” and “retained control of” the work at the construction site, thus imposing a duty of care under Illinois common law negligence.22 In Bokodi, the contract between the general and subcontractor stated that the subcontractor was to be in full control of its own work.23 However, the general contractor employed a safety manager who regularly walked through the site to ensure that safety guidelines were being followed, and would correct violations while doing so.24 While Section 414 permits a general contractor to order work stopped or resumed, to inspect progress, make suggestions or recommendations, or prescribe alterations and deviations in the work of a subcontractor, the court found that the general contractor went to “great lengths” to control safety standards at the site, beyond what the contract contemplated.25 Therefore, the court found that the general contractor had a duty of reasonable care, and could be liable for plaintiff’s injury.
The First District used similar reasoning to impose a duty on the general contractor in Wilkerson v. Paul H. Schwendener, Inc.26 In Wilkerson, the general contractor entered into a contract with subcontractor, which required the subcontractor to comply with a “list of 21 safety regulations prepared by [general contractor],” to hold weekly safety meetings and submit minutes for same, to prepare and submit for approval a “site specific safety plan,” and to attend general contractor’s weekly safety meetings.27 Further, when the general contractor observed dangerous work being performed on the site by subcontractor, its safety personnel directed a letter to subcontractor explaining that the “violation” was “totally unacceptable,” citing a previous safety meeting conversation, and explaining that it was going to “monitor [subcontractor’s] operation very closely” as a result.28 The First District held again that while the contract between the parties “seemingly left to [subcontractor] control of the operative details of its work and the safety of its employees,” the general contractor’s actions showed that it retained more than a “general right of supervision” as contemplated in Section 414.29
While the courts in Bokodi and Wilkerson found the general contractors had a duty because of the degree of control and involvement in safety at the respective jobsites, subsequent decisions have demonstrated a general relaxation of the standard set forth in Section 414. Additionally, in Joyce v. Mastri, the court reiterated the language in Section 414 and found that the rights to stop work and inspect progress are general rights of supervision, and are not indicative of retention of control over the “incidental aspects” of a subcontractor’s work.30
In 2008, the First District held in Calderon v. Residential Homes of Am., Inc., that the general contractor did not owe the injured plaintiff a duty.31 In this case, the defendant general contractor referenced a safety manual as part of its contract.32 Further, defendant’s superintendent was present at the development regularly, where he conducted “some” meetings about safety with the purpose of ensuring that the subcontractors were implementing their own safety regulations, rather than enforcing general contractor’s safety regulations on them.33 Additionally, while defendant did not instruct its subcontractor’s employees on how to perform their jobs in a safe manner, their contract with subcontractor permitted defendant to send a subcontractor’s employee home if it was “doing something dangerous.”34
In reaching its decision, the court distinguished Calderon from Bokodi. It reasoned that defendant did not require adherence to specific safety measures, did not conduct weekly safety meetings to enforce those safety measures, and did not engage in “pervasive day-to-day supervision,” as in Bokodi.35 Further, the court found it important to reiterate that “the existence of a safety program, safety manual or safety direction does not constitute retained control per se.”36 If that was so, courts would be penalizing general contractors’ efforts to “promote safety and coordinate a general safety program among various independent contractors” at often large jobsites, which “hardly serves to advance the goal of work site safety.”37 As evidenced in this and similar decisions, courts at this juncture were attempting to further develop Illinois negligence case law to reach an ultimate balance of fairness and safety among general contractors, subcontractors, and jobsite employees.
Illinois courts have since seemingly developed a formula to determine whether a general contractor owed a duty to a plaintiff. In more recent decisions, courts have analyzed the “four corners of the contract” with the subcontractor, the general contractor’s conduct at the site prior to the accident compared with its actions at the site, and the general contractor’s conduct after the accident.38 For example, in June 2017 the First District issued a ruling in LePretre v. Lend Lease (US) Construction, Inc., wherein the court found that the general contractor did not have a duty to and was not liable for plaintiff’s injuries he sustained when installing an iron rebar.39 The court examined all of the relevant contracts involved in this construction project and found that general contractor Lend Lease was in control of “construction means, methods, techniques, sequences, and procedures,” was responsible for safety, was required to provide reasonable protection to prevent damage and injury, and was required to establish a safety program to effectuate these ends.40
The court found that the above contractual provisions were merely the basic rights reserved to a general contractor to oversee all work and operations at a construction site. It also reasoned that while Lend Lease was permitted to have a safety professional present at the site, its contract with subcontractor, who was plaintiff’s employer, placed control of day to day “trade specific” safety with the specific subcontractor.41 The court also noted that Lend Lease’s safety professional never stopped the subcontractor’s work for safety reasons and did not provide any specific direction relating to the specific job from which plaintiff was injured.42 Further, the employees were only required to report to their own superintendent, and never reported to Lend Lease personnel.43 Weighing all of these specific facts, the court found that Lend Lease did not have a duty to plaintiff, and was thus not liable for plaintiff’s injuries.
An examination of rulings from the Scaffolding Act era to as recent as June 2017, reveals a trend, albeit an inconsistent one, of decisions by Illinois courts which move away from imposing liability on general contractors. The Scaffold Act provided a specific cause of action for plaintiffs in construction accident cases, and all parties involved at the site were exposed to liability. Now plaintiffs must prove negligence as set forth in Section 414 of the Restatement of Torts, and survive a fact-intensive analysis of the imposition of a duty on a general contractor. While general contractors can certainly adjust their contracts to include specific and favorable language, train their personnel regarding expectations, and delegate all relevant responsibilities to their subcontractors in an attempt to avoid being joined in jobsite injury cases, their actions at the job site remain quite relevant to a court’s analysis as to the existence of a duty to an injured plaintiff. Given the evolution of this doctrine over the past several years and the fact-intensive analysis at play in every case, general contractors are wise to review their contracts and re-train their personnel. It will be interesting to see if and how this trend continues to develop in years to come.
Andrea L. Kmak is an Associate Attorney at SpyratosDavis, LLC in Lisle, Illinois. She is a 2013 graduate of Elmhurst College, where she majored in Business Administration and Political Science, and played on the women’s soccer team. Andrea attended The John Marshall Law School and passed the Illinois bar in May, 2016.
1. 740 ILCS 150/1 through 150/9, repealed by P.A. 89-2 §5, effective Feb. 14, 1995.
2. Puchalski, Illinois Construction Negligence, Post-Structural Work Act: The Need for a Clear Legislative Mandate, 36 J. Marshall L. Rev. 531, 533 (2003).
3. See Gannon v. Chicago, M.S.P. & P.R. Co., 22 Ill.2d 305, 318, 175 N.E.2d 785 (specifically, the Act intended to protect “structural workers engaged in extrahazardous work”).
4. See Id. at 310 (potential defendants owing a duty to a worker included “[a]ny owner, contractor, sub-contractor, foreman or other son having charge of the erection, construction, repairing, alteration… of any building… or other structure…”).
6. 249 Ill. 210, 228 U.S. 680 (1911)
7. 310 Ill. 331, 141 N.E. 739 (1924); see also Kennerly v. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134 (1958) (Scaffold Act’s intention was to “fix an independent, nondelegable duty of compliance” upon the owner and each contractor engaged in the work, notwithstanding control over the activities on the site).
8. Simmons v. Union Electric, Co., 104 Ill.2d 444, 473 N.E.2d 946 (1984) (rejecting the application of comparative negligence to Illinois Structural Work Act Cases).
9. 22 Ill.2d 305, 175 N.E.2d 785 (1961).
10. Id. at 320-21.
11. Larson v. Commonwealth Edison, Co., 48 Ill. App. 2d 349, 357, 199 N.E.2d 265 (1st Dist. 1964); see e.g. Pasko v. Commonwealth Edison, Co., 14 Ill. App. 3d 481, 488, 302 N.E.2d 642 (the 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).
12. In Larson v. Commonwealth Edison Co., the Illinois Supreme Court “implicitly recognized” that Section 414 of the Restatement of Torts was an expression of Illinois common law. Carney v. Union Pacific R.R. Co., 2016 IL 118984, ¶34, 32 N.E.3d 672.
13. Rogers v. West Constr. Co., 252 Ill. App. 3d 103, 623 N.E.2d 799 (4th Dist. 1993).
14. Fonseca v. Clark Construction Group, LLC, 2014 IL App (1st)130308, ¶26, 10 N.E.3d 274.
15. Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1059, 728 N.E.2d 726 (1st Dist. 2000).
16. Madden v. F.H. Paschen/ S.N. Nielson, Inc., 395 Ill. App. 3d 362, 381, 916 N.E.2d 1203 (1st Dist. 2009).
17. See Restatement (Second) of Torts, §414 (1965).
18. Restatement (Second) of Torts, §414 cmt. c. (1965) (emphasis added).
20. Joyce v. Mastri, 371 Ill. App. 3d 64, 74, 861 N.E.2d 1102 (1st Dist. 2007).
21. See Id. (explaining that the best indicator of whether a general contractor retained control over a subcontractor’s work is the parties’ contract, the interpretation of which is a question of law “and therefore may be decided on a motion for summary judgment).
22. Bokodi, 312 Ill. App. 3d at 1064.
23. Id. at 1063.
24. Id. at 1056.
25. Id. at 1063; compare with Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, ¶126, 8 N.E.3d 1053 (defendant had a duty and found liable when it 1) noticed damage and ordered work stopped at the site; 2) participated in finding a solution to the problem, and 3) ordered the use of ATV’s on the site to cease, thus altering the means and methods of subcontractor’s work).
26. 379 Ill. App. 3d 491, 884 N.E.2d 208 (1st Dist. 2008).
27. Id. at 494.
28. Id. at 494-95.
29. Id. at 497.
30. Compare Joyce, 371 Ill. App. 3d at 75 with Moorehead v. Mustang Construction Co., 354 Ill. App. 3d 456, 461, 821 N.E.2d 358 (3d Dist. 2004) (where a general contractor agrees to be “fully and solely responsible for the jobsite safety,” it has a duty of care).
31. 381 Ill. App. 3d 333, 334, 885 N.E.2dn1138 (1st Dist. 2008).
32. Id. at 337.
33. Id. at 337-38 (emphasis added).
35. Id. at 345.
36. Id. at 343; citing Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 318, 807 N.E.2d 480 (1st Dist. 2004).
37. Martens, 347 Ill. App. 3d at 318.
38. Carney at ¶47-62.
39. LePretre v. Lend Lease (US) Construction, Inc., 2017 IL App (1st) 162320, ¶3.
40. Id. at ¶31.
41. Id. at ¶34 (Subcontractor “shall establish and implement safety measures, policies, and standards” and at its own expense keep the premises at all times free from waste materials and “other debris accumulated in connection with the work…”
42. Id. at ¶44.
43. Id. at ¶45.