Find Court Cases > Go Back to List > Clifford v. Wharton Business Group, L.L.C.

Clifford v. Wharton Business Group, L.L.C.

Case Date: 09/30/2004
Court: 1st District Appellate
Docket No: 1-03-2932 Rel

FIRST DIVISION
September 30, 2004

 


No. 1-03-2932

    

JEREMIAH CLIFFORD and GERALDINE CLIFFORD,

                         Plaintiffs-Appellants,

v.

THE WHARTON BUSINESS GROUP, L.L.C.,

                         Defendant-Appellee.

 )
)
)
)
)
)
)
)
)		 Appeal from the
Circuit Court of
Cook County.

No. 01 L 7119

Honorable
Kathy M. Flanagan,
Judge Presiding.


JUSTICE GORDON delivered the opinion of the court:

Plaintiffs, Jeremiah Clifford (Clifford) and his wife Geraldine Clifford, brought thisnegligence action against defendant, the Wharton Business Group, L.L.C. (Wharton), seekingdamages for work-related injuries sustained by Clifford and his wife's loss of consortium. Cliffordwas working as a carpenter on a construction site owned by Wharton, a general contractor. Hewas employed by O'Toole Construction (O'Toole), one of Wharton's subcontractors on theproject. Clifford claimed that he was injured when a newly built wall collapsed on top of him and,as a result, he fell or was thrown into a nearby stairwell opening in the floor. Wharton moved forsummary judgment on the grounds that, as a general contractor, it was not liable for the acts oromissions of its independent contractors. The circuit court granted Wharton's motion. TheCliffords now appeal. For the reasons that follow, we reverse and remand.

BACKGROUND

The record shows that on the day of the incident Clifford was working as a carpenter on a10-unit townhome building under construction in Oak Park, Illinois. During the hour precedingthe incident, Clifford was "marking out" walls while other carpenters were nailing them. Cliffordtestified in his deposition that he was working alone on the fourth floor, when he suddenly heard acreaking noise and looked up. The south wall he had earlier put up and braced with othercarpenters was collapsing. Clifford put his hands up in an attempt to try to stop it. He apparentlyfell or was thrown into a nearby 4-foot by 10-foot stairway opening in the floor. Clifford couldnot remember what happened after he put his hands up to try to stop the wall from falling. Thereis no evidence in the record regarding how, when or whether he did, in fact, fall through theopening in the floor.

The contract between Wharton and O'Toole contained no provisions imposingresponsibility on Wharton for site safety conditions and did not reserve to Wharton any right ofsupervision or control over the employees of O'Toole. O'Toole supplied its carpenters withcertain tools, and the carpenters supplied the rest. Wharton did not supply any equipment forO'Toole's workers to use, direct the carpenters on how to perform their tasks (other thanindicating the location of a wall to be built), hold safety or other meetings on this project, ormaintain safety rules that were to be followed by the subcontractors. Inspectors from Oak Park,and not Wharton, would inspect the work completed by the carpenters to ensure that it wasperformed properly. The record shows that, in terms of installing barricades over holes orcovering holes, it was the carpenters' decision as to what safety measures to take. None of thecarpenters said they wanted to put a railing around any holes or to put anything over the holes tocover them.

In their complaint, plaintiffs alleged that Wharton, through its agents and employees, wasnegligent in creating or permitting a dangerous work environment; permitting dangerousconditions to exist at the construction site; failing to make inspections; failing to warn ofdangerous conditions; failing to erect barricades or install guardrails around open areas at theconstruction site; failing to enforce reasonable standards of safety; failing to properly supervisethe work being done by subcontractors, employees and others; failing to supply or maintain fallprotection; and otherwise exercising its obligation as a general contractor in a dangerous, recklessand hazardous manner. Plaintiffs' first amended complaint, for the purposes of our review, wasessentially the same as their original complaint.(1)

Wharton filed its motion for summary judgment while the first amended complaint was theoperative pleading before the court. Wharton relied on section 414 of the Restatement (Second)of Torts (hereinafter the Restatement), adopted in Illinois, which provides:

"One who entrusts work to an independent contractor, but who retains the controlof any part of the work, is subject to liability for physical harm to others for whose safetythe employer owes a duty to exercise reasonable care, which is caused by his failure toexercise his control with reasonable care." Restatement (Second) of Torts