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FIRST DIVISION
June 30, 2005

No. 1-04-2616

JUSTICE GORDON delivered the opinion of the court:

George Cochran and his wife brought this negligence action against George SollittConstruction Co. (Sollitt) and Loyola University Medical Center (Loyola Hospital),⁽¹⁾ seekingdamages for injuries sustained on the job by Cochran, a sheet metal worker, and for his wife's lossof consortium. The circuit court granted Sollitt's motion for summary judgment. For the reasonsthat follow, we affirm.

BACKGROUND

The allegations of the complaint are as follows. On or about October 5, 2000, the day ofthe incident, Sollitt was a general contractor on a construction project at Loyola Hospital. Cochran was an employee of James H. Anderson (Anderson), one of Sollitt's subcontractors. Cochran was performing construction work on an old air duct in the sub-basement level of LoyolaHospital. While performing the work, he stood on a ladder which had been placed on a piece ofplywood that itself was set on top of two milk crates. At one point, the ladder shifted to the edgeof the plywood, causing it to tip. As a result, Cochran fell to the floor, sustaining injuries. Cochran alleged negligence on Sollitt's part in that Sollitt: failed to provide him with a safe placeto work; failed to provide "a safe, suitable, and proper support for [his] protection"; and failed toproperly "manage[], maintain[] or control[] the premises and the support equipment usedthereon."

Cochran testified in his deposition that the incident occurred on his first day on the job. When he reported for work at approximately 6 a.m. to the "old fan room" located in the hospital'ssub-basement, Anderson's foreman, Bill Wesselhoff, gave him instructions to demolish the oldduct work from the ceiling of the "old fan room." The "old fan room" had an overall dimensionof 20 feet by 20 feet, was rectangular in shape and consisted of two separate areas. The twoareas were referred to as compartment 1 and compartment 2. Cochran was to first work incompartment 2. To access compartment 2, Cochran walked through compartment 1. At thattime, no ladders were set up in compartment 1. As Cochran was working in compartment 2,Wesselhoff was setting up ladders in compartment 1.⁽²⁾ After Cochran had worked in compartment2 for about half an hour, Wesselhoff directed him to work in compartment 1. When Cochranentered compartment 1, he saw an Anderson-owned ladder set up atop a four-foot by eight-footpiece of plywood. Compartment 1 was so poorly lit that Cochran would not have been able tosee his feet. He was unaware that the plywood had been placed atop two milk crates set in adrainage pit that covered a greater portion of the room. After receiving instructions fromWesselhoff, which took approximately 10 minutes, Cochran stepped directly onto the plywoodand climbed the ladder. For about 20 minutes, Cochran worked on removing the old duct workfrom the ceiling. In order to do so, he had to reach up above his head for the air duct with bothhands. As Cochran was bringing down the air duct, the ladder "walked" and he fell. Cochranstated that he did not know who owned or placed the plywood and the milk crates. Prior to theincident, he had not spoken to any Sollitt employees; Sollitt had not instructed him as to how,when or where to do his work; and Sollitt had not provided him with any equipment.

Howard Strong, president of Sollitt, testified in his deposition that Sollitt and LoyolaHospital had entered into a construction contract. The parties used a standard American Instituteof Architects' contract form. The contract, which was incorporated by reference in Sollitt'smotion for summary judgment, provided, in pertinent part:

"8.2 SUPERVISION AND CONSTRUCTION PROCEDURES

8.2.1 The Contractor [Sollitt] shall supervise and direct the Work, usingthe Contractor's best skill and attention. The Contractor shall be solely responsiblefor and have control over the construction means, methods, techniques, sequencesand procedures, and for coordinating all portions of the Work under the Contract,unless the Contract Documents give other specific instructions concerning thesematters. If the Contract Documents give specific instructions concerningconstruction means, methods, techniques, sequences or procedures, the Contractorshall be fully and solely responsible for the jobsite safety thereof unless theContractor gives timely written notice to the Owner and Architect that suchmeans, methods, techniques, sequences or procedures may not be safe.

8.2.2 The Contractor shall be responsible to the Owner for acts andomissions of the Contractor's employees, Subcontractors and their agents andemployees, and other persons or entities performing portions of the Work for oron behalf of the Contractor or any of its Subcontractors.

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15.1 SAFETY PRECAUTIONS AND PROGRAMS

The Contractor shall be responsible for initiating, maintaining andsupervising all safety precautions and programs in connection with theperformance of the Contract. The Contractor shall take reasonable precautions forthe safety of, and shall provide reasonable protection to prevent damage, injury orloss to:

.1 employees on the Work and other persons who may be affectedthereby."

Strong admitted that Sollitt had "general control" over its subcontractors' work, but denied thatSollitt had "specific control" over the subcontractors, including Anderson. Sollitt's job wasprimarily to coordinate the work of various subcontractors. Sollitt did not require itsconstruction superintendent to do a daily "walk-through"; however, in the course of his dailyduties, the superintendent would observe the progress of the work and the conditions of the site. Should he observe people work in an unsafe manner, he had the authority to stop the work. Theprimary responsibility for the safety of the subcontractors' personnel and for compliance with allapplicable standards and requirements was with the subcontractors. Although the subcontractorswere required to conduct safety "toolbox meetings," the topics covered were left to thesubcontractors' discretion. The subcontractors controlled their own work and had their ownmeans and methods of doing it.

Paul Ryan, Sollitt's field superintendent, testified in his deposition that although hecoordinated the work of various subcontractors, he did not tell the subcontractors, includingAnderson, how to perform their work and did not get involved in the specific details of thesubcontractors' safety means in the areas of ladder safety and fall protection. The subcontractorsprovided their own equipment. Sollitt required that every subcontractor have a safety protocol. Ryan made sure that every subcontractor had a copy of its own safety manual on site. At varioustimes throughout the day, Ryan would be walking through the jobsite. While doing so, he waslooking for hazards, among other things. In the event he encountered a hazard, Ryan wouldinstruct that it be corrected. Based on his daily observations of the Anderson crew, he stated thatthey performed their work in a safe and suitable manner. The day before the incident, Ryanobserved the conditions in the "old fan room." The room was adequately lit, and he did notobserve any unsafe conditions. Ryan was aware of the existence of the drainage pit, which wasapproximately 12 inches deep, in compartment 1. He next visited the "old fan room" shortly afterthe incident and observed a piece of plywood teetering on milk crates. Ryan stated that he knewthat Anderson brought some of its supplies to the site in milk crates, and no other subcontractorused those types of crates.

Bradley Gaski, Sollitt's labor foreman for the project, testified in his deposition that his jobincluded giving his fellow Sollitt employees their job assignments for the day, making sure"everything is going smooth[ly]" and "inspecting for safety issues." As far as he knew, noemployees or agents of Sollitt instructed Anderson's employees on how to do their work orprovided them with any tools or equipment. With respect to the safety of the subcontractors'personnel, Gaski stated that if he saw a safety violation, he would be responsible for stopping thework and correcting the problem. Prior to Cochran's fall, he was unaware of the unsafe laddersetup in the "old fan room."

David Hermsdorfer, Sollitt's carpenter foreman on the project, testified in his depositionthat his primary responsibility was for Sollitt's carpenters. In regard to the safety of thesubcontractors' employees, his responsibility was to stop the work he observed being done in anunsafe manner and tell the subcontractor to correct the problem. However, Hermsdorfer did nothave a responsibility to inspect the subcontractors' ladders or scaffold supports.

Sollitt's subcontractor safety handbook, which is part of the record on appeal, wasincorporated into the subcontract agreements. The handbook stated that subcontractors had theprimary responsibility for the safety of their personnel and compliance with all local, state andfederal standards and requirements. The handbook required each subcontractor to have acompetent project safety representative assigned to the project, conduct weekly safety "toolbox"talks, and report all accidents and incidents to Sollitt.

Sollitt's safety manual, which was patterned after and mirrored the Occupational Safetyand Health Administration (OSHA) regulations, provided that Sollitt's superintendent andforemen were "competent persons" with the attendant duty to maintain safe work conditions fortheir crews and safe working practices by all personnel. More specifically, "competent persons"were responsible for enforcing the rules and regulations set forth by the construction contracts,recognizing safety issues or violations, and arranging for periodic safety inspections. "Competentpersons" also had the authority to stop the work done in an unsafe manner.

Sollitt moved for summary judgment, arguing that the language of the constructioncontract between it and Loyola Hospital was not controlling; rather, the existence of a duty on thepart of a general contractor such as itself was governed by the "retained control" theoryarticulated in section 414 of the Restatement (Second) of Torts (the Restatement). Section 414,which has been adopted in Illinois, provides:

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