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Melchers v. Total Electric Construction, No. 1-97-1368

1st District, 23 December 1999

Sixth Division

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Plaintiff, Mark Melchers, instituted this action against defendant Chicago Union Station Company (Union Station) and numerous other defendants, seeking recovery for personal injuries sustained while he was working in a trench on a construction site. Plaintiff's complaint asserted claims under common-law negligence and the Illinois Structural Work Act (740 ILCS 150/1 et seq. (West 1994) (repealed by Pub. Act 89-2, effective Feb. 14, 1995)) (the Act). Union Station filed a third-party action for contribution alleging negligence on the part of Riverside Construction Company (Riverside). Riverside moved for summary judgment, asserting that it had no duty under its subcontract to protect the plaintiff from the injuries sustained. The trial court agreed and entered summary judgment in favor of Riverside, and Union Station has appealed.⁽¹⁾

The facts, briefly summarized, indicate that plaintiff was injured on October 1, 1992, while working as an electrician on the construction of the new Post Office building in Chicago, Illinois. The United States government had retained Hyman/Power, a joint venture, as the general contractor on the project. Hyman/Power subcontracted with Union Station to perform certain portions of the work, including relocation of railroad track switching equipment. Union Station then entered into a sub-subcontract with Commercial/Total, plaintiff's employer, to install conduit and wire for a new switch interlocking system. Commercial/Total entered into an oral sub-sub-subcontract with Riverside Construction Company (Riverside) to perform the necessary excavation for this aspect of the project.

In order to install the conduit and wire for the new switch interlocking system, it was necessary to excavate the area beneath the existing railroad tracks. After the railroad ties had been removed, employees for Riverside dug a trench using a backhoe, and the dirt and rock was loaded into a Bobcat bucket. Thereafter, electricians employed by Commercial/Total worked in the trench and excavated the area beneath the tracks, in preparation for the installation of high voltage bank pipes. These workers used shovels and picks to dig below the tracks and threw the dirt and rock into wheelbarrows supported by wood planks laid on top of the rails. These planks were laid on the grade above the trench and were above the heads of those workers who were digging inside the trench. The workers in the trench who filled the wheelbarrows could not see into the wheelbarrows. When a wheelbarrow was full, a laborer or foreman moved it to an area where the contents were dumped. The workers in the trench continued excavating under the tracks while the wheelbarrows were moved.

Plaintiff was employed as an electrician, and his duties required that he work in the trench, excavating the area beneath the tracks. On the night of the accident, Mark O'Hara, the plaintiff's foreman, lost control of a wheelbarrow while he was attempting to move it. The wheelbarrow had been loaded unevenly and held wet clay on one side. Plaintiff was injured when he was struck by the wheelbarrow and its contents when they fell from the plank support above the trench in which he was working. Neither O'Hara nor the men filling the wheelbarrow could see that the load was unbalanced.

Union Station's third-party complaint alleged that Riverside had acted negligently in the following ways:

(1) failed to make a reasonable inspection of the structure, premises, and the work;

(2) failed to provide plaintiff with a safe place in which to work;

(3) failed to warn plaintiff of the dangerous conditions;

(4) failed to properly supervise the work.

Riverside moved for summary judgment, arguing that its oral contract with Commercial/Total imposed no obligation to supervise the employees of other subcontractors, and, therefore, it had no duty to protect plaintiff from injuries occasioned by the actions of other Commercial/Total employees. The trial court agreed, granting Riverside summary judgment, and Union Station has appealed.

Summary judgment is proper only where the pleadings, depositions, admissions, and affidavits demonstrate that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. 735 ILCS 5/2-1005 (West 1996). Summary judgment is a drastic remedy to be granted only where the movant's right to it is clear and free from doubt. In re Estate of Hoover, 155 Ill. 2d 402, 410, 615 N.E.2d 736 (1993); Colvin v. Hobart Brothers, 156 Ill. 2d 166, 169-70, 620 N.E.2d 375 (1993). In considering whether summary judgment is appropriate, the court must construe the pleadings, depositions, admissions, and affidavits most strictly against the moving party and liberally in favor of the opponent of the motion. In re Estate of Hoover, 155 Ill. 2d at 411; Colvin, 156 Ill. 2d at 170; Kolakowski v. Voris, 83 Ill. 2d 388, 398, 415 N.E.2d 397 (1980). Inferences which may reasonably be drawn from the evidence are to be resolved in favor of the party responding to the motion. Kramer v. Weedhopper of Utah, Inc., 141 Ill. App. 3d 217, 221, 490 N.E.2d 104 (1986). Because the propriety of an order granting summary judgment involves a question of law, a court of review considers the matter de novo. In re Estate of Hoover, 155 Ill. 2d at 411.

The sole issue presented on appeal is whether the trial court erred in finding, as a matter of law, that Riverside could not be held liable for plaintiff's injuries because it owed no duty to the plaintiff.

Initially, we note that Union Station's third-party complaint for contribution was grounded in negligence. In order to prevail on a negligence claim, a plaintiff must show a duty owed by the defendant to the plaintiff, a breach of that duty, and an injury proximately caused by the breach. Ward v. K mart Corp., 136 Ill.2d 132, 140, 554 N.E.2d 223 (1990). When deciding whether to impose a duty, Illinois courts consider (1) the foreseeability of the plaintiff's injury, (2) the likelihood of the occurrence, (3) the magnitude of the burden of guarding against it, and (4) the consequences of placing that burden on the defendant. Doe v. McKay, 183 Ill.2d 272, 278, 700 N.E.2d 1018 (1998). In a negligence action, the determination of whether a duty exists is an issue of law and depends upon whether the parties stood in such a relationship to one another that the law imposes an obligation on the defendant to act reasonably for the protection of the plaintiff. Ziemba v. Mierzwa, 142 Ill.2d 42, 47, 566 N.E.2d 1365 (1991).

Riverside correctly asserts that when an allegation of negligence is based upon a contractual obligation, the scope of the duty is determined by the terms of the contract. Ferentchak v. Village of Frankfort, 105 Ill. 2d 474, 480-81, 475 N.E.2d 822 (1985). Because Riverside's oral contract with Commercial/Total imposed no obligation to supervise the employees of other contractors, it cannot be found liable in negligence for the failure to supervise the work of O'Hara. Therefore, the trial court correctly determined that Riverside was entitled to summary judgment on this allegation of negligence.

We note, however, that the remaining claims of negligence in Union Station's third-party complaint are not predicated upon any contractual obligation. Rather, they are founded upon the common-law duty of care generally imposed upon all contractors and subcontractors, which is entirely independent of Riverside's obligations under the oral contract with Commercial/Total. Union Station argues that, despite the fact that Riverside was not contractually bound to supervise the employees of other subcontractors, it had a duty to perform its work with reasonable care so as to protect the plaintiff from injury. We agree.

It is axiomatic that every person owes to all others a duty to exercise ordinary care to guard against injury which naturally flows as a reasonably probable and foreseeable consequence of his act, and that such duty does not depend upon contract, privity of interest or the proximity of relationship, but extends to remote and unknown persons. Nelson v. Union Wire, 31 Ill. 2d 69, 86, 199 N.E.2d 769 (1964), citing Kahn v. James Burton Co., 5 Ill.2d 614, 622, 126 N.E.2d 836 (1955); Wintersteen v. National Cooperage & Woodenware Co., 361 Ill. 95, 103, 197 N.E. 578 (1935); Restatement of Torts,