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FOURTH DIVISION
June 19, 2003

No. 1-02-1615

Plaintiff Robert Ross brought a negligence action against defendant Dae Julie, Inc. (DaeJulie), following a construction site accident in which Ross was injured. The trial court grantedsummary judgment to Dae Julie, finding that it did not owe Ross a duty of care. Ross appeals,contending that at least a question of material fact remains whether section 414 of theRestatement (Second) of Torts established a duty of care in this case. For the following reasons,we affirm the judgment of the circuit court.

BACKGROUND

In 1996, Dae Julie was in the process of expanding and remodeling its candymanufacturing plant. As part of the construction project, Dae Julie hired Hill Mechanical Group(Hill Mechanical) to perform mechanical, sheet metal, and pipefitting work on the project. Othercontractors were hired for other aspects of the project. No formal written contract was everentered into between the parties. Farhad Behrouz was the manager of engineering at the DaeJulie plant, and served as the project manager for the entire expansion. His role was to make surethat the project was completed on time, that the specifications were met, to answer questionsshould they arise, and make decisions regarding field conditions that may require additional timeor funds.

Behrouz had the authority on behalf of Dae Julie to stop Hill Mechanical's work if hefound it to be unsafe, but he also stated that 99% of his time was spent in other areas of theproject. "My main concern was mostly the concentration on the kitchen which was a morecritical area." Prior to retaining Hill Mechanical for the job, Behrouz inquired and was told thatthe company conducted their own safety meetings. Hill Mechanical had weekly safety meetingsor "toolbox talks" conducted by its foreman. About one month before the accident, Behrouz hada conversation with Hill Mechanical regarding the need for fall protection, and was told that theywould handle it. He relied upon the expertise of Hill Mechanical to do their job correctly. HillMechanical was responsible for the safety of its employees on the job site.

Ross was hired as an employee of Hill Mechanical to perform pipefitting work for theexpansion. He had 38 years of experience and was eventually promoted to foreman of theproject. As foreman, he was responsible for the safety of himself and his workers on the job site. Hill Mechanical provided him will all of the tools and equipment to do his work, including theladder he was using at the time of his fall, and any fall protection. No Dae Julie personnel toldhim or his co-workers how to do his job or what type of equipment to use in facilitating theirwork. Ross testified that he only saw Behrouz around the plant about twice a week and onlydealt with him to turn in his time sheets.

Towards the end of the project, Ross and his co-worker, Brian Mandziara ,were workingon the mezzanine level of the premises about 10 feet above ground-level. They were completingthe pipe installation and welding for a compressor and refrigerated dryer supplied by Dae Julie. There was a two-pipe railing that fenced off the mezzanine level. Ross was aware that the railinghad been removed sometime prior to his injury to accommodate the placement of the compressorand dryer on the mezzanine level, and was aware that it had not yet been replaced. Behrouzcould not recollect whether he had seen Ross and his co-worker working on the mezzanine at anytime before the accident, but was aware that the railing had been taken down from themezzanine.

On the day of the accident, Ross was welding a pipe about 6 to 8 feet above the floor ofthe mezzanine level. To access the area needed to be welded, Ross stated that he needed to use asix-foot wooden step ladder supplied by Hill Mechanical to accomplish his task. He chose to usea ladder instead of an enclosed lift which was also available to him. He was not using fallprotection. According to Ross, he placed the ladder six to twelve inches from the edge of themezzanine level with the ladder feet parallel to the wall. He took a step with his left leg onto theladder and fell along with the ladder to the floor below from the mezzanine level. He does notknow what caused him to fall off the mezzanine.

Thereafter, Ross brought suit against Dae Julie alleging that it "had a duty to exercisereasonable care in the scheduling and ordering of the construction work to be done," and that DaeJulie breached that duty by failing to maintain a safe work environment. Dae Julie

moved for summary judgment, arguing that it owed no duty to Ross pursuant to section 414 ofthe Restatement (Second) of Torts because it did not control the manner in which Ross's workwas being done. The trial court granted the motion and Ross timely appealed.

ANALYSIS

Ross contends on appeal that the trial court erred in granting summary judgment becausesufficient evidence was presented to establish that Dae Julie owed a duty of care to Ross pursuantto section 414 of the Restatement (Second) of Torts. Restatement (Second) of Torts