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No. 1-97-0599

December 28, 1998

JUSTICE ZWICK delivered the opinion of the court:

Plaintiff, Josef Sobczak, a construction worker, was injured when the bulldozer he was operating slid off its flat-bed trailer and rolled 90 degrees, landing on top of his leg. Sobczak and his wife, Anna, brought suit against various defendants including defendant Joseph Flaska, alleging violations of the Structural Work Act (740 ILCS 150/1 et seq. (West 1996)) and common law negligence. Anna's claims were based on her loss of consortium. Following trial, a jury returned a verdict in favor of both plaintiffs on the negligence claims. Flaska now appeals.

On the day of his injury, July 19, 1990, Sobczak was employed as a laborer by Harbor Properties, Inc. (Harbor Properties). Harbor Properties renovates, owns and manages commercial property in the Bedford Park area of Chicago. Sobczak was not working in Bedford Park on the day of his injury, however, but at defendant Flaska's home, in Palos Park. Earlier in the day, Sobczak had been directed to go to Flaska's home by one of Harbor Properties' managers. Flaksa was Sobczak's immediate boss at Harbor Properties one of its three shareholders, as well as a Harbor Properties' full-time employee. Harbor Properties owned the bulldozer Sobczak was operating when he was injured, a Case Model 350 crawler tractor. The vehicle was about 30 years old and had recently been purchased in a disassembled condition. Flaska had supervised Sobczak in its assembly a few weeks prior to the accident.

Initially, Flaska argues that the trial court improperly denied his motion for judgment non obstante veredicto because he is immune from suit under the terms of the Worker's Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996). Section 5(a) (850 ILCS 305/5(a)(West 1996)) provides that an employee's remedy under the Act is exclusive and in lieu of all possible common law actions against an employer, its agents, or employees, for any injury occurring during the course of the employment. In addition to barring common law actions for damages by an employee against an employer, section 5(a) precludes actions by an employee's spouse, such as Anna Sobczak, for loss of consortium. Fregeau v. Gillespie, 96 Ill. 2d 479, 451 N.E.2d 870 (1983).

Sobczak argues waiver in responding to Flaska's immunity claim, noting that Flaska failed immunity prior to trial. The exclusivity provision of Section 5(a) of the Act is an affirmative defense and is waived if not timely raised. As our supreme court has stated:

"The Worker's Compensation Act provides employers [as well as their agents and employees] with a defense against any action that may be asserted against them in tort, but that defense is an affirmative defense whose elements--the employment relationship and the nexus between the employment and the injury--must be established by the [defendant], and which is waived if not asserted by him in the trial court." Doyle v. Rhodes, 101 Ill. 2d 1, 11, 461 N.E.2d 382 (1984).

Flaska responds that it was unnecessary for him to plead immunity because Sobczak readily conceded Flaska's immunity in pre-trial proceedings.

After carefully reviewing the record, we reject Sobczak's waiver claim. We note that Sobczak admitted in his complaint that he was an employee of Harbor Properties at the time of his injury and that there was a nexus between his injuries and his duties as a Harbor Properties' employee. Sobczak concedes that he brought a successful Worker's Compensation claim against Harbor Properties following his injury. Although we recognize that Flaska failed to plead immunity as an affirmative defense, he did file a detailed summary judgment motion setting out such a claim. Sobczak answered the motion on the merits.

It is well established that the waiver doctrine is a limitation on the parties and not the court. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11, 672 N.E.2d 1178 (1996); People v. Hoskins, 101 Ill. 2d 209, 219, 461 N.E.2d 941 (1984). Any waiver in the present case was technical only, and certainly did not prejudice Sobczak. Accordingly, although we find that section 5(a) immunity should have been affirmatively pled by Flaska in order to properly join the issue at trial, we decline to apply waiver.

Turning to the merits, Sobczak argues that even if Flaska has section 5(a) immunity as an agent of Harbor Properties, he does not have that immunity as a "homeowner/general contractor." Illinois law recognizes that general contractors and landowners may owe a duty in tort to employees of third parties. Fris v. Personal Products Co., 255 Ill. App. 3d 916, 924, 627 N.E.2d 1265 (1994); Haberer v. Village of Sauget, 158 Ill. App. 3d 313, 318-19, 511 N.E.2d 805 (1987); Gentile v. Kehe, 165 Ill. App. 3d 802, 805, 520 N.E.2d 827 (1987). The controlling issue is whether the landowner or general contractor has retained such control over the particular aspects of the plaintiff's work so as to be reasonably held liable for injuries caused due to the failure to exercise that control with sufficient care. Sauget, 158 Ill. App. 3d at 319.

In McConnell v. Freeman United Coal Co., 198 Ill. App. 3d 322, 555 N.E. 2d 993 (1990), for example, a plaintiff who was employed by a subcontractor to operate an earth mover brought a negligence claim against the general contractor of the project. The trial court found no duty between the general contractor and the plaintiff and entered summary judgment. On appeal, the appellate court reversed, noting that where the record indicated the existence of a factual issue as to whether the general contractor had retained so much control over the plaintiff's activities as to expose the general contractor to potential liability, summary judgment was improper. McConnell, 198 Ill. App. 3d at 328. The court stated the rule as follows:

"*** the courts of Illinois now recognize that an employee hired by an independent contractor to do construction work may obtain recovery for injuries sustained in the course of that work from the owner of the premises when the owner has retained the requisite control over the work and has failed to exercise that control properly." McConnell, 198 Ill. App. 3d at 326, citing Restatement (Second) of Torts