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October 10, 2001

Plaintiff, Neil Connaghan, appeals the entry of summaryjudgment in favor of defendant, John G. Caplice, a homeowner, onplaintiff's negligence claim arising out of plaintiff's injuriescaused by his fall while working on defendant's garage. We affirm.

The following facts are taken from the pleadings and attacheddocuments. Plaintiff filed a two-count complaint alleging in countI that defendant breached his duty to plaintiff by failing toprovide a suitable and temporary support; a safe, suitable, andproper scaffold; a safe, suitable, and proper guardrail; and properand necessary equipment. Count I also alleged that these acts oromissions proximately caused the plaintiff's injuries. Count IIalleged that defendant breached his duty to plaintiff by failing toreasonably inspect the premises, provide plaintiff with a safeworkplace, warn plaintiff of the dangerous condition, provideadequate safeguards, supervise the work, and provide proper andnecessary equipment; count II also alleged that defendantimproperly managed, maintained, and controlled the premises.

In 1997, defendant hired many different contractors to renovatehis house. Among these contractors, defendant hired Patrick Lally andplaintiff to perform rough carpentry on the house and rough framing onthe garage. Before work on the garage began, defendant met withplaintiff and Lally to go over the plans an architect had prepared fordefendant. Defendant bought materials from a list provided by Lallyand plaintiff. Lally stated that plaintiff told defendant how much andwhat size of lumber to buy. Defendant stated that plaintiff or Lallyprovided a list of materials that defendant purchased for the job. Lally stated that he and plaintiff did not discuss with defendant whowould supply the tools for the job or who would be responsible forsafety.

Plaintiff stated that he had worked as a carpenter since 1970. Lally stated that plaintiff knew more about building garages than Lallyso plaintiff "laid it out" and then the two worked together. Plaintiffand Lally built the garage walls without defendant's help or direction. Defendant stated that plaintiff and Lally also put up the walls withoutdefendant's help. Plaintiff stated that defendant helped lift the wallsinto place but did not help build the walls. Plaintiff and Lally thencut the boards, fastened the boards, framed the walls, and placed thejoists and rafters without defendant's direction or help. Neitherplaintiff nor Lally asked defendant how to perform those tasks.

Before completion of the job, defendant changed the size of thewindows because the size required by the plan was not available. Defendant also changed the location of the garage door. Defendant didnot tell plaintiff or Lally which tools to use; however, some ofdefendant's tools were on site. Plaintiff and Lally used defendant'sladders to put up the walls, rafters, and install the joists. However,defendant did not tell plaintiff or Lally where to place the laddersor how to use them. Neither plaintiff nor Lally asked defendant forany equipment, i.e., a scaffold, platform, boarding, or plywood to useas support. Defendant did not notice that they needed any equipment.

Further, Lally stated that he and plaintiff decided on their ownwork schedule. Defendant did come around and check on the progress ofthe work, but defendant never criticized the work or told them theywere doing something unsafe. Plaintiff stated that he watched out forhis own safety.

On the day of the accident, July 11, 1997, plaintiff and Lallywere attaching the rafters to the joists. Lally stated that plaintiffplaced his ladder and then climbed up to nail the rafters. Lallystated that he went to get something from his truck and when hereturned he saw plaintiff falling backwards through and past theceiling joists onto the floor of the garage. Lally did not recallwhere the ladder was when plaintiff fell. Plaintiff later told Lallythat plaintiff did not know what happened and did not know whether theladder gave way.

Plaintiff stated that he remembered being on the ladder when hefell but did not remember what caused him to fall. Plaintiff did notremember whether plaintiff or Lally placed the ladder and did notremember how high plaintiff climbed before he fell. Plaintiff had noproblems with the ladder before his fall. The first thing plaintiffremembered was waking up in the hospital a day and a half after thefall. Plaintiff did not recall seeing defendant at any time on the dayof the fall.

Plaintiff attached the affidavit of Jon VerHalen, a registeredprofessional engineer, who inspected the ladders provided by defendant. VerHalen opined that the ladders were old, in disrepair, and violatedsafety standards provided by the Occupational Safety and Health Agency(OSHA). VerHalen also stated that OSHA regulations were violated bythe failure to provide proper or adequate scaffolding.

The trial court granted defendant's motion for summary judgment,stating that defendant did not retain control over the "incidental"aspects of plaintiff's work and that, therefore, defendant had no dutyto plaintiff under section 414 of the Restatement (Second) of Torts(1965) (Restatement). The court also determined that there was noevidence regarding the mechanism of plaintiff's fall and, therefore,a fact finder could only base causation on speculation. Thus,plaintiff could not establish proximate cause. The trial court thengranted defendant's motion for summary judgment. Plaintiff filed thistimely appeal.

On appeal, plaintiff argues that the trial court erred bygranting summary judgment in defendant's favor. Plaintiff asserts thatthe trial court improperly determined that plaintiff failed toestablish that defendant owed plaintiff a duty pursuant to section 414of the Restatement.

A court should enter summary judgment if the pleadings,depositions, admissions, and affidavits show that there is nogenuine issue of material fact and that the moving party isentitled to judgment as a matter of law. Jones v. Chicago HMO Ltd.of Illinois, 191 Ill. 2d 278, 291 (2000). A triable issue of factexists where there is a dispute as to a material fact or where,although the facts are not in dispute, reasonable minds mightdiffer in drawing inferences from those facts. Petrovich v. ShareHealth Plan of Illinois, Inc., 188 Ill. 2d 17, 31 (1999). Whenevaluating the facts, a court must construe the evidence strictlyagainst the movant and liberally in favor of the nonmoving party. Dowd & Dowd, Ltd. v. Gleason, 181 Ill. 2d 460, 483 (1998). Whilea plaintiff need not prove his case during a summary judgmentproceeding, he must present some evidentiary facts to support theelements of his cause of action. Krueger v. Oberto, 309 Ill. App.3d 358, 367 (1999). Thus, summary judgment in favor of a defendantis appropriate where the plaintiff has failed to establish anessential element of his cause of action. Krueger, 309 Ill. App.3d at 367. We apply a de novo standard of review to the trialcourt's decision to grant summary judgment. Jones, 191 Ill. 2d at291.

One essential element of a negligence action is the existenceof a duty that the defendant owed to the plaintiff. Fris v.Personal Products Co., 255 Ill. App. 3d 916, 923 (1994). Plaintiffclaimed that defendant owed plaintiff a duty of reasonable carepursuant to section 414 of the Restatement. However, plaintiff'sreliance on section 414 is misplaced. Section 414 of theRestatement provides an exception to the general rule that one whoemploys an independent contractor is not liable for the acts oromissions of the independent contractor. Rangel v. BrookhavenConstructors, Inc., 307 Ill. App. 3d 835, 838 (1999).

Section 414 of Restatement provides:

"Negligence in Exercising Control Retained by Employer

One who entrusts work to an independent contractor, butwho retains the control of any part of the work, is subject toliability for physical harm to others for whose safety theemployer owes a duty to exercise reasonable care, which iscaused by his failure to exercise his control with reasonablecare." (Emphasis added.) Restatement (Second) of Torts