Steven A. Berman

Anesi Ozmon Partner Steven A. Berman’s Victory For Workers’ Rights Demonstrates That Summary Judgment is Often Improper in Retained Control Cases

ANESI OZMON partner Steven A. Berman recently obtained an important appellate court victory for workers’ rights, setting a new first district precedent to better argue control in construction cases. The Illinois First District Appellate Court reversed the trial court’s ruling that granted summary judgment in favor of a general contractor, dismissing the case of an injured ironworker. The Appellate Court agreed with Mr. Berman’s position that the facts established during discovery created a genuine issue of fact as to whether the general contractor retained supervisory control over work safety on the job site and therefore had a duty to exercise that control with reasonable care.

John Foley, a Local 1 Ironworker, was working for a subcontractor, Chicago Town, on a Builtech Jobsite in Chicago. Builtech was the general contractor for the new building project and had a full-time superintendent assigned to the project. Mr. Foley was injured when he attempted to pull a piece of rebar from a pile and injured his back. Evidence in the case showed that the rebar pile had been unsafely relocated on the site and stacked in a “tangled mess”.

Chicago Town, in its contract, agreed to be responsible for the handling, unloading, and safe storage of material delivered to the project site. Therefore, the general contractor asserted that it was not responsible for how the rebar was stacked. However, the evidence developed in the case showed that the superintendent supervised the work of the subcontractors on the job site, conducted daily safety inspections, and had the authority to direct safety practices and work methods changes for the safety of the work on the site. In addition, a Builtech safety representative periodically inspected the job site for unsafe conditions. Builtech also required its subcontractors to comply with the provisions in its safety manual. The Appellate Court reversed the trial court’s dismissal of the case because the facts presented showed that the general contractor controlled workplace safety such that a jury must be allowed to decide if its conduct was a cause of Mr. Foley’s injury.

Builtech also argued that it could not be held legally liable for the injury because it did not have actual or constructive notice of the unsafe condition. However, again, the Appellate Court held that it was a question of fact as to whether the general contractor, through its superintendent who was on site every day inspecting the work and worksite conditions, could have had notice of the unsafe pile of rebar that had been present on the site for at least 6 days.

The Illinois appellate court found that the trial court erred when it granted summary judgment as a jury should be allowed to decide “whether the amount of the contractor’s control triggers potential liability.” Steven A. Berman said that “too often in construction negligence cases, trial courts blend the issue of a general contractor’s duty and the breach of that duty. The real issue, however, is whether the contractor retained control. Here, Builtech retained control, and when it failed to act to protect Foley from the negligently stacked rebar, it was in breach of its duty. If the unsafe situation had been rectified, Foley would not have been injured.”

The case of Foley v. Builtech may help attorneys argue that retained control is often a question of fact in establishing a duty of care. Hence, attorneys can better argue to courts that summary judgment is improper in cases where a general contractor has failed to maintain safety on a worksite, even when the unsafe work practices were performed by a subcontractor. The Illinois First District Appellate Court reaffirmed a former precedent that despite lack of contractual control, summary judgment should be denied where a general contractor may still retain supervisory control over worksite safety, even though it did not exercise control on the site.

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