October 29, 2020

Control on a Construction Site

A construction manager was found not liable, by the Circuit Court, for conditions that led to the plaintiff’s injuries while working at a construction site. The Illinois Appellate Court affirmed the ruling by Judge Marcia Maras.

The plaintiff brought a lawsuit against Turner Construction Co., after he was injured while working on a construction site. The Circuit Court of Cook County found in favor of the plaintiff’s Motion for Summary Judgment and the plaintiff appealed.

Turner was hired as the construction manager for the new high school campus for Grayslake Community High School District 127. The school hired Waukegan Steel, as a trade contractor for the project, who then subcontracted its work to Linden Erectors. The plaintiff worked for Linden Erectors.

In 2003, the plaintiff was working on the construction site and while trying to unravel a large steel cable, using a motorized lift, was injured. The cable he was guiding caused him to fall to the ground and land on his hands and knees. He got up and continued working—keeping his schedule for two months.

In 2005, the plaintiff sued Turner, Linden, and others for a cervical spine injury resulting from incident.

Turner was named by the plaintiff because it, “exercised significant operational and/or supervisor control over the trade contractors, particularly with respect to safety, but also as to details of construction means and methods.”

Plaintiff argued that under Section 414 of the Restatement (Second) of Torts, Turner’s control is an issue of material fact and also a factor in determining liability. The Appellate court explained that under Section 414 control, alone, does not trigger liability. Instead, Section 414, only applies when the defendant entrusts work to another, while maintaining control over some other part of the work.

Waukegan Steel was an independent contractor and had no relationship with Turner. Turner did not have anything to do with the selection of Linden; therefore Section 414 is inapplicable. Also, plaintiff made an argument under Restatement (second) of Torts section 343, which says that a land possessor is subject to liability when persons on his land are physically harmed. This argument failed as well, because Turner t was not in legal possession of the site. Read the full text, available at, Lawrence O’Connell v. Turner Construction Company, No. 1-09-3442.

When Does a General Contractor Have “Control” of the Project Site

The Illinois Appellate Court recently affirmed the granting of summary judgment to a defendant in a case that could be enlightening for construction managers in Illinois. In O’Connell v. Turner, a personal injury suit was brought by plaintiff Lawrence O’Connell, a construction worker who suffered injuries on the construction site, against Turner Construction, a construction manager hired by the school district. Plaintiff alleged liability under Section 414 of the Restatement (Second) of Torts, stemming from defendant’s “significant operational and/or supervisor control over the trade contractors.”

As a rule, general contractors will not be held liable for the acts or omissions of its independent contractor. However, Section 414 creates an exception, providing that “one who entrusts work to an independent contract, but who retains the control of any part of work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” It is important for construction defendants to keep in mind that the precondition and fundamental requirement of imposing vicarious liability on defendants under Section 414 is for the defendant to have entrusted work to an independent contractor. Entrustment is a necessary finding for liability to attach under Section 414.

In the present case, the appellate court held that the question of whether the defendant exercised control at the construction site was irrelevant, since control alone does not trigger liability under Section 414. The plaintiff was employed by a subcontractor that was hired by an independent contractor, who in turn was hired directly by the school district, not the defendant. The court noted that unless the defendant actually selected the contractors or subcontractors, the defendant had not entrusted them with any work.

Defendants to a claim arising from construction site negligence should pay careful attention to Section 414(c). Any evidence that the owner, general contractor lacked authority to direct the plaintiff’s employer in the means and methods of its work, can be used to support the argument that there are not sufficient grounds to impose liability. Given the trend in recent case law, including O’Connell v. Turner, it will likely be more difficult to impose liability for construction managers who lack control on the job site, and for construction managers that do not directly hire their own contractors.