Cabrera v. ESI Consultants, Ltd.

41 N.E.3d 957

Jorge CABRERA, Plaintiff–Appellant

v.ESI CONSULTANTS, LTD., Milhouse Engineering and Construction, Inc., and The City of Chicago, Defendants–Appellees.

Nos. 1–14–0933

1–14–2102.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 18, 2015.

Steven J. Seidman, of Seidman Margulis & Fairman, LLP, Chicago, for appellant.

Julie A. Teuscher, Rudolf G. Schade, Jr., and Thomas A. Fitzgerald, all of Cassiday Schade LLP, Chicago, for appellee ESI Consultants, Ltd.

Frank Kasbohm, of Feiereisel & Kasbohm, LLC, Chicago, for appellee City of Chicago.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Jorge Cabrera was injured while working on a construction project on the Washington Street Bridge in Chicago (the project). His employer, Era Valdivia Contractors, Inc. (Era Valdivia), had contracted with the City of Chicago (the City) to perform certain work associated with the project, including sandblasting and painting the bridge. The City had also contracted with ESI Consultants, Ltd. (ESI),¹ to serve as an engineering consultant on the project. ESI, in turn, subcontracted with Milhouse Engineering and Construction, Inc. (Milhouse), to serve as subconsultant. On August 30, 2011, plaintiff filed a negligence lawsuit against the City and later amended the complaint to include negligence counts against Milhouse and ESI. The trial court granted summary judgment in favor of the City, ESI, and Milhouse and plaintiff appeals. We affirm.

¶ 2 BACKGROUND

¶ 3 I. Complaint

¶ 4 On August 30, 2011, plaintiff filed a complaint against the City; he later amended the complaint on April 11, 2012, to include counts of negligence against Milhouse and ESI. The first amended complaint was the subject of defendants' motions for summary judgment.

¶ 5 Count I of the first amended complaint was against the City for negligence and alleges that on September 2, 2010, the City was the owner and project manager engaged in the erection and construction of bridge and street improvements located at the intersection of Washington Street and Wacker Drive in Chicago. The City had contracted with Era Valdivia, plaintiff's employer, to perform certain work associated with the project. On September 2, 2010, plaintiff was performing his duties as a laborer and slipped on oil located under the bridge, falling approximately 25 feet and causing multiple injuries. Count I alleges that the City had a presence on the project and was in control of the work, had authority over the means used to perform the work, had authority over safe work practices, and had a duty to exercise reasonable care to avoid the creation and/or existence of hazardous conditions at the work site and owed such a duty to plaintiff. Count I further alleges that it was the custom and practice in the construction industry for a project manager to ensure that its project was free and clear of safety hazards, including fall hazards, and that all work surfaces were to be free and clear from slip hazards, including oil. Count I alleges that plaintiff's fall and resulting injuries were the direct and proximate result of the City's negligence.

¶ 6 Count II of the first amended complaint was against the City for negligence based on section 343 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 343 (1965) ), which concerned the City's duties to use due care as a possessor of land to its invitees. Count II alleges that because the City possessed the land where plaintiff was injured, it owed him a duty to keep the area free from dangerous conditions and alleges that the City knew of, or in the exercise of reasonable care should have discovered, the oil under the bridge, which posed an unreasonable risk of harm to plaintiff. Count II alleges that plaintiff's fall and resulting injuries were the direct and proximate result of the City's breach of its duty to use due care.

¶ 7 Count III of the first amended complaint was against Milhouse for negligence and alleges that Milhouse was the entity engaged in the inspection, management, control, operation, supervision, and coordination of the erection, renovation, repair, and construction of the project and that Milhouse had contracted with Era Valdivia and/or the City to perform various inspection and labor work associated with the project. Count III alleges the same theories of negligence against Milhouse as count I does against the City.

¶ 8 Finally, count IV of the first amended complaint was against ESI for negligence and alleges that ESI was the entity engaged in the inspection, management, control, operation, supervision, and coordination of the erection, renovation, repair, and construction of the project and that ESI had contracted with Era Valdivia and/or the City to perform various inspection and labor work associated with the project. Count IV alleges the same theories of negligence against ESI as count I does against the City.

¶ 9 In its answer, the City denied that it was negligent and raised four affirmative defenses: for the first three defenses, the City alleges that it was immune pursuant to sections 3–102(a), 2–201, and 3–108(a) of the Local Governmental and Governmental Employee Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/2–201, 3–102(a), 3–108(a) (West 2010)), respectively, and for the fourth affirmative defense, the City alleges that plaintiff was guilty of contributory negligence.

¶ 10 In their answers, ESI and Milhouse also denied that they were negligent and raised affirmative defenses that Era Valdivia, plaintiff's employer, had a duty to properly train, supervise, and oversee plaintiff and was negligent; and that plaintiff was guilty of contributory negligence. ESI and Milhouse further allege that any damages sustained by plaintiff resulted, in whole or in part, from an intervening and/or superseding cause.

¶ 11 Milhouse brought a counterclaim for contribution against the City and ESI and brought a third-party complaint against Era Valdivia, plaintiff's employer. The City also brought a counterclaim for contribution against Milhouse and ESI and brought a third-party complaint against Era Valdivia. Finally, ESI brought a counterclaim for contribution against the City and Milhouse and brought a third-party complaint against Era Valdivia.

¶ 12 II. Discovery

¶ 13 The parties attached the following transcripts from discovery depositions to their motions for summary judgment and responses: (1) plaintiff; ESI employees (2) Kent Williams, (3) James Sullivan, and (4) Kevin Hayes; (5) City employee Chuck Shum; (6) Milhouse employee Damien McIntosh; and Era Valdivia employees (7) Gregory Bairaktaris, and (8) Alex Valdivia.

¶ 14 A. Plaintiff

¶ 15 In his discovery deposition, plaintiff testified that he began a three-year apprenticeship with Era Valdivia, a painting contractor, shortly after graduating high school. He had studied safety protocols and had taken the Occupational Safety and Health Administration's (OSHA) 10–hour safety course.

¶ 16 Plaintiff testified that Era Valdivia began working on the bridge project approximately three weeks before his September 2, 2010, accident. At that time, plaintiff and Jesus Valdez, another Era Valdivia employee, informed Victor Valdivia, their supervisor, that they needed a safety cable and net in order to safely work beneath the bridge. They showed Valdivia where they needed the cable, but he indicated that a cable was unnecessary. Plaintiff testified that an inspector² had also examined the area and believed that a cable was necessary, but Valdivia disagreed. Plaintiff explained that the purpose of a cable would have been to tie his lanyard³ to it. When he worked above the bridge, the lanyard could be tied to the bridge's rails, so a cable was unnecessary, but a cable was required for fall protection when working beneath the bridge.

¶ 17 Plaintiff testified that when he worked on the underside of the bridge, he entered through a bridge house door on the northeast side of the bridge. There were stairs leading down “two levels,” leading to a platform with a door approximately 10 feet away on the other side of the platform. Through the door were approximately four stairs leading up, followed by a 10–foot–long platform and four stairs leading down. The platform area contained “grease and rust” from the bridge works. After the four stairs leading down, there was a 2 by 10 wood plank, followed by a piece of metal approximately four inches wide and five feet long, which plaintiff referred to as a “catwalk.” After the catwalk were more stairs, leading to concrete.

¶ 18 On the night of his accident, plaintiff was working with Daniel,⁴ another Era Valdivia employee, on top of the bridge, stretching a cable for tarps that they were installing to cover the bridge. Plaintiff testified that they worked from 5 p.m. to 5 a.m. due to restrictions on when the bridge could be closed. After completing their work, plaintiff and Daniel went underneath the bridge in search of Victor Valdivia. Plaintiff followed Daniel, and made it to the 2 by 10 plank of wood without incident. In order to step onto the catwalk, plaintiff needed to step over a three-foot high object.⁵ When he attempted to do so, he slipped and he fell 25 to 30 feet to the pit⁶ below.

¶ 19 Plaintiff testified that there was grease or oil in the area that caused him to fall, which came from the machinery that opened the bridge. Plaintiff had worked in that area before, walking that same path “a lot of times,” and had observed that it was oily and rusty. The oil collected in patches, but there was no way for plaintiff to avoid the patches. There was no railing in the area to hold, so plaintiff would hold onto the wall for balance. Plaintiff was not involved in cleaning up any of the oil, nor was anyone from Era Valdivia involved in cleaning up the oil. After plaintiff observed the oil underneath the bridge, he again raised the issue of safety cables with Victor Valdivia, who responded “ ‘Just be...