Cain v. Joe Contarino, Inc.

2014 IL App (2d) 130482

10 N.E.3d 929

381 Ill.Dec. 520

Jeffrey CAIN, Plaintiff–Appellant,

v.JOE CONTARINO, INC., Indiv. and d/b/a Contry Homes, Inc., of Illinois, Defendant–Appellee (Harvest Glenn LLC, Defendant).

No. 2–13–0482.

Appellate Court of Illinois, Second District.

April 10, 2014.

Sean P. Murray and Melanie J. VanOverloop, both of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago, for appellant.

G. Christopher Slick and Mark C. Galasso, both of Tribler, Orpett & Meyer, P.C., of Chicago, for appellee.

OPINION

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

¶ 1 Plaintiff, Jeffrey Cain, appeals from the trial court's grant of summary judgment in favor of defendant, Joe Contarino, Inc., d/b/a Contry Homes, Inc. (CH), on plaintiff's complaint alleging CH's negligence in connection with a construction accident that injured plaintiff. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 The materials submitted with the summary judgment filings disclose the following basic facts. Plaintiff's injury occurred on August 25, 2006, while he was performing carpentry work for his employer, Hawkins Construction (HC). HC was framing a single-family home on lot 407 in the Harvest Glenn subdivision (407 Harvest Glenn) in Davis Junction, Illinois. The work was subcontracted to HC by CH, the general contractor. At the time of construction, the home site was owned by Harvest Glenn LLC, which was originally named in the action along with CH. Harvest Glenn LLC was owned by Joe Contarino and two other individuals. Contarino also owned CH.

¶ 4 The incident occurred while plaintiff and his coworkers were setting roof trusses on the garage at 407 Harvest Glenn. Plaintiff and the others were raising and positioning the trusses by hand, without machinery such as a crane. Two men stood opposite each other on the tops of the garage walls (the top plates) while plaintiff stood “in the webbing,” i.e., he secured himself by standing on previously secured trusses, while receiving new trusses. Trusses were handed up one at a time from outside the garage walls to one of the men standing on the top plates. That man, with plaintiff's assistance, guided the truss across the expanse of the garage to the man standing on the top plate opposite. Plaintiff fell when the truss on which he had secured himself became loose. The deposed witnesses disagreed as to how the truss became loose. The majority account was that one of the trusses plaintiff was receiving struck and dislodged the board that was bracing the truss on which plaintiff stood. The minority account was that the bracing board broke off because plaintiff was leaning too heavily on the truss on which he was standing. In any case, plaintiff fell to the ground and was seriously injured. He was wearing no safety harness, nor was the crew using any safety scaffolding.

¶ 5 Before proceeding further with the backdrop of this appeal, we note that CH has filed a motion to strike that portion of plaintiff's reply brief in which he contends that HC's practices at the worksite on the day of the injury violated the Occupational Safety and Health Act (OSHA) (29 U.S.C. § 651 et seq. (2006)). For the reasons stated below ( infra ¶¶ 45–58), we grant the motion and strike plaintiff's contention insofar as he relies on OSHA.

¶ 6 Following his injury, plaintiff filed a four-count complaint in negligence against CH and Harvest Glenn LLC. Counts I and II named CH, and counts III and IV named Harvest Glenn LLC. Subsequently, the trial court granted summary judgment in favor of Harvest Glenn LLC on both counts against it. In the two counts against CH, plaintiff alleged separate bases on which to find that CH owed plaintiff a duty of care even though CH was not his employer. In count I, plaintiff alleged that CH had a duty of care toward plaintiff because CH

“coordinat[ed] the work being done and designated various work methods, maintained and checked work progress[,] and participated in the scheduling of the work and the inspection of the work. In addition, * * * [CH] had the authority to stop the work, refuse the work and materials and order changes in the work, in the event the work was being performed in a dangerous manner or for any other reason.”

¶ 7 In count II, plaintiff alleged that a duty of care arose because CH “possessed, operated, managed, maintained and controlled or had a duty to possess, operate, manage, maintain and control, both directly and indirectly, * * * [the] building under construction” at 407 Harvest Glenn.

¶ 8 In both counts, plaintiff made the general allegation that CH breached its duty of care by failing to ensure that HC maintained safe work practices at the jobsite. Plaintiff also included the specific allegation that CH was negligent for failing to provide HC a scaffold or a “crane or other hoisting device.”

¶ 9 Although plaintiff's complaint cited no authority, in subsequent proceedings he invoked two sections of the Restatement (Second) of Torts. As authority for count I, plaintiff cited section 414 of the Restatement, according to which a general contractor that retains control over the work of its subcontractor is liable for injuries caused by the general contractor's failure to exercise that control with reasonable care. See Restatement (Second) of Torts § 414 (1965). For count II plaintiff relied on section 343 of the Restatement, which imposes liability upon a possessor of land for injuries to an invitee caused by the possessor's failure to exercise reasonable care in protecting the invitee from a dangerous “condition on the land.” See Restatement (Second) of Torts § 343 (1965). Both sections have been adopted by our supreme court and so govern negligence actions in Illinois. See Genaust v. Illinois Power Co., 62 Ill.2d 456, 468, 343 N.E.2d 465 (1976) ( section 343); Larson v. Commonwealth Edison Co., 33 Ill.2d 316, 325, 211 N.E.2d 247 (1965) (section 414).

¶ 10 CH moved for summary judgment on both counts, arguing that (1) it did not retain control over HC's work sufficient for a duty under section 414 to arise; (2) it was not, for purposes of section 343, a possessor of the land upon which the accident occurred; and (3) the manner in which the trusses were raised did not constitute a “condition on the land” per section 343. Plaintiff filed a response in opposition. The parties attached several depositions to their filings. In addition, plaintiff submitted the affidavit of Stephen Fournier, who identified himself as a construction safety consultant. Fournier averred that he had reviewed the depositions taken in the case as well as the “entire file[s] produced by [CH] and [HC] including the photographs, contracts, invoices, safety materials, OSHA materials, manuals and related documents.” Fournier proceeded to offer multiple opinions on CH's duties at the jobsite. As the bases for his opinions, Fournier cited mostly “industry customs and practices” and CH's own “actions and customs and practice [s],” yet he never specified their content.

¶ 11 CH moved to strike Fournier's affidavit as out of compliance with Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), because it specified no facts and offered merely conclusions. The trial court agreed with this assessment of the affidavit and struck it.

¶ 12 There are depositions in the record from (1) plaintiff; (2) Contarino; (3) Lloyd Hawkins, owner of HC; (4) HC employees Nathan Taylor, Joe Jarman, Bobby Steines, and Charles Miller; and (5) CH employees John Knabe and Joshua White. Also in the record is a “Master Construction Subcontract Agreement” (Agreement) signed in November 2005 by Contarino and Hawkins on behalf of CH and HC, respectively. The contract term is October 1, 2005, through September 30, 2006 (plaintiff was injured in August 2006). The Agreement designates CH and HC as “Contractor” and “Subcontractor,” respectively. The Agreement specifies no particular job, but defines “Work” and “Project” to include all work or projects on which the parties orally agree during the contract term. The two sections most material here are as follows:

“Section 4.00. SAFETY. Subcontractor, its subcontractors, agents, and employees shall be fully and solely responsible for the jobsite safety at the Project.

Section 5.00. CONTROL OF THE WORK. With respect to the Subcontractor's own Work, the Contractor shall not have contractual, operational and/or supervisory control over and/or charge of the Work and shall not be responsible for construction means, methods, techniques, sequences, procedures, operative details and incidental aspects of the Subcontractor's Work, or for safety precautions, equipment, procedures and programs in connection with the Subcontractor's Work, since these are solely the Subcontractor's responsibility under the Agreement.”

¶ 13 Also, under a section entitled “Indemnification,” the Agreement states: “Subcontractor agrees that it is solely responsible for compliance with [OSHA] and the Construction Safety Act of 1969 [ (CSA) (40 U.S.C. § 333 et seq. (2000) (now Contract Work Hours and Safety Standards Act (40 U.S.C. § 3704 et seq. (2006)))) ].”

¶ 14 Most of Hawkins' and Contarino's testimony about the relationship between CH and HC was not specifically in reference to the Agreement, but rather seemed to address the parties' customs in their longtime business relationship. Hawkins testified that he founded HC in 1989 and that HC's business was the rough framing of residential homes. HC first performed subcontract work for CH in 1991. From 1991 through 2006, the year of the accident, at least 90% of HC's work was for CH. Hawkins could recall signing no contracts with CH prior to the Agreement. Hawkins interpreted the Agreement to mean that CH would “not have any control over how [HC] would perform [its] work” and that “all safety at the jobsite was the responsibility of [HC].” Hawkins asserted that the Agreement did not change his view of HC's business...