Gerasi v. Gilbane Bldg. Co.

2017 IL App (1st) 133000

75 N.E.3d 305

Jeffrey G. GERASI, Plaintiff-Appellant,

v.GILBANE BUILDING COMPANY, INC., AT&T Services, Inc., and Johnson Controls, Inc., Defendants

(Gilbane Building Company, Inc., Defendant-Appellee).

No. 1-13-3000

Appellate Court of Illinois, First District, SECOND DIVISION.

March 14, 2017

Dwyer & Coogan, P.C., of Chicago (Patrick E. Dwyer II, James G. McCarthy, James E. Coogan, Patrick E. Dwyer III, and James P. Lynch, of counsel), for appellant.

Wiedner & McAuliffe, Ltd., of Chicago (Timothy D. McMahon, David Sethi, Jordan M. Tank, and Michael D. Barnes, of counsel), for appellee.

OPINION

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Plaintiff Jeffrey Gerasi, appeals from an order granting summary judgment to defendant Gilbane Building Company, Inc. (Gilbane). Gerasi contends that questions of material fact exist as to whether Gilbane retained control over the work of its subcontractor, Geary Electric (Geary), such that Gilbane may be directly liable under section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414 (1965) ) for its negligence in exercising its retained control.¹ Gerasi also argues that the trial court erred in denying his motion to reconsider its ruling on Gilbane's motion for summary judgment. Because we find no issues of material fact exist, we affirm the ruling of the trial court.

¶ 2 BACKGROUND

¶ 3 Gilbane was hired by AT&T Services, Inc. (AT&T) to act as general contractor for the replacement of two air conditioning systems (the chiller project) used to cool telecommunications equipment at AT&T's Wabash telecommunications building at 520 South Federal Street in Chicago. Prior to the chiller project, Gilbane had worked on several AT&T construction projects at that building. Gilbane itself was not performing any work on the chiller project; its job was to coordinate the work of various subcontractors.

¶ 4 Operations at the Wabash building are overseen by a number of AT&T corporate groups, including construction management and property management. Construction management oversees new construction, such as the chiller project, at the building. Property management, along with the building's engineer, Johnson Controls, Inc. (JCI), inspects, maintains, and performs (or arranges for) repairs to the building, including its existing electrical equipment. Any work by contractors on new projects that involves or could affect the building's existing electrical equipment requires JCI's prior approval.

¶ 5 Gilbane hired Geary to perform electrical work on the project. Gilbane had worked with Geary on a number of earlier projects at the Wabash building. Further, Geary had worked at the Wabash building off and on for 40 years prior to the chiller project and was thus familiar with the building's electrical systems. Geary was hired for its electrical expertise and its experience in working with the electrical systems at the Wabash building.

¶ 6 Maintenance of optimal temperature and air quality at a telecommunications center is critical to the system's operation. In particular, temperatures that are too high, even for a brief period of time, can affect the integrity of the system and result in interruption of service to customers. Heating and cooling (HVAC) systems at AT&T's telecommunications centers are powered by a number of motor control centers (MCC), discussed in more detail below.

¶ 7 Gilbane entered into written contracts with both AT&T (AT&T/Gilbane contract) and Geary (Gilbane/Geary contract). The AT&T/Gilbane contract charged Gilbane with providing general contractor services. Pursuant to the contract, during the construction phase, Gilbane was to conduct weekly on-site meetings and weekly method of procedure (MOP) safety meetings.

¶ 8 An MOP is a document that describes a detailed outline of the steps to be followed to complete a particular procedure. Its purpose is to "ensure adequate precautions * * * to protect against service interruptions and injury to personnel." There was a general MOP covering the chiller project as a whole. More detailed MOPs were prepared by subcontractors for various aspects of the work in connection with the project. Detailed MOPs were required for "any work that puts building equipment, personnel, or services in jeopardy." For example, a detailed MOP would be required if a subcontractor's work entailed powering down an MCC. MOPs for the chiller project were reviewed and signed off on by the subcontractor that prepared the MOP, Gilbane, JCI and AT&T. Gilbane was responsible for coordination of all of the MOPs on the project.

¶ 9 The AT&T/Gilbane contract required Gilbane to place "the highest importance and priority on health and safety for the [w]ork performed" and provided that Gilbane was "responsible for the safety and protection of the [w]ork, workers of [c]ontractor and [s]ubcontractors, and any other persons or public or private property as required by law." Gilbane was responsible for administering the AT&T/Gilbane safety plan, a 64-page document, which set forth the responsibilities of Gilbane and the subcontractors charged with performing the work. Gilbane "was responsible for the active control" of the safety plan and had the authority to require a contractor to submit an MOP for a particular procedure.

¶ 10 Because AT&T was concerned about service interruption, the contract also stated that Gilbane was required to maintain "electric power, light energy and telephone service * * * without interruption at all times." AT&T's concern over service interruptions related not only to inconvenience to its customers as a result of the loss of telephone signal but also, and more importantly, to its customers' inability, even momentarily, to make 9-1-1 emergency calls.

¶ 11 Pursuant to the Gilbane/Geary contract, Geary's work was performed under the general direction of Gilbane. Gilbane retained control over schedules and milestones. Geary was bound to and assumed toward Gilbane all the obligations and responsibilities Gilbane assumed towards AT&T. Geary agreed to adhere to, among other things, Gilbane's safety plan "so as to avoid injury or damage to persons or property, and to be directly responsible for damage to persons and property resulting from the failure to do so."

¶ 12 Under Gilbane's safety plan, Geary was required to designate a project site safety coordinator who would devote at least 20 hours per week, and occasionally full-time attention, to safety issues. Geary was required to decide whether a particular task called for an MOP and, if so, to formulate the steps to complete that operation and present it to Gilbane.

¶ 13 Gilbane's safety plan gave Gilbane "active control" and made Gilbane responsible for "planning and requiring all work to be done in compliance with the [plan]" and "weekly inspections relating to all safety" to be conducted and documented. Specifically referring to energized equipment or electrical circuit in the work area, Gilbane's safety plan provided:

"Contractor [ (defined as ‘any company performing work under the contract’) ] shall determine before operations start if there is any energized equipment or electrical circuit in the work area, which might have risk to the worker. Equipment and conductors that must be de-energized shall be identified to Gilbane who [will] arrange to de-energize the equipment under the Lockout and Tagging procedure/system."

Thus, it was the subcontractor's obligation to identify equipment that needed to be de-energized in order for the subcontractor to do its work. Prior to Gerasi's accident, Geary never identified to Gilbane any equipment it believed needed to be de-energized. Gilbane's safety plan further provides that "electrical tie-ins shall be conducted only on de-energized (locked out and tagged out) systems. If a condition makes this procedure impossible then a pre-task safety meeting with Gilbane is required."

¶ 14 Geary had its own safety manual. Under "Geary Electric Safety Mission," the manual stated: "All members of management and supervision are charged with the responsibility of preventing incidents or conditions that could lead to occupational injuries [or] illness. While the ultimate success of a safety and health program depends upon the full cooperation of each individual employee, it is management's responsibility to see that safety and health rules and procedures are adequate and enforced." Geary's project foreman on any given project was "directly responsible for the control and activities of the tradesmen. [The foreman] play[s] a key role in implementing an effective safety process on the jobsite." Among other responsibilities, the project foreman was charged with providing and requiring the use of hard hats and "other personal protection as indicated by the operation" such as eye, face, and hand protection. Personal protective equipment supplied by Geary for its workers' use on the project was kept in a designated area on the 10th floor of the building. Any worker who felt the need to use such equipment could do so.

¶ 15 Tom Persin was Gilbane's construction manager on the project. Persin, as Gilbane's only employee on the job, did not provide full-time supervision of the construction, nor was Gilbane asked to provide such supervision by AT&T. Persin conducted the required weekly safety meetings and visited the site, on average, one more time each week, spending approximately two to three hours on each visit. Attendees at the weekly safety meetings included representatives of AT&T, including the departments in charge of operations at the building, JCI, and the various subcontractors on the project. Persin was not present nor did he visit the site the day Gerasi was injured.

¶ 16 The project periodically entailed the provision of temporary power to equipment operated by subcontractors, including pipefitters who were doing welding at the site. It was Geary's responsibility, as the electrical subcontractor, to identify...