Liszkiewicz v. CRG Residential, LLC, 15 C 4088

ANGELA LISZKIEWICZ, Independent Administrator of the Estateof SCOTT LISZKIEWICZ, deceased, Plaintiff, v. CRG RESIDENTIAL, LLC,CHRIS R.C. SCHWARTZ, doing business as RC CONSTRUCTION,and STONEY CREEK CONSTRUCTION, Defendants.

No. 15 C 4088

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

October 10, 2017

Judge John J. Tharp, Jr.

MEMORANDUM OPINION AND ORDER

This case arises from the unfortunate death of Scott Liszkiewicz. Mr. Liszkiewicz died after falling from a second-story balcony while working on a renovation project. Following his death, Angela Liszkiewicz, his surviving spouse, sued several contractors working on the project for negligence. One of the contractors, CRG Residential, LLC ("CRG"), has filed for summary judgment, arguing that it cannot be held liable for Mr. Liszkiewicz's death because it did not owe him a duty of care. More precisely, CRG contends that it cannot be held liable under Illinois law because it did not retain control over Chris R.C. Schwartz (doing business as RC Construction, hereafter "RC"), the subcontractor who allegedly caused Mr. Liszkiewicz to fall. Because the Court finds that there is a genuine issue of material fact about whether CRG retained sufficient control over RC's work to give rise to a duty of care, CRG's summary judgment motion is denied.

BACKGROUND¹

The accident that claimed Mr. Liszkiewicz's life occurred while he was working on a renovation project at the Prairie View Apartments in Bellwood, Illinois (the "Prairie View project"). The project, which consisted of renovating the interior and exterior of several townhomes, was headed by Urban Innovations, Ltd. ("UIL"). UIL subcontracted the exterior work on the project to CRG via a written agreement. That agreement called for CRG to replace all of the roofing, gutters, siding, soffits, and windows in the townhome complex between June and November 2014. (UIL General Contractor / Sub-Contractor Agreement 2, 6-7, Ex. I, ECF No. 159-4.) It also required CRG to "furnish all labor, materials, tools, equipment and supervision necessary to perform" those services. (Id. at 2.) CRG in turn subcontracted much of the exterior work to RC; it entered into three written subcontracts with RC to complete the roofing, window, and siding work. Under those agreements, RC was required to provide all "labor, equipment, [and] tools" to complete its work. (CRG Subcontract Agreements 1-3, Ex. J, ECF No. 159-4.)

The project proceeded without incident until mid-November 2014. Randy Whipple was the supervisor for the exterior work on behalf of CRG. (CRG SOF 25.)² Whipple was on site on a daily basis, averaging around forty hours per week. By early November, RC crews had completed the siding work on all but two of the buildings in the complex: building 14 and the maintenance building. On November 18, 2014, the date of the accident, RC was installing sidingon the maintenance building, while a CRG crew removed windows and installed Tyvek on building 14. Both buildings were located near each other in the same cul-de-sac.

RC utilized a six-person crew to install the siding on the maintenance building on the day of the accident. Juan "Ray" Ruiz, along with Manual and Victor Contreras (who are brothers), installed siding on one end of the two-story building, while James Florio, the RC foreman, and two other crew members installed siding on the opposite end. The side of the building where Ruiz and the Contreras brothers were working included a second-floor balcony. On the morning of the accident, Ruiz was uncertain whether he should install siding around the balcony railing or cut the railing and put a block behind it. Ruiz testified that he sought out Whipple to obtain clarification on how to proceed. (Ruiz Dep. 29:6-30:24.) He spoke with Whipple around 10:00 am near the maintenance building and asked: "How [do] you want it on the handrail, block or just make the siding around to the handrail?" (Id. at 29:15-30:24, 34:16-25.) Whipple responded that "[h]e want[ed] to bring the screws and that way he could screw it," which Ruiz understood to mean that he should cut the railing and that Whipple would return with screws to reattach it. (Id. at 35:1-36:25.) Whipple disputes that he spoke to Ruiz in person about the balcony railing. Instead, he testified that he spoke with Ruiz over the phone the morning of the accident about a handrail on an interior stairwell and instructed Ruiz to put it back the way he found it. (Whipple Dep. 60:19-61:10.)

Ruiz cut the railing and installed the block shortly after his conversation with Whipple. Florio heard someone using a saw and went to the side of the building where Ruiz was working to investigate. Because Florio had told Ruiz on two prior occasions not to cut the railing, he confronted Ruiz about why he had done so. Ruiz responded that Whipple had told him to cut the railing. Florio then threw his hands up and assumed the issue was handled. About thirty minuteslater, Ruiz told other members of his crew to temporarily nail the railing back in place. The RC crew then continued to install siding on the maintenance building and forgot about the railing.

Around 3:00 p.m., Mr. Liszkiewicz, who was an employee of UIL, went onto the balcony of the maintenance building to change a light fixture. While on the balcony, an RC laborer asked Mr. Liszkiewicz to hand him a tool. In the process, Mr. Liszkiewicz leaned on the railing and fell off the balcony. At the time of the accident, Whipple was at building 14. (Whipple Dep. 72:15-73:8.) After the accident, Florio confronted Whipple about the railing and the screws. According to Florio, Whipple at first acted like "he didn't know what [Florio] was talking about." (Florio Dep. 68:17-70:5.) However, Whipple later admitted that "he had known about getting [the screws] and told Ray [Ruiz] to cut that railing." (Id. at 70:6-71:4.)³

Following her husband's death, Angela Liszkiewicz filed suit against CRG, RC, and another contractor on the Prairie View project under the Illinois Wrongful Death Act, 740 Ill. Comp. Stat. 180/1 et seq., and the Survival Act, 755 Ill. Comp. Stat. 5/27-6. In her amended complaint, Liszkiewicz asserts two claims against CRG for construction negligence, both of which are governed by section 414 of the Restatement (Second) of Torts.⁴ (Am. Compl. 1-6, ECF No. 28.) CRG moves for summary judgment on both of those claims, asserting that it cannot be held liable as a matter of law because it did not retain control over RC's work on the Prairie View project, and thus, did not owe Mr. Liszkiewicz a duty of care at the time of his accident.

DISCUSSION

Summary judgment is appropriate only if CRG shows that there is "no genuine dispute as to any material fact and [that it] is entitled to judgment as a matter of law." EEOC v. CVS Pharmacy, Inc., 809 F.3d 335, 339 (7th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)). A genuine dispute as to a material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Kvapil v. Chippewa Cnty., 752 F.3d 708, 712 (7th Cir. 2014). When considering a motion for summary judgment, the Court construes "all facts and makes all reasonable inferences in favor of the non-moving party." Jajeh v. Cnty. of Cook, 678 F.3d 560, 566 (7th Cir. 2012). "[D]istrict courts presiding over summary judgment proceedings may not weigh conflicting evidence . . . or make credibility determinations." Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704 (7th Cir. 2011) (internal quotation marks and citations omitted). Rather, the Court's role is "to determine whether there is a genuine issue for trial." Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014) (citation omitted).

Summary judgment here revolves solely around whether CRG had a duty of care with regard to RC's work on the Prairie View project. In Illinois, a general contractor is typically not liable for the conduct of its subcontractors. Carney v. Union Pac. R.R. Co., 2016 IL 118984 ¶ 31, 77 N.E.3d 1, 7 (2016). The rule is premised on the notion that a general contractor has "no control over the details and methods of the independent contractor's work" and, as a result, "is not in a good position to prevent negligent performance." Id. ¶ 32, 77 N.E.3d at 7. But that is the general rule and Illinois courts have long recognized an exception under section 414 of the Restatement. Id. ¶¶ 33-35, 77 N.E.3d at 8. Under the exception, a general contractor who employs a subcontractor, but retains control over any part of its work, is subject to liability for physical harm to others for whose safety the general contractor owes a duty of reasonable care. Id. ¶ 33, 77 N.E.3d at 8; Restatement (Second) of Torts § 414 (1965).

A general contractor's duty of care arises under section 414 if it "retained at least some degree of control over the manner in which the [subcontractor's] work is done" such that "the subcontractor is not entirely free to do the work in his own way." Moorehead v. Mustang Const. Co., 354 Ill. App. 3d 456, 459, 821 N.E.2d 358, 360 (Ill. App. Ct. 2004) (citing Restatement (Second) of Torts § 414 cmt. c (1965)), as modified on denial of reh'g (Jan. 27. 2005); see also Aguirre v. Turner Const. Co., 501 F.3d 825, 829 (7th Cir. 2007) (applying Illinois law) ("[A] duty is triggered when the employer—usually a general contractor—has retained supervisory control over the independent contractor without retaining control over all operative details of a project."). Retained control is a question of fact that may be decided on summary judgment only if there is insufficient evidence to create a factual dispute. Carney, 2016 IL 118984, ¶ 41, 77 N.E.3d at 10; see also Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 494, 884 N.E.2d 208, 211 (Ill. App. Ct. 2008). CRG contends that there is not enough evidence to establish that it retained control of RC—the subcontractor that cut the railing from which Mr....