Studer v. Cent. Ill. Scale Co.

2021 IL App (3d) 200277

192 N.E.3d 774

455 Ill.Dec. 945

Rodrick S. STUDER, Plaintiff-Appellant,

v.CENTRAL ILLINOIS SCALE COMPANY, Defendant-Appellee.

Appeal No. 3-20-0277

Appellate Court of Illinois, Third District.

Opinion filed August 19, 2021

Rehearing denied September 8, 2021

Christopher H. Sokn, of Kingery Durree Wakeman & O'Donnell Associates, of Peoria, for appellant.

Nicholas J. Bertschy, Robert R. Tenney, of Heyl, Royster, Voelker & Allen, P.C., of Peoria, and Christopher J. Drinkwine, of Heyl, Royster, Voelker & Allen, P.C., of Rockford, for appellee.

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

¶ 1 Plaintiff is the general manager of Providence Ag. In that capacity, plaintiff hired defendant, an independent contractor, to recalibrate and recertify several scales, including a truck scale, located on Providence Ag's premises. Once on the premises, defendant's employees uncovered a manhole to gain access to the truck scale's underground mechanisms. Defendant's employees did not place warning cones, signs, or barricades around the open manhole. Plaintiff suffered physical injuries after stepping into the open manhole. Plaintiff filed a lawsuit based in negligence against defendant. The circuit court granted summary judgment for defendant after finding it did not owe plaintiff a duty of care as a matter of law. Plaintiff appeals. We reverse.

¶ 2 I. BACKGROUND

¶ 3 Plaintiff, Rodrick S. Studer, is the general manager of Providence Ag in Roanoke, Illinois. Providence Ag is a supplier of agricultural products. Providence Ag's premises contain four scales, including a truck scale for weighing fertilizer. Around December 2014, the truck scale and two other scales were "red tagged" by the State for a recalibration and recertification.

¶ 4 Before his employment as the general manager at Providence Ag, plaintiff owned and operated a similar business on the same premises. As of December 3, 2014, plaintiff had approximately 40 years of experience working on the premises. Consistent with past practices, plaintiff hired defendant, Central Illinois Scale Company, to recalibrate and recertify the scales on the premises. Defendant serviced the truck scale around five to six times in the past.

¶ 5 To reach the truck scale's underground mechanisms, servicers must uncover and descend into the truck scale's multiple manholes. The manhole at issue in this appeal is 4 to 4½ feet deep and is built into a sidewalk near the main entrance and exit to Providence Ag's business office. The pictures below depict the location of this manhole.

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¶ 6 On December 3, 2014, defendant's employees arrived on the business premises of Providence Ag for the purpose of servicing three of Providence Ag's four scales, including the truck scale. It is undisputed that the above-depicted manhole was covered when defendant's employees arrived on the premises. However, without notice to plaintiff or Providence Ag's employees, defendant's employees removed the cover to that manhole. After leaving the manhole unmarked and unattended, defendant's employees continued their work.

¶ 7 Further, it is undisputed that shortly before plaintiff stepped into the open manhole, defendant's employee, Tim Duncan, entered Providence Ag's business office in order to monitor scale readings displayed in a scale room. While Duncan was in the foyer of the business office, plaintiff briefly greeted Duncan. Immediately thereafter, plaintiff walked outside the business office, together with a business associate, Jonathan Hubble.

¶ 8 After exiting the business office, plaintiff observed another employee of defendant, Robert Bort, standing outside of the business office on the physical surface of the truck scale. Bort was operating a gas-powered weight cart. Since Bort was looking at plaintiff, plaintiff waved "hello" to Bort. Simultaneously, as plaintiff rounded the corner to the business office, while walking along the sidewalk, plaintiff stepped into the open manhole. Plaintiff suffered physical injuries, including a broken foot and a strained back.

¶ 9 According to plaintiff, he walked over the covered manhole approximately 300,000 times during his 40-year history on the premises. However, plaintiff only observed the manhole without a cover on approximately 20 occasions during that time. Plaintiff believed he had the opportunity to enter the manhole 6 to 12 times for cleaning and maintenance of the truck scale during those four decades. The last time plaintiff witnessed the manhole without a cover was in 2011 or 2012.

¶ 10 On August 5, 2015, plaintiff filed an amended complaint, alleging, on the date of the accident, he was not aware that defendant's employees had begun the process of servicing the truck scale or that defendant's employees had removed the cover to the manhole just outside the business office. Plaintiff also alleged defendant's employees negligently failed to place cones, signs, or barricades around the open manhole for purposes of warning persons on the premises of that danger. Likewise, the amended complaint alleged defendant's employees failed to close off Providence Ag's main entrance and exit door, located near the open manhole. These omissions by defendant's employees allegedly violated established safety standards for servicing truck scales.¹

¶ 11 On August 21, 2015, defendant answered plaintiff's amended complaint, admitting its employees uncovered the manhole. However, defendant denied owing plaintiff a duty of care while its employees were present on Providence Ag's premises. Nearly two years later, on February 14, 2017, defendant alternatively asserted an affirmative defense of comparative negligence, alleging, inter alia, plaintiff negligently failed to avoid the danger presented to him by the open manhole.

¶ 12 A. Motions for Summary Judgment

¶ 13 On May 8, 2020, defendant filed two separate motions for summary judgment. The motions were based on defendant's status as an independent contractor and the open and obvious danger rule. In response, plaintiff asserted, as a matter of law, an independent contractor hired to perform work on an owner or possessor's premises may be liable in negligence for creating dangerous conditions on that premises. Further, even if the manhole was open and obvious, plaintiff argued it was reasonably foreseeable that someone would be injured by the open manhole or become distracted by noticing Bort and the noise from the gas-powered weight cart.

¶ 14 B. Judgment of the Circuit Court

¶ 15 On July 2, 2020, the circuit court held a hearing on defendant's motions for summary judgment and later announced its ruling for defendant on July 6, 2020. The circuit court found there was no genuine issue of material fact because there was "just no discrepancy of the facts." The circuit court then found, despite the fact that defendant "was the possessor of the [truck] scale," an independent contractor, like defendant, did not owe plaintiff a duty of care. The circuit court noted, while defendant's employees possessed or controlled "the immediate area" where they were working, they did not possess or control the entire premises for purposes of premises liability. The circuit court found no exceptions applied to impose a duty of care on defendant.

¶ 16 Plaintiff filed a timely notice of appeal on July 24, 2020.

¶ 17 II. ANALYSIS

¶ 18 Plaintiff filed an action against defendant, alleging defendant's employees negligently created and then failed to safeguard against a dangerous condition on Providence Ag's premises, causing plaintiff to suffer physical injuries. The circuit court concluded, as a matter of law, an independent contractor cannot be subjected to liability, based in negligence, for physical injuries sustained on premises the independent contractor neither owned nor entirely possessed and/or controlled. The circuit court granted defendant's motion for summary judgment. On appeal, plaintiff challenges the circuit court's ruling as contrary to well-established precedent.

Consequently, plaintiff requests for our court to reverse the judgment of the circuit court.

¶ 19 For purposes of this appeal, the parties agree the material facts are undisputed. Plaintiff, as the general manager of Providence Ag, hired defendant to recalibrate and recertify a truck scale located on Providence Ag's premises. Defendant's employees arrived on the premises and, in order to gain access to the truck scale's underground mechanisms, removed the cover to a truck scale manhole. The manhole was located in a sidewalk leading to and from the main entrance and exit to Providence Ag's business office. After exiting the business office, plaintiff stepped into the open manhole, which was not marked with safety devices or guarded by an attendant.

¶ 20 Under the Code of Civil Procedure, summary judgment "shall be rendered without delay if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2018). Summary judgment is a drastic measure that is proper only if the movant's right is clear and free from doubt. Seymour v. Collins, 2015 IL 118432, ¶ 42, 396 Ill.Dec. 135, 39 N.E.3d 961. The circuit court must construe the record strictly against the movant and liberally for the nonmovant. Id. Our review on appeal is de novo. Id.

¶ 21 A. Sections 383 and 384 of the Restatement (Second) of Torts

¶ 22 First, we note that the circuit court's ruling is contrary to the Restatement (Second) of Torts. Section 383 clearly states:

"One who does an act or carries on an activity upon land on behalf of the possessor is subject to the same liability, and enjoys the same freedom from liability, for physical harm caused thereby to others upon and outside of the land as though he were the possessor of the land " (Emphases added.) Restatement (Second) of Torts § 383 (1965).

According to the...