Recio v. GR-MHA Corp.

FIRST DIVISION
May 8, 2006
No. 1-05-1203
ELENA RECIO, Individually and as Special Administrator ) Appeal from the
of the Estate of Ceasar Recio, Jr., Deceased, ) Circuit Court of
) Cook County.
Plaintiff-Appellant, )
)
v. ) No. 02 M6 1211
)
GR-MHA CORPORATION, an Illinois Corporation; )
GR-MHA CORPORATION, d/b/a Ginger Ridge )
Apartments; GINGER RIDGE APARTMENTS; )
GINGER RIDGE M.H.A.; GINGER RIDGE LIMITED )
PARTNERSHIP; GINGER RIDGE LIMITED )
PARTNERSHIP, d/b/a Ginger Ridge Apartments; )
DON DeVINCENT; GREAT LAKES ROOFING AND )
CONSTRUCTION COMPANY, INC., a Foreign )
Corporation; SIGNATURE HOUSING )
SOLUTIONS, INC., a Foreign Corporation; )
and SIGNATURE HOUSING SOLUTIONS, LLC., )
an Illinois Limited Liability Company, ) Honorable
) Jeffrey Lawrence,
Defendants-Appellees. ) Judge Presiding.
JUSTICE GORDON delivered the opinion of the court:
Ceasar Recio, Jr. (Ceasar), was employed as a roofer by an unlicensed
subcontractor, DTM Construction Company (DTM), 1 on a remodeling project for GR-
MHA Corp., the Ginger Ridge defendants, and the Signature Housing Solutions
1
DTM was not named a defendant in this action because the Illinois Workers'
Compensation Act (820 ILCS 305/5(a) (West 2000)) bars injured workers from suing
their employers.
No. 1-05-1203
defendants (collectively, Ginger Ridge), which owned and operated an apartment
complex. While carrying a bundle of shingles to the roof of a two-story Ginger Ridge
apartment building, Ceasar apparently lost his balance, fell to the ground and was
severely injured. The next day, Ceasar died from his injuries. His widow, plaintiff Elena
Recio, brought this survival and wrongful death action against Ginger Ridge and Great
Lakes Roofing & Construction Co. (Great Lakes), the contractor that had subcontracted
roofing work to DTM, alleging that they were negligent in permitting Ceasar to climb a
ladder while carrying a load of shinglesCwhich, plaintiff asserts, is an unsafe work
practice. Subsequently, without further amending her complaint, plaintiff raised
additional theories of liability against Great Lakes based on its hiring an unlicensed
subcontractor, in violation of the applicable municipal ordinances. The circuit court
granted defendants' motions for summary judgment. For the reasons that follow, we
affirm.
BACKGROUND
In her amended complaint, plaintiff alleged the following. The incident occurred
on October 25, 2000. While in the performance of his job duties in connection with the
Ginger Ridge project, Ceasar fell from the roof of the building where he was working to
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No. 1-05-1203
the ground below. 2
In counts I (survival action) and II (wrongful death action) directed at Ginger
Ridge, plaintiff alleged that Ginger Ridge owed Ceasar a duty "to use reasonable care
in the operation, management, maintenance and/or control of the construction project to
avoid injury and/or death to those on and around the site." Plaintiff further alleged that
Ginger Ridge breached its duty of care by failing to exercise due care in the
management, maintenance, supervision, and/or control of the construction site; allowing
a dangerous condition to exist at the construction site; negligently warning or failing to
warn Ceasar of the dangerous condition; negligently providing or failing to provide
adequate safety equipment to prevent injury to Ceasar; negligently enforcing or failing
to establish and enforce safe work rules at the construction site; negligently supervising
2
The record indicates that the eyewitnesses were not sure whether Ceasar fell
from the ladder, the roof, or while stepping from the ladder to the roof. No eyewitness
depositions were taken.
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No. 1-05-1203
or failing to provide competent and careful supervision of Ceasar's work; and/or failing
to provide a safe workplace for Ceasar.
In counts III (survival action) and IV (wrongful death action) directed at Great
Lakes, plaintiff alleged that DTM, which had employed Ceasar, was a subcontractor of
Great Lakes. Plaintiff stated the same theory of negligence against Great Lakes as she
did against Ginger Ridge.
Discovery depositions were taken of Daniel McKenna, president of DTM; Russell
Peterson, the owner of Great Lakes; Don DeVincent, maintenance superintendent for
Ginger Ridge; and Elsie James, property manager for Ginger Ridge.
McKenna testified that DTM was an independent corporation, distinct from Great
Lakes. DTM had an established relationship with Great Lakes and was retained on
many projects for Great Lakes. Typically, Great Lakes would send McKenna a "lead"
about a potential construction project, and McKenna would then submit to Great Lakes
his cost estimate. If DTM was hired to work on a project, McKenna, in the dealings with
the property owner, would usually represent that he and his crew were employees of
Great Lakes, since the owner had contracted with Great Lakes. McKenna was not sure
if he made such representation to DeVincent.
McKenna further testified that for the Ginger Ridge project, Great Lakes similarly
acted as, in essence, a broker. The subcontracting agreement between Great Lakes
and DTM was oral. Aside from obtaining a building permit, Great Lakes was not
involved in the project's operations. Great Lakes did not establish any rules or
requirements for DTM to follow, and neither did Ginger Ridge. As was its custom on
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No. 1-05-1203
other projects, Great Lakes never sent anyone to monitor or inspect DTM's work and
did not require DTM to conduct safety "toolbox talks" for its (DTM's) employees.
However, McKenna stated that he approached Great Lakes about "toolbox talks"
brochures pertaining to safety and, on his own initiative, conducted such talks with his
employees. McKenna would then return signed forms to Great Lakes showing his
employees' participation.
McKenna further testified that before the roofing work was to begin, DeVincent
told him to start with the roofs in the worst shape. In all other respects, DTM had
exclusive authority as to how the roofing project was to be accomplished. DTM
employees did not consult with DeVincent or Great Lakes about the specifics of how the
work would be performed. DTM used its own equipment and none of Great Lakes' or
Ginger Ridge's equipment. DTM also purchased all construction materials used in the
project. No materials came from Great Lakes. The supplier of roofing materials
brought them to the site and lifted them up with a crane to the roofs.
The morning of the day of the incident, DTM determined that it did not have
enough bundles of shingles on the roof to complete the job. One of DTM employees
bought extra bundles of shingles from a local store and delivered them to the site.
McKenna stated that it was DTM's practice under such circumstances to have the
employees carry the bundles, weighing between 70 and 90 pounds, up a ladder to the
roof. DTM had trained its workers to climb a ladder while carrying a bundle on the
shoulder. McKenna further stated that it was an accepted custom and practice in the
construction industry to deliver shingles to the roof in that manner. According to
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No. 1-05-1203
McKenna, Great Lakes never expressed concern about this practice. McKenna did not
personally witness Ceasar's fall, but later learned from DTM employees that Ceasar fell
while attempting to carry a bundle of shingles to the roof.
McKenna admitted that, at the time, DTM did not have a contractor's license,
which was required in Calumet City, Illinois, where the Ginger Ridge complex was
located. McKenna could not recall whether he informed Great Lakes of that fact.
McKenna indicated that getting a Calumet City contractor's license was a routine
matter, requiring completion of an application and payment of a fee. McKenna further
indicated that DTM did have a Calumet City license in 1998, but let it lapse. Nothing in
the record indicates that DTM would have been denied a license had it applied for it.
Lastly, McKenna stated that Ceasar had been employed by DTM for approximately a
month and a half.
Peterson, the owner of Great Lakes, testified that DTM did all of Great Lakes'
shingle work. Peterson admitted that Great Lakes took out a building permit for the
project, and thereby agreed that all work would be done "in accordance with all
ordinances, rules and regulations of the City of Calumet City, Illinois." Peterson stated
that he generally asked McKenna that DTM follow common safety procedures and on
occasion provided him with brochures describing such procedures. Peterson testified
consistently with McKenna that McKenna would return signed forms to him showing
DTM employee participation in safety training. Great Lakes took no other steps to
ensure that DTM had a safety program in place and the work was being done safely,
but rather left that up to McKenna. Peterson, however, stated that if he saw DTM
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No. 1-05-1203
employees perform work unsafely, he would contact McKenna and request that work be
done safely. Peterson also stated that Great Lakes did not take any steps to ensure
DTM's compliance with Calumet City's ordinances, rules and regulations.
Peterson further testified that DTM, and not Great Lakes, provided all the
equipment and materials to perform the work at Ginger Ridge, and DTM had sole
discretion as to how the work would be performed. Peterson additionally testified
consistently with McKenna that DTM workers would represent to be working for Great
Lakes: "if somebody were to come to the job and askCif *** Calumet City's inspector[]
comes on the job and says who is doing the job, [DTM] would say Great Lakes
Roofing." Lastly, Peterson indicated that carrying certain materials, such as shingles,
up a ladder is an accepted practice, but stated that he personally would not do it.
DeVincent, maintenance superintendent for Ginger Ridge, testified that prior to
being employed by Ginger Ridge, he owned a construction company that did general
contracting. DeVincent indicated that he had expertise in that area. When DeVincent
was deciding whether to hire Great Lakes to do the roofing job, his contact at Great
Lakes was McKenna. McKenna informed DeVincent that he was with Great Lakes'
roofing subcontractor. DeVincent testified that it was common to have subcontractors
do certain work for a contractor, and he "didn't think much of it." Once Ginger Ridge
received a formal job proposal from Great Lakes, DeVincent told his superiors that
Great Lakes' subcontractor would be working on the project. Before the work was to
start, DeVincent required Great Lakes to show him its license and building permit, both
of which McKenna produced. DeVincent also asked McKenna to show him DTM's
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No. 1-05-1203
license because he did not want anyone unlicensed working on the project. According
to DeVincent, McKenna then gave him an impression that DTM was a subsidiary of
Great Lakes. DeVincent stated that McKenna had signed Great Lakes' paperwork in
connection with the project and held himself out to be an employee of Great Lakes.
DeVicent also noted that on the job the roofers wore shirts with Great Lakes insignia.
DeVincent further testified that he would frequently walk around the jobsite when
the roofing work was being done, estimating that he would observe the roofers between
20 and 30 times a day. However, DeVincent did not supervise DTM workers, except for
letting them know when they were doing something wrong or unsafe. Ginger Ridge did
not provide DTM workers with any tools or equipment.
Regarding the practice of carrying bundles of shingles up a ladder to the roof,
DeVincent testified that it is "an accident waiting to happen ***[;] if you're *** carrying up
a couple of bundles, I can see it; but not for *** 30, 40 bundles." DeVincent stated that
he had instructed his maintenance workers not to carry materials or equipment up a
ladder. DeVincent further stated that he would reprimand his workers for doing that
because carrying materials or equipment up a ladder is "insane. Basically when you're
carrying stuff ***, you can go off balance very easily." In the morning on the day of the
incident, DeVincent was in his office where he could not see the roofers. DeVincent did
not witness Ceasar's fall and did not know what caused Ceasar to fall. Nor did
DeVincent know whether Ceasar fell from the ladder or the roof.
James, property manager for Ginger Ridge, testified that Ginger Ridge did not
require its contractors to notify it or obtain permission before subcontracting work, but
8
No. 1-05-1203
expected that it would be so informed. At the time of the incident, James believed that
Great Lakes was doing the roofing work because Great Lakes, and not DTM, was hired
for that job. Only after the incident did James learn that the work was being performed
by DTM. James further testified that Ginger Ridge did not provide Great Lakes with any
equipment and did not obtain building permits for it. James stated that obtaining
applicable building permits was the contractor's responsibility, and she understood that
Great Lakes obtained the necessary building permits for the project. Ginger Ridge did
not supervise the roofing work and relied on Great Lakes to supervise the work and
enforce worker safety standards. Ginger Ridge had no specific safety rules for
contractors to follow and did not provide contractors with any safety handbooks;
however, James agreed that DeVincent, as the maintenance superintendent for Ginger
Ridge, had the authority to stop the work being done improperly or unsafely. On
occasion, James checked on the roofers' progress, but did not observe anything that
looked unsafe. James never observed the roofers carry bundles of shingles up a ladder
to the roof. James did not witness Ceasar's fall, but named two residents of the Ginger
Ridge complex who did.
In November and December of 2000, the area office of the Occupational Safety
and Health Administration (OSHA) conducted its own investigation of the incident and
determined that the incident did not stem from an OSHA violation.
Defendants' Motions for Summary Judgment
On September 21, 2004, Ginger Ridge moved for summary judgment on the
ground that it did not owe Ceasar a duty of care because it did not exercise any control
9
No. 1-05-1203
or supervision over the manner and means of the roofing work performed by DTM, an
independent contractor. Soon thereafter, on November 12, 2004, Great Lakes moved
for summary judgment on similar grounds. In their arguments, both defendants invoked
the "retained control" theory articulated in section 414 of the Restatement (Second) of Torts (the
Restatement). Section 414, which has been adopted in Illinois, provides:
"One who entrusts work to an independent contractor, but who retains the
control of any part of the work, is subject to liability for physical harm to others
for whose safety the employer owes a duty to exercise reasonable care, which is
caused by his failure to exercise his control with reasonable care." Restatement
(Second) of Torts '414, at 387 (1965).
The "retained control" concept is further explained in comment c to section 414:
"In order for the rule stated in this Section to apply, the employer must
have retained at least some degree of control over the manner in which the work
is done. It is not enough that he has merely a general right to order the work
stopped or resumed, to inspect its progress or to receive reports, to make
suggestions or recommendations which need not necessarily be followed, or to
prescribe alterations and deviations. Such a general right is usually reserved to
employers, but it does not mean that the contractor is controlled as to his methods
of work, or as to operative detail. There must be such a retention of a right of
supervision that the contractor is not entirely free to do the work in his own way."
(Emphasis added.) Restatement (Second) of Torts '414, Comment c, at 388
10
No. 1-05-1203
(1965).
Plaintiff responded that Ginger Ridge should be held liable on the theory of
premises liability articulated in section 343 of the Restatement (Restatement (Second) of Torts
'343, at 215-16 (1965)), which has also been adopted in Illinois and applied in cases
where a construction worker was injured on the jobsite. Section 343 provides:
"A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger."
Restatement (Second) of Torts '343, at 215-16 (1965).
Plaintiff argued that Ceasar's fall was attributable to a dangerous condition on Ginger
Ridge's property. With respect to her claims against Great Lakes, plaintiff argued that
Great Lakes assumed a duty of care towards Ceasar by the virtue of procuring a
building permit which required that all work be done in accordance with the ordinances,
rules and regulations of Calumet City. Plaintiff asserted that Great Lakes breached its
duty of care by hiring an unlicensed and incompetent contractor. Plaintiff additionally
argued that Great Lakes should be equitably estopped from denying it had control over
the work of DTM because Great Lakes benefitted from allowing DTM to hold itself out
as Great Lakes. On March 9, 2005, the circuit court granted both motions for summary
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No. 1-05-1203
judgment. At the close of oral argument on the motions for summary judgment, the
circuit court stated its reasons for granting the motions as follows. With respect to the
claims against Ginger Ridge based on premises liability, the circuit court found that the
premises liability doctrine was inapplicable under these facts. The court noted that the
record showed that Ceasar fell while trying to carry a bundle of shingles up a ladder to
the roof, whereas the theory of premises liability required evidence of a defect on
Ginger Ridge's premises, i.e., the building or the land. The court further noted that
nothing in the record suggested that Ginger Ridge had notice that Ceasar was carrying
shingles up a ladder. With respect to the theory of retained control, the circuit court
found that neither defendant retained sufficient control over DTM's work to expose itself
to liability. Lastly, with respect to plaintiff's estoppel argument, the circuit court noted
that the essential element of estoppelCdetrimental relianceCwas lacking because
Ceasar did not rely on DTM's misrepresentation to his detriment. The theory of Great
Lakes' liability based on hiring an unlicensed and allegedly incompetent subcontractor
was not discussed during the oral argument. Plaintiff timely filed a notice of appeal on
April 7, 2005.
ANALYSIS
On appeal, plaintiff contends that (1) summary judgment in favor of Great Lakes
was improper because Great Lakes had assumed a duty to ensure safety at the jobsite
when it obtained a building permit for the project, thereby agreeing that all work would
be done "in accordance with all ordinances, rules and regulations of the City of Calumet
City, Illinois," and Ceasar's injury and death resulted from the breach of that duty; and
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No. 1-05-1203
(2) summary judgment in favor of Ginger Ridge was improper because Ginger Ridge
had failed to exercise reasonable care to protect Ceasar from a dangerous condition on
its property. Plaintiff has abandoned the earlier theory raised in her amended complaint
that Great Lakes and Ginger Ridge retained sufficient control over the means and
methods of work performed by DTM to expose themselves to vicarious liability pursuant
to section 414 of the Restatement.
Summary judgment is appropriate only where the pleadings, depositions,
admissions and affidavits on file show that no genuine issue of material fact exists and
that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c)
(West 2002); Horwitz v. Holabird & Root, 212 Ill. 2d 1, 8, 816 N.E.2d 272 (2004). Our
review of a grant of summary judgment is de novo. Horwitz, 212 Ill. 2d at 8.
The essential elements of a cause of action based on common-law negligence are the
existence of a duty owed by the defendant to the plaintiff, the breach of that duty, and the injury
proximately caused by that breach. Ward v. K mart Corp., 136 Ill. 2d 132, 140, 554 N.E.2d 223(1990). Plaintiff asserts that by obtaining a building permit from Calumet City, Great
Lakes became obligated to comply not only with Calumet City's ordinances, rules and
regulations, but also with all other applicable laws regulating contractors, including
federal OSHA regulations regarding ladder safety. Plaintiff points out that the applicable
OSHA standard requires that, when using a ladder, "[a]n employee shall not carry any
object or load that could cause the employee to lose balance and fall" (29 C.F.R.
1926.1053(b)(22) (2005)). Plaintiff further cites to Kalata v. Anheuser-Busch Cos., 144
Ill. 2d 425, 434-35, 581 N.E.2d 656 (1991), where the supreme court stated:
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No. 1-05-1203
"A violation of a statute or ordinance designed to protect human life
or property is prima facie evidence of negligence. (Barthel v. Illinois
Central Gulf R.R. Co., (1978) 74 Ill. 2d 213, 219.) A party injured by such
a violation may recover only by showing that the violation proximately
caused his injury and the statute or ordinance was intended to protect a
class of persons to which he belongs from the kind of injury that he
suffered. (Barthel, 74 Ill. 2d at 219-20; Ney v. Yellow Cab Co., (1954) 2 Ill.
2d 74, 76-79.)"
Plaintiff therefore contends that Great Lakes was under a duty to ensure that its
subcontractor's employees did not carry bundles of shingles up a ladder to the roof. We
disagree. Plaintiff misconstrues the meaning of Kalata. As our supreme court
explained in Feldscher v. E&B, Inc., 95 Ill. 2d 360, 370, 447 N.E.2d 1331 (1983), where
a statute or ordinance did not create a private right of action, its violation would only be
relevant to whether the defendant "had acted with less than reasonable care. It would
not have the effect of creating a duty to [the plaintiff] where none existed." We note that
in promulgating OSHA regulations, Congress expressed that "[n]othing in this chapter shall
be construed to *** enlarge or diminish or affect in any other manner the common law or
statutory rights, duties, or liabilities of employers and employees under any law with respect to
injuries, diseases, or death of employees arising out of, or in the course of, employment." 29
U.S.C. ' 653 (b)(4) (2000). We therefore specifically held in Ross v. Dae Julie, Inc., 341 Ill.
App. 3d 1065, 1074, 793 N.E.2d 68 (2003), that although a violation of OSHA regulations may
be evidence of failure to exercise reasonable care, OSHA regulations do not create a duty of
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No. 1-05-1203
care. Accordingly, plaintiff's reliance on the OSHA regulation for the proposition that it
created a duty of care on the part of Great Lakes is misplaced.
Similarly, with regard to Calumet City's municipal code provisions regarding building
permits and contractor licensing, we note that plaintiff did not point to any language purporting
to authorize a private right of action in the event a contractor fails to ensure that its
subcontractor is licensed. Although we agree with plaintiff that the applicable municipal
code provisions were designed to protect the public (see Village of Maywood v.
Weglarz, 24 Ill. App. 2d 495, 165 N.E.2d 362 (1960)), such provisions, as discussed, do
not create a duty of care. See Feldscher, 95 Ill. 2d at 370; accord Finkle v. Mayerchak,
578 So. 2d 396 (Fla. App. 1991) (regulatory statute requiring contractors to be licensed
did not create a private right of action by homeowners against a broker who obtained a
building permit for an unlicensed contractor).
We must therefore determine whether Great Lakes may be liable for a breach of
any common-law duties raised by plaintiff. Plaintiff raises, by implication, an employer's
common-law duty to exercise reasonable care in hiring an independent contractor. See,
e.g., Restatement (Second) of Torts '411(a), at 376 (1965) ("An employer is subject to
liability for physical harm to third persons caused by his failure to exercise reasonable
care to employ a competent and careful contractor *** to do work which will involve a risk of physical harm
unless it is skillfully and carefully done"). To prevail under this theory, plaintiff must show that
Great Lakes negligently hired DTM, whom Great Lakes knew or should have known to
be unfit for the job, so as to create a danger of harm to third persons. See Jones v.
Beker, 260 Ill. App. 3d 481, 486, 632 N.E.2d 273 (1994). In addition, plaintiff must show
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No. 1-05-1203
that DTM's particular unfitness proximately caused harm to Ceasar. See Jones, 260 Ill.
App. 3d at 486; Huber v. Seaton, 186 Ill. App. 3d 503, 507, 542 N.E.2d 464 (1989).
We question from the outset whether an employee of a negligently retained entity
may recover under this theory. It would appear that such an employee is not within the
class of third parties to whom a duty of care in hiring an independent contractor
extends. We take note, however, of case law to the contrary. See Bagley v. Insight
Communications Co., L.P., 658 N.E.2d 584, 588 (Ind. 1995) (an employee of a
negligently retained independent contractor is not deprived of the right to sue for
negligent hiring the one who hired the independent contractor). In any event, plaintiff's
claim fails under the standard negligence analysis applicable to these facts.
The record here supports a contention that Great Lakes committed an omission
in failing to ensure DTM was licensed in Calumet City. However, "[t]he lack of a license
alone does not automatically make [DTM] unfit." Jones, 260 Ill. App. 3d at 486. In this
regard, we note that no evidence was presented that DTM was an unfit or incompetent
subcontractor. Moreover, plaintiff failed to establish a causal connection between
DTM's lack of Calumet City license and Ceasar's injury and subsequent death. We note
that, according to McKenna, DTM used to be licensed in Calumet City in 1998, and
there is no evidence that it would have been denied a license had it applied in 2000.
We further note that Ceasar commenced employment with DTM before DTM failed to
take out a license to do construction work in Calumet City, thus becoming an unlicensed
contractor in Calumet City. There is also no evidence that Ceasar ever relied on Great
Lakes to ensure that DTM was licensed in Calumet City in making his decision to be
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No. 1-05-1203
employed by DTM on the Ginger Ridge project.
It bears reiterating that an employer of an independent contractor is generally not liable
for the independent contractor's acts or omissions. See Gomien v. Wear-Ever Aluminum, Inc.,
50 Ill. 2d 19, 21, 276 N.E.2d 336 (1971). However, as we explained in our recent
decision in Cochran v. George Sollitt Construction Co., 358 Ill. App. 3d 865, 832 N.E.2d
355 (2005), pursuant to the exceptions to that rule articulated in section 414 of the Restatement,
an employer of an independent contractor may nevertheless be subject to vicarious liability for
the contractor's negligence if the employer retains control over the operative details of the
contractor's work; alternatively, even in the absence of such control, an employer may be subject
to direct liability where it assumes supervisory duties on a construction project and fails to
exercise them with reasonable care (see also, e.g., Restatement (Second) of Contracts '304,
Comment b, at 448 (1981) ("the parties to a contract have the power, if they so intend, to create a right
in a third person")). In either case, the scope of liability of an employer of an independent
contractor is determined by the scope of its undertaking. Moreover, such an employer cannot be
held liable unless it knew or had reason to know of danger to the contractor's workers.
Cochran, 358 Ill. App. 3d at 877, 879-80. Here, there is no dispute that Great Lakes did
not retain enough control over the project to subject itself to vicarious liability, did not
undertake to supervise DTM workers (which would have subjected it to direct liability),
and had no actual or constructive knowledge that Ceasar would carry a bundle of
shingles up a ladder. Lastly, Moss v. Rowe Construction Co., 344 Ill. App. 3d 772, 801
N.E.2d 612 (2003), Pozzi v. McGee Associates, Inc., 236 Ill. App. 3d 390, 602 N.E.2d
17No. 1-05-1203
1302 (1992), and Ralls v. Village of Glendale Heights, 233 Ill. App. 3d 147, 598 N.E.2d
337 (1992)Con which plaintiff relies for the proposition that an employer of an
independent contractor may contractually assume a duty to ensure compliance with
OSHA standardsCare distinguishable because Great Lakes did not undertake any such
duty pursuant to the oral subcontracting agreement with DTM.
Plaintiff, in the alternative, contends, as she did below, that Great Lakes should
be estopped from denying control over the work of DTM because Great Lakes and DTM
had conspired to mislead Calumet City's building inspectors by telling them that Great
Lakes, and not DTM which was unlicensed, was doing the roofing work. Plaintiff thus
combines the theory of equitable estoppel with a claim of civil conspiracy, which was not
pled in her amended complaint. Plaintiff also appears to argue the theory of conspiracy
in its own right. Plaintiff's election to stand on her amended complaint, which does not
allege a prima facie case of conspiracy, or even allege that DTM was unlicensed, would
preclude her from raising the conspiracy theory on review in its own right. See Hagood
v. O'Conner, 165 Ill. App. 3d 367, 370, 519 N.E.2d 66 (1988) ("The plaintiff in the instant
case initially elected to stand on his pleadings and chose not to request leave to amend
from the trial court. *** Because the plaintiff deliberately chose to stand on his
pleadings as filed and failed to request leave to amend at the trial level, we will not
consider his prayer for this relief on appeal"); Continental Building Corp. v. Union Oil
Co. of California, 152 Ill. App. 3d 513, 517, 504 N.E.2d 787 (1987) ("A complaint which
fails to allege facts, the existence of which are necessary to enable plaintiff to recover,
does not state a cause of action, and its deficiency may not be remedied by liberal
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No. 1-05-1203
construction or argument"). The estoppel argument, on the other hand, would be
preserved for our consideration because it pertains to Great Lakes' control over DTM's
work. The theory of supervisory control was raised, albeit cursorily, in the pleadings
and was extensively argued in the course of the proceedings in the circuit court.
However, plaintiff cites no cases showing how the doctrine of equitable estoppel would
apply to the facts of the instant case. The estoppel argument would therefore be
waived on appeal. See 188 Ill. 2d R. 341(e)(7) (arguments must be supported by citation
to pertinent legal authority).
Waiver aside, plaintiff would not be able to prevail under either theory on its
merits. Here, plaintiff would have had to allege that Great Lakes conspired with DTM to
enable it to operate without a license. In this regard, we note that proximate cause is
still a required element of the cause of action for conspiracy. See Scott v. Aldi, Inc., 301
Ill. App. 3d 459, 464, 703 N.E.2d 526 (1998); Restatement (Second) of Torts '876,
Comment d (1979). However, as discussed, there is no evidence that DTM would have
been denied a Calumet City license had it applied for it prior to commencing work on the
Ginger Ridge project, and there is no evidence that Ceasar ever relied on Great Lakes
to ensure that DTM was licensed in Calumet City in making his decision to be employed
by DTM on the project. In other words, there is no causal connection between the
purported conspiracy and Ceasar's injury and subsequent death. Cf. Scott, 301 Ill. App.
3d at 461 (the element of proximate cause was properly pled where the plaintiff alleged
that Aldi's employees allowed and participated in solicitation of unlicensed taxi service
to the customers of the Aldi store and escorted the plaintiff to an agent of an unlicensed
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taxi who helped the plaintiff into a vehicle, and further alleged that the unlicensed
driver's negligence caused the accident in which she was injured).
Plaintiff's estoppel theory would similarly fail. Preliminarily, we note that it would
be anomalous for plaintiff to urge that since DTM employees held themselves out to be
working for Great Lakes, Great Lakes should be estopped from denying control over the
work of DTM. The irony in this contention is that in order to impose a duty of care on
Great Lakes, plaintiff, in effect, suggests that Great Lakes be regarded as Ceasar's
employer. However, under this theory, plaintiff's claims against Great Lakes would be
barred by the Workers' Compensation Act. That aside, the doctrine of equitable
estoppel is wholly inappropriate on these facts since it comes into play only where a
party, by his or her own statements or conduct, induces a second party to rely, to his or
her detriment, on the statements or conduct of the first party (In re Marriage of Smith,
347 Ill. App. 3d 395, 399, 806 N.E.2d 727 (2004)).
"To establish equitable estoppel, the party claiming the estoppel must
demonstrate that: (1) the other party misrepresented or concealed
material facts; (2) the other party knew at the time he or she made the
representations that they were untrue; (3) the party claiming the estoppel
did not know that the representations were untrue when they were made
and when they were acted upon; (4) the other party intended or
reasonably expected that the party claiming estoppel would act upon the
representations; (5) the party claiming estoppel reasonably relied upon the
representations in good faith, to his or her detriment; and (6) the party
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No. 1-05-1203
claiming estoppel would be prejudiced by his or her reliance on the
representations if the other party is permitted to deny the truth thereof.
Geddes[ v. Mill Creek Country Club, Inc.], 196 Ill. 2d [302,] 313-14[, 751
N.E.2d 1150 (2001)] ." Boelkes v. Harlem Consolidated School District
No. 122, 363 Ill. App. 3d 551, 557, 842 N.E.2d 790 (2006).
Obviously, under the facts of this case, plaintiff cannot claim that Ceasar was induced to
act upon any misrepresentations of DTM or Great Lakes. Whatever misrepresentations
DTM and Great Lakes may have made to Ginger Ridge or Calumet City's building
inspectors pertained to the identity of DTM, in that DTM was held out to be Great Lakes.
Ceasar, as an employee of DTM, was unquestionably well aware of the true identity of
his employer. Therefore, any claim of detrimental reliance would be reduced to an
absurdity.
Next, with respect to Ginger Ridge, plaintiff contends that she stated a prima
facie cause of action for premises liability under section 343 of the Restatement.
Plaintiff asserts that Ceasar's carrying a bundle of shingles up a ladder was an activity
on the land that is within the purview of section 343. In other words, plaintiff argues that
Ginger Ridge, as an owner and possessor of the premises where construction work
took place, was obligated to exercise reasonable care to protect Ceasar against danger
inherent in the allegedly unsafe work practice. However, as the circuit court noted,
section 343 is ill-suited for application to such facts. In Bokodi v. Foster Wheeler
Robbins, Inc., 312 Ill. App. 3d 1051, 728 N.E.2d 726 (2000), we declined to analyze
under section 343 a similar claim based upon a subcontractor's unsafe work practice.
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No. 1-05-1203
In that case, the plaintiff was instructed by his foreman to operate a pulley device while
standing in an uncomfortable position. As a result, the plaintiff injured his lower back.
The plaintiff then sued the general contractor. Bokodi, 312 Ill. App. 3d at 1054-55. We
disagreed with the general contractor that its liability should be assessed in terms of
premises liability:
"The flaw in defendants' argument is that plaintiff's claim against them is
not really premised upon the existence of some dangerous condition on
the land, but upon defendants' negligence in exercising control over their
independent contractor." Bokodi, 312 Ill. App. 3d at 1057.
In this respect, Bokodi relied on Haberer v. Village of Sauget, 158 Ill. App. 3d 313, 511
N.E.2d 805 (1987). In Haberer, the plaintiff's job was to mix grout. The plaintiff's
employer, however, failed to provide him with protective gloves. As a result of mixing
grout by hand without protective gloves, the plaintiff developed dermatitis and,
subsequently, an infection. Haberer, 158 Ill. App. 3d at 318. We found that the
plaintiff's claim against the village was not truly based on premises liability, but was
rather based on the village's negligence in exercising control over its contractor, the
plaintiff's employer. Haberer, 158 Ill. App. 3d at 318.
Plaintiff fails to cite any cases that found the theory of premises liability to be
applicable under such facts. In any event, no liability could be imposed unless the
owner or possessor of the premises had actual or constructive knowledge of the unsafe
situation. Cochran, 358 Ill. App. 3d at 873; Restatement (Second) of Torts '343, at
215-16 (1965). Here, as noted, DTM's supplier of shingles had crane-lifted them to the
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No. 1-05-1203
roof. Under these circumstances, DeVincent would have had no reason to think that
bundles of shingles would be carried up a ladder. There is also no evidence that
DeVincent or James was informed or should have known of a shortage of shingles on
the roof, which was discovered the morning of the day of the incident. Even had
DeVincent noticed a shortage of shingles on the roof, he would have had no reason to
think that, rather than having the supplier deliver and lift more shingles to the roof, DTM
employees would buy extra bundles elsewhere and proceed to carry bundles up a
ladder. Plaintiff places great reliance on DeVincent's statement that he would observe
the roofers between 20 and 30 times a day. Ginger Ridge, however, points out that
DeVincent stated that at the time of Ceasar's fall he was in his office where he could not
see the roofers. Thus, even assuming DeVincent checked on the roofers every 15
minutes, he cannot be charged with knowledge of an unsafe work situation that would
take less than a minute to transipre, namely, a roofer picking up a bundle of shingles
and starting to climb a ladder with it. Accordingly, there is no genuine issue of material fact
as to Ginger Ridge's lack of knowledge of the dangerous work situation.
For the reasons set forth above, we affirm the judgment of the circuit court.
Affirmed.
CAHILL, P.J., and McBRIDE, J., concur.
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