In a case dealing with an accident at a construction work site, Samuel Escareno sought damages against Terra Cotta Commons Condominium Association and Kass Management Services for injuries he suffered. Terra Cotta Condominium was the owner of a condominium building that was managed by Kass Management. Kass hired Sherwin Painters Inc. to do both the painting and the labor to paint portions of the building.
One of the painters hired by Sherwin was Samuel Escareno. He was injured when he fell off a ladder while trying to replace a window screen.
In January 2010, Escareno filed suit against Kass and Terra Cotta. Kass third-partied and sued Sherwin for contribution, but Sherwin moved to dismiss, citing that it had waived its lien on Escareno’s recovery.
The trial court granted the motion dismissing Sherwin and leaving Terra Cotta and Kass as defendants. Escareno claimed that Sherwin had sought permission to tie its ladders to the building due to wind conditions on the day he was injured, but the defendants refused.
Escareno argued that his ladder shifted in the wind, causing him to fall. It was alleged that Kass and Terra Cotta were liable for negligence as well as choosing not to provide a safe means to access the areas to be painted.
Kass and Terra Cotta moved for summary judgment arguing that Escareno failed to secure his ladder and was responsible for his own injury. The defendants also claimed that they had never forbidden Escareno from securing his ladder to the building. In addition, both defendants maintained that they did not possess or retain control over Escareno’s work and thus they had no duty of care to him.
With the motions for summary judgment was the deposition of one of Escareno’s fellow employees who said that Escareno was instructed on how to perform his work and that the co-employee was in charge of deciding when the conditions were unsafe. Kass and Terra Cotta emphasized that Escareno had never received instructions from anyone involved with the ownership or management of the condominium. The Sherwin manager testified that he “received no directions, instructions or equipment from the defendants.” The manager added that neither Kass nor Terra Cotta had a full-time presence at the work site and testified that he had no difficulty controlling his ladder on a day that he said was “not dangerously windy.”
The manager of Sherwin also added that there was no place to tie the ladders to and that on the day in question Escareno had not mentioned the wind as a problem, even after he fell. Kass and Terra Cotta moved to strike Escareno’s testimony that someone from Terra Cotta or Kass had told the manger not to tie his ladder to the building as hearsay within hearsay. The testimony was stricken and summary judgment granted in favor of the defendants. Escareno appealed.
On appeal, it was argued by Escareno that Kass and Terra Cotta were liable as possessors of the premises. The appellate court panel noted in its opinion that owners are liable only if the harm is caused by the condition of the land, which was not the case here. The court also examined whether Kass or Terra Cotta retained enough control over the work site to owe a duty of care to Escareno.
The Restatement (Second) of Torts specifies that it is not enough merely to be able to order the work stopped, inspect its progress or make suggestions that need not be followed. To have enough control to reach the level of duty of care, Kass and Terra Cotta would have had to supervise the work, and the employees of Sherwin would not have had the freedom to do work in their own fashion.
The appellate court concluded that there was no such control exercised in this case and so no duty of care existed between Kass or Terra Cotta and Escareno. Accordingly, the appellate court affirmed the trial court’s dismissal of the claims made against both Kass and Terra Cotta.
Samuel Escareno v. Terra Cotta Commons Condominium Association and Kass Management Services, Inc., 2014 IL App (1st) 120682-U (April 9, 2014).
Kreisman Law Offices has been handling construction site injuries to workers, work injury cases and wrongful death cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Prospect Heights, Elmwood Park, Orland Park, South Barrington, South Chicago Heights, South Holland, Streamwood, Thornton, Tinley Park, Wheeling, Western Springs, Wilmette, Worth., Park Forest, Brisken Park, River Grove, Lemont, Niles, Evergreen Park and Forest Park, Ill.
Related blog posts: