Illinois Appellate Court Weighs In on Duty of Care as to General Contractor Liability

In late March 2008, Fortino Fonseca was working for RG Drywall, a subcontractor hired by Clark Construction Group, LLC. While Fonseca was carrying a 100-pound sheet of drywall, he tripped over an electrical pipe that was on a hallway floor. Fonseca fell and the drywall broke on top of him.

As a result of the fall, Fonseca suffered injuries that required surgery on his back and right shoulder. On Feb. 1, 2010, Fonseca filed a lawsuit naming Clark Construction Group, LLC as a defendant. During the next 14 months after the filing of the lawsuit, some other defendants were added and some were dropped. By April 15, 2011, the defendants who remained were Clark Construction and Maron Electric, which was a subcontractor hired by Clark Construction to do the electrical wiring for the building.

In the lawsuit, Fonseca claimed that Maron chose not to clear the construction area of debris and that Clark had chosen not to property supervise the work that was being done.

Depositions were taken from Clark employees who gave conflicting testimony as to whether Clark had the authority to stop the work by Maron. Both witnesses testified that they had never observed Maron violating any of the safety rules that were contained in an 18-page manual that was attached to Maron’s contract with Clark.

Maron’s safety director and general foreman testified that it was Maron’s responsibility to pick up any debris and that neither had received any reports of scattered debris.

Clark and Maron filed motions for summary judgment. Clark argued that it did not owe a duty to Fonseca because it did not retain any supervisory control over Maron’s work. The trial court denied Maron’s motion for summary judgment, but granted Clark’s motion. Fonseca appealed that order.

Fonseca’s argument was that Clark owed him a duty of care. As for evidence, Fonseca pointed out that Clark had a full-time safety manager and extensive written safety procedures it required Maron to follow. In addition, Fonseca made note of the fact that Clark employees testified that they had the authority to stop Maron’s work if it was being done in an unsafe manner. Fonseca argued that Clark exercised sufficient control to create a duty of care.

Clark argued that the contract with Maron placed all responsibility for safety and cleanup firmly in Maron’s hands. Clark cited Illinois case law, which stated that even when general contractors have supervisory and controlling power on a site, they do not accrue liability unless they take an active role in ensuring safety or they retain control over incidental aspects of a subcontractor’s work.

In deciding that Clark had no duty of care, the appellate court gave several reasons. Clark did not exercise any supervisory authority. Further, the subcontract with Maron stated that Maron assumed all responsibility and liability. Lastly, the Maron subcontract explicitly included a clause making Maron responsible for cleaning and removing debris from the work area, which was the cause of the injury. The appellate court affirmed the decision of the trial court in its grant of summary judgment in favor of Clark. The case would proceed as an action against Maron Electric.

Fortino Fonseca v. Clark Construction Group, LLC and Maron Electric Co., 2014 IL App (1st) 130308 (March 31, 2014).

Kreisman Law Offices has been handling work injury cases, construction site injury cases, car accident cases, product liability cases, motorcycle accident cases and bicycle accident 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 Alsip, Oak Lawn, Evergreen Park, Blue Island, Robbins, Midlothian, Park Ridge, Palos Park, Countryside, Brookfield, Berwyn, Arlington Heights, Cicero, Joliet, Aurora, Chicago (Pilsen, Printer’s Row, Chinatown, Little Italy, Lincoln Square, Avondale, Back of the Yards, Beverly, Bridgeport, Greek Town,  Bronzeville, Bucktown), Northbrook and Schiller Park, Ill.

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