Appellate Court Affirms Summary Judgment In Favor Of City Of Chicago And Contractors In Construction Negligence Suit

March 2016

A recent decision from the First District Appellate Court, Cabrera v. ESI Consultants, Ltd., 2015 IL App (1st) 140933, addresses several noteworthy issues which can arise in construction negligence lawsuits. The decision discusses a municipality's tort immunity, contractor liability under Restatement (Second) of Torts §414 and the proper scope of expert opinions. The Appellate Court affirmed summary judgment on behalf of all defendants.

The plaintiff was injured while working at a construction project on the Washington Street Bridge in the City of Chicago. His employer, Valdivia Contractors, was hired by the City of Chicago to perform certain work including sandblasting and painting the bridge. The plaintiff alleged the City of Chicago had a presence on the project, controlled the work, and had authority over means and methods and jobsite safety. A civil engineer for the City of Chicago, testified his duties included construction management, supervising a construction consultant and the various contractors.

The trial court granted summary judgment to the City of Chicago holding it was entitled to absolute immunity under Section 2-201 of the Illinois Tort Immunity Act which grants immunity to municipalities against liability for discretionary decisions. There is no exception for willful and wanton conduct under Section 2-201. In affirming summary judgment in favor of the City of Chicago, the Appellate Court noted the contract with Valdivia authorized the City of Chicago to "reject or require modification of any proposed, method, structure or equipment." Based on this contract language, the City of Chicago's supervision of Valdivia was discretionary and fell within the purview of Section 2-201 immunity.

In addition, the City of Chicago hired ESI Consultants to act as its engineering consultant. The plaintiff argued ESI could be held liable under Restatement (Second) of Torts §414 because it retained supervisory control over the project. The Appellate Court rejected this argument, noting a duty under §414 turns on whether a defendant entrusted work to an independent contractor. Since ESI did not hire Valdivia, it could not be held liable under §414.

Finally, the Appellate Court affirmed the trial court's order striking an affidavit from plaintiff's liability expert offered in opposition to ESI's motion for summary judgment. The expert's affidavit stated ESI owed a duty with respect to jobsite safety based on his interpretation of language in ESI's contract. The Appellate Court held contract interpretation is a matter of law for which expert testimony is not appropriate in the absence of ambiguous terms. No ambiguity was found in ESI's contract.