Brady, Connolly & Masuda, P.C. Wins for General Contractor Before Appellate Court

June 2015

On March 20, 2015, the Appellate Court of Illinois, First District, affirmed summary judgment in favor of general contractor, F.H. Paschen, S.N. Nielsen, Inc., (Paschen) in Kevin E. O'Gorman v. F.H. Paschen, S.N. Nielsen, Inc., et al. 2015 IL App (1st) 133472. Paschen was represented by attorney W. Scott Trench in the trial court and on appeal. Paschen contracted with the City of Chicago to act as a general contractor for the conversion of a former police station into a custodial youth center. The plaintiff, a general foreman of general trades for the City of Chicago, accessed the roof of the building through a roof hatch to inspect a heating and air conditioning unit. The plaintiff stepped on a piece of wood with an embedded nail as he exited the roof hatch. While attempting to remove the piece of wood from his foot, the plaintiff fell through the roof hatch 13 to 15 feet to the floor below and suffered a herniated cervical disc. The plaintiff alleged the wood was construction debris from Paschen's masonry subcontractor, Old Veteran, which was performing work adjacent to the roof hatch. The plaintiff argued Paschen, in its contract with the City of Chicago, was responsible for job site safety and housekeeping. The trial court granted summary judgment in favor of Paschen, holding that Paschen delegated the responsibility for safety and housekeeping to its subcontractor, Old Veteran, based on the language in Paschen's subcontract and, therefore, owed no duty to the plaintiff pursuant to Restatement (Second) of Torts, §414.

On appeal, the plaintiff argued the trial court erred because Paschen's contract with the City of Chicago contemplated close supervision and control over Old Veteran's work and Paschen took an active role in coordinating the work and in safety matters. In affirming the trial court, the Appellate Court stated, "[W]hile defendant's contract with the City made defendant responsible for safety of the work, defendant's subcontract with Old Veteran delegated this duty to Old Veteran." Further, the Appellate Court held that the trial court did not err in giving the subcontract "more weight" than the contract between Paschen and the City of Chicago. The Appellate Court also found Paschen did not exercise the requisite level of control over Old Veteran's work to give rise to liability.

We anticipate the O'Gorman decision will be frequently cited by general contractors in Illinois seeking to avoid liability for the alleged negligence of their subcontractors. The opinion's discussion of the contractual delegation of safety responsibilities is especially helpful. In many construction cases decided under the Restatement (Second) of Torts, §414, the language in the general contract is deemed sufficient to create a duty based on a contractual retention of control over the work. The O'Gorman decision makes clear that such duties and responsibilities can be delegated to a subcontractor. Of equal significance, O'Gorman supports the argument that courts do not err by giving "more weight" to the language in a subcontract as controlling over language found in a general contract with the owner.

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2015/1stDistrict/1133472.pdf