First Dirstrict Upholds Summary Judgment in Favor of Property Owner on Construction Negligence and Premises Liability Claims

September 2014

By Molly P. Connors

In a recent case, Lee v. Six Flags Theme Park, Inc., 2014 IL App (1st) 130771, the First District Appellate Court ruled Six Flags entitled to summary judgment against claims of construction negligence and premises liability claims. The plaintiff was the wife of a heavy equipment mechanic who fell to his death while dismantling the "Splash Water Falls" ride. The decedent was employed by Campanella & Sons ("Campanella"), which Six Flags hired to remove structural steel from the ride.

In analyzing the construction negligence claim, the court first considered whether Six Flags retained the requisite amount of control to be vicariously liable under section 414 of the Restatement (Second) of Torts ("section 414"). The court stated there were three types of control: contractual, supervisory, and operational.

Regarding contractual control, the court found the contract between Campanella and Six Flags required Campanella "to provide and pay for all labor, materials, equipment, and other facilities and services necessary for the proper execution and completion of the work." The contract also made Campanella solely responsible for the means, methods, techniques, procedures and for coordinating the work. The court recognized the contract required Campanella to follow Six Flags' safety guidelines and other safety requirements and gave Six Flags the right to inspect the project for unsafe conditions. However, the court stated implementing a safety program and retaining the right to inspect work do not constitute retained control under section 414. Additionally, the court noted the plaintiff failed to show how any of Six Flags' safety guidelines or requirements affected the means and methods of Campanella's work.

As for supervisory control, the court considered "whether Six Flags supervised Campanella's work or maintained an extensive work site presence." Six Flags did not require Campanella to submit daily work reports and did not regularly hold meetings with Campanella. Even though Six Flags was frequently present at the job site, Six Flags was only there to monitor the progress of the work. As a result, the court concluded Six Flags did not exert supervisory control.

Finally, the court analyzed operational control, which it defined as "whether the contractor was free to perform the work in its own way, which personnel provided supplies and gave directions to the workers, and whether the employer was present during the incident." The court found Six Flags had not retained operational control because Campanella employees testified Campanella supervised its own work; Six Flags did not control the operational details of Campanella's work; and Campanella supplied its own fall protection equipment.

The court then considered whether Six Flags was directly liable under section 414. The court held Six Flags did not superintend the entire job even though it required Campanella to submit a safety plan and comply with its safety requirements; maintained a daily or weekly presence on the job site; and had the authority to stop Campanella's work. The court explained there was no evidence showing Six Flags exercised its authority to stop the contractor's work. Even though Six Flags' employees frequently observed the work, they were only monitoring progress, not safety. Six Flags' safety standards were not significantly different from the contractor's standards and Six Flags did not conduct regular safety inspections or meetings. The court also noted the plaintiff's own expert witness testified Six Flags did not adequately supervise its contractors.

The court also discussed whether Six Flags had actual or constructive knowledge of the hazardous nature of the plaintiff's work. The court stated the plaintiff had not shown Six Flags knew the platform would be removed or knew the plaintiff would not use his fall protection equipment. The court found no evidence personnel of Six Flags was present at the job site on the date of the accident.

Regarding the plaintiff's premises liability claim under section 343 of the Restatement (Second) of Torts ("section 343"), the court found Six Flags was not liable because, again, there was no evidence Six Flags had actual or constructive knowledge of the dangerous condition.

This case demonstrates that a general contractor can impose safety requirements, retain the right to inspect and stop work and maintain a daily presence on the job site without establishing the kind of control that would make it liable for injuries on the site. It also suggests general contractors can avoid liability by limiting their supervision to monitoring the progress of their subcontractors' work.