General Contractor Owes Duty of Care Despite Lack of Retained Control

January 2023

Matthew K. Abrams

In Ellis v. ICC Grp., Inc., 2022 IL App (1st) 211581-U, the First District Appellate Court addressed a general contractor’s duties to an employee of a subcontractor who sustaining a spinal injury at a job site.

The Court overturned the lower court’s granting of summary judgment on behalf of a general contractor when it ruled that, under Section 343 relating to “premises liability,” the contractor owed a duty of care to the plaintiff. Of note, the Appellate Court also affirmed that no duty of care was owed under Section 414 (“retained control”) as there was no evidence the contractor retained control of the means and methods of the subcontractor’s work.

Joseph Ellis sued general contractor ICC Group, Inc., alleging negligence, premises liability under Section 343 and negligence under Section 414. Ellis was employed by Lyons & Pinner, an electrical subcontractor on the project. He alleged that he lost his balance while climbing a ladder in an attempt to cross a dam gate to reach the other end of a platform. In the process, he fell onto a concrete ledge below and sustained injuries. The lower court granted summary judgment to ICC, ruling that it did not owe Ellis a duty of care under Section 343 or Section 414. The court also found ICC had no actual or constructive notice of any dangerous condition nor any proximate cause between the alleged negligence or the plaintiff’s injuries.

Ellis appealed, arguing ICC owed him a duty of care because it created a dangerous working condition under the theories of premises liability and retained control. The Appellate Court determined, “the evidence in this case shows that the defendant was the possessor of the dam platform where the plaintiff’s injury occurred” and therefore reversed summary judgment on the issue of premises liability only.

The evidence of the case was such that the defendant was hired to install a cofferdam and build a dry construction site within the reservoir, upon which it then erected a concrete platform and installed a dam gate. The dam gate, once installed, had to be traversed for certain work to be performed on the south side of the platform. There was no easy way to go over the gate, and the other option was to take a boat and wade through water on the other side, which was not supplied by ICC. Plaintiff ultimately used two ladders that he tied together on either side of the dam gate to traverse it. On his way back over, as he pivoted from one ladder to the next, he fell off the ladder and was injured.

In analyzing the evidence, the court first reviewed the defendant’s duty of care under a premises liability theory. Defendant argued it was not a possessor of the land so a duty could not be imposed under Section 343 on it. The Court held that ICC was the possessor of the dam platform where the injury occurred. By installing the dam gate and acting as general contractor, ICC effectively created the site where the injury occurred and exercised control over it. Accordingly, ICC was the possessor of the land at issue at least as to the dam gate.

In then analyzing the duty owed, the Court agreed with plaintiff that the existence of the dam gate on the platform without a safe means of access over it was the condition on the land that caused injury. The court further found the defendant could reasonably have foreseen injury to the plaintiff by attempting to use a ladder to traverse the dam gate. “We believe that an injury of this nature was reasonably foreseeable to the defendant due to the gate’s blocking of land access to the entire south side of the platform despite the fact that tradesmen had work to perform there.” Defendant had knowledge of the dam gate and that its presence blocked access with no easy access to reach south side.

The Court then turned to its analysis under Section 414. It rejected Ellis’ argument that ICC owed him a duty of care because it “retained control” over work entrusted to an independent contractor. The plaintiff argued the relevant contracts demonstrated ICC’s retained control, but the Court found that the provisions of the subcontract and prime contract cited by Ellis do not rise to the level of showing retained control. “Nothing about these provisions shows that the defendant retained control over Lyons’ work or that it was not free to do the work in its own way.” The Court likewise ruled against plaintiff’s argument that ICC’s conduct demonstrated retained control over the job site. ICC’s conduct was insufficient to demonstrate retained control because ICC did nothing to prevent Lyons employees from being entirely free to perform their work their own way. Thus, under Section 414, the Court upheld the lower court’s ruling.

A final note of the ruling was about the lower court’s ruling on proximate cause. The lower court found no evidence of proximate cause and it was ruled that it improperly found the dam gate was not a material element in bringing about plaintiff’s injury. “By determining that the sole cause of the plaintiff’s injury was his own conduct in using ladders to cross the gate, the trial court essentially resolved a disputed issue of fact. An injury may have more than one proximate cause, and whether the defendant’s negligence was a proximate cause of the plaintiff’s injury here is a question for the trier of fact.”

This case provides a well explained path of how to properly argue and analyze these two distinct theories that all too often are improperly merged. Under Section 343, the issues are whether the defendant possessed the land, the condition of the land and the plaintiff’s encounter with it. On the other hand, under a proper Section 414 analysis, the analysis is limited to retained control over the job site whether by contract or by conduct and whether said retained control was a cause of the accident. Although Ellis does not stand for the proposition that a general contractor is always the possessor of the construction site, the Ellis case should guide attorneys in properly arguing for summary judgment under each of these theories.