Summary Judgment Granted to General Contractor as it did Not Retain Control Over the Subcontractor

January 2025

Emma L. Knowles

The question of whether general contractors as defendants can obtain dismissal via summary judgment from construction cases in Illinois courts is an important one for construction practitioners and the carriers that insure them. In the Illinois Appellate Court, the answer is “Yes” in certain cases. This analysis from the Illinois Second District Appellate Court in Neisendorf v. Abbey Paving & Sealcoating, Co., Inc., d/b/a Abbey Paving Co., Inc., 2024 IL App (2d) 23209, demonstrates the willingness of some Illinois courts to dismiss general contractors from a case when the facts support it. Further, the case demonstrates that there is no one typical set of facts that will lead to a general contractor’s dismissal on summary judgment grounds.

The analysis in these cases turns on the issues of retained control and notice under the premises liability doctrine. under section 414 of the Restatement (Second) of Torts.

The law regarding liability of independent contractors, reads as follows:

Generally, one who employs an independent contractor is not liable for the latter’s acts or omissions. In Illinois, a recognized exception to this rule is found in section 414 of the Restatement (Second) of Torts which states:

“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

However, proving retained control requires more than a cursory right to start or stop work, order changes to the plans, and approve workers and subcontractors or material suppliers hired by the subcontractor. Most general contractors and subcontractors are bound by boilerplate industry form contract provisions stating the same. Retained control requires a heightened level of supervision and control at the job site, and typically involves the general contractor somehow controlling the operative means and methods of a subcontractor’s day to day work.

Case background

On August 31, 2018, Plaintiff Neisendorf was injured on a construction site located in Woodstock. The property, a government office campus, belonged to Kane County. Defendant Abbey Paving & Sealcoating (“Abbey”) was the general contractor. Plaintiff was injured while digging a trench at the job site, when the dirt wall collapsed on him, he tried to stop the wall from collapsing on him, and in the process broke his arm, and crushed his hand. Generally, Plaintiff alleged that Abbey, as the general contractor, “owed a duty of care [to Plaintiff] to exercise its supervisory control to prevent the work Abbey ordered from causing injury to others, including plaintiff.” He alleged that Abbey failed to fulfill that duty by failing “to erect, construct, or place a safe, suitable, and proper protective system for shoring walls to facilitate the construction/excavation project.”

Plaintiff’s employer, subcontractor Campton, was hired by Abbey to assist in the excavation, construction, repair, design, inspection, and removal and/or maintenance of a storm sewer line at the subject jobsite. On the day of the accident, Plaintiff was working on removing an existing storm sewer pipe and replacing it with a larger one. His work that day was supervised by the foreman for Campton.

In alleging that Abbey was liable for Plaintiff’s injuries, he relied heavily on Abbey’s written contract with Kane County. The contract between Abbey and Kane County stated that Abbey “shall be responsible to the owner for acts and omissions of [Abbey’s] employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of [Abbey] or any of its Subcontractors.” Finally, the Contract also provides that Abbey “shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the performance of the Contract. [Abbey] shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury, or loss to *** employees on the Work and other persons who may be affected thereby[.]” (Emphasis added.)

The Ruling

December 21, 2022, defendant Abbey moved for summary judgment, which was granted. Plaintiff then appealed to the Second District Appellate Court, which confirmed the trial court’s grant of summary judgment for the reasons explained in more detail herein.

The Niesendorf Court breaks the retained control analysis into a few discrete issues – control, contract analysis, and power to stop work. Critically, Plaintiff testified that Abbey didn’t control his method of work or the safety of his method. He also testified that no one from Abbey directed him to enter the trench. A supervisor from Campton would have made the decision on site whether to use a trench box. Plaintiff occasionally saw Abbey’s Superintendent on site and thought the Superintendent would have the authority to make requests of him and his fellow employees. The fact that the Superintendent was sometimes on site turns out to be of little importance to the court’s analysis.

Abbey’s Vice President, Superintendent, and Foreman all testified similarly as to the decision-making process for whether to use shoring or a trench box inside a trench. The decision whether to use a trench box would be made by Campton employees in the field; probably the project foreman. Although Abbey would have been ultimately would have been responsible for Campton performing its work correctly, all the witnesses were clear that Abbey never dictated the means and methods to be used in the work.

On the day of Plaintiff’s accident, the crew found a pipe that was not marked in the blueprints, which, for safety reasons, precluded them from installing shoring or a trench box. Critically, all of the witnesses agreed that Abbey had no input into the decision to not install the shoring/trench box on the day of the subject occurrence. The foreman for Campton testified that typically the only direction they receive from Abbey is the timeframe to complete the task.

Moving to the contract, the Court noted the general principle that “[t]he best indicator of whether a contractor has retained control over the subcontractor’s work is the parties’ contract, if one exists.” Abbey’s contract with Kane County contained boilerplate language giving them responsibility for construction means, methods, techniques, sequences, and procedures, among other things. The contract also makes Abbey responsible for safety programs and precautions. Pursuant to a long line of Illinois case law, the Court holds that Abbey’s contract did not give it control over the operative details of Campton’s work, only the general right to stop work, which is insufficient to prove retained control.

On the issue of retained control, the Court held that “the circumstances in this case are like cases finding in general contractors’ favor.” The testimony overwhelmingly demonstrates the decision-making process for using shoring or a trench box rested with Plaintiff’s employer Campton. Defendant Abbey, as the general contractor, provided no tools or equipment, no day-to-day supervision, and did not make the decision not to use a trench box, which failure was the likely cause of Plaintiff’s injury.

To summarize, mere boilerplate contract provisions, a general responsibility for safety, and the right to stop work if needed, without more, do not prove retained control. The Court here focused on the specific mechanism of Plaintiff’s injury, the collapse of the trench due to a failure to install shoring or a trench box. Although Abbey had the general right to stop work, and general responsibility for safety on site, it was not involved in Campton’s decision not to use a trench box. Therefore, it did not retain control over Campton and lacked any duty to Plaintiff under Section 414.