Appellate Court Sets Favorable Precedent for Subcontractors

The First District of the Illinois Appellate Court recently issued a favorable decision for construction subcontractors in Cabrera v. ESI Consultants, Ltd., 2015 IL App (1st) 140933, affirming summary judgment for the defendants. This decision should help to limit two common strategies of construction-injury plaintiffs: arguing that subcontractors owed the plaintiff a duty of care based on control of a worksite, and using experts' affidavits to try to create questions of fact and avoid summary judgment.

The City of Chicago retained Cabrera's employer, Era Valdivia Contractors, for certain work in a construction project on the Washington Street Bridge, including sandblasting and painting. The City also retained ESI Consultants to serve as an engineering consultant, and ESI entered a subcontract with Milhouse Engineering and Construction. Cabrera allegedly slipped and fell on oil under the bridge. He sued the City, ESI, and Milhouse, alleging that each defendant was responsible for inspecting, managing, controlling, operating, supervising, and coordinating the project. After discovery, ESI and Milhouse moved for summary judgment on the grounds that they did not owe Cabrera a duty of care under the Restatement (Second) of Torts § 414, and the trial court granted their motions.

Under § 414, a defendant that employs an independent contractor can be liable for the independent contractor's acts or omissions if the defendant (1) entrusts work to the independent contractor and (2) retains control of the independent contractor's work. Although Cabrera did not cite § 414, the court found that his broad allegations of “control” implicated its requirements. Cabrera could not hold ESI and Milhouse liable under § 414 because they had not entrusted work to Era Valdivia, and the court therefore did not need to reach the issue of control. Although subcontractors sometimes “entrust” work to sub-subcontractors, the Cabrera decision is generally helpful to subcontractors because they do not entrust work to any of the other subcontractors whom the owner or general contractor retains. Subcontractors should therefore owe no duty of care under § 414 to the employees of other subcontractors.

Cabrera is also helpful because the court rejected the plaintiff's effort to avoid summary judgment by attaching an affidavit from a liability expert. Based on the contracts for the construction project, Cabrera's expert opined that ESI and Milhouse were responsible for reviewing other subcontractors' means and methods of providing safe work areas, and that they had failed to fulfill those duties. The trial court struck the expert's affidavit, and the appellate court affirmed. Affidavits should consist only of facts, and the interpretation of an unambiguous contract and the existence of a duty are both matters of law for the court. Cabrera should be a good precedent for striking plaintiffs' expert testimony regarding construction contracts and defendants' duties, either in summary-judgment proceedings or at trial.