Construction Negligence Cases Post-Carney

In 2016, the Illinois Supreme Court in Carney v. Union Pacific Railroad, 2016 IL 118984, decided a construction negligence case in favor of the defendant owner and provided clear parameters to Section 414 of the Restatement (Second) of Torts. Trial and appellate courts are following suit by granting and affirming summary judgment under the new Carney framework. LePretre v. Lend Lease (US) Construction, Inc., 2017 IL App (1st) 162320; Snow v. Power Construction Co., 2017 IL App (1st) 151226; Meza v. F.H. Paschen, 2017 IL App (1st) 161569-U. Just in the past few weeks, our office obtained summary judgment in three serious construction-site accident cases. We have also seen trial judges issue modified – and more favorable – jury instructions in these types of cases. Below is a quick recap of how Carney redefined the law and leveled the playing field for general contractors and owners.

The owner, a railroad company, hired a demolition subcontractor to remove several bridges. The subcontractor in turn hired the plaintiff to assist in the work. During the removal process, an unsecured beam fell to the ground while the plaintiff was standing on a steel plate covered by gravel. The fallen beam caused the steel plate to move up, which caused the plaintiff to slide forward under the beam. The plaintiff's legs were severed below his knees and he brought suit against the railroad company under Section 414. This section provides:

 414 Negligence in Exercising Control Retained by Employer

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.

Illinois courts interpreted this section as giving rise to two theories of liability: (1) vicarious liability when the general contractor's control over the “operative detail” is so extensive that the independent contractor is viewed as the agent of the general contractor; and (2) direct liability when the level of control is sufficient to give rise to a duty to exercise reasonable care for the safety of the independent contractor. This interpretation of Section 414 gave plaintiffs multiple opportunities to develop a cause of action against a general contractor. Making matters worse, there was no consensus definition of “control.”

Carney cleared up the confusion by first eliminating vicarious liability under Section 414 and then defining the limits of “control” under direct liability.

In order to establish direct liability, plaintiffs now must show at least some degree of control over the manner in which the independent contractor performed the work. A “general right” to supervise is no longer sufficient to create a question of fact. Previously, courts would often deny summary judgment motions because a general contractor merely retained the right to stop work or check progress. These general rights are no longer relevant.

A critical factor in analyzing a general's control is the contract language. Many courts would use the contract between the general and the owner as evidence of control. Carney clarified that the proper contract to examine is the one between the parties – the general and independent subcontractor – and not the prime contract with the owner. The court also explained that safety provisions in the contract fall under the category of general rights and do not trigger the duty under Section 414. By removing many of these arguments from consideration, Carney significantly curbed plaintiffs' ability to use the contract language against the general to impose direct liability.

Whether by supervision or contract, plaintiffs must establish that the control was over the specific manner, means and methods of the work. If plaintiffs can clear this hurdle, then they must show the general had notice (knew or should have known) of the unsafe condition or work practice. There is no liability under Section 414 without notice.

It is worth reexamining the construction negligence claims in your caseload to see whether the plaintiffs have the specific facts for control and notice required to defeat summary judgment under the Carney standard. At trial, a modified jury instruction should be offered in place of current pattern instruction, which no longer accurately reflects the law. I.P.I. No. 55.02 (imposing a duty when a defendant “who retained some control over the safety of the work has a duty to exercise that control with ordinary care.”).