2014 IL App (1st) 130771
SIXTH DIVISION
May 9, 2014
No. 1-13-0771
DONNA L. LEE, Personal Representative of the Estate ) Appeal from the
of Thomas J. Lee, Deceased, ) Circuit Court of
) Cook County
Plaintiff-Appellant, )
)
v. )
)
SIX FLAGS THEME PARKS, INC., a Corporation, ) No. 10 L 5824
d/b/a Six Flags Great America, )
)
Defendant-Appellee, )
)
(Royal Crane Service Inc., a Corporation, ) Honorable
) William E. Gomolinski,
Defendant). ) Judge Presiding
JUSTICE REYES delivered the judgment of the court, with opinion.
Presiding Justice Rochford and Justice Lampkin concurred in the judgment and opinion.
OPINION
¶1 Plaintiff Donna L. Lee, personal representative of the estate of the late Thomas J. Lee,
appeals orders of the circuit court of Cook County granting summary judgment in favor of
defendant Six Flags Theme Parks, Inc. (Six Flags) on counts I, II, III and IV of plaintiff's
complaint, which alleged wrongful death and survival claims based on theories of construction
negligence and premises liability. Counts I and II were brought on behalf of the estate, while
counts III and IV were brought as survival actions. On appeal, Donna argues Six Flags retained
1-13-0771
sufficient control over the work performed by its contractor to owe a duty of care to Thomas.
Donna also argues there are genuine issues of material fact precluding the entry of summary
judgment on her premises liability claims. For the following reasons, we affirm the judgment of
the circuit court.
¶2 BACKGROUND
¶3 On July 3, 2008, Donna filed a complaint against Six Flags and Royal Crane Service,
Inc., in the circuit court of Cook County. 1 The complaint generally alleged that prior to March
11, 2008, Six Flags was engaged in the project of dismantling a steel structure known as the
"Splash Water Falls" amusement ride (ride), using Campanella & Sons (Campanella) and Royal
Crane as contractors. Thomas, employed by Campanella as a heavy equipment mechanic, was
assigned to assist in dismantling the ride by disconnecting and removing structural steel. 2
¶4 On March 11, 2008 Thomas and coworkers had disconnected a motor on a platform 43
feet above ground. The motor was lifted from the platform and moved to the ground, resulting in
a large opening in the platform, which was not covered or barricaded. Thomas and coworkers
then were connecting cables from a crane to a component known as the pan, which was also 43
feet above ground. During this preparatory work, Thomas fell to his death, through the opening
1
Royal Crane is not a party to this appeal. The orders appealed from in this case also
ruled upon issues in third-party actions that are not involved in this appeal.
2
Although not described in the pleadings, the record establishes the ride consists of boats
that were conveyed in a trough along an upward-sloping course to an elevated platform, from
which the boats would, by the force of gravity, race through a downward-sloping trough of water
to return to ground level. The record also establishes Campanella began dismantling the ride
from the end, working backward and upward toward the platform at the top of the ride.
2
1-13-0771
created by the removal of the motor from the platform.
¶5 Donna's complaint was comprised of four counts. Count I sounded in negligence on a
premises liability theory, alleging Six Flags knew of the dangerous conditions on its land, but
failed to exercise reasonable care to protect invitees, including Thomas. Count II sounded in
construction negligence, alleging Six Flags retained sufficient control over the manner and
method of the safety aspects of the project to incur liability for the negligence of Campanella and
had actual knowledge the work would create the dangerous condition, yet failed to provide a safe
place or platform upon which Thomas could work. Counts III and IV alleged survival actions
based on the theories of premises liability and construction negligence, respectively. Counts II
and IV, the construction negligence claims, also alleged Six Flags was negligent in hiring
Campanella.
¶6 On January 11, 2013, following pretrial discovery, Six Flags filed a motion for summary
judgment on the four counts of the complaint alleging construction negligence and premises
liability with respect to Six Flags. On January 18, 2013, Six Flags filed an amended motion for
summary judgment on these four counts of the complaint. In both motions, Six Flags argued it
could not be liable because it did not retain any control over the means and methods of work on
the project and was completely unaware of the hazard created shortly before Thomas's death. 3
On February 15, 2013, plaintiff filed her response in opposition to the motion for summary
3
The record does not indicate whether Six Flags obtained leave of court to file an
amended motion for summary judgment. The amended motion for summary judgment is
organized differently and some of its arguments are condensed in comparison to the original
motion. We observe, however, that the arguments presented in both motions are substantially
similar.
3
1-13-0771
judgment, disputing both of Six Flags' primary assertions. Donna also responded to Six Flags'
"brief assertion of a sole proximate cause defense," but neither party has raised such a defense as
an issue in this appeal. On February 22, 2013, Six Flags filed its reply in support of its motion
for summary judgment.
¶7 The materials submitted by the parties in support of and in opposition to summary
judgment disclose the following facts. Six Flags and Campanella entered into a construction
agreement (Agreement) dated January 31, 2008. Section 1.2 of the Agreement stated the
contract documents would include not only the Agreement, but also the specifications of the
work and other documents, among which were the proposal from Campanella, an appendix of
general conditions, the "Six Flags Great America Contractor Safety Guidelines" (Safety
Guidelines), an indemnity and insurance addendum, and supplemental schedules. Section 1.3 of
the Agreement provided for Campanella to have conducted a thorough inspection of the work
site to determine the difficulties and hazards incident to the work before executing the
Agreement or commencing work on the project.
¶8 Section 3.1 of the Agreement provided Campanella shall supervise and direct the work on
the project. Section 3.1 also provided Campanella "shall be solely responsible and have control
over construction means, methods, techniques, sequences and procedures and for coordinating all
portions of the Work under this Agreement." Section 3.2 provided that, unless otherwise
specified, Campanella shall provide and pay for all labor, materials, equipment, and other
facilities and services necessary for the proper execution and completion of the work. Section
3.6 of the Agreement required Campanella to defend, indemnify and hold Six Flags harmless, to
the fullest extent permitted by law, against all claims and causes of actions by any party—
including Campanella's employees—arising out of negligence by Campanella and its employees.
4
1-13-0771
¶9 The Safety Guidelines, signed by Campanella's president on February 11, 2008, state:
"Safety and the safety training is the responsibility of the contractor for all its
operations. Full compliance with all Federal, state and local laws and guidelines are
required. This also includes providing personal protective equipment as the job dictates
or requires. If Six Flags *** is required to provide personal protective or other safety
equipment to aid in compliance, it reserves the right to do so at the expense of the
contractor."
In particular, the contractor was required to comply with federal Occupational Safety and Health
Administration (OSHA) standards regarding communications regarding possible exposure of
employees to hazardous materials, OSHA guidelines for the control of hazardous energy, the
OSHA program for entries into confined spaces, and OSHA requirements for the proper
barricading and warning of open holes.
¶10 The Safety Guidelines also provided that "[c]ontractors doing work above six feet will
provide for and enforce the use of fall protection for their employees. The contractor was also
responsible for the handling, storage and disposal of any hazardous waste in accordance with the
law. Contractors were required to use ground fault protected receptacles for all temporary power
needs. Moreover, the contractor was required to obey all posted traffic control signs on Six
Flags' property. Six Flags disclaimed responsibility for the contractor's equipment. If the
contractor worked with flammable materials or welding equipment, the contractor was required
to provide proper fire extinguishing media and notify Six Flags when and where welding was to
occur.
¶11 The Safety Guidelines further provided Six Flags' management could "inspect for any
unsafe action and/or conditions and request corrections of such situations." Consumption of
5
1-13-0771
alcohol and illegal substances on or before entering Six Flags' property was prohibited, as were
practical jokes, horseplay, scuffling and fighting. Firearms were also barred from Six Flags'
property.
¶12 The general conditions similarly required the contractor to comply with OSHA law and
to provide protection for the work in place. The general conditions barred burning of materials
at the work site. Six Flags had the right to approve any substitute equipment or materials for
those specified in the underlying contract. The contractor was also required to have a competent
superintendent, foreman other representative satisfactory to Six Flags at the work site at all
times. The contractor was required to submit a written notice to Six Flags for permission to
proceed. Furthermore, if the contractor neglected to properly execute the work, Six Flags could,
after three days' notice to the contractor, make good such deficiencies and deduct the cost thereof
from the payment due the contractor.
¶13 The indemnity and insurance addendum, also signed by Campanella's president on
February 11, 2008, provided Six Flags had no right to control the details of the contractor's work,
or the means, methods or manner of the contractor's performance of the work under the
Agreement. Six Flags had the right to determine the results to be accomplished under the
contract, as well as the right to accept or reject the results and quality of the contractor's work.
¶14 Schedule A to the Agreement required that all materials conform to the City Of Gurnee
building codes, and all workmanship to meet the approval of Six Flags' construction division.
The contractor was required to submit daily progress reports. All employees were required to
conform to Six Flags policies, specifically the safety policies. The "Schedule 'A' Supplemental"
required the contractor to remove debris resulting from the operation on a daily basis. All
workers on the site were required to wear a hard hat for protection. The contractor was further
6
1-13-0771
required to submit a daily report to the Six Flags construction office, setting forth the number of
foreman and mechanics working that day, as well as the location and nature of the work
performed.
¶15 On February 12, 2008, Pete Campanella, Jr. (Pete), signed an acknowledgment that he
read and understood the Six Flags Great America contractor safety, health and security
requirements (Great America Requirements), and agreed to convey them to Campanella's
employees on the project. Many of the Great America Requirements were substantively similar
to the Safety Guidelines. In addition, the Great America Requirements provided that, prior to
commencing any work, a contractor representative must attend a health and safety orientation
conducted by the Six Flags Great America safety department. The contractor representative
must bring a written scope of work, along with a list of materials to be used, to the orientation.
The contractor representative also must review the policies and procedures with all contractor
employees prior to commencement of the work. All contractor employees would be required to
attend a safety briefing at least weekly thereafter. Six Flags Great America would discuss any
safety concerns at these meetings and field questions from contractor employees. The contractor
would report all injuries and incidents to the Six Flags Great America safety department for
investigation.
¶16 The Great America Requirements further provided the contractor must make available an
OSHA-required safety and health program, including a statement of policy, plan for work site
hazard prevention and control, and training for employees. The contractor was responsible for
personal protection equipment, including hard hats, steel toe safety shoes, shirts and long pants,
and—when needed—safety glasses, hearing protection, and safety vests. OSHA-approved fall
protection must be worn in all areas where employees were working at unprotected heights of six
7
1-13-0771
feet or more.
¶17 In addition, the Great America Requirements addressed personnel movement. The
contractor's drivers were required to have driver's licenses and observe posted speed limits on
Six Flags Great America property. When it was necessary to transport contractor employees in
the back of a truck, all employees were required to be seated with the tailgate raised. All
contractor vehicles were subject to search while on Six Flags Great America property.
¶18 Pursuant to the Great America Requirements, the contractor was required to conduct a
daily inspection to insure compliance with its own procedures, as well as those of Six Flags
Great America, and applicable laws. Six Flags Great America would also inspect the work site.
If a representative of Six Flags Great America observed a safety violation, the contractor would
be requested to correct it. If a contractor employee was notified in writing of three safety
violations, the employee would no longer be allowed to work on the property. Any contractor
employee committing theft, trespassing or destruction of property would also be removed from
the property.
¶19 Steven Small testified by deposition that on March 11, 2008, he was Six Flags Great
America's safety manager. Small described the Splash Water Falls amusement ride as having
cars or boats ascending a ramp to a height of 43 feet, then across a level area and then proceeding
down a chute. According to Small, when maintenance personnel would work on the top level of
the ride, they would have personal protective equipment, such as harnesses, lanyards or
retractable equipment, provided by Six Flags Great America to guard against a fall.
¶20 Small identified maintenance director Gary Pohlman as the individual who approved the
contract with Campanella to dismantle the Splash Water Falls amusement ride. Small
distinguished the process of dismantling the ride piece-by-piece from a demolition, which may
8
1-13-0771
involve exploding or pulling down a structure. Small also testified construction superintendent
Terry Pearsall, 4 who reported to Pohlman, gathered information to develop the contract and the
scope of the work, directed the contractors to the work site, and to monitor the progress of the
work. According to Small, Pearsall was at the park every day, but Small did not know how often
Pearsall visited the work site. At some point after Thomas fell, Small proceeded to the top of the
ride, where he observed a lanyard rope on the railing. Small never assessed whether that lanyard
rope was long enough to allow someone attached to the rope to reach all the way to the other side
of the platform at the top of the ride. On the date Thomas died, Pearsall told Small he had
observed Campanella employees tied off with a lanyard rope on at least one prior occasion.
¶21 According to Small, Pearsall arranged the meeting between Small and Pete to discuss the
scope of the work and the contractor's safety responsibilities. At this meeting, Small informed
Pete of the requirement for fall protection. Small testified the requirement for fall protection
above a six-foot height was an OSHA regulation. Small informed Pete the contractor would be
required to follow Campanella's safety policy, as well as OSHA regulations and "the line item in
our paperwork" for fall protection. Small also testified he did not know what methods
Campanella planned to use, but recalled Pete informing him they had harnesses and lanyards and
knew the standards. Small received a copy of Campanella's general safety policies and discussed
them with Pete. Small did not discuss with Pete the use of retractable equipment of the type
previously described in his deposition. During the meeting, Small reiterated Campanella was
solely responsible for the safety of the work, including the fall-protection requirements. 5
4
The record indicates Pearsall's full name is Ira Edward Pearsall.
5
In her brief's statement of facts, Donna cites Small's deposition to assert that Small
approved the use of a single-lanyard fall protection device, but the cited portion of Small's
9
1-13-0771
¶22 Small further testified Campanella was not required to submit a daily work report,
describing it as a standard, but not a routine practice which was enforced. Small had no other
meetings with anyone from Campanella before the incident involving Thomas. Small indicated
he drove past the work site on one occasion, but did not observe anyone working on the ride or
speak to any Campanella employees at that time. Small indicated Six Flags could stop work to
correct an unsafe condition at the work site.
¶23 In addition, Small testified he proceeded to the work site after learning of Thomas's
accident through a radio call. When he arrived at the scene, he observed Thomas was wearing a
harness. Small gathered Campanella employees and brought them to a conference room to
obtain statements about the incident. Small recalled one of the employees, Mark Kuenster,
stating he had reminded Thomas to be careful about the opening just before the accident
occurred.
¶24 Pohlman testified by discovery deposition regarding the methods, equipment and training
for fall protection provided to Six Flags' ride maintenance employees. Pohlman also testified
contractors were required to follow fall-protection regulations at heights above six feet, and he
would stop someone violating those regulations. Pohlman also testified that if he or Pearsall
observed contractors not complying with the general conditions of the contract, he could
terminate the job.
¶25 Pohlman acknowledged he was the individual who primarily interacted with contractors
regarding the removal of the Splash Water Falls amusement ride, although it was a corporate
contract. Pohlman was designated as the owner's representative for the project. According to
Pohlman, Campanella had previously performed grading, sewer work, excavation and demolition
deposition does not support that assertion.
10
1-13-0771
work For Six Flags. In particular, Campanella previously removed a station for an attraction
named "Shockwave," which included a 20-foot platform.
¶26 Pohlman also testified he knew the gear box would need to be removed by crane.
Pohlman assumed the workers would use fall protection if a hole was created on the platform.
Pohlman did not specifically discuss the use of fall protection on the platform with Pete.
Pohlman also did not have conversations with Pete about how the structure of the Splash Water
Falls amusement ride would be removed.
¶27 Pohlman visited the work site "from time to time" to check on the progress of the project.
His office was perhaps 600 feet from the jobsite and he probably would have driven to the site in
February and March. Pohlman did not speak to Campanella's workers about the tasks they
performed and never observed anything amiss or unsatisfactory to cause him to request the work
be performed in a different manner.
¶28 Although Pohlman had observed workers at the top of the structure, he did not recall the
last time he visited the site prior to Thomas's fall. Pohlman was on the other side of the park
with Pearsall when they learned Thomas had fallen. Pohlman was not involved in the
investigation of the incident. Pohlman never conversed with Pete about the incident.
¶29 Pearsall, Six Flags Great America's construction manager, testified by discovery
deposition regarding Campanella's prior work as a contractor for Six Flags. Typically, Pearsall
would check whether contractors were complying with fall-protection requirements. If Pearsall
observed someone not complying with fall-protection requirements, he would quickly instruct
the worker to use a harness, descend from the height, or take whatever action was necessary to
make the work safe. Pearsall agreed that if a worker did not comply with his direction, he
"would be out of there."
11
1-13-0771
¶30 Pearsall contacted Pete regarding the project prior to bidding and showed him the site for
approximately 5 to 10 minutes. Pearsall did not recall ascending to the top of the structure on
this visit or discussing the removal of the gear box with Pete. Pearsall also did not recall whether
Campanella independently evaluated the site or ascended to the top of the ride prior to
commencement of the work. Moreover, Pearsall did not recall soliciting bids from anyone other
than Campanella.
¶31 Pearsall was not involved in the meeting between Pete or any other Campanella
personnel and safety manager Small. Pearsall was not aware of any other safety meetings
between Six Flags and Campanella personnel. Although Six Flags required contractors to submit
forms regarding weekly safety talks, Pearsall did not know whether Campanella submitted the
forms regarding this project. In addition, Pearsall testified no one really asked for the daily work
reports required by the contractor.
¶32 Pearsall knew Thomas from Campanella's prior work and had no criticism pertaining to
his diligence. Pearsall, however, never conversed with Thomas regarding this project. Pearsall
had no knowledge of Thomas's work duties on the project.
¶33 According to Pearsall, on this particular project, Campanella was removing successively
higher steel components of the ride's chute. Pearsall did not recall seeing workers actually on the
chute structure itself, as opposed to being in a lift. Pearsall visited the work site two or three
times weekly. He normally would not visit a demolition site on a daily basis. Pearsall spent
most of his time with the construction of an attraction called the "Dark Knight," which was
located in a different area of the park.
¶34 Based on his prior experience, Pearsall knew that removal of the gear box would leave a
hole in the platform at the top of the structure. Pearsall did not recall having any conversations
12
1-13-0771
with Campanella personnel to plan what would happen after the gear box was removed. Pearsall
did not know when the gear box was to be removed. Although Pearsall observed Campanella
workers using fall protection, he did not recall having any conversations with Campanella
personnel regarding fall protection. Pearsall did not know who, if anyone, from Six Flags was
monitoring Campanella's work for compliance with the fall protection requirements.
¶35 According to Pearsall, his conversations with Campanella workers would be "small talk"
about the progress of the work. Pearsall did not recall Campanella workers mentioning any
problems to him. Pearsall did not provide suggestions or instructions to Campanella's workers.
¶36 Pearsall confirmed he and Pohlman were on the other side of the park when they heard
about Thomas falling from the structure and immediately proceeded to the work site. Pearsall,
however, was not involved in the investigation of the incident. Pearsall's job duties and
responsibilities were not involved with contractual matters, although he was generally familiar
with the contents of the contracts. Pearsall testified that aside from the daily work reports,
contractors were expected to comply with the terms of the contract.
¶37 Pete, a vice-president of Campanella, testified by discovery deposition that Campanella
had worked for Six Flags on more than 20 occasions prior to the incident. Pete agreed with the
recital in the Agreement that Campanella had skill and expertise in the renovation and
construction of facilities used in theme parks and other amusement facilities. Prior to this
incident, Campanella had never been found not to be competent to perform the type of
demolition Campanella was performing by OSHA or any other regulatory agency or judicial
body. Campanella's previous demolition work included the removal of a silo at the Gurnee Mills
shopping center, which involved cutting the structure apart at a height above 20 feet using a lift
truck.
13
1-13-0771
¶38 Pete acknowledged the Agreement made Campanella solely responsible for the means,
methods, techniques and procedures for coordinating the work on the project. Pete agreed that,
in practice, Six Flags hired Campanella to dismantle and remove the ride, but left the means and
methods of accomplishing this to Campanella. Pete also acknowledged Campanella agreed to be
responsible for the safety of its employees on this particular job. According to Pete, the Great
America Requirements did not contain safety guidelines that differed from his own safety
standards. There was nothing in the Six Flags safety requirements that changed how Campanella
performed its work or altered the means or methods by which Campanella accomplished its
work. Pete testified Six Flags exercised no control over the operational details of this job.
Campanella required and supplied safety harnesses for its employees working at heights. 6
¶39 Pete further testified he delegates the fulfillment of Campanella's contracts to other
Campanella personnel. Kevin Zupec was the on-site job supervisor for Campanella. When
Zupec was not present, Thomas would act as the job supervisor. Pete added Thomas wanted to
take the lead role on this job.
¶40 Pete testified he, Zupec and Thomas met with Pearsall and Pohlman approximately two
weeks prior to the bid date for the project to examine the site, discuss what Six Flags wanted
them to accomplish, and establish the bid date. Pearsall provided the Campanella personnel with
access to the site and allowed them to take measurements. Pearsall did not direct or suggest the
manner in which he wanted them to dismantle the structure. The Campanella personnel
ascended to the top of the Splash Water Falls ride, but Pete did not recall whether Pearsall
accompanied them. Pete also did not recall whether they discussed how the gear box would be
6
Pete did not specify in his testimony the height at which harnesses would be required
and supplied.
14
1-13-0771
removed. Pete knew the removal of the gearbox would leave a hole in the platform at the top of
the ride, but did not recall whether the issue was specifically discussed at the time.
¶41 Moreover, Pete testified regarding the meeting with Small, the purpose of which was to
ensure Campanella would abide by Six Flags' safety policies. Pete signed off on the
documentation of the safety policies at this meeting. Pete did not recall discussing fall protection
during the meeting.
¶42 Pete identified a set of documents as Campanella's daily work reports for the project,
which were used to keep track of the employees present at the site and the work performed.
According to Pete, Six Flags did not require him to submit a daily work report to Six Flags'
personnel. Pete nevertheless prepared and retained reports for the period from February 18
through March 10, 2008. Pete testified he would not have prepared these reports had Small not
required their preparation.
¶43 Pete additionally testified Pohlman would observe the site periodically to monitor the
progress of the work. Pete could not say whether Pohlman and Pearsall observed the site daily.
Pete, however, acknowledged he provided answers to written interrogatories stating Pohlman
and Pearsall visited the site daily. Pete also testified he was not at the work site daily, but knew
from past experience Pohlman and Pearsall would visit daily.
¶44 Pete added that, regarding the accomplishment of the work, Six Flags would attempt to
accommodate Campanella employees' reasonable requests. If Pohlman and Pearsall observed an
unsafe act, they would definitely say something about it. If Pohlman and Pearsall wanted an
unsafe act stopped, Campanella would stop.
¶45 Pete could not recall the number of times he observed Pohlman and Pearsall at the site
prior to Thomas's fall. Pete was not at the scene of the incident on the date Thomas fell. Pete
15
1-13-0771
became aware that Thomas removed his safety harness shortly before the fall. Pete did not
know why Thomas would have removed his harness. Pete claimed, based on his conversations
with Thomas, that Thomas had experience working above 20 feet at his previous employment.
Pete testified Kuenster was Campanella's operator on the job. Pete did not know whether
Kuenster had experience working at heights over 20 feet.
¶46 Zupec, an equipment manager for Campanella, testified by deposition he had not
supervised jobs involving high structural steel prior to the job at Gurnee Mills. Zupec's duties on
the Gurnee Mills job did not require fall-protection devices. Zupec believed Thomas worked "on
and off" on the Gurnee Mills project. In Zupec's opinion, Thomas was more experienced than he
was in bringing down structural steel. Zupec described Thomas as one of Campanella's best
employees and a very safe worker.
¶47 Zupec, after describing various projects Campanella performed for Six Flags, testified
that in general, Pearsall would be present daily to ensure Campanella was working. From time to
time, Pearsall would comment on the work and Campanella listened to his comments.
¶48 According to Zupec, Campanella had harnesses and lanyards available prior to this
project. Zupec added he was almost certain Campanella purchased two new harnesses and two
new lanyards for this project. The harnesses do not prevent falls, but slow a worker's fall such
that they control and cushion a fall. Campanella provided this type of harness to Thomas and
Kuenster when they were required to ascend the elevated structures of the Splash Water Falls
ride.
¶49 When Zupec, Pete and Thomas met Pearsall prior to bidding the job, Pete and Pearsall
remained at ground level, while Zupec and Thomas ascended a stairway on the ride and
discussed whether they wanted to accept the work. According to Zupec, he and Thomas
16
1-13-0771
discussed the challenge of the project, which was disassembling, rather than repairing, the ride.
Zupec and Thomas discussed the different approaches they might take to bring down the
structure. Zupec testified he and Thomas may have been on the structure for as long as 30
minutes of the 2 hours they spent at the site that day. After returning to ground level, Zupec
learned Six Flags was going to want to save the gear box.
¶50 At this time, Zupec did not discuss the manner of dismantling the ride, or fall protection,
with Pearsall. Zupec ultimately learned Six Flags wanted to save certain buildings at the site,
which rendered it impossible to simply knock over the structure. Before the work commenced,
Small made a comment that Campanella should ensure they had fall protection while working at
the top of the structure. At that meeting, Zupec was unsure whether the platform and gear box
would be removed together, or whether the gear box would be removed prior to removing the
platform. Zupec and Thomas later discussed removing the entire platform versus removing the
gear box approximately one week before the gear box was ultimately removed. Zupec ultimately
was aware removing the gear box would create a hole in the platform, but he did not recall
discussing that fact with Thomas or any Six Flags personnel.
¶51 Zupec testified he was the supervisor for the job. Zupec was at the work site for the first
two full days of the project, but was "in and out" supervising jobs and making repairs on other
days. Zupec did not recall any particular conversations with Pearsall while at the work site.
Zupec also did not recall any conversation with Pohlman about the job after work commenced.
Zupec further did not think Pohlman contacted any other Campanella personnel after work
commenced, because he would have learned of such contact. According to Zupec, the only
supervision given to Campanella employees on the project was provided by Zupec or Thomas
when Zupec was not present. Zupec gave "toolbox talks" to the crew every morning, including
17
1-13-0771
reminders about fall protection and demonstrations of how to properly wear harnesses and how
to get tied off.
¶52 Zupec did not know whether Pearsall or Pohlman visited the work site daily. Zupec
assumed Pearsall and Pohlman had the authority to inspect the site for safety conditions. Zupec
also assumed that if Pearsall or Pohlman observed a safety violation they would request that he
correct the problem. Zupec and Pete performed safety inspections at the work site.
¶53 Zupec additionally testified he did not recall whether Six Flags' safety rules were ever
discussed with the crew Campanella assigned to this project. Zupec recalled that safety rules
were discussed, but "most of them were discussed from Campanella's safety." Zupec testified
Campanella's own standards required their workers to wear hard hats and orange safety vests.
Zupec did not know whether Six Flags required hard hats or orange safety vests. Zupec was not
required to submit a daily work report. Zupec opined that had Six Flags made a point-to-point or
retractable spool type of fall protection available, Campanella would have considered using it.
¶54 According to Zupec, Thomas never informed him of any safety concerns regarding the
project, including concerns about working at heights. Zupec testified that to his knowledge,
Thomas and Kuenster used harnesses every day and were tied off while working at heights on
this job. Zupec recalled being at the work site at approximately 3 or 4 p.m. the day before
Thomas fell, because Zupec was leaving town later that day. Zupec made the visit to assess the
progress of the project with Thomas. According to Zupec, Campanella's personnel would have
finished the highest portion of the work in another day.
¶55 Zupec returned to the site on the day following the incident for a meeting attended by
Pete, Campanella's president, an OSHA inspector and Six Flags personnel. Zupec did not
believe Pearsall attended this meeting, and he could not recall whether Pohlman or Small
18
1-13-0771
attended the meeting. The OSHA inspector inquired about fall-protection measures at the site
and requested to examine the harnesses. According to Zupec, Campanella retained another
construction company to complete the project.
¶56 Kuenster testified by deposition regarding the nature of the work on the project.
According to Kuenster, he and Thomas were the only Campanella workers who performed torch
cutting at heights on this project. Kuenster confirmed Thomas was acting foreman on the date of
the incident. Kuenster also testified it was necessary for him and Thomas to unhook their six-
foot lanyards in order to navigate the entirety of the platform at the top of the structure.
¶57 Tony Wyatt testified by deposition he was a crane operator for Royal Crane on the date
of the incident. Wyatt observed Thomas climb out of the portion of the ride identified as the pan
and step onto the platform at the top of the ride. Wyatt then observed Thomas attempt to cross
the platform, walking toward a handrail. Thomas appeared to be prevented from reaching the
handrail because his harness was tied off. Wyatt further observed Thomas walk back toward the
pan, where he appeared to disconnect his harness from the lanyard. Shortly thereafter, it
appeared to Wyatt that Thomas's left foot went into an opening, causing Thomas to lose his
balance. According to Wyatt, Thomas fell backward and grabbed a beam underneath the
opening, but ultimately fell to the ground.
¶58 Frank Burg, the president of a health and safety consulting firm, testified by deposition
that he decided to consult on this case because Six Flags did not: make certain there were
specific rules for fall protection; ensure the rules were followed; or, as far as Burg knew, take
action when safety rules were not followed. Rather, Six Flags "just tried to delegate the
responsibility away with some legal document and then walk away from their responsibility."
Burg did not agree that Six Flags had no responsibility to perform any of the work in dismantling
19
1-13-0771
the ride. Burg opined Six Flags had the responsibility to ensure there was a fall-protection plan
and a proper safety plan and to coordinate the interaction between Campanella and Royal Crane.
Burg further opined Six Flags breached its duty to determine whether Campanella was capable of
performing the work. In Burg's opinion, Campanella was not competent to perform the work
because the firm lacked a fall-protection plan and adequate fall-protection equipment for this
project. Burg opined Thomas was an employee of Six Flags:
"Because if you don't hold those controlling employers responsible for safety,
then no one will be responsible for safety. They'll get lawyers to write subcontracts to
put the responsibility on people that have no control, and then people will get killed more
and more, and we can't have that, can we, sir?"
Burg also opined Thomas was a Six Flags employee because the contract was subject to OSHA's
multiemployer work site policy. Burg acknowledged that Six Flags allowed, but did not
approve, the use of the lanyards and harnesses on this project. Burg heard that his opinions in
other cases were rejected by two Indiana courts and one Illinois court on the basis he was
attempting to interpret the law.
¶59 On March 1, 2013, the circuit entered an order which in relevant part granted Six Flags'
motion for summary judgment as to the construction negligence and premises liability claims in
counts I, II, III, and IV, as alleged against Six Flags. The order specified, however, that Donna's
claims for negligent hiring in counts II and IV could proceed against Six Flags. The order
further found there was no just reason to delay enforcement or appeal of the entry of summary
judgment. On March 7, 2013, the circuit court entered an amended order which was nonetheless
substantially similar regarding the entry of summary judgment and the survival of the negligent
hiring claims. Also on March 7, 2013, Donna filed a motion to voluntarily dismiss her negligent
20
1-13-0771
hiring claims against Six Flags, which the trial court granted on the same day. Donna filed a
timely notice of appeal to this court on March 7, 2013.
¶60 ANALYSIS
¶61 On appeal, Donna argues the circuit court erred in granting summary judgment to Six
Flags. Summary judgment is appropriate when "the pleadings, depositions, and admissions on
file, together with the affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c)
(West 2010). The purpose of summary judgment is not to try a question of fact, but to determine
whether a genuine issue of material fact exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d
32, 42-43 (2004). In determining whether a question of material fact exists, "a court must
construe the pleadings, depositions, admissions, and affidavits strictly against the movant and
liberally in favor of the opponent." Williams v. Manchester, 228 Ill. 2d 404, 417 (2008).
Summary judgment is "a drastic means of disposing of litigation" and should only be awarded
when the moving party's right to judgment as a matter of law is "clear and free from doubt." Id.
On the other hand, "[m]ere speculation, conjecture, or guess is insufficient to withstand summary
judgment." Sorce v. Naperville Jeep Eagle, Inc., 309 Ill. App. 3d 313, 328 (1999).
¶62 We review grants of summary judgment de novo. Williams, 228 Ill. 2d at 417.
Accordingly, the reviewing court "must independently examine the evidence presented in
support of and in opposition to a motion for summary judgment" to determine whether a genuine
issue of material fact exists. Groce v. South Chicago Community Hospital, 282 Ill. App. 3d
1004, 1006 (1996). Given this court's independent review, " 'we may affirm the trial court's
grant of summary judgment for any reason that is supported by the record, regardless of whether
that reason formed the basis for the trial court's judgment.' " Hess v. Flores, 408 Ill. App. 3d
21
1-13-0771
631, 636 (2011) (quoting Bovan v. American Family Life Insurance Co., 386 Ill. App. 3d 933,
938 (2008)).
¶63 In particular, Donna argues the circuit court erred in granting summary judgment on the
construction negligence claims in counts II and IV of her complaint, contending material
questions of fact remain regarding whether Six Flags retained sufficient control over the project
to be vicariously or directly liable for the incident. The construction negligence theory is
governed by section 414 of the Restatement. See Restatement (Second) of Torts § 414 (1965);
Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 493 (2008). Donna also argues
the circuit court erred in granting summary judgment on the premises liability claims in counts I
and III of her complaint, contending there is a genuine issue of material fact regarding Six Flags'
notice of conditions at the work site. The premises liability theory is governed by section 343 of
the Restatement. See Restatement (Second) of Torts § 343 (1965); Wilkerson, 379 Ill. App. 3d at
493. We address these arguments in turn.
¶64 Construction Negligence
¶65 Donna's theories of recovery are grounded in common-law negligence. "The essential
elements of a cause of action based on common-law negligence are the existence of a duty owed
by the defendant to the plaintiff, the breach of that duty, and the injury proximately caused by
that breach." Cochran v. George Sollitt Construction Co., 358 Ill. App. 3d 865, 873 (2005)
(citing Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990)). Donna's arguments focus on the
existence of a duty.
¶66 "As a general rule, one who employs an independent contractor is not liable for the acts
or omissions of the independent contractor." Wilkerson, 379 Ill. App. 3d at 493; see Joyce v.
Mastri, 371 Ill. App. 3d 64, 73 (2007). In Larson v. Commonwealth Edison Co., 33 Ill. 2d 316,
22
1-13-0771
325 (1965), however, our supreme court first recognized Restatement section 414 as an
expression of Illinois common-law negligence principles. Section 414 provides an exception to
the general rule, referred to as the "retained control" exception. Cochran, 358 Ill. App. 3d at
873-74. Section 414 provides:
"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." Restatement (Second) of Torts § 414 (1965).
"The comments accompanying section 414 'describe a continuum of control' and provide some
illumination as to the necessary degree of control a defendant must exercise to be subject to
liability under this section." Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d
333, 341 (2008) (quoting Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 314
(2004)).
¶67 Comment a to section 414 explains:
"If the employer of an independent contractor retains control over the operative detail of
doing any part of the work, he is subject to liability for the negligence of the employees
of the contractor engaged therein, under the rules of that part of the law of Agency which
deals with the relation of master and servant. The employer may, however, retain a
control less than that which is necessary to subject him to liability as master. He may
retain only the power to direct the order in which the work shall be done, or to forbid its
being done in a manner likely to be dangerous to himself or others. Such a supervisory
control may not subject him to liability under the principles of Agency, but he may be
liable under the rule stated in this Section unless he exercises his supervisory control with
23
1-13-0771
reasonable care so as to prevent the work which he has ordered to be done from causing
injury to others." Restatement (Second) of Torts § 414, cmt. a, at 387 (1965).
"Comment a thus distinguishes between vicarious and direct liability." Calderon, 381 Ill. App.
3d at 341 (citing Cochran, 358 Ill. App. 3d at 874).
¶68 "Comment b provides further illumination on the theory of direct liability described in
Comment a." Calderon, 381 Ill. App. 3d at 341. Comment b to section 414 states:
"The rule stated in this Section is usually, though not exclusively, applicable when a
principal contractor entrusts a part of the work to subcontractors, but himself or through a
foreman superintends the entire job. In such a situation, the principal contractor is
subject to liability if he fails to prevent the subcontractors from doing even the details of
the work in a way unreasonably dangerous to others, if he knows or by the exercise of
reasonable care should know that the subcontractors' work is being so done, and has the
opportunity to prevent it by exercising the power of control which he has retained in
himself. So too, he is subject to liability if he knows or should know that the
subcontractors have carelessly done their work in such a way as to create a dangerous
condition, and fails to exercise reasonable care either to remedy it himself or by the
exercise of his control cause the subcontractor to do so." Restatement (Second) of Torts
§ 414, cmt. b, at 387-88 (1965).
¶69 Comment c, on the other hand, describes the necessary degree of retained control a
general contractor must exercise to be subject to vicarious liability, limiting the scope of the
"retained control" exception. See Calderon, 381 Ill. App. 3d at 342. Comment c states:
"In order for the rule stated in this Section to apply, the employer must have retained at
least some degree of control over the manner in which the work is done. It is not enough
24
1-13-0771
that he has merely a general right to order the work stopped or resumed, to inspect its
progress or to receive reports, to make suggestions or recommendations which need not
necessarily be followed, or to prescribe alterations and deviations. Such a general right is
usually reserved to employers, but it does not mean that the contractor is controlled as to
his methods of work, or as to operative detail. There must be such a retention of a right
of supervision that the contractor is not entirely free to do the work in his own way."
Restatement (Second) of Torts § 414, cmt. c, at 388 (1965).
Thus, "the general contractor, by retaining control over the operative details of its subcontractor's
work, may become vicariously liable for the subcontractor's negligence; alternatively, even in the
absence of such control, the general contractor may be directly liable for not exercising his
supervisory control with reasonable care." Cochran, 358 Ill. App. 3d at 874. Yet this court has
held that "even where the employer or general contractor retains the right to inspect the work
done, orders changes to the specifications and plans, and ensures that safety precautions are
observed and the work is done in a safe manner, no liability will be imposed on the employer or
general contractor unless the evidence shows the employer or general contractor retained control
over the 'incidental aspects' of the independent contractor's work." Rangel v. Brookhaven
Constructors, Inc., 307 Ill. App. 3d 835, 839 (1999) (citing Fris v. Personal Products Co., 255
Ill. App. 3d 916, 924 (1994)); see Downs v. Steel & Craft Builders, Inc., 358 Ill. App. 3d 201,
206 (2005).
¶70 For example, in Gregory v. Beazer East, 384 Ill. App. 3d 178, 179-80 (2008), the plaintiff
sued Exxon Mobil (Mobil) individually and on behalf of her husband, Larry, alleging negligence
in connection with her husband's contraction of mesothelioma and subsequent death. Larry
performed hot welding inside and outside of pipes for a subcontractor during the construction of
25
1-13-0771
a Mobil refinery in Joliet, Illinois. Id. at 180-81. To protect against the heat from the pipes,
Larry used blankets and gloves containing asbestos, which were supplied by the contractor. Id.
at 181. Larry returned to do periodic jobs at the refinery in the 1970s, 1980s and 1990s in
different capacities and for different contractors. Id. at 182. Larry also worked for other
employers at several different jobsites where he was exposed to asbestos. Id. Larry was
subsequently diagnosed with mesothelioma attributed to asbestos exposure; in 2005, he brought
a negligence suit against, among others, Mobil, due to the time he spent working at the Joliet
refinery. Id. The trial court granted summary judgment to Mobil, ruling in part there was no
evidence that Mobil controlled the means or methods by which Larry performed his work on
Mobil's premises. Id. at 182-83.
¶71 On appeal, this court affirmed, reasoning:
"In the instant case, it is clear that Mobil did not retain the degree of control
necessary to impose liability upon it. Larry testified that during his initial work at the
refinery in 1970-71, he worked directly for Petroleum Piping, which had been
subcontracted to do the welding work by CBI (the general contractor of the welding
portion of the project), which, in turn, had been hired by Fluor (the general contractor of
the whole project), which had been hired by Mobil. Larry further testified that he was
one of eight pipe fitters who were supervised on a daily basis by CBI, which provided an
inspector on the project, and Larry received all his tools and instructions for his work
from Petroleum Piping. Larry made clear for the record that Mobil did not provide any
direction or supervision of his welding tasks regarding the project and that he, indeed, did
not look to Mobil for this. Larry stated later that this was also true for his subsequent
work projects at the refinery in the 1980s and 1990s, where he worked directly for several
26
1-13-0771
contractors such as Hunter and BMW, but never directly with Mobil. Most specifically,
Larry confirmed that Mobil did not provide him with the asbestos blankets or gloves, nor
directed or ordered him to use them; these were supplied by CBI.
In addition to this evidence, former Mobil refinery manager D'Ambrisi testified
that general contractor Fluor, not Mobil, supervised the Joliet work site and had 'total
responsibility for the construction of the refinery,' including, specifically, selecting the
subcontractors, such as CBI and Petroleum Piping, and managing their work. Further
corroborating Larry's admissions regarding Mobil's lack of control, D'Ambrisi testified
that Mobil did not have any inspectors, supervisors or workers of its own at the site, but
had, instead, contracted with Fluor to 'supervise, inspect, expedite and control all phases
of the work.'
From all this, while it may be true that Mobil had the general right to stop work,
monitor its completion and control access to the site, these were simply general rights it
had as the ultimate employer on the construction project. See Restatement (Second) of
Torts § 414, Comment c, at 388 (1965); Pestka [v. Town of Fort Shedidan Co., LLC], 371
Ill. App. 3d [286,] 301 [(2007)] ('recent decisions on this topic found that the reservation
of a right to inspect, start and stop work, order changes to specifications and plans, and
ensure that the work was done safely did not show that the general contractor retained
control over the independent contractor's work'). By Larry's own admission, Mobil
clearly did not control the means and method of his work, which would have otherwise
imposed upon it a duty owed to him." Gregory, 384 Ill. App. 3d at 187-88.
¶72 Ultimately, "[w]hether a contractor retained such control over a subcontractor's work so
as to give rise to liability is an issue reserved for a trier of fact, unless the evidence presented is
27
1-13-0771
insufficient to create a factual question." Joyce, 371 Ill. App. 3d at 74 (citing Bokodi v. Foster
Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1059 (2000)). In this case, we are concerned with
whether the property owner may be liable based on retained control over its general contractor,
but neither party disputes section 414 and its comments apply to this situation. Donna contends
the evidence is sufficient to raise factual questions of both vicarious and direct liability.
¶73 Vicarious Liability Under Section 414
¶74 As discussed earlier, comment a to section 414 explains that an employer, by retaining
control over the operative details of its independent contractor's work, may become vicariously
liable for the contractor's negligence. See Cochran, 358 Ill. App. 3d at 876-77; Restatement
(Second) of Torts § 414, cmt. a, at 387 (1965). The best indicator of whether an employer has
retained control over the independent contractor's work is the parties' contract, if one exists. See
Joyce, 371 Ill. App. 3d at 74. This court, however, has also stated "[t]he central issue is retained
control of the independent contractor's work, whether contractual, supervisory, operational[ ] or
some mix thereof." Martens, 347 Ill. App. 3d at 318. Accordingly, we address each type of
possible retained control in determining whether a genuine issue of material fact exists regarding
vicarious liability.
¶75 Contractual Control
¶76 In this case, the Agreement required Campanella to supervise and direct the work on the
project. Under the Agreement, Campanella was solely responsible and had control over
construction means, methods, techniques, sequences and procedures and for coordinating all
portions of the work. Moreover, unless otherwise specified, Campanella was required to provide
and pay for all labor, materials, equipment, and other facilities and services necessary for the
proper execution and completion of the work. These basic provisions of the Agreement are
28
1-13-0771
evidence that Six Flags did not retain contractual control over Campanella's performance of the
work. Moreover, the indemnity and insurance addendum provided Six Flags had no right to
control the details of the contractor's work, or the means, methods or manner of the contractor's
performance of the work under the Agreement.
¶77 Donna, however, relies on the general conditions and Safety Guidelines incorporated into
the Agreement, as well as the Great America Requirements acknowledged and signed by Pete.
Initially we note that requiring compliance with OSHA regulations does not create a duty of care.
See Calderon, 381 Ill. App. 3d at 343. Moreover, "the existence of a safety program, safety
manual or safety director does not constitute retained control per se; the court must still conduct
an analysis pursuant to the section 414 retained control exception." Martens, 347 Ill. App. 3d at
318. A safety program or manual must sufficiently affect a contractor's means and methods of
doing its work to bring the employer within the ambit of the retained control exception.
Cochran, 358 Ill. App. 3d at 876; Martens, 347 Ill. App. 3d at 318-19.
¶78 Donna has catalogued the general conditions, Safety Guidelines and Great America
Requirements, but she has not established which, if any, of them substantially affected the means
and methods of Campanella's performance of the work. Donna first asserts the Great America
Requirements establish Six Flags' authority to approve the type of fall protection Campanella
used, but the Great America Requirements do not support that assertion. Rather, the Great
America Requirements require all safety equipment be provided and inspected by the contractor
(in this case, Campanella), and mandate OSHA-approved fall-protection equipment be worn
where workers are at unprotected heights above six feet. Small testified the requirement for fall
protection above a six-foot height was an OSHA regulation.
¶79 Donna also asserts the Safety Guidelines gave Six Flags the authority to provide
29
1-13-0771
alternative fall protection at Campanella's cost. The Safety Guidelines do generally provide that
"[i]f Six Flags *** is required to provide personal protective or other safety equipment to aid in
compliance, it reserves the right to do so at the expense of the contractor." Yet Donna does not
set forth evidence that Six Flags was required to provide personal protective equipment in this
case. Indeed, as noted earlier, the Great America Requirements require all safety equipment be
provided and inspected by the contractor.
¶80 Donna observes the Safety Guidelines and Great America Requirements provide that Six
Flags retained the right to inspect the project for unsafe conditions and to request the correction
of unsafe conditions. These provisions do not create liability for the employer "unless the
evidence shows the employer or general contractor retained control over the 'incidental aspects'
of the independent contractor's work." Rangel, 307 Ill. App. 3d at 839; Fris, 255 Ill. App. 3d at
924.
¶81 Donna further notes the Great America Requirements mandated a contractor
representative attend a health and safety orientation conducted by the Six Flags Great America
safety department and bring a written scope of work, along with a list of materials to be used, to
the orientation. The contractor representative was also required to review the policies and
procedures with all contractor employees prior to commencement of the work. Moreover, all
contractor employees would be required to attend a safety briefing at least weekly thereafter.
Again, Donna does not explain how these requirements affected Campanella's means and
methods of doing its work sufficiently to bring the employer within the ambit of the retained
control exception. Cochran, 358 Ill. App. 3d at 876; Martens, 347 Ill. App. 3d at 318-19.
¶82 To the contrary, Pete testified the Great America Requirements did not contain safety
guidelines that differed from his own safety standards and that there was nothing in the Six Flags
30
1-13-0771
safety requirements that changed how Campanella performed its work or altered the means or
methods by which Campanella accomplished its work. Zupec testified he did not recall whether
Six Flags' safety rules were ever discussed with the crew Campanella assigned to this project; to
the extent safety rules were discussed, "most of them were discussed from Campanella's safety."
Zupec also testified Campanella's own standards required its workers to wear hard hats and
orange safety vests. Given this record, Donna has failed to establish the guidelines and
requirements regarding safety briefings raise a genuine issue regarding retained control.
¶83 Lastly, Donna cites miscellaneous guidelines and requirements relating to fire and
welding permits, chemical storage and disposal, use of vehicles on the premises, and Campanella
employees' personal behavior. As with the other guidelines and requirements, Donna fails to
explain or set forth evidence that any of these rules affected Campanella's means or methods of
performing the work in this case. For example, the Six Flags guideline barring Campanella
employees from fighting at the work site has nothing to do with how Campanella would
accomplish the work required by the Agreement.
¶84 Donna primarily relies on two decisions of this court to argue the General Conditions,
Safety Guidelines and Great America Requirements raise a genuine issue of material fact on the
issue of retained control. 7 In Bokodi, the court found a genuine issue existed regarding retained
7
Donna also relies upon O'Neill v. Ford Motor Co., No. 05 C 7536, 2009 WL 4757268
(N.D. Ill. Dec. 9, 2009), an unpublished decision of the federal district court for the Northern
District of Illinois. This court, however, has often declined to consider unpublished federal
decisions. See, e.g., Horwitz v. Sonnenschein Nath & Rosenthal, LLP, 399 Ill. App. 3d 965, 976
(2010); Burnette v. Stroger, 389 Ill. App. 3d 321, 329 (2009). Moreover, the O'Neill court,
contrary to this court's decisions, followed Seventh Circuit precedent rejecting the idea that
31
1-13-0771
control, where the general contractor provided 29 safety measures and procedures that
subcontractors were required to follow, employed safety personnel to monitor the site for
compliance with its safety guidelines, gave its own employees broad powers to halt any
subcontractor work based on a perception of an unsafe working environment, required
subcontractors to conduct safety training meetings that the general contractor's employees could
monitor, and required subcontractors to participate in its own safety programs. Bokodi, 312 Ill.
App. 3d at 1063. In Wilkerson, the court found that there was a genuine issue of fact regarding
retained control where: the contractor had the authority to stop the subcontractor's work in the
event of a safety hazard; the subcontractor was contractually required to attend safety meetings
and comply with the general contractor's list of 21 safety procedures; and the subcontractor was
required to submit for the general contractor's approval a site-specific safety plan and minutes of
the subcontractor's own weekly safety meetings. Wilkerson, 379 Ill. App. 3d at 497. The
Wilkerson court found the case most similar to Bokodi. Id.
¶85 We initially note that Bokodi and Wilkerson are both cases more addressed to direct,
rather than vicarious, liability under section 414. See Wilkerson, 379 Ill. App. 3d at 493-94;
Bokodi, 312 Ill. App. 3d at 1064. The Bokodi decision relied on this court's earlier decisions in
Pasko v. Commonwealth Edison Co., 14 Ill. App. 3d 481 (1973), and Weber v. Northern Illinois
Gas Co., 10 Ill. App. 3d 625 (1973). Bokodi, 312 Ill. App. 3d at 1064. Neither Pasko nor
Weber, however, draws a clear distinction between direct liability and vicarious liability; thus,
while some language in Pasko and Weber may suggest a liberal standard as to the degree of
section 414 may result in vicarious liability. O'Neill, 2009 WL 4757268, at *13 (citing Aguirre
v. Turner Construction Co., 501 F.3d 825, 829 (7th Cir. 2007). Accordingly, O'Neill is
inapposite here.
32
1-13-0771
control sufficient to impose vicarious liability, these cases have been superceded by our more
recent decisions. Cochran, 358 Ill. App. 3d at 878 (and cases cited therein). These more recent
decisions incorporate comment c of section 414 into the duty analysis. Martens, 347 Ill. App. 3d
at 319. For example, the Martens court reasoned that if general contract language establishing a
safety program and maintaining reasonable safeguards was sufficient by itself to establish
liability under section 414, "then the distinction in Comment c to section 414 between retained
control versus a general right of control would be rendered meaningless." Id. at 316.
¶86 Donna also relies on Illinois Pattern Jury Instructions, Civil, No. 55.01 (2011), which
provides:
"A[n] [owner] [contractor] [other] who entrusts work to a [subcontractor]
[contractor] [other] can be liable for injuries resulting from the work if the [owner]
[contractor] [other] retained some control over the safety of the work and the injuries
were proximately caused by the [owner's] [contractor's] [other's] failure to exercise that
control with ordinary care."
This court, however, has recently held this instruction does not accurately state the law of
construction negligence. Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663, ¶ 165. The
Ramirez court reached this conclusion in part because the language of the instruction did not
include the explanation of "retained control" found in the comment c to section 414 or recent
case law (not cited by the committee comments), which consistently finds no control where there
is only a general right to control. Ramirez, 2014 IL App (1st) 123663, ¶¶ 169-70. The analysis
in Ramirez on this point is thus consistent with the evolution in our case law as expressed in
Cochran and Martens. Accordingly, we do not find the instruction any more persuasive in this
context than Donna's reliance on Bokodi.
33
1-13-0771
¶87 For all of these reasons, we conclude the degree of contractual control, by itself does not
establish a genuine issue of material fact regarding retained control.
¶88 Supervisory Control
¶89 We next consider whether Six Flags supervised Campanella's work or maintained an
extensive work site presence. " '[P]ervasive supervision and monitoring' may lead to the
imposition of a duty pursuant to section 414 of the Restatement ***." Calderon, 381 Ill. App. 3d
at 346-47 (quoting Shaughnessy v. Skender Construction Co., 342 Ill. App. 3d 730, 739 (2003)).
Yet even multiple daily employer visits to a work site will not raise a genuine issue of retained
control where the employer's responsibility was primarily focused on checking daily progress,
not supervising the manner in which the work was done. Rogers v. West Construction Co., 252
Ill. App. 3d 103, 106, 109 (1993); see Calderon, 381 Ill. App. 3d at 347; Joyce, 371 Ill. App. 3d
at 75.
¶90 Examining the testimony of Six Flags' personnel, Small testified Campanella was not
required to submit a daily work report, describing it as a standard, but not a routine practice
which was enforced. Except for the initial meeting before work began, Small had no other
meetings with anyone from Campanella before Thomas fell. Small indicated he drove past the
work site on one occasion, but did not observe anyone working on the ride or speak to any
Campanella employees at that time.
¶91 Pohlman, Six Flags' representative for the project, visited the work site "from time to
time" to check on the progress of the project. Pohlman did not speak to Campanella's workers
about the tasks they performed and never observed anything amiss or unsatisfactory to cause him
to request the work be performed in a different manner.
¶92 Pearsall visited the work site two or three times weekly. His conversations with
34
1-13-0771
Campanella workers would be "small talk" about the progress of the work. Pearsall did not
recall Campanella workers mentioning any problems to him. Pearsall did not provide
suggestions or instructions to Campanella's workers. Pearsall observed Campanella workers
using fall protection, but he did not recall having any conversations with Campanella personnel
regarding fall protection. Pearsall did not know who, if anyone, from Six Flags was monitoring
Campanella's work for compliance with the fall-protection requirements.
¶93 As to the testimony of Campanella's personnel, Pete could not recall the number of times
he observed Pohlman and Pearsall at the site prior to Thomas's fall. Zupec testified that, in
general, Pearsall would be present daily to ensure Campanella was working. Zupec did not
recall any particular conversations with Pearsall while at the work site. Zupec also did not recall
any conversation with Pohlman about the job after work commenced. Zupec further did not
think Pohlman contacted any other Campanella personnel after work commenced, because he
would have learned of such contact.
¶94 The deposition testimony also generally establishes that Six Flags' personnel had the
authority to intervene if they observed unsafe working conditions, and Campanella would have
responded to any concerns Six Flags' personnel raised. Yet the record also establishes Six Flags'
personnel limited its involvement almost exclusively to monitoring Campanella's progress on the
project. Six Flags visited the work site to gauge how much of the work had been completed, but
did not supervise the manner in which its contractor was performing the work. See Rogers, 252
Ill. App. 3d at 106, 109; Calderon, 381 Ill. App. 3d at 347; Joyce, 371 Ill. App. 3d at 75. The
record does not establish any instance where Six Flags intervened for safety reasons, let alone the
pervasive supervision of the work sufficient to raise a genuine issue regarding retained control.
¶95 Operational Control
35
1-13-0771
¶96 Regarding operational control, we examine 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. See Martens, 347 Ill. App. 3d at 319.
In this case, Pete testified Six Flags exercised no control over the operational details of this job.
Campanella required and supplied safety harnesses for its employees working at heights. Zupec
testified he and Thomas provided the only supervision given to Campanella employees on the
project. Thomas was not following any instruction from Six Flags in performing his work. Six
Flags' personnel were not present at the work site on the date of the incident until after Thomas
fell.
¶97 In sum, Donna has failed to raise a genuine issue of fact regarding retained control based
on contractual, supervisory, or operational control over the project. Of course, a party may raise
a genuine issue of fact regarding retained control through some mix of these forms of control.
Martens, 347 Ill. App. 3d at 318. In this case, however, the evidence as to any form of control is
insufficient to raise a genuine issue of material fact on the issue of vicarious liability.
Accordingly, we conclude as a matter of law there is no vicarious liability on the part of Six
Flags.
¶98 Direct Liability Under Section 414
¶99 We next consider whether Six Flags retained sufficient supervisory control such that it
"may be directly liable for not exercising [its] supervisory control with reasonable care." See
Cochran, 358 Ill. App. 3d at 874. We determine whether Six Flags superintended the entire job,
in which case Six Flags may be subject to liability for failing to prevent its contractors from
doing even the details of the work in a way unreasonably dangerous to others, if it knew or by
the exercise of reasonable care should have known the contractors' work was being so done, and
36
1-13-0771
had the opportunity to prevent it by exercising the power of control which Six Flags retained.
See Restatement (Second) of Torts § 414, cmt. b, at 387-88 (1965). Six Flags would also be
subject to liability if it knew or should have known the contractors have carelessly done their
work in such a way as to create a dangerous condition, and failed to exercise reasonable care
either to remedy it or by the exercise of its control cause the contractor to remedy it. See id. The
best evidence of this sort of liability is the employer's actual exercise of its discretionary
authority to stop its contractor's work. See Calderon, 381 Ill. App. 3d at 344; Wilkerson, 379 Ill.
App. 3d at 497. This court has also considered whether the employer required compliance with
extensive safety guidelines, conducted regular safety meetings and regular safety inspections,
and whether the employer was required to approve the site safety plan and the minutes of the
contractor's safety meetings. See Wilkerson, 379 Ill. App. 3d at 497; Bokodi, 312 Ill. App. 3d at
1063.
¶100 Six Flags first argues that Donna has forfeited any argument as to direct liability on
appeal by failing to cite authority supporting it in her appellate brief. Illinois Supreme Court
Rule 341(h)(7) (eff. Feb. 6, 2013) states that the appellant's brief "shall contain the contentions of
the appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on." Generally, arguments unsupported by citation of proper authority are forfeited. E.g.,
Nelson v. County of Kendall, 2013 IL App (2d) 120635, ¶ 9. In this case, however, as previously
noted, Donna has cited Wilkerson and Bokodi, which are direct liability cases. Although we have
already explained why Wilkerson and Bokodi do not fully reflect the current state of the case law,
we conclude Donna's citation of these cases suffices to avoid forfeiture of her direct liability
argument.
¶101 On the merits, the record establishes Six Flags did not superintend the job. Indeed, the
37
1-13-0771
testimony from Burg, Donna's own expert witness, faults Six Flags for failing to perform the role
of superintendent over its contractors. 8 Six Flags required Campanella to submit a safety plan
and to comply with its safety requirements, but these were not substantially different from
Campanella's own safety standards. Six Flags did not conduct regular safety meetings and
regular safety inspections, and there is no indication Six Flags exercised any authority it had to
stop Campanella's work.
¶102 In her brief, Donna also asserts Six Flags personnel had actual and constructive
knowledge of the hazardous condition created when the gearbox was removed, a hole on the
platform was created thereby, and Campanella's fall protection equipment was inadequate. The
employer's " 'knowledge, actual or constructive, of the unsafe work methods or a dangerous
condition is a precondition to direct liability.' " Calderon, 381 Ill. App. 3d at 347 (quoting
Cochran, 358 Ill. App. 3d at 879-80). Yet where the employer "has an insufficient opportunity
to observe unsafe working conditions, then knowledge will not be inferred and direct liability
will not ensue." Calderon, 381 Ill. App. 3d at 347.
¶103 For example, in Madden v. F. H. Paschen/S.N. Nielsen, Inc., 395 Ill.App.3d 362, 364-65
(2009), Madden, a maintenance worker employed at Amos Alonzo Stagg High School (Stagg
High School), was setting up a projection screen on the stage of the school's theater when he
8
In his deposition, Burg suggested Six Flags was legally required to superintend the job, but
Donna made no such argument in her opposition to the motion for summary judgment or in this
appeal. Thus, it is significant that Burg's assessment of the facts is consistent with the deposition
testimony from both Six Flags' and Campanella's personnel on this point, which is detailed in our
discussion of whether Six Flags exercised supervisory control over the Campanella's work on the
project.
38
1-13-0771
stepped backwards and accidentally fell into the theater's uncovered orchestra pit. He alleged
that the resulting nine-foot drop caused him severe injuries that left him permanently disabled.
Id. at 365. As the Stagg High School theater had been under construction, Madden brought a
negligence action against general contractor F.H. Paschen/S.N. Nielson, Inc. (Paschen),
construction manager Jacobs Facilities, Inc. (Jacobs), architect VOA & Associates (VOA), and
the design consultant retained by VOA for the project, Schuler & Shook (Schuler), seeking
damages for his injuries. Id. The trial court granted summary judgment in favor of defendants
Paschen, Schuler, and Jacobs; Madden appealed the summary judgments entered in favor of
Schuler and Jacobs. Id.
¶104 On appeal, this court rejected Madden's argument that Schuler and Jacobs could be
directly liable under section 414 of the Restatement (Second) of Torts:
"The record shows that neither defendant had contact with Madden on the night of
his accident, and there is no evidence that they knew or could have known that he would
be setting up a screen in the theater, let alone his dangerous proximity to the pit while
performing the action, or that they retained any control that would enable them to prevent
him from carrying on this action in such a dangerous manner." Id. at 385.
¶105 In this case, even assuming Six Flags retained sufficient control to have prevented
Thomas' fall, there is no evidence Six Flags personnel had any contact with the job site on the
date of the incident, knew the platform would be removed, or that Thomas would remove his fall
protection gear. Pohlman did not specifically discuss the use of fall protection on the platform
with Pete. Pearsall did not recall having any conversations with Campanella personnel to plan
what would happen after the gear box was removed. Zupec was unsure whether the platform and
gearbox would be removed together or separately. Zupec and Thomas first discussed removing
39
1-13-0771
the entire platform versus removing the gear box separately approximately one week before the
gear box was ultimately removed. Zupec did not recall discussing the hole that would be created
by removing the gear box with Thomas or any Six Flags personnel.
¶106 Based on this record, there is no evidence Six Flags' personnel knew or should have
known Campanella planned to remove the gearbox from the platform separately, instead of
removing the entire platform, and did not know of the conditions at the jobsite at the time of the
injury. Thus, while Pearsall knew in general that removing the gear box would leave a hole in
the platform at the top of the structure, the record does not establish Six Flags' personnel knew or
should have known Campanella was performing the work in an unsafe manner or creating a
hazardous condition. See Cochran, 358 Ill. App. 3d at 879-80.
¶107 In short, Donna has failed to show a genuine issue of material fact existed regarding Six
Flags' alleged direct liability for the incident at issue. Given our earlier conclusion that Donna
also failed to raise a genuine issue of fact regarding vicarious liability in this matter, we conclude
the circuit court did not err in entering summary judgment on Donna's construction negligence
claims.
¶108 Premises Liability Under Section 343
¶109 We now consider whether summary judgment was properly granted on plaintiff's
premises liability theory. "A possessor of land can be liable for physical harm caused to his
invitees by a dangerous condition on the land if the defendant knew or should have known that
the condition involved a reasonable risk of harm." (Emphasis in original.) Wilkerson, 379 Ill.
App. 3d at 497 (citing Restatement (Second) of Torts § 343 (1965)). The possessor of land,
however, will not be liable where there is no evidence of such knowledge. Joyce, 371 Ill. App.
3d at 80; Cochran, 358 Ill. App. 3d at 873.
40
1-13-0771
¶110 As previously discussed, the record does not establish a genuine issue regarding Six
Flags' actual or constructive knowledge of the conditions that resulted in the incident at issue in
this case. Similarly, the record does not establish a genuine issue regarding Six Flags' actual or
constructive knowledge of the creation of the condition by the decision to remove the gearbox
first, given Six Flags' awareness that Campanella provided fall-protection equipment to its
employees working at heights. Accordingly, the circuit court did not err in entering summary
judgment on Donna's premises liability claims.
¶111 CONCLUSION
¶112 For all of the aforementioned reasons, the judgment of the circuit court of Cook County is
affirmed.
¶113 Affirmed.
41