Snow v. Power Construction Co.

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Appellate Court Date: 2017.07.19
12:18:15 -05'00'

Snow v. Power Construction Co., 2017 IL App (1st) 151226

Appellate Court JOHN T. SNOW, Plaintiff-Appellant, v. POWER CONSTRUCTION
Caption COMPANY, LLC, an Illinois Limited Liability Company, THORNE
ASSOCIATES, INC., an Illinois Corporation, and POWER
CONTRACTING AND ENGINEERING CORPORATION, an
Illinois Corporation, Defendants-Appellees.

District & No. First District, Fourth Division
Docket No. 1-15-1226

Rule 23 order filed December 22, 2016
Motion to publish
allowed April 12, 2017
Opinion filed May 4, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 12-L-3597; the
Review Hon. Eileen Brewer, Judge, presiding.

Judgment Affirmed.

Counsel on Daniel E. Compton, of Compton Law Group, of Elgin, for appellant.
Appeal
Patricia J. Hogan, Yaro M. Melnyk, and James F. Maruna, of Cassiday
Schade LLP, of Chicago, for appellees Power Construction Company,
LLC, and Power Contracting and Engineering Corp.

Robert J. Franco, Christopher G. Beunik, and Christopher M. Cano,
Franco & Moroney, LLC, of Chicago, for appellee Thorne Associates,
Inc.
 Panel JUSTICE McBRIDE delivered the judgment of the court, with
opinion.
Presiding Justice Ellis and Justice Burke concurred in the judgment
and opinion.

OPINION

¶1 Plaintiff John T. Snow filed a negligence action against defendants Power Construction
Company, LLC (PCC), Power Engineering and Contracting Corporation (PCEC) (collectively
Power), and Thorne Associates, Inc. (Thorne), after he was injured when several sheets of
drywall fell on him while at a construction site. Plaintiff was employed by third-party
defendant, Professionals Associated Construction Layout & Survey Co., Ltd. (Professionals),
as a surveyor and was on the site in his professional capacity. The trial court granted summary
judgment in favor of PCC, PCEC, and Thorne.
¶2 Plaintiff appeals, arguing that the trial court erred in (1) granting summary judgment
because there was a material question of fact regarding the stacking of the drywall and the
responsibility for safety of persons on the jobsite, (2) ruling that reliance on an alleged custom
and practice could make an injury unforeseeable as a matter of law, (3) striking portions of the
affidavits of plaintiff and Richard Hislop tendered in response to the motions for summary
judgment, and (4) quashing the notice of deposition for Jeff Karp, president of PCC.
¶3 In May 2010, Alexian Brothers Health System (Alexian), as the owner, entered into a
contract with PCEC, as the construction manager, for the construction of the new children’s
hospital and bed tower (bed tower site) at St. Alexius Medical Center (St. Alexius) in Hoffman
Estates, Illinois. In May 2011, PCEC entered into a project specific agreement with
Professionals to perform surveying work at the bed tower site. A master subcontract agreement
between PCC and Professionals, from October 2004, governed the project specific agreement
and was incorporated by reference. Also in May 2011, PCEC entered into a project specific
agreement with Thorne to perform framing and drywall assembly at the bed tower site. A
master subcontract agreement between PCC and Thorne, dated November 2003, governed and
was incorporated by reference.
¶4 As part of Thorne’s subcontract, it was to construct a temporary corridor connecting the
emergency room of the hospital to the new construction. On June 29, 2011, Thorne completed
its installation of drywall in the temporary corridor. At the end of the work day, Thorne’s
employees vertically stacked approximately 14 sheets, 4 by 8 feet high, of leftover drywall
near the entrance to the corridor. The next morning, on June 30, 2011, plaintiff came to the bed
tower site to check his previously placed benchmarks in the corridor. Plaintiff believed one of
his benchmarks was behind the stacked drywall. He then moved the stack toward himself to
check for his benchmark, but the stack continued to move and fell forward. Plaintiff was struck
on his right leg and trapped under the drywall. He immediately sought care at St. Alexius.
¶5 Plaintiff initially filed his negligence action in April 2012. In December 2012, plaintiff
filed his second amended complaint with one count directed at each of the defendants. The
allegations against PCC and PCEC are identical. The complaint asserts that both PCC and
PCEC were the general contractor for a project at the east pavilion of St. Alexius. Both PCC

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 and PCEC retained some control over the safety of the work on the project. PCC and PCEC
each had a duty to exercise that control with ordinary care. PCC and PCEC were individually
guilty of one or more negligent and careless acts or omissions: (1) caused drywall to be stacked
or stored in such a manner as to easily topple over; (2) allowed drywall to be stacked or stored
in such a way and in such a manner as to be easily tipped or toppled over; (3) failed to brace
drywall stacked in a vertical manner when it knew or should have known that drywall so stored
or stacked could easily tip over, causing injury; (4) failed to move, alter, or correct drywall
stacked or stored in an unsafe manner or direct that drywall so stacked or stored be moved,
braced, or corrected; (5) scheduled work of the subcontractor Professionals such that its
employees would have to move or disturb stacked or stored drywall, and (6) failed to assure
that the drywall was stacked, racked, blocked, interlocked, or otherwise secured to prevent
sliding, falling, or collapse. As a result of one or more of these acts or omissions, the vertically
stacked drywall fell and struck plaintiff, trapping him underneath and causing injury to his
back and legs. As a direct and proximate result of said accident, plaintiff has experienced and
will continue to experience pain, suffering, disability, loss of normal life, and lost income.
¶6 The third count of the complaint pled the following allegations against Thorne. Thorne was
a drywall subcontractor at the St. Alexius site, and it stacked, moved, and stored drywall,
specifically the drywall involved in the accident which injured plaintiff. Thorne had a duty to
use due care in its stacking, storage, and moving of drywall so as not to cause an unsafe
condition, which might injure plaintiff and other employees on the project. Thorne was guilty
of one or more negligent and careless acts or omissions: (1) stored or stacked drywall in an area
that was neither safe nor authorized; (2) caused drywall to be stacked or stored in a manner
such that plaintiff could move or dislodge it; (3) failed to brace, band, or secure the drywall in
such a manner that it would not tip or fall; (4) improperly stacked the drywall; and (5) was
otherwise careless and negligent. As a result of one or more of these acts or omissions, the
vertically stacked drywall fell and struck plaintiff, trapping him underneath and causing injury
to his back and legs. As a direct and proximate result of said accident, plaintiff has experienced
and will continue to experience pain, suffering, disability, loss of normal life, and lost income.
¶7 The parties engaged in lengthy discovery, which included all relevant contracts as well as
several depositions of employees of PCC, PCEC, Thorne, and Professionals. The contract
between Alexian and PCEC included the following provisions in the general conditions of the
contract for construction.
¶8 Article 1.1.3 detailed the work under the contract.
“The term ‘Work’ means the construction and services required by the Contract
Documents, whether completed or partially completed, and included all other labor,
materials, equipment and services provided or to be provided by the Contractor to
fulfill the Contractor’s obligations. The Work may constitute the whole or a part of the
Project. The Work shall also consist of labor, materials, equipment and services
provided or to be provided by Subcontractors, Sub-subcontractors, material suppliers
or any other entity for whom the Contractor is responsible under or pursuant to
Contract documents, and specifically includes the duty to supply all necessary
supervision and coordination of all forces furnished by and through Contractor.”
¶9 Article 3.3 governs the supervision and construction procedures. Article 3.3.1 stated, in
relevant part, as follows:

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 “The Contractor shall supervise and direct The Work, using the Contractor’s best
skill and attention. The Contractor shall be solely responsible for and have control over
construction means, methods, techniques, sequences and procedures and for
coordinating all portions of the Work under the Contract, unless the Contract
Documents give specific instructions concerning these matters. If the Contract
Documents give specific instructions concerning construction means, methods,
techniques, sequences or procedures, the Contractor shall evaluate the jobsite safety
thereof, and except as stated below, shall be fully and solely responsible for the jobsite
safety of such means, methods, techniques, sequences or procedures.”
¶ 10 Article 3.3.2 provided that:
“The Contractor shall be responsible to the Owner for acts and omissions of the
Contractor’s employees, Subcontractors and their agents and employees, and other
persons or entities performing portions of the Work for or on behalf of the Contractor
or any of its Subcontractors and for any damages, losses, costs or expenses resulting
from such acts or omissions.”
¶ 11 Article 5.3 concerned the subcontractual relations of the contract. Article 5.3.1 provided, in
relevant part, that:
“By appropriate agreement, written where legally required for validity, the
Contractor shall require each subcontractor, to the extent of the Work to be performed
by the Subcontractor, to be bound to the Contractor by terms of the Contract
Documents, and to assume toward the Contractor all the obligations and
responsibilities, including the responsibility for safety of the Subcontractor’s Work,
which the Contractor, by these Documents, assumes toward the Owner and Architect.”
¶ 12 Article 10.1 detailed the safety precautions and programs under the contract. Article 10.1.1
provided that, “The Contractor shall be responsible for initiating, maintaining and supervising
all safety precautions and programs in connection with the performance of the Contract.”
¶ 13 Article 10.2 governed safety of persons and property. Article 10.2.1.1 provided, in relevant
part:
“The Contractor shall take all necessary precautions for safety of, and shall provide
all necessary protection to prevent damage, injury or loss to *** all persons involved in
or affected by the Project.”
¶ 14 The master subcontractor agreements between PCC and Professionals, and PCC and
Thorne, respectively, contain the following identical provisions.
¶ 15 Under Article 1,
“The Subcontractor shall provide and pay for all labor, materials, tools, plan, supplies,
scaffolding, transportation, insurance, taxes, equipment, competent full-time
supervision, and all other services and do all things necessary for the proper and
complete performance, installation, and construction of all of the work identified in the
attached Project Specific Agreement.”
¶ 16 Under Article 27, subpart C, the master agreement stated:
“Subcontractor shall be and is fully responsible for protection and condition of its
materials, Work or equipment installed or stored on Job Site or elsewhere until final
acceptance thereof by Owner and Architect.”
¶ 17 Article 28 of the master agreement provided the following policy on the use of equipment.

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 “If, at any time during construction of Work covered by the Contract, the
Subcontractor, its agents, employees or supplies should, either with or without
permission of General Contractor, use any tools, appliances, hoists, elevators,
scaffolding, ladders, falsework, shoring, materials, machinery or equipment which
belong to or are furnished by General Contractor, Subcontractor assumes full
responsibility for any injury to person or property which may result from or in
connection with use of any such tools, appliances, hoists, elevators, scaffolding,
ladders, falsework, shoring, materials, machinery or equipment by Subcontractor, its
agents, employees or suppliers.”
¶ 18 The project specific agreement between PCEC and Thorne included several general
provisions:
“The Scope of Work shall include, but is not necessarily limited to, furnishing all
labor supervision, safety, protection, clean-up, insurance, materials, fixtures,
equipment, tools, supplies, transportation, other property and services to complete the
GYPSUM BOARD ASSEMBLY work as identified in the plans, specifications, bid
documents, and as listed herein.
***
This subcontractor is responsible for the protection of all stored and installed
materials until final acceptance by the owner of this work.”
¶ 19 On September 25, 2013, the trial court entered a case management order setting the close of
discovery. The court ruled that plaintiff would be permitted to depose the Power employees
already noticed for depositions but no further depositions would be allowed. On October 30,
2013, plaintiff issued a deposition notice for Jeffrey Karp, the president and CEO of PCC. On
November 4, 2013, PCC moved to quash the deposition notice as untimely and in violation of
the court’s order. The trial court granted PCC’s motion to quash in May 2014.
¶ 20 Plaintiff testified at his deposition that he was 60 years old and had been working as
surveyor since 1975. He was employed by Professionals since 1996. Plaintiff had previously
used spray paint to denote his benchmarks on an existing brick wall that was used for the
corridor. Plaintiff had returned to the jobsite to check the benchmark to determine if the
building was settling. He generally came to the site once a week. Between June 20 and June 30,
the corridor was constructed at the jobsite. Plaintiff had previously checked the benchmarks
from outside, but now had to go into the corridor to view the benchmarks.
¶ 21 Plaintiff was directed to go to the bed tower site by his boss at Professionals, Larry Nowlin.
On June 30, 2011, Plaintiff arrived at the site shortly before 7 a.m. He did not check in with
anyone on site to indicate that he was there. He proceeded to the corridor, which had temporary
lighting with materials and equipment stored inside, including several sheets of drywall
leaning against the brick wall. Plaintiff did not bring his field notebook with him to show the
exact locations of the benchmarks. He identified an area where he believed one benchmark was
located, which was behind the drywall sheets. There were 14 sheets of 4 by 8 feet drywall
leaning against the wall. The drywall was stacked four feet high and eight feet across against
the wall. Plaintiff’s benchmark was four feet above the floor and he believed it was near the top
of the wall covered by the drywall. Plaintiff then “twisted” his fingers to move the drywall
away from the wall to locate the benchmark. As he moved the stack of drywall, the stack
continued to move forward and struck the middle of plaintiff’s right leg.

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¶ 22 Plaintiff admitted that he did not ask anyone for help to move the drywall. He stated that he
did not know if it needed to be moved out of the way. If he had needed to move the drywall, he
had the phone number for Paul Meyer, PCC superintendent. Plaintiff admitted that “almost
every time” in prior instances if he arrived and something was in his way, he could call to have
it moved. He also admitted that Professionals’ policy required him to ask for assistance from a
contractor whose material blocked his work. Plaintiff stated that he has never performed
drywall work on any job site nor did he ever receive training in drywall work. Plaintiff further
stated that prior to this project, he had never attempted to move drywall to observe a
benchmark and had never handled drywall before the accident. Plaintiff conceded that a
benchmark was not located behind the drywall. He stated that he only moved the drywall
approximately an inch before it fell. Plaintiff testified that the drywall would not have fallen if
he had not manipulated it with his hand.
¶ 23 Paul Meyer testified that he was employed as a superintendent for PCC at the bed tower
jobsite. He stated that Thorne completed the drywall installation in the corridor at the end of
the day on June 29. He instructed Thorne employees to store their remaining drywall sheets in
the corridor, away from the points of ingress and egress to prevent a safety hazard. He testified
that he did not direct Thorne to store the drywall horizontally or vertically. He did not consider
storing drywall vertically on its edge leaning against a wall to be an unsafe practice. Meyer
agreed that PCC’s safety manual provides that “materials shall be stacked in a manner to
prevent tipping, falling, shifting or rolling.” He stated that subcontractors remain responsible
for the storage of their materials until final acceptance of their respective work by PCC. If he
had observed the drywall stacked in an unsafe position, he would have directed Thorne to
correct its storage.
¶ 24 Meyer testified that it is custom and practice that one subcontractor was not permitted to
move the materials of another subcontractor. The subcontractor was required to contact him to
coordinate the moving of the materials. He was not contacted by plaintiff to move the drywall.
¶ 25 Shaun Rainey testified that he was employed by PCC as its safety director. As safety
director, he has the power to stop a subcontractor’s work if he observed danger. He stated that
the subcontractors are required to conduct weekly toolbox talks, but the content of the talks is
left to the discretion of the individual subcontractor. Rainey stated that it is industry custom
and practice for one subcontractor to refrain from moving another subcontractor’s materials.
¶ 26 On June 30, Rainey arrived at the bed tower site at 7 a.m. and did not have a chance to walk
through the jobsite prior to plaintiff’s accident at 7 a.m. Rainey went to the corridor after being
notified of the accident. He took photographs of the corridor after the accident but did not have
any photographs of the drywall before it fell. He did not know the angle at which the drywall
was stored prior to being moved by plaintiff. Rainey stated that the drywall belonged to
Thorne. He stated that the drywall was stored securely by leaning it vertically against the wall
and would not have fallen without plaintiff’s actions. He testified that Thorne chose the
specific location and method for storing the drywall.
¶ 27 David Glosson testified that he was employed as a foreman with PCC at the bed tower site.
At the time of the accident on June 30, he was in his office in the trailer at the site; Meyer and
Rainey were in their respective offices in the trailer. He responded to the accident site and saw
plaintiff on the ground, but the drywall was not on top of him. Glosson asked plaintiff what
happened, Glosson stated that plaintiff told him that he “did a stupid thing. I tried pulling the
drywall back and it fell on top of me.” Glosson completed a statement report about the

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 accident. In his report, he stated that the drywall was “stacked neat,” which he explained as
“stacked appropriately against the wall. *** [I]t was a proper stack.” Glosson did not observe
the Thorne employees stacking the drywall the previous night. He admitted that he had not
observed the drywall prior to the accident. He could not state the angle the drywall was against
the wall. He stated that the sheets were five-eighths of aninch thick.
¶ 28 Glosson testified that leaning the drywall against the wall was safer than storing the
material on a drywall cart because the cart could tip over if someone who was not trained
pushed the cart. Glosson stated that in his experience, you did not move another entity’s
materials. If he had seen the drywall in the wrong spot, he would have contacted the drywallers
to move it.
¶ 29 Michael Degnan testified that he was employed as Thorne’s superintendent and vice
president of operations. He stated that Thorne’s policy to store drywall was to stack it on its
edge and lean it against the wall; and it conforms with industry custom and practice. He said
that when the drywall is leaned against the wall at a proper angle, then no braces, clips, or other
securing mechanism is required. He stated that drywall leaned against a wall would tip “only if
somebody touched it and moved it.” He testified that Thorne was responsible for protecting all
stored material until final acceptance of finished work by Power. Degnan agreed that under the
contracts, Thorne was required to furnish all labor, supervision, protection, clean-up,
insurance, materials, fixtures, equipment, tools, supplies, and transportation. Thorne’s foreman
David Pruitt would have been responsible for getting approval from Power regarding storage
locations for the drywall and other material. Degnan stated that he would expect Thorne
employees to ask Power where to store excess drywall but not how to stack and store it.
Degnan testified that people are “not supposed to touch anybody else’s material on the job.”
¶ 30 David Pruitt testified that he was employed by Thorne as a carpenter foreman at the bed
tower site. He stated that Thorne began installation of drywall in the corridor on June 24, 2011,
and completed installation on June 29, 2011, at around 3 p.m. Meyer directed him to have
Thorne employees place the leftover materials at the south end of the corridor. Pruitt stated that
Thorne employees stacked the drywall against the brick wall in the corridor. He testified that
they did not leave the drywall on a cart because the drywall was going to be there for a while
and someone who did not know how to move it might have moved the cart during that time.
Pruitt said the drywall was leaned vertically against the wall rather than flat on the ground
because it was “such a tight area.” He said it was “more of a tripping hazard” on the ground.
Pruitt did not come to the site to restack the drywall after the accident and did not know how it
was restacked. He testified that it was “common sense” to “lean the drywall so the weight is
against the wall that you’re leaning against.” He indicated that he tried to lean it steeply enough
so that it is difficult to pull away from the wall but not so much that it would slide down. He did
not stack the drywall flat against the wall. Pruitt stated that he has never seen or used a brace or
clip for drywall when vertically stacked. He testified that when he left the project on June 29,
the drywall was vertically stacked against the wall in a safe and proper manner. Pruitt said the
drywall was stacked four feet high, and one would have seen the benchmark above the
vertically stacked drywall. He stated that it is common knowledge on a construction site not to
move another person’s materials. He agreed that someone who is not trained in handling
drywall should not attempt to move it.
¶ 31 Oscar Ron testified, through an interpreter, that he was employed as a carpenter for Thorne.
He was part of the crew that worked on the corridor at the bed tower site. He stated that Pruitt

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 did not do any drywall on the last day of drywall installation. Ron did not know what Pruitt did
that day. Ron testified that he spoke to Meyer regarding Thorne’s completion of the drywall
and asked where he wanted them to put everything. Meyer told him to “put it on the edge,
everything together, without blocking the hallway.” Ron stated that he spoke with Meyer
because Pruitt had left, but he could not recall when Pruitt left, if he left before or after lunch or
after the afternoon break. Ron said he was in charge when Pruitt was not present. Ron stated
that if the drywall was going to obstruct the hallway, they could not lay it down. He said it was
normal to place it leaning, and he decided to place it that way because he did not want material
blocking the hallway. Ron did not use a brace for the drywall “because it was secure the way
that we had set it.” Ron described the drywall as “leaning at an angle to where it can’t fall over
or slide off.” He could not say the exact angle, but “as you’re putting the sheets one can feel
that the sheets aren’t going to fall.” He was “sure” that the sheets would not fall.
¶ 32 Larry Nowlin testified that he was employed as a superintendent with Professionals. He
stated that it was industry custom and practice, including the policy of Professionals, that a
surveyor was not to move materials that blocked a benchmark. The surveyor was to contact the
general contractor to coordinate the movement of the materials. Nowlin admitted that this was
not a written policy but said it had been communicated to his employees, which he believed
included plaintiff. If the surveyor is unable to read the benchmark, he should record it as
“blocked” or “obstructed” and move to the next benchmark. The surveyor can return the next
week and read the obstructed benchmark. Professionals would not take disciplinary action
against a surveyor who indicated a benchmark was obstructed. Nowlin stated that he directed
plaintiff to go to the bed tower site on June 30 to check the benchmarks. He said that plaintiff
generally worked with a partner, but the partner was on vacation that week.
¶ 33 Matthew Murtha testified that he was employed by Professionals as the project manager.
He does not work as a surveyor. He stated that when a surveyor could not read a benchmark
because of a blockage, then the surveyor should record it as “blocked” or “covered.” He did not
know of any surveyor moving material to view a blocked benchmark. Murtha agreed that
plaintiff’s action in moving the drywall violated Professionals’ rule not to move materials.
¶ 34 In July 2014, PCC filed a motion for summary judgment. In its motion, PCC argued that
plaintiff cannot prove that PCC owed him a legal duty or that PCC breached any alleged duty.
PCC asserted that it did not enter any of the contracts in relation to the bed tower site, rather it
was PCEC, a separate entity, and thus, PCC had no retained control over Thorne’s work.
Further, PCC contended that it had no actual or constructive knowledge of a dangerous
condition or unsafe work practice prior to plaintiff’s accident because deposition testimony
showed that storing drywall on its edge against a wall is an industry custom and practice that is
not dangerous and complies with Occupational Safety and Health Administration (OSHA)
standards. The drywall was not a dangerous condition until plaintiff’s actions moving it. PCC
maintained that the record showed there was no genuine issue of material fact to preclude
summary judgment.
¶ 35 Plaintiff filed his response to PCC’s motion for summary judgment. Plaintiff maintained
that there was a question of fact regarding PCC’s control over the means and methods of
storage of the drywall. Plaintiff included an affidavit from his expert Richard Hislop as an
exhibit to his response.
¶ 36 In his affidavit, Hislop stated that he was certified a safety professional with 40 years of
experience in construction. Hislop discussed Power’s safety program from its website, the

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 provisions of the contracts for the bed tower project, OSHA regulations, literature from the
Gypsum Association, and safety warnings from multiple versions of the United States Gypsum
Corporation’s handbook. The OSHA regulation included in the affidavit stated, “All materials
stored in tiers shall be stacked, racked, blocked, interlocked, or otherwise secured to prevent
sliding, falling or collapse.” 29 C.F.R. § 1926.250(a)(1) (1996). He then included several
portions from the United States Gypsum Corporation guidelines from years 2000, 2003, 2007,
and 2009. The handbook guideline from 2000 indicated a recommendation that gypsum board
“be stacked flat because stacking boards vertically against a wall poses a safety hazard.” Other
provisions state that boards “stacked on edge can easily become unstable and accidentally fall
over.” The provision from the 2009 handbook detailed how to appropriately store the drywall
panels vertically.
“While vertical stacking of panel material can be appropriate and helpful it can also
pose a falling hazard. When vertical stacking is used, be sure to leave at least 4” to 6” of
space between the bottom of the first board in the stack and the wall. Leaving less than
4” creates a risk that the stack could be pulled over; leaving more than 6” applies too
much weight laterally against the wall. Warning tape or signage should be used to alert
people of the potential for leaning wallboard to fall if disturbed.”
¶ 37 Hislop opined that PCC was wrong for contending that storing drywall on its edge was an
industry accepted custom and practice based on his cited sources. Hislop then states, “Storing
drywall on its edge against walls is common practice in residential construction and on
occasion in commercial construction, however, injury statistics and experience have
demonstrated that it is a dangerous practice to do so.” He asserts that storing drywall vertically
does not comply with his cited “OSHA regulations or the recommendations of the US Gypsum
Association.”
¶ 38 Hislop concludes that PCC failed in two regards.
“1. Its first failure was to allow an unsafe condition identified in both OSHA
regulations and the US Gypsum Association safety literature to remain unaddressed.
Power failed to require that Thorne secure its sheetrock from sliding or falling, as
subsequently occurred in this matter. This failure was a direct cause of the injuries
sustained by [plaintiff].
2. Its second failure was that Power made no effort to assure that individuals who
came to perform work on their jobsite were aware of the hazards that potentially
existed there, specifically the hazards inherent in unsecured drywall.”
¶ 39 Defendants filed a joint motion to strike Hislop’s affidavit as improper under Illinois
Supreme Court Rule 191(a) (eff. Jan. 4, 2013) because his affidavit contained numerous
conclusions unsupported by facts and referenced statistical facts without identifying the
information source.
¶ 40 In November 2014, the trial court granted PCC’s motion for summary judgment, finding
that PCC had no duty to protect plaintiff from the drywall. The court noted that plaintiff had
established questions of fact regarding whether PCC retained control over Thorne’s placement
of the drywall but concluded that “it would not be foreseeable by the general contractor that
[plaintiff], as a surveyor working for one subcontractor would move another subcontractor’s
drywall.” The court did not address PCC’s motion to strike Hislop’s affidavit because “the
plaintiff’s amended expert report fails to negate defendant’s undisputed fact that it is an
industry custom and practice that contractors will not move another contractor’s material or

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 equipment, and the plaintiff’s employers had procedures for surveyors to mark read sites as
obstructed.”
¶ 41 In February 2015, both PCEC and Thorne, respectively, filed motions for summary
judgment. PCEC argued that summary judgment was proper because it owed no duty to
plaintiff because (1) it did not retain or exercise control over subcontractors Thorne or
Professionals, (2) it lacked notice of a dangerous condition because stacking drywall against a
wall is not a dangerous condition, (3) it lacked notice of plaintiff’s dangerous work practice
against industry custom and practice to move the drywall, and (4) plaintiff’s injuries resulted
from his unsafe work practice and not from a condition of the land. Thorne asserted in its
motion that it did not owe plaintiff a duty because (1) it was not foreseeable that plaintiff would
move its stacked drywall, (2) it did not retain control over plaintiff’s work and lacked
knowledge of plaintiff’s unsafe work practice, and (3) plaintiff’s injuries were not caused by a
dangerous condition of the land.
¶ 42 Plaintiff filed responses to the motions, which included an amended affidavit from Hislop
and an affidavit from plaintiff. Hislop’s amended affidavit added two paragraphs in which he
stated that
“it was custom and practice in the construction industry that unless specifically
restricted contractors will regularly not only move other contractors’ tools and
materials, they will borrow ladders, Baker scaffolds and other materials. Contractors
will regularly move material that is in their way in order to perform their job. Even if
specifically restricted, unless the general contractor regularly enforces the restriction,
contractors will borrow ladders and other materials to perform their job.”
¶ 43 Plaintiff stated in his affidavit that there was no written policy or procedure by
Professionals that “its employees not touch or move materials or equipment in order to find or
uncover benchmarks or survey points.” He said “there was never a rule that prohibited us from
moving other company’s supplies or equipment to find or measure survey points.” He was
never told by his coworkers, nor did they tell anyone in his presence, about “said” rule. He was
never told at previous PCC jobs that employees were not to move other subcontractors’
equipment or supplies. He referenced previous jobs in which he moved boxes or propane tanks
to measure benchmarks. He stated that moving supplies was handled on a case-by-case basis,
and if the supplies could be moved by Professionals’ employees, then they moved it. Plaintiff
said on the morning of his accident, if he had located a benchmark behind the drywall, then he
would have requested assistance to relocate the drywall. At the time of the accident, he was
“only trying to see whether there was a mark behind the drywall.”
¶ 44 Both PCEC and Thorne moved to strike Hislop’s affidavit pursuant to Rule 191(a) because
the affidavit contained conclusions unsupported by facts, referenced statistical facts without
identifying sources, and stated scientific claims without providing facts to show how he
calculated his figures.
¶ 45 In April 2015, the trial court conducted a hearing on the motions. First, the court struck
plaintiff’s affidavit because it contradicted his prior sworn testimony from his deposition in
which he testified that if a benchmark was covered, then you get someone to move whatever
material was in the way. “Plaintiff’s new affidavit contradicts the statement attempting to
negate any knowledge of the procedure he needed to take if the material blocked the
benchmark.” Next, the court struck Hislop’s “conclusory statements made in his amended
affidavit, specifically that the industry standard does not require asking another subcontractor

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 or general to move the other subcontractor’s material. *** Hislop’s assertion is conclusory and
provides no basis for his opinion.” The court also struck conclusory statements regarding the
force to pull the drywall, and whether the drywall was stacked in a dangerous manner. Finally,
the court granted both PCEC’s and Thorne’s respective motions for summary judgment based
on the same reasons as its ruling on PCC’s motion.
¶ 46 This appeal followed.
¶ 47 On appeal, plaintiff argues that the trial court erred in (1) granting summary judgment in
favor of each of the defendants because the evidence raised questions of material fact, (2)
quashing his notice to depose Karp, and (3) striking his affidavit and portions of Hislop’s
affidavit.
¶ 48 Summary judgment is appropriate where the pleadings, depositions, and admissions on
file, together with any affidavits and exhibits, when viewed in the light most favorable to the
nonmoving party, indicate that there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2014). “Although a
plaintiff is not required to prove his case at the summary judgment stage, in order to survive a
motion for summary judgment, the nonmoving party must present a factual basis that would
arguably entitle the party to a judgment.” Robidoux v. Oliphant, 201 Ill. 2d 324, 335 (2002).
We review cases involving summary judgment de novo. Ragan v. Columbia Mutual Insurance
Co., 183 Ill. 2d 342, 349 (1998).
¶ 49 “To state a cause of action for negligence, a complaint must allege facts that establish the
existence of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and an
injury proximately caused by that breach.” Marshall v. Burger King Corp., 222 Ill. 2d 422, 430
(2006). “The question of the existence of a duty is a question of law, and in determining
whether a duty exists, the trial court considers whether a relationship existed between the
parties that imposed a legal obligation upon one party for the benefit of the other party.”
Sameer v. Butt, 343 Ill. App. 3d 78, 85 (2003). In contrast, “whether a defendant breached the
duty and whether the breach was the proximate cause of the plaintiff’s injuries are factual
matters for the jury to decide, provided there is a genuine issue of material fact regarding those
issues.” Marshall, 222 Ill. 2d at 430. “ ‘In the absence of a showing from which the court could
infer the existence of a duty, no recovery by the plaintiff is possible as a matter of law and
summary judgment in favor of the defendant is proper.’ ” Bruns v. City of Centralia, 2014 IL
116998, ¶ 13 (quoting Vesey v. Chicago Housing Authority, 145 Ill. 2d 404, 411 (1991)).
¶ 50 In the context of a construction-related injury, courts analyze whether there is common law
negligence under section 414 of the Restatement (Second) of Torts. Kotecki v. Walsh
Construction Co., 333 Ill. App. 3d 583, 587 (2002). 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).
¶ 51 “Whether a duty exists under section 414 turns on whether the defendant controlled the
work in such a manner that he should be held liable.” Kotecki, 333 Ill. App. 3d at 587. “As a
general rule, one who entrusts work to an independent contractor will not be liable for the acts
or omissions of that independent contractor.” Calderon v. Residential Homes of America, Inc.,
381 Ill. App. 3d 333, 340 (2008). “This is because the principal generally does not supervise

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 the details of the independent contractor’s work and, as a result, is not in a good position to
prevent negligent performance.” Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d 286,
300 (2007).
¶ 52 Section 414 “provides a ‘retained control’ exception to the general rule that an employer of
an independent contractor is not liable for the independent contractor’s acts or omissions.”
Cochran v. George Sollitt Construction Co., 358 Ill. App. 3d 865, 873-74 (2005). “The issue of
a defendant’s retained control may be decided as a matter of law where the evidence is
insufficient to create a factual question.” Carney v. Union Pacific R.R. Co., 2016 IL 118984,
¶ 41. Comment c to section 414 explains the concept of retained control for liability under the
Restatement.
“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 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).
¶ 53 The best indicator of whether the defendant retained control sufficient to trigger the
potential for liability under section 414 is the parties’ contract. Carney, 2016 IL 118984, ¶ 41.
“[T]he 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 v. MCL Construction Corp., 347 Ill. App. 3d 303, 318
(2004). The defendant’s safety program must sufficiently affect the means and methods of the
contractor’s work to fall within the ambit of retained control. Id. at 318-19.
¶ 54 Under the contracts in this case, Power’s safety program included employing Rainey as a
safety director, a general safety manual, requiring each subcontractor to have competent
supervision, and requiring each subcontractor to conduct weekly toolbox talks. However, the
content of the respective toolbox talks was left to the subcontractor to determine.
¶ 55 Further, the contracts showed that each subcontractor was responsible for all labor,
materials, tools, equipment, and supervision and to do all things necessary for the proper and
complete performance of the work. “Subcontractor shall be and is fully responsible for
protection and condition of its materials, Work or equipment installed or stored on Job Site or
elsewhere until final acceptance thereof by Owner and Architect.” The contracts and
deposition testimony establish that Power reserved the general right to start, stop, and inspect
the progress of the work, but each subcontractor had control over the means and methods of the
work performance.
¶ 56 Here, plaintiff has not shown that Power exerted any control over his work performance.
The evidence shows that Professionals was expected to check its measurements weekly.
Nowlin testified that he called plaintiff and directed him to go the bed tower site on June 30,
2011, and check the benchmarks. Plaintiff arrived on the site shortly before 7 a.m. He was not
required to check in with Power employees, and he did not speak to anyone that morning. He
proceeded to the enclosed corridor to check the benchmarks. There was no evidence that
Power had any knowledge of plaintiff’s presence on the site or directed the manner in which he

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 performed his job. Plaintiff failed to establish that Power retained an amount of supervision
such that plaintiff, a surveyor employed by a subcontractor, was not free to complete the work
either in his own way or according to his employer’s instructions. See Shaughnessy v. Skender
Construction Co., 342 Ill. App. 3d 730, 738 (2003).
¶ 57 In Shaughnessy, the plaintiff was employed as an ironworker by a sub-subcontractor. The
plaintiff was injured on his first day on the job when he placed a wooden board over a gap in
the floor and fell several feet when the board broke. Id. at 732. Plaintiff alleged claims of
negligence under section 414 against the general contractor and the subcontractor that hired his
employer. Id.
¶ 58 The reviewing court found that summary judgment was appropriate because the plaintiff
failed to raise a question of fact as to whether the defendant exerted sufficient control over the
plaintiff’s employer. Id. at 737. The court concluded that the evidence established that the
plaintiff’s employer was “entirely free to perform the work in its own way” where the
plaintiff’s foreman “gave plaintiff all his work instructions.” Id. at 740. “[N]o one from [either
defendant] saw plaintiff engage in the unsafe practice that led to his injury or even had notice
that plaintiff intended to engage in such conduct. Plaintiff, who was injured on his first day at
the jobsite, admitted that he was only on the board for a ‘fraction of a second’ before the board
broke and that only his coworker was in the area.” Id. at 739-40. The court observed that “there
was no evidence that [either defendant] knew or had notice of the hazardous method plaintiff
employed to descend into the basement.” Id. at 740.
¶ 59 The Shaughnessy court relied on the earlier decision in Rangel v. Brookhaven
Constructors, Inc., 307 Ill. App. 3d 835 (1999), for support. In that case, the plaintiff was
employed by the drywall subcontractor. He was injured when he stepped on braces in the
scaffolding as he was attempting to hang drywall and one of the braces collapsed, causing him
to fall. The plaintiff was instructed to stand on the braces by his employer. Id. at 837.
¶ 60 Under the contract with the general contractor, the plaintiff’s employer “was to provide all
labor, materials, tools, plant, equipment, competent full-time supervision and services, and ‘do
all things necessary for the proper performance, installation, construction and completion of
all’ ” work. Id. at 836. The reviewing court found that the general contractor retained only a
general right of supervision, “[i]t does not refer, directly or indirectly, to a right to direct the
installation of drywall or the erection of the scaffold.” Id. at 839.
“There is no evidence to suggest Drywall [(the plaintiff’s employer)] was not
entirely free to perform the work in its own way. The evidence showed Brookhaven
[(the general contractor)] never directed the ‘operative details’ of the work performed
by Drywall and Rangel. Drywall, not Brookhaven, supplied the scaffold on which
Rangel worked. A Drywall supervisor, not Brookhaven, directed Rangel to utilize the
braces when necessary for positioning the drywall. This unsafe method of performing
the work, which led to Rangel’s injury, was proposed by Rangel’s employer just hours
before the accident. Here, as in Bezan v. Chrysler Motors Corp., 263 Ill. App. 3d 858,
864 *** (1994), there is nothing to suggest that the general contractor ‘knew or had
notice of the hazardous method employed within this restrictive time period.’ ” Id.
¶ 61 Similarly, plaintiff has failed to raise a question of material fact that Power retained control
over his work method. Plaintiff was directed to go to the bed tower site by his employer. He
had no contact with Power’s employees as to the manner in which he was to perform his job.
The evidence in the instant case fails to establish that Power retained any control over

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 plaintiff’s work method or had any knowledge of plaintiff’s hazardous method used to check
for the benchmarks in the corridor.
¶ 62 We also conclude that plaintiff has failed to raise a question of material fact that Power
controlled Thorne’s work. The crux of plaintiff’s argument is that Meyer told Thorne
employees to leave the leftover drywall in the corridor for future needs, and the drywall should
be stored neat and should not block ingress and egress of the corridor. These instructions
standing alone do not demonstrate control of the manner and means of Thorne’s work by
Power. As comment c to section 414 stated, suggestions and recommendations are not
sufficient to establish control. Rather, “[t]here 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). The record does not raise a question of fact that such a
retention of a right of supervision existed. The basic instruction of where to store materials did
not retain control over how Thorne chose to stack the drywall. Because no question of material
fact exists as to whether Power retained sufficient control over its subcontractors’ work
methods, summary judgment was proper as to retained control under section 414 of the
Restatement for both PCC and PCEC.
¶ 63 Next, we turn to plaintiff’s claims against Thorne for negligence. Plaintiff has alleged that
Thorne stored the drywall in an unsafe manner, such that it was improperly stacked without
any means to secure it. Here, we need not reach the question of whether the drywall was
improperly stacked because we find summary judgment was properly entered as a matter of
law for the reasons that follow.
¶ 64 There are four factors to consider in a duty analysis: “(1) the reasonable foreseeability of
the injury, (2) the likelihood of the injury, (3) the magnitude of the burden of guarding against
the injury, and (4) the consequences of placing that burden on the defendant.” Bruns, 2014 IL
116998, ¶ 14. “A legal duty refers to a relationship between the defendant and the plaintiff
such that the law imposes on the defendant an obligation of reasonable conduct for the benefit
of the plaintiff.” Choate v. Indiana Harbor Belt R.R. Co., 2012 IL 112948, ¶ 22. We find that
plaintiff has not raised a question of material fact that Thorne owed him a duty because it was
not reasonably foreseeable that he would move the drywall.
¶ 65 The Illinois Supreme Court “has long recognized that ‘every person owes a duty of
ordinary care to all others to guard against injuries which naturally flow as a reasonably
probable and foreseeable consequence of an act, and such a duty does not depend upon
contract, privity of interest or the proximity of relationship, but extends to remote and
unknown persons.’ ” Simpkins v. CSX Transportation, Inc., 2012 IL 110662, ¶ 19 (quoting
Widlowski v. Durkee Foods, 138 Ill. 2d 369, 373 (1990)). “Thus, if a course of action creates a
foreseeable risk of injury, the individual engaged in that course of action has a duty to protect
others from such injury.” (Emphasis omitted.) Id. “That something ‘might conceivably occur,’
does not make it foreseeable. [Citation.] Rather, something is foreseeable only if it is
‘objectively reasonable to expect.’ ” Bruns, 2014 IL 116998, ¶ 33 (quoting Hills v. Bridgeview
Little League Ass’n, 195 Ill. 2d 210, 238 (2000)).
¶ 66 Here, plaintiff argues that it was reasonably foreseeable that an injury would have occurred
from the manner in which the drywall was stacked. However, the admissible evidence in the
record is unequivocal that tradespeople do not move the materials belonging to another entity.
Deposition testimony from employees of Power, Thorne, and Professionals definitively
established that it was a known custom not to move materials of another subcontractor.

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¶ 67 Plaintiff, himself, admitted that it was Professionals’ policy that when materials obstructed
benchmarks the surveyor was to contact the general contractor to arrange for the materials to
be moved. Nowlin, plaintiff’s supervisor, and Murtha, another Professionals employee,
confirmed this policy. Both Nowlin and Murtha testified that if the obstructed benchmark is
unable to be cleared after contacting the general contractor, then the surveyor should record the
benchmark as “blocked” in his notes and return on a later date. No disciplinary action would be
taken if a benchmark was listed as “blocked.” Further, plaintiff admits that the benchmark was
not behind the stacked drywall. Plaintiff also admits that the location of the benchmark was
recorded in his notebook, which he left in his vehicle and did not use to determine the
benchmark’s location. He assumed that the benchmark was behind the drywall based on his
own recollection but was in error. Plaintiff further admitted in his deposition that the drywall
would not have moved if he had not moved it. In his many years as a surveyor, plaintiff had
never moved drywall prior to the accident. There was no reason for plaintiff to have moved the
drywall.
¶ 68 Moreover, even if we consider the affidavit from plaintiff’s expert Hislop, Hislop does not
refute the custom and practice of not moving drywall. Hislop’s general statement, which we
consider the propriety of striking later in this decision, was that it was “custom and practice” to
move another contractor’s “tools and materials” unless specifically restricted. Hislop
referenced borrowing ladders and scaffolds but never stated it was a common practice to move
another contractor’s drywall. The testimony from the employees of all contactors on the site
established that it was not a custom and practice to move another contractor’s materials at the
bed tower site.
¶ 69 Given the unrefuted testimony, including from plaintiff himself and other Professionals
employees, that it is customary for a tradesperson not to move materials belonging to another
contractor, as well as plaintiff’s admission that the benchmark was not obstructed by the
drywall, it was not “objectively reasonable” for Thorne to foresee that plaintiff would attempt
to move the stacked drywall. Since the drywall did not impede plaintiff’s ability to perform his
work, it was not foreseeable that plaintiff would engage with the drywall to any extent. Absent
a reasonably foreseeable risk of injury, no duty on the part of Thorne can exist as a matter of
law. The lack of any duty forecloses plaintiff’s negligence allegations. Accordingly, summary
judgment was properly granted in favor of Thorne.
¶ 70 Plaintiff additionally contends that all defendants are liable for premises liability under
section 343 of the Restatement. Section 343 states:
“A possessor of land is subject to liability for physical harm caused to his invitees
by a condition on the land if, but only if, he
(a) knows or by the exercise of reasonable care would discover the condition, and
should realize that it involves an unreasonable risk of harm to such invitees, and
(b) should expect that they will not discover or realize the danger, or will fail to
protect themselves against it, and
(c) fails to exercise reasonable care to protect them against the danger.”
Restatement (Second) of Torts § 343 (1965).
¶ 71 Under section 343, while “a possessor of land, including a general contractor, owes its
invitees a common law duty of reasonable care to maintain its premises in a reasonably safe
condition [citation], it is axiomatic that no legal duty arises unless the harm is reasonably

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 foreseeable [citation].” Clifford v. Wharton Business Group, L.L.C., 353 Ill. App. 3d 34, 42
(2004). Even if we were to presume both that the stacked drywall was a condition on the land
and it constituted a dangerous condition, we find that plaintiff has not raised a question of
material fact under premises liability because the danger of stacked drywall was open and
obvious. We have already concluded that it was not objectively reasonable to foresee that
plaintiff would move the drywall because of the policy not to move other entities’ materials
and that plaintiff’s benchmark was not obstructed by the drywall.
¶ 72 Under the open and obvious rule, “ ‘a party who owns or controls land is not required to
foresee and protect against an injury if the potentially dangerous condition is open and
obvious.’ ” Bruns, 2014 IL 116998, ¶ 16 (quoting Rexroad v. City of Springfield, 207 Ill. 2d
33, 44 (2003)). “The open and obvious rule is also reflected in section 343A of the Restatement
(Second) of Torts, which this court has adopted.” Id. “Under section 343A, a ‘possessor of land
is not liable to his invitees for physical harm caused to them by any activity or condition on the
land whose danger is known or obvious to them.’ ” Id. (quoting Restatement (Second) of Torts
§ 343A, at 218 (1965)). “ ‘Obvious’ means that ‘both the condition and the risk are apparent to
and would be recognized by a reasonable [person], in the position of the visitor, exercising
ordinary perception, intelligence, and judgment.’ ” Id. (quoting Restatement (Second) of Torts
§ 343A cmt. b, at 219 (1965)).
¶ 73 “Whether a dangerous condition is open and obvious may present a question of fact,” but
“where no dispute exists as to the physical nature of the condition, whether the dangerous
condition is open and obvious is a question of law.” Id. ¶ 18. However, “[t]he existence of an
open and obvious danger is not an automatic or per se bar to the finding of a legal duty on the
part of a defendant.” Id. ¶ 19. To determine whether a duty exists, a court must still consider
the four factors of the duty analysis under the facts of the case at bar. Id. “Application of the
open and obvious rule affects the first two factors of the duty analysis: the foreseeability of
injury, and the likelihood of injury.” Id. “Where the condition is open and obvious, the
foreseeability of harm and the likelihood of injury will be slight, thus weighing against the
imposition of a duty.” Id.
¶ 74 Plaintiff contends that the “deliberate encounter” exception to the open and obvious rule is
applicable here. We disagree. “The deliberate encounter exception applies ‘ “where the
possessor [of land] has reason to expect that the invitee will proceed to encounter the known or
obvious danger because to a reasonable [person] in his position the advantages of doing so
would outweigh the apparent risk.” ’ ” Id. ¶ 20 (quoting Sollami v. Eaton, 201 Ill. 2d 1, 15
(2002), quoting Restatement (Second) of Torts § 343A cmt. f, at 220 (1965)). “Where an
exception to the open and obvious rule applies, the outcome of the duty analysis with respect to
the first two factors is ‘reversed.’ ” Id. (quoting Belluomini v. Stratford Green Condominium
Ass’n, 346 Ill. App. 3d 687, 692 (2004)).
¶ 75 Plaintiff argues that he was “encountering the enclosed hallway for the first time in his
search for the benchmarks,” was trying to “peer behind the drywall, and was not paying
attention to how vertically it was stacked.” While it is accurate that this was the first time
plaintiff had to check the benchmarks since the hallway was enclosed, it was not reasonable
that he would proceed to “encounter” the drywall when his benchmarks were not obstructed by
it. As previously discussed, his ability to complete his task at the site did not require him to
move the drywall. Moreover, none of the testimony in the record supports plaintiff’s position
that it was reasonable for him to encounter the drywall. See Kotecki, 333 Ill. App. 3d at 591

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 (finding that the plaintiff “offered no evidence or argument that he made a reasonable decision
to deliberately encounter an obvious danger”). The testimony from employees of Power,
Thorne, and Professionals, and plaintiff himself, consistently established that it was not a
practice in the industry to move another contractor’s materials. Further, plaintiff’s expert did
not testify that moving another contractor’s drywall was customary or even appropriate. He
never addressed drywall at all. Accordingly, plaintiff has not raised a question of material fact
to preclude a finding that even if the drywall constituted an open and obvious condition, a
reasonable person would have proceeded to encounter that known or obvious condition.
Therefore, summary judgment was proper.
¶ 76 We next consider plaintiff’s argument that the trial court erred in quashing the deposition
of PCC’s president, Jeff Karp. On September 25, 2013, the trial court entered an order closing
discovery as to additional depositions, allowing plaintiff to depose witnesses noticed for
deposition as of that date. On October 30, 2013, plaintiff issued a notice for deposition for
Karp, the president of PCC. Subsequently, PCC filed a motion to quash the deposition, arguing
that the notice violates the court’s order and Karp was never at the bed tower site and could not
offer any testimony regarding the incident. PCC pointed out that plaintiff had previously
deposed nine Power employees during discovery. Plaintiff responded that Karp was the person
who negotiated the contracts and could interpret its terms. PCC offered to stipulate the
contracts’ authenticity and that the contracts speak for themselves. The trial court granted
PCC’s motion.
¶ 77 “The trial court has freedom to determine the scope of discovery, and, as a reviewing court,
we will not disturb the trial court’s decision absent an abuse of discretion.” Storino, Ramello &
Durkin v. Rackow, 2015 IL App (1st) 142961, ¶ 40. Plaintiff maintains that Karp’s deposition
was relevant to explain changes made to the contract language via strikeouts and added
language in the agreement with St. Alexius as well as Power’s obligations under the contract
regarding safety procedures. Plaintiff has offered no explanation why the notice was filed more
than a month after the court ordered that no additional depositions would be allowed. We find
no abuse of discretion. The trial court allowed extensive discovery, including numerous
depositions of Power, Thorne, and Professionals employees. All of the parties’ contracts were
disclosed and submitted. Under the four corners rule of contract interpretation, “ ‘[a]n
agreement, when reduced to writing, must be presumed to speak the intention of the parties
who signed it. It speaks for itself, and the intention with which it was executed must be
determined from the language used. It is not to be changed by extrinsic evidence.’ ” Air Safety,
Inc. v. Teachers Realty Corp., 185 Ill. 2d 457, 462 (1999) (quoting Western Illinois Oil Co. v.
Thompson, 26 Ill. 2d 287, 291 (1962)). PCC did not dispute the authenticity of the contracts,
nor has plaintiff pointed to any specific provisions he found ambiguous as it related to his
negligence action. Accordingly, the trial court did not abuse its discretion in quashing
plaintiff’s notice of deposition.
¶ 78 Finally, plaintiff contends that the trial court erred in striking portions of his affidavit and
Hislop’s affidavit. The sufficiency of an affidavit in support of a motion for summary
judgment is determined under Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013). The rule
states that affidavits:
“shall be made on the personal knowledge of the affiants; shall set forth with
particularity the facts upon which the claim, counterclaim, or defense is based; shall
have attached thereto sworn or certified copies of all documents upon which the affiant

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 relies; shall not consist of conclusions but of facts admissible in evidence; and shall
affirmatively show that the affiant, if sworn as a witness, can testify competently
thereto.” Id.
¶ 79 Because affidavits submitted in the summary judgment context serve as a substitute for
testimony at trial, affidavits must strictly comply with Rule 191(a) to ensure that trial judges
are presented with valid evidentiary facts on which to base a decision. Robidoux, 201 Ill. 2d at
335-36. “In general, this court reviews a circuit court’s decision on a motion to strike an
affidavit for an abuse of discretion, but when the motion ‘was made in conjunction with the
court’s ruling on a motion for summary judgment,’ we employ a de novo standard of review
with respect to the motion to strike.” US Bank, National Ass’n v. Avdic, 2014 IL App (1st)
121759, ¶ 18 (quoting Jackson v. Graham, 323 Ill. App. 3d 766, 773 (2001)).
¶ 80 The trial court struck plaintiff’s affidavit filed in response to PCEC’s motion for summary
judgment because it contradicted statements made in his deposition. In his deposition, plaintiff
admitted that Professionals’ policy required him to ask for assistance from a contractor whose
material blocked his work. He testified that he customarily asked for assistance in removing an
obstruction and previously had never handled drywall sheets or attempted to move drywall
sheets. Plaintiff admitted that he knew that he had the right and authority to ask for assistance
to move items in order visualize a benchmark. In his affidavit, plaintiff stated that he had never
been advised of a policy not to move other trades’ equipment or supplies and described jobsites
in which he previously had moved materials belonging to other entities.
¶ 81 “ ‘A judicial admission is a deliberate, clear, unequivocal statement of a party about a
concrete fact within that party’s peculiar knowledge.’ ” Caponi v. Larry’s 66, 236 Ill. App. 3d
660, 671 (1992) (quoting Hansen v. Ruby Construction Co., 155 Ill. App. 3d 475, 480 (1987)).
“Although statements made during a discovery deposition are normally treated only as
evidentiary admissions, which may be contradicted, such statements may be ‘so deliberate,
detailed, and unequivocal, as to matters with the party’s personal knowledge’ that the
statements will be held to be judicial admissions.” Id. (quoting Lindenmier v. City of Rockford,
156 Ill. App. 3d 76, 87 (1987)). A party may not contradict a judicial admission either with his
own contrary testimony or that of other occurrence witnesses or experts. Id. To the extent that
plaintiff’s affidavit contradicted his prior testimony, the trial court did not err in striking those
portions of the affidavit.
¶ 82 We now turn to Hislop’s affidavit. The trial court struck portions of Hislop’s amended
affidavit. Specifically, the court struck the statements regarding (1) the industry standard does
not require asking to move another’s materials as conclusory and lacking a basis for his
opinion, (2) the force to pull the drywall because Hislop did not discuss his calculations or
methods in reaching his conclusion or provide any foundation for his opinion, and (3) Hislop’s
opinion that the drywall was stacked in a dangerous manner because it was conclusory and did
not rely on admissible facts.
¶ 83 “Rule 191(a), however, does not bar legal conclusions per se.” Cain v. Joe Contarino, Inc.,
2014 IL App (2d) 130482, ¶ 62. “Rather, the rule simply bars any conclusion, legal or
otherwise, for which the affiant provides no specific factual support.” Id. “ ‘[W]hile an expert
witness at trial may give opinion testimony without disclosing the facts underlying his opinion
[citations], the same is not true of affidavits submitted in summary judgment proceedings.’ ”
Perona v. Volkswagen of America, Inc., 2014 IL App (1st) 130748, ¶ 51 (quoting Woolums v.
Huss, 323 Ill. App. 3d 628, 636 (2001)). “ ‘Affidavits in opposition to motions for summary

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 judgment must consist of facts admissible in evidence as opposed to conclusions and
conclusory matters may not be considered in opposition to motions for summary judgment.’ ”
Id. (quoting Woolums, 323 Ill. App. 3d at 636). “Additionally, ‘[a]n expert’s opinion is only as
valid as the reasons for the opinion.’ ” Id. (quoting Hudson v. City of Chicago, 378 Ill. App. 3d
373, 400 (2007)).
¶ 84 The first portion of Hislop’s affidavit struck by the trial court was the added paragraph of
the amended affidavit stating that
“it was a custom and practice in the construction industry that unless specifically
restricted contractors will regularly not only move other contractors’ tools and
materials, they will borrow ladders, Baker scaffolds and other materials. Contractors
will regularly move material that is in their way in order to perform their job. Even if
specifically restricted, unless the general contractor regular enforces the restriction,
contracts will borrow ladders and other materials to perform their job.”
¶ 85 The trial court properly struck this paragraph of the affidavit as it is conclusory and offers
no facts or support for his conclusions. As an affidavit in summary judgment proceedings,
Hislop cannot state his opinion without providing the basis for the opinion. See id.
¶ 86 Next, the court struck portions in which Hislop discussed the force necessary to move the
drywall. He stated that,
“[o]nly 7 to 14 pounds of effort is required to pull a single piece of drywall, 4 feet wide
and 8 feet long that weighs 80 pounds, away from the wall, which is placed 4 to 8
inches away from the wall at the floor. When an unsuspecting individual pulls
sheetrock [away] from a wall, before they know it, they then have to restrain an
accumulating vector force as the sheetrock is tipped past ‘vertical.’ This load increases
until the individual has to contend with the entire accumulated weight of the sheetrock.
*** The fourteen (14) sheets that Mr. Snow pulled away from the wall in his matter
weighed approximately 1040 pounds. To have pulled the 14 sheets of the sheetrock, the
edges of which were spaced 4 to 8 inches away from the wall, would have required 87
to 173 pounds of force. That is a substantial effort, not the casual effort Mr. Snow
indicated he exerted. The deponents in this matter were unable to define the distance
from the wall they set the edge of their sheetrock. Had the sheetrock been set in a
position that was more vertical than recommended by the Gypsum Institute, even less
effort would have been required to pull over the stack of sheetrock.”
¶ 87 The trial court struck this portion of the affidavit because Hislop failed to disclose how he
calculated the force required to move the drywall or his methods in reaching his conclusion,
nor did he provide any foundation for his opinion. We agree. Again, an expert’s affidavit in
summary judgment proceedings must be supported by a factual basis. No such basis was
provided on how the force calculations were reached, and accordingly, the court properly
struck this portion of his affidavit.
¶ 88 Finally, the trial court struck Hislop’s opinion as to whether the drywall was stacked in a
dangerous manner as conclusory and without reliance on admissible facts. As previously
discussed, Hislop included an OSHA regulation and several portions from different gypsum
handbooks in his affidavit. Hislop then stated that “tilting sheetrock against a wall does not
comply with OSHA regulations or the recommendation of the US Gypsum Association.”
However, as noted above, the cited OSHA regulation is silent about vertical stacking and
instructs for materials to be stacked to prevent sliding, falling, or collapse. Likewise, the

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 handbook guidelines provided instructions on how to properly stack drywall sheets vertically.
Hislop then stated, “[t]he hazard of sheetrock stacked on edge has been recognized throughout
the world to extent that the construction industry is suggesting that edge stacked boards should
be labeled with ‘Caution’ signs.” Hislop offered no foundation for his opinion that this has
been “recognized throughout the world.” His support is a portion from the 2009 handbook with
instructions on how to vertically stack drywall and that warning tape should be used. Hislop
further stated “[t]he hazard of propping sheetrock against walls has been well established in the
drywall industry.” He offered no admissible facts to support his statement. Hislop also
referenced “statistics in sheetrock injury cases reflect that it is not drywall installers who get
crushed and injured by sheetrock stacked on edge, but individuals who do not regularly work
with the product and are not aware of the inherent safety hazard.” Hislop provided no
foundation for this conclusory statement.
¶ 89 After reviewing these portions of the affidavit, we find the statements were in violation of
Rule 191, and the trial court properly struck them as conclusory and lacking in foundation and
factual support.
¶ 90 Based on the foregoing reasons, we affirm the decision of the circuit court of Cook County.

¶ 91 Affirmed.

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