General contractor’s responsibility for safety of subcontractor’s employee. Foley v. Builtech Construction, Inc. Appellate Court of Illinois (2019), by Hugh Anderson

Summary: John Foley was an employee of a subcontractor. He injured his back while pulling rebar from a tangled storage pile. Builtech was the general contractor. Foley sued Builtech, alleging negligence, failure to provide a safe workplace, and premises liability. Builtech moved for summary judgment, contending that it did not have actual or constructive notice of any dangerous condition at the jobsite. The trial court issued summary judgment in Builtech’s favor, and Foley appealed.

Decision: The appellate court reversed the summary judgment, holding that “the issue of whether Builtech retained sufficient control over the subcontractor’s work to trigger liability for its employee’s injury presents a question of fact, precluding summary judgment.”

The decision presents a great quantity of detail about the facts of the case, based on depositions and other sources. As on most projects, the general contractor had a strong presence at the site, and had many duties regarding safety, ranging from conducting weekly safety meetings to stopping any unsafe work by subcontractors or others. The Builtech project superintendent testified that his authority included stopping a worker from improperly lifting a heavy item. The general contractor also was in charge of determining appropriate locations for the storage of building materials, including rebar.

The subcontract between Builtech and Foley’s employer, Chicago Town, contained typical clauses assigning safety duties to the subcontractor, including the obligation to take necessary measures to ensure the safety of employees; but the subcontract also required Chicago Town to comply with Builtech decisions regarding safety, and to take additional safety measures determined to be necessary by Builtech.

Based on the record before it, the appellate court had little trouble concluding that further proceedings were necessary at the trial court level to sort out the facts associated with the injury, and to apply the terms of the subcontract.

Comment: It is sometimes said that there is a “bright line” that separates the contractor, on the one hand, from the engineer and owner, on the other, with respect to site safety. The engineer and owner do not have expertise or experience regarding safety, and are not in control of the work; the contractor is in control, and safety practices are a core element of the contractor’s business. However, as the Foley case demonstrates, there is no similar bright line separating the contractor from the subcontractor. Both have substantial safety obligations, and varying degrees of control over means, methods, and safety. It is no surprise that the injury claim against the general contractor was not susceptible to resolution by summary
judgment.