Joyce v. Mastri

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Joyce v. Mastri

State: Illinois

Court: 1st District Appellate

Docket No: 1-06-0086 Rel

Case Date: 01/11/2007

Preview:FOURTH DIVISION January 11, 2007

No. 1-06-0086 TIMOTHY JOYCE, Plaintiff-Appellant, v. JAY J. MASTRI, JAY'S HVAC, INC., an Illinois Corporation, and MADISON SERVICES, INC., a Mississippi Corporation, Defendants-Appellees. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Cheryl A. Starks, Judge Presiding.

PRESIDING JUSTICE QUINN delivered the opinion of the court: Plaintiff, Timothy Joyce, an employee of an independent contractor, suffered injuries when he fell off a ladder at a construction site. Plaintiff filed a complaint at law with two counts against defendant, Madison Services, Inc. (Madison Services), the general contractor of the site, alleging common-law negligence. Plaintiff appeals from orders of the circuit court granting summary judgment in defendant's favor.1 Plaintiff contends that defendant had a duty to prevent his injuries in light of its contract with plaintiff's employer, its retention of control over certain aspects of the construction site, its contract with the federal government and nondelegable duty to comply with applicable safety regulations, and as the possessor of the land where his injury occurred. For the following reasons, we affirm.

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Defendants Jay J. Mastri and Jay's HVAC, Inc. are not parties in this appeal.

1-06-0086 I. Background Plaintiff's injuries occurred on April 16, 2001, at a construction site at the United States Army Reserve Base in Arlington Heights, Illinois. Madison Services acted as the general contractor at the construction project to demolish and install air handling systems. Madison Services hired plaintiff's employer, Elk Grove Mechanical, Inc. (EGM), to perform certain demolition and construction work at the site. EGM contracted to work on demolishing air handling units and their appurtenances in mechanical rooms 110 and 115 at the site. Pursuant to section 8.1 of the contract between Madison Services and EGM, EGM was required to execute the work contracted for and provide "all labor, materials, equipment, services and other items required to complete such portion of the Work." Section 3.2.2 of the contract provided that Madison Services "shall not give instructions or orders directly to employees or workmen of [EGM], except to persons designated as authorized representatives of [EGM]." Under section 2.1, Madison Services and EGM agreed to be "mutually bound by the terms of [the] Agreement and, to the extent that provisions of the Prime Contract apply to the Work of the Subcontractor, the Contractor apply to the Work of the Subcontractor all obligations and responsibilities that the Owner, under the Prime Contractor assumes toward the Owner and the Architect." Also, under section 4.3.1, EGM agreed that it "shall take reasonable safety precautions with respect to performance of this Subcontract, shall comply with safety measures, initiated by [Madison Services] and with applicable laws, ordinances, rules, regulations and orders of public authorities for the requirements of the Prime Contract [between Madison Services and the United States Government]. [EGM] shall report within three days an injury to

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1-06-0086 an employee or agent of [EGM] which occurred at the site." Additionally, section 4.4.1 of the contract provided that "[EGM] shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations performed under this Subcontract. [EGM] shall not be held responsible for unclean conditions caused by other contractors and subcontractors." Section 4.6.1 provided: "To the fullest extent permitted by law, [EGM] shall indemnify and hold harmless the Owner, Contractor, Architect, Architect's consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorney's fees, arising out of or under this Subcontract, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting therefrom, but only to the extent caused in whole or in part by negligent acts or omissions of [EGM], [EGM's] Sub-subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder." Plaintiff testified at his deposition that on April 16, 2001, he arrived at the work site on the Army Reserve Base at approximately 8 a.m. Plaintiff testified that after first arriving at the work site, he set up extension cords to plug in saws and swept the larger mechanical room. At approximately 9:20 a.m., plaintiff testified that he began setting up in the smaller mechanical

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1-06-0086 room where he was injured. Plaintiff testified that his employer, EGM, was contracted to tear out several 15-ton air handlers at the time. Plaintiff was attempting to remove duct work at the time of his fall. Plaintiff testified that in order to set up for the removal of duct work, he used a ladder that was brought to the work site by defendant Jay Mastri, from Jay's HVAC. Plaintiff testified that he set up the ladder near the west wall of the mechanical room and extended it to approximately 15 feet. Plaintiff testified that the feet of the ladder were four feet from the wall. Plaintiff testified that when he climbed about 10 to 12 feet up the ladder to begin working, the ladder started to retract back to its normal position. Plaintiff testified that he heard part of the locking mechanism flapping against the rungs of the ladder as it retracted. Plaintiff testified that the noise sounded like "tick, tick, tick, tick" that one would hear when the locking mechanism on a ladder is unlatched and the ladder is retracting. Plaintiff testified that he held on to the ladder and rode the ladder down. Plaintiff testified that when he neared the bottom of the ladder, his wrist became caught in the rungs and his wrist was shattered. Plaintiff testified that he then fell to the ground. Plaintiff testified that in his opinion the ladder retracted because there was a problem with the locking mechanism. Plaintiff testified that no one told him to use the particular ladder in question. Plaintiff testified that the ladder was available, so he picked it up and began using it. Plaintiff testified that Rich Olson was his supervisor at EGM, and that he only saw Olson once to go over things. Plaintiff testified that Jay Mastri, of Jay's HVAC, was his day-to-day supervisor, who then reported to Rich Olson. Plaintiff testified that he had no contact with any employee or anyone

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1-06-0086 related to Madison Services. Plaintiff testified that Madison Services did not provide any of the equipment for the work project. Michael Reinersman testified at his deposition that he was employed by Madison Services, as a project or site manager, at the time of plaintiff's injury. In April 2001, Reinersman was responsible for overseeing Madison Services' projects in the Midwestern region, which included six states and between 20 to 25 jobs. Reinersman was the only Madison Services employee performing that job in the Midwestern region, at the time of plaintiff's injury. Reinersman testified that his responsibilities were to bid a job out to subcontractors, make recommendations to Madison Services, and define the scope of the job to the government and the subcontractor. Reinersman testified that he was responsible for learning what the government wanted done at its facility and then passing that scope on to the subcontractor. Reinersman testified that on the work site in question and in all the projects it did, Madison Services had no self-performed work because it had no tradesmen. Reinersman explained that since Madison Services' contracts were written as prime contracts for the government, it viewed them as more of a contract management point, wherein Madison Services handled the paperwork between the government and the subcontractors. Reinersman testified that he visited the work site, during the course of EGM's work, approximately five times. Reinersman testified that he was present on at least one occasion when EGM was performing its work. Reinersman testified that none of the work he observed was being performed in an unsafe manner, or in violation of OSHA standards. Reinersman testified that Madison Services had the right to stop a subcontractor's work at the Army Reserve Base if

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1-06-0086 there was some type of safety hazard, but Reinersman did not have any occasion where he had to exercise that right. Reinersman testified that he was not present on the day of plaintiff's injury and did not conduct a postaccident investigation. Reinersman testified that he was not aware of plaintiff's injury until December 2002. Reinersman testified that during a preconstruction meeting, the issue of dust protection was raised to protect the rest of the facility during EGM's demolition work. Reinersman testified that EGM put in place dust protection procedures. Reinersman testified that Madison Services' prime contract with the government did not call for daily site supervision and Madison Services had no role in enforcing safety rules on the work site. Madison Services did not have a safety person assigned to the work site at the Army Reserve Base. Reinersman testified that subcontractors, such as EGM, were to comply with OSHA, based on their contract with Madison Services. Subcontractors were made aware that they were responsible for safety when they contracted with Madison Services. Reinersman also testified that he never instructed EGM employees as to what tools to use or how to go about doing their work. Reinersman testified that Madison Services did not provide any equipment to be used on the work site, did not direct EGM employees as to the operative details as to how to perform their work, and did not give any job assignments to EGM employees. Richard Olson testified that he was employed as superintendent for EGM at the time of plaintiff's injury. Olson testified that he was responsible from the start to the finish of a job, that he ran everything, and that nothing happened unless it went through him. Olson testified that he was responsible for 60% to 70% of EGM's bidding, reviewed and signed contracts, hired and

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1-06-0086 fired employees, did job walk-throughs, and took care of the punch list. Olson testified that he was responsible for holding safety meetings at EGM's shop, overseeing the repair of broken ladders and tools, and providing workers with safety glasses and hard hats. Olson testified that at safety meetings, ladders would be checked to make sure they had a sound structural base. Olson testified that EGM inspects its ladders, the locking mechanisms on the ladders, and the ropes on the ladders. Olson testified that his contact with Madison Services was Michael Reinersman, who was the project manager for Madison Services. Olson testified that EGM's scope of work with Madison Services involved EGM removing air-handling units at the Army Reserve Base. Olson testified that Reinersman was the only individual from Madison Services to visit the work site, and that Reinersman visited the work site about every three days or every other day. Olson testified that when Reinersman was at the work site, no safety issues came up and no safety meetings were conducted with Reinersman present. Olson testified that Reinersman did not express the manner in which he wanted EGM employees to perform work. Olson testified that Madison Services did not provide any of the equipment, but provided the scope of work for the project. Olson testified that EGM had a lead man on the work site who supervised the work, made sure that EGM employees worked eight hours and monitored job progress. Olson testified that if Adam Blau and Jerry Johansen were at the work site, Jerry Johansen had more experience and would have been EGM's lead man. Olson testified that Madison Services did not supervise EGM's work and that EGM workers would go to him if they had any type of problems. Olson testified that EGM workers would have no reason to go to Reinersman.

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1-06-0086 Olson also testified that Jay Mastri, of Jay's HVAC, was at the work site and was a subcontractor of EGM. Olson testified that Mastri performed the same work as EGM and also reported to him. Olson testified that plaintiff's coworkers stated that plaintiff had the ladder at a bad angle and that the ladder was backwards. Olson testified that he had no other information as to what may have caused plaintiff to fall. Olson indicated that the floor was dry and that he did not see any skid marks on the floor after plaintiff's injury. Jay Mastri testified that his company, Jay's HVAC, had subcontracted with EGM on various jobs for about one year prior to working at the Army Reserve Base. Mastri testified that he did not have a written contract with EGM to work on the demolition project at the Army Reserve Base, but just filled in when needed. Mastri testified that he performed work, then billed EGM for his time worked at the Army Reserve Base. Mastri testified that he met with Reinersman from Madison Services and Olson to discuss the scope of work prior to the project. Mastri testified that he did not see anyone else from Madison Services visit the work site. Mastri testified that he began working on the work site three weeks prior to plaintiff's injury. Mastri testified that the room had cinderblock walls and a poured concrete floor that was painted. Mastri testified that he did not know how long plaintiff was on the ladder prior to his fall and that he did not see plaintiff fall. Mastri testified that the room was almost done with demolition and almost empty at the time of plaintiff's injury. He indicated that there was nothing on the ground that would have caused a problem for the ladder itself gripping the ground, and that there were no foreign substances or broken concrete on the floor. Mastri testified that there was "maybe just dust" on the floor but that plaintiff could have

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1-06-0086 swept the floor. Mastri testified that Jerry Johansen was the lead man for EGM, but all of the workers knew what to do on the work site. Mastri testified that no one from Madison Services came to the work site to supervise EGM and Jay's HVAC workers. Mastri also testified that he spoke with plaintiff after plaintiff's injury, and plaintiff complained that the ladder was missing a rope and caused his fall. Adam Blau testified that he worked as an EGM employee on and off the Army Reserve Base project prior to the time of plaintiff's accident. Blau testified that Olson was the foreman for EGM and ran the job. Blau testified that he received his instructions from Olson and everyone else also took their instructions from Olson. Blau testified that if Olson was not at the work site, Jerry Johansen was in charge. Blau testified that he had no discussions with Reinersman from Madison Services about how work should be done. Reinersman only told Blau to "be careful." Blau testified that he never had any specific conversations with Reinersman about safety or equipment at the work site. Blau also testified that when Reinersman was at the work site, he did not tell Blau how to do his demolition work and Madison Services did not provide any of the equipment that Blau used on the work site. Blau testified that he did not see plaintiff fall from the ladder. Blau indicated that the floor in the mechanical room was a regular concrete floor and that it was smooth. Blau testified that there was dust on the floor at the work site. Blau testified that he had no information as to what caused plaintiff to fall from the ladder. Scott Curatti testified that he was the owner of EGM at the time of plaintiff's injury.

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1-06-0086 Curatti testified that plaintiff was an EGM employee on the date of his injury. Curatti testified that Olson ran the job for EGM and that Olson sold the job, set it up, ran the workers, and told them what to do. Curatti testified that Olson hired Jay's HVAC to help on the work site. Curatti testified that Olson had the skill to conduct the work on the Army Reserve Base. Curatti would expect Olson to work safely on the project and see that EGM employees also worked safely. Curatti had no information that Madison Services directed any of EGM's work. John Lange testified that he is president of Madison Services and that Reinersman was the project manager for Madison Services at the time of plaintiff's injury. Lange testified that Reinersman ran between 15 to 20 jobs in multiple states. As project manager, Reinersman would coordinate with the government, oversee branch operations and have overall responsibility for the coordination of work, inspection and invoicing all delivery orders. Lange testified that he was never at the Army Reserve Base project. Lange testified that Madison Services' personnel did not perform work on the project in question. Lange testified that the work would be contracted out to various subcontractors and then supervised by the subcontractor's managers. Lange testified that Reinersman's primary responsibility was to meet with the government personnel, who would issue delivery orders and ensure that the scope of the delivery order was understood by Madison Services and Madison Services' subcontractors. Reinersman would then issue a subcontract and report back to the government and Madison regarding the status of the job. Reinersman would ascertain the status of the job by phone and occasional visits to the site and visits with government officials. Lange testified that Reinersman had no supervisory relationship with any of the people performing

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1-06-0086 demolition work at the Army Reserve Base and Reinersman was the only Madison Services' employee at the work site. On March 24, 2005, plaintiff filed his third-amended complaint at law, including two counts against Madison Services. Count II of the complaint, entitled "Duty under Prime Contract/OSHA," alleged that Madison Services owed plaintiff a duty of care based on its retention of control at the work site under section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts

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