No. 3-03-0989

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

Plaintiff Otis Moorehead, an employee of subcontractorMechanical & Industrial Steel Services (Mechanical), was severelyinjured when he fell from an extension ladder at a constructionsite. He filed a complaint alleging negligence against the generalcontractor, Mustang Construction Company (Mustang). The trialcourt granted Mustang's motion for summary judgment on the basisthat Mustang did not retain sufficient control over thesubcontractor's work. We reverse and remand for furtherproceedings.

In the spring of 1999, North Central College (North Central)hired Mustang as the general contractor for the construction of afootball stadium and other facilities. Mustang then subcontractedwith Mechanical to install a drip pan system beneath the bleachersin the stadium.

The general contract between North Central and Mustangcontained numerous provisions which outlined the parties'responsibilities. Mustang agreed to "be fully and solelyresponsible for the jobsite safety" of the means, methods, andtechniques of construction. Mustang agreed to take reasonableprecautions for the safety of the employees and equipment under thecontrol or custody of the subcontractors. Mustang also agreed todesignate a safety director to help prevent accidents. The generalcontract further provided that Mustang could order the work to stopif it was being performed in an unsafe manner.

According to the subcontract between Mustang and Mechanical,Mechanical agreed to provide sufficient safeguards against allinjuries and to comply with all safety requirements. The terms andprovisions of the general contract were incorporated in theirentirety, including the safety specifications. Mechanicalexpressly assumed and promised to perform all of the work agreed toin the general contract, as those obligations pertained to the workundertaken in the subcontract.

Mustang appointed Dave Bender as its on-site project manager. Bender supervised the project on a daily basis and inspected thework to ensure that it was in compliance with the drafted plans andthat the work was being performed in a safe manner. In addition,Bender held regular construction meetings with the subcontractorsfor the purpose of discussing scheduling, coordination and safetyissues. On the date of the incident, Bender was on the site for 10hours.

Mustang's safety director, William Warden, also conductedweekly safety inspections to ensure overall compliance withOccupational Safety and Health Administration (OSHA) regulationsand to address any safety concerns. Between June and August of1999, Warden prepared five memos reporting various safety concernsand violation at the stadium. In a Mustang report issued prior toMoorehead's incident, Warden indicated that "all care must be takento protect workmen from falling. This mandates properly placed andconstructed protective railings and proper ladders set up inaccordance with the OSHA standards."

Moorehead worked as an ironworker for Mechanical, installingthe drip pan system in the stadium. He and his partner weldedpieces of angle iron under the seats while other Mechanicalemployees connected the drip pan to the angle iron. The drip pansystem was installed overhead at different elevations. To reachthe area under the bleachers, Moorehead used the top half of anextension ladder. The ladder did not have proper safety feet andwas not blocked at the base. Moorehead was severely injured whenthe ladder slipped out from under him, causing him to fallapproximately 15 feet to a cement floor.

Both Bender and Warden had observed Moorehead attaching theangle iron while using the extension ladder. Bender noted that theladder was not tied off or blocked at the base to secure itsposition. Warden noticed that Moorehead's ladder was dangerousbecause it did not have proper feet attached. Neither Bender norWarden instructed Mechanical to stop work. They did not witnessMoorehead's fall.

Moorehead brought a construction negligence suit againstMustang. The basis of Moorehead's claim was that Mustang failed toexercise with ordinary care its retained control over safety. Mustang moved for summary judgment, claiming that it did not owe aduty to Moorehead. The trial court granted the motion.

Moorehead maintains that the trial court erred in grantingsummary judgment, arguing that there was a genuine issue ofmaterial fact regarding Mustang's duty of care pursuant to section414 of the Restatement (Second) of Torts. Restatement (Second) ofTorts