Construction Law

Seventh Circuit Rules for Injured Construction Worker - Interprets Section 414 of Restatement

By Werner Sabo

In Aguirre v. Turner Construction, decided September 7, 2007 by the Seventh Circuit, the plaintiff was injured when he fell from a scaffold while working for a masonry subcontractor. He sued the general for negligence based on Section 414 of the Restatement of Torts and res ipsa loquitur. The district court granted the general summary judgment based on the general not having retained sufficient control over the subcontractor's work to give rise to any duty of care or supply a basis for liability on the res ipsa theory.

The Seventh Circuit reversed, after analyzing several Illinois cases that had analyzed Section 414. The theory is often called the "retained control" theory of negligence liability. The court explained that Section 414 allowed for direct liability against a general contractor by an injured worker for a subcontractor based on the existence of a duty of reasonable care. That duty is triggered when the GC has retained supervisory control over the independent contractor without retaining control over all operative details of a project. Liability then arises when the GC knows or by the exercise of reasonable care should know that the sub's work is being done dangerously, and has the opportunity to prevent it by exercising the power of control which the GC has retained. Liability also arises if the GC knows or should know that the sub has carelessly done its work in such a way as to create a dangerous condition, and fails to exercise reasonable care either to remedy it himself or by the exercise of his control to cause the sub to do so.

In this case, the GC had extensive safety oversight. The sub was required to follow 23 rules specific to scaffold construction. The GC's employees regularly walked the site and could require the sub to correct any deficiencies observed in scaffolds. Finally, the GC imposed specific alternative design requirements on the scaffold from which the plaintiff fell.

Full post as published by Construction Attorney Blog on November 09, 2007 (boomark / email).