The Construction Safety Act

By Bridget Duignan

Latherow Law Office

House Amendment No. 2 to House Bill 2094, otherwise known as the Construction Safety Act (hereinafter referred to as the “Act”), was introduced in the Illinois House during the 95^th General Assembly to promote workplace safety and to afford relief to workers who suffer from construction related injuries. Although the bill was sent to the House floor, it was never called for a vote. Nonetheless, it continues to gain momentum as the current state of the law remains in flux. Thus, the Act may be introduced during the 96^th General Assembly which convened in January, 2009. This article provides a general overview of the current state of the law, the Sections of the Act, its relationship with the former Structural Work Act, and the impact, if passed, it will have on construction negligence cases.

Since the repeal of the Structural Work Act in 1995, injured workers have primarily sought a remedy against third-parties under a common law cause of action, Section 414 of the Restatement (Second) of Torts. Section 414 states that 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. Section 414 is the exception to the general rule that one who employs an independent contractor is not liable for his/her acts or omissions.

The primary issue in cases brought under Section 414 is the existence of a duty. Control is the foundation of the duty analysis. Generally, a duty is created when the contractor exercises the necessary degree of control which would give rise to a duty of reasonable care. It is that degree of control that has been the subject of dispute within the appellate courts. It appears that the courts utilize two separate and distinct approaches in measuring the degree of control necessary to impose a duty. There is the more narrow approach focusing on the contractor’s control of the manner and the method of the subcontractor’s work and the approach set forth by the Illinois Supreme Court in Larson v. Commonwealth Edison Co., 211 N.E.2d 247 (Ill. 1965). The latter approach focuses more on whether the contractor contractually and/or physically takes on a supervisory role and controls the safety on the project. There has also been confusion as to whether Section 414 states a theory of direct or vicarious liability, although the 7^th Circuit may have recently put this dispute to rest. Notably, the Illinois Supreme Court has yet to lend its guidance on the issue.

We can probably blame the comments of Section 414 for some of the confusion. Most recently, the Seventh Circuit clarified comment (a) of Section 414, holding that the plaintiff may proceed on a theory of direct liability for a contractor’s own negligence based upon its failure to exercise reasonable care. The court noted the confusion among the districts, and stated that comment (a) explains that Section 414 takes over where agency law ends. Therefore, a cause of action for vicarious liability under Section 414 is inappropriate. Instead, Section 414 provides a theory of direct liability based upon the existence of a duty of reasonable care. The issue in that case was whether the defendant retained a level of control sufficient to give rise to a duty to exercise reasonable care. It is important to note that the court recognized that the subcontractor, not the defendant contractor, was in control of the operative details of its work. Accordingly, it stated that the duty is triggered when the contractor has retained supervisory control over the subcontractor without retaining control over all operative details of a project. The court further explained that the employer need not control the incidental details of the subcontractor’s work, as that kind of “overarching retention of operative control” is necessary only in claims for vicarious liability. The court looked at the defendant’s extensive safety program, including its regular monitoring and authority to stop work. It held that the defendant owed a duty of reasonable care to the plaintiff. This decision was consistent with Larson, as well as previous appellate decisions such as Bokodi v. Foster Wheeler Robbins, Inc. 728 N.E.2d 726(1^st Dist. 2000), Moss v. Rowe Const. Co., 801 N.E.2d 612(4^th Dist. 2003) and Moorehead v. Mustang Const. Co. 821 N.E.2d 358 (3^rd Dist. 2004). In Wilkerson v. Paul H. Schwendener, Inc., 884 N.E.2d 208 (1^st Dist. 2008), decided after Aguirre, the 1^st District agreed with the 7^th Circuit’s analysis. The Aguirre court was confident that if the Illinois Supreme Court was to weigh in, it would hold consistent with its decision.

Consequently, the Aguirre decision is at odds with the more narrow approach utilized by some appellate courts in interpreting Section 414. According to Martens v. MCL Construction Corp., 807 N.E.2d 480 (1^st Dist. 2004), this interpretation incorporates comment (c) of Section 414 into its duty analysis. Those cases include, Fris v. Personal Products, 627 N.E.2d 1265 (3^rd Dist. 1994); Rangel v. Brookhaven, 719 N.E.2d 174 (1^st Dist. 1999), and Cochran v. George Sollitt Const. Co., 832 N.E.2d 355 (1^st Dist. 2005). In these cases, the courts dove deeper into the everyday activities of contractor and subcontractor. Respectively, the courts found that the contractor had no duty because the subcontractor was free to perform its work in its own way and so the general contractor did not control the operative details or the incidental aspects of the work. The narrow approach requires that the contractor engage in more micro-management, necessary to put the contractor on actual notice and thus, impose a duty.

Under the proposed Construction Safety Act, a plaintiff must establish that (1) (s)he was involved in a construction activity protected under the Act; (2) the activity took place on a structure covered by the Act; (3) a scaffold or similar device defined by the Act was being used; (4) the device was unsafe or not safely placed or located; (5) the unsafe condition proximately caused the plaintiff’s injury; (6) the defendant had charge of the work; and (7) the defendant willfully violated the Act.

The Act is to be liberally construed so as to protect individuals engaging in occupations of working in and about construction, repairing, alteration, or removal of buildings, bridges, viaducts and other structures. However, liberal construction does not provide statutory protection to all classes of persons and types of situations. Generally, if an individual is connected with and significantly furthering one of these activities, (s)he is covered. This applies to both workers and their families.

Second, the activity or occurrence must take place on a structure covered by the Act. Covered structures include any house, building or structure in the process of erection or construction (except a private house, used exclusively as a private residence). These particular structures have requirements with respect to load bearing capacity which must be conspicuously displayed on a placard affixed to the structure. Buildings in cities have certain requirements where the plans and specifications require the floors to be arched between the beams, or where the floors or filling in between the floors are fireproof material or brick work.

Third, the plaintiff must show that a scaffold or similar device defined by the Act was being used and, fourth, that the device was unsafe or not safely placed or located. The Act outlines proper and safe placement of structural devices, like scaffolding and other temporary platforms. In addition, workers who utilize elevating machines or hoisting apparatuses used during the course of construction for lifting materials are subject to strict requirements. Next, the plaintiff must show that the unsafe condition proximately caused the plaintiff’s injury. Sixth, it is the plaintiff’s burden to prove that the defendant had charge of the work. Specifically, this may include any owner, contractor, sub-contractor, foreman or other person significantly involved in the erection construction, repairing, alteration, removal or painting of any building, bridge, viaduct or other structures within the Act’s provisions. Whether a defendant is a person "having charge of" the work is primarily a factual inquiry that involves the following factors:

(1) supervision and control of the work;

(2) retention of the right to supervise and control the work;

(3) constant participation in ongoing activities at the construction site;

(4) supervision and coordination of subcontractors;

(5) responsibility for taking safety precautions at the jobsite;

(6) authority to issue change orders;

(7) the right to stop the work;

(8) ownership of the equipment used on the jobsite;

(9) defendant's familiarity with construction customs and practices; and

(10) defendant's ability to assure worker safety or alleviate equipment deficiencies or improper work habits.

Finally, a plaintiff must show that the defendant willfully violated the Act. Willful in this context, means when a person having charge of the work knew, or, in the exercise of ordinary care, could have known, of the dangerous condition.

The Act also mandates the Director of Labor or the local authorities to cause an inspection of scaffolding, platforms or devices, slings, hangers, blocks, pulleys, stays, braces, ladders, irons or other parts, when it shall come to its notice, that the same are unsafe or liable to prove dangerous to the life or limb of any person. It also sets forth certain steps that the Director or local authorities must take should an inspection demonstrate a real danger.

When the Structural Work Act was in place, it provided the remedy of choice for most plaintiffs. Oftentimes, a complaint would cite two counts, the second being under Section 414, which would ultimately be dismissed before trial. Thus, if the Construction Safety Act is enacted, it is likely that construction negligence cases would proceed primarily under its provisions. This would essentially lay the undecided state of the common law under Section 414 to rest.

Opponents argue that a theory of contributory negligence is not allowed under the Act as it is under Section 414, thus allowing negligent construction workers to recover for their own negligence. In addition, they believe that insurance premiums will rise for owners and employers, threatening Illinois jobs. Opponents state that the Illinois Workers’ Compensation Act (820 ILCS 305), a no-fault statute, already provides sufficient compensation for those injured on the job.

Proponents of the Act believe that its enactment will provide more clarity of the topic of construction negligence law. For one, we will have almost 90 years of precedent to look towards, as a cause of action under the Act will be interpreted consistent with prior precedent interpreting the Structural Work Act. Further, it outlines actionable occurrences, sets guidelines for safety requirements and leaves no room to the imagination as to who is liable under the Act. The straightforward elements necessary to bring a cause of action under the Act, will lend guidance to employers as to the extent of their responsibility and ensure greater oversight. In addition, proponents argue that the Workers’ Compensation Act provides no incentive for general contractors to increase safety and oversight on the job site, as they are virtually untouchable under the Act. They state that there is no doubt that the Construction Safety Act will result in increased safety and fewer fatalities.