How should general contractors think about premises liability? What duties of care do they owe the subcontractors they hire to complete various tasks? These were among the questions addressed by a recent ruling from the Illinois First District Court of Appeals.
The case arose when an electrician fell, injured himself and sued the general contractor for his injuries. The general contractor won a summary judgment in the trial court. The appellate court later overturned that ruling, and other contractors would do well to review its opinion.
Ellis v. ICC Group, Inc.
According to the appellate court, Joseph Ellis sued ICC Group, Inc. after he fell at a worksite where ICC was the general contractor. ICC was modifying a dam at the Busse Woods Reservoir as part of a flood control project for the city of Elk Grove. Ellis joined the project as an electrician working with the electrical subcontractor, Lyons & Pinner.
During his first and only day on the project, Ellis helped the chief electrician pull cable from a storage shed, through conduit and to the dam. They were working after ICC had already built a platform to house the new dam gate. Accordingly, when they needed to move from the north side of the dam to the south side, they needed to get past the dam gate. ICC had not installed any stairs or railings, so Ellis propped two ladders together to get over the gate. He successfully cleared the gate to the south, but when he tried to return to the north side, the ladder slipped. Ellis fell and injured his spine, requiring surgery.
Ellis sued ICC on three counts of negligence. He alleged:
- ICC demonstrated general negligence by breaching its duty to “exercise reasonable care in ensuring that the project site was a safe workplace”
- Per section 414 of the Restatement (Second) of Torts, ICC had failed to exercise reasonable control over job site activities
- As a matter of premises liability, ICC had left an unsafe ladder on the worksite as a presumptive method of scaling the dam gate
ICC countered by arguing that:
- The subcontractor had full control over its work, so there was no evidence ICC had “retained control” over the site per section 414
- ICC did not own the land, it had not received any notice of an unsafe condition and the way Ellis used the ladders had presented an “open and obvious” danger
- There was no evidence that ICC’s actions at the work site were a proximate cause for Ellis’ fall and injury
The trial court agreed with ICC and granted summary judgment. Ellis appealed, and the appellate court reversed the summary judgment.
Why did the court of appeals reverse the trial court’s decision?
As the appellate court noted, courts should only grant summary judgments when there are no disputes over the facts of a case. Courts may only grant summary judgments when the only meaningful debates are over matters of law. In this case, the two most pertinent questions were whether:
- ICC owed Ellis a duty of care
- The allegedly unsafe conditions ICC created could have served as proximate cause for Ellis’ fall and injury
In this blog, we’ll look at the court’s analysis of the duty of care. We’ll save the court’s analysis of the second question for a future blog.
ICC owed one duty of care, but not another
The appellate court found that ICC did not owe Ellis a duty of care under section 414 because it had not “retained control” over the site. However, it noted that Ellis had filed multiple claims that used different standards for duty of care. It was possible for ICC to owe Ellis a duty of care under one framework, but not under others.
Here, the appellate court noted that everyone owes a “duty of ordinary care.” This responsibility flows “naturally” from the reasonable and foreseeable consequences of our actions. As the court noted, “[W]here a party’s course of action creates a foreseeable risk of injury, that party has a duty to protect others from such injury.”
The court evaluated four factors to determine whether ICC owed Ellis this duty of care:
- The reasonable foreseeability of injury
- The likelihood of injury
- The size of the burden created by guarding against the injury
- The consequences of placing that burden on ICC
The court opined that all these factors suggested ICC owed Ellis a duty of care. The chief question thus became whether the “open and obvious” danger presented by the ladder set-up created an exception to ICC’s responsibilities.
The “open and obvious” exception
As the court noted, under section 343A of the Restatement (Second) of Torts, “[A] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them[.]” Accordingly, if the court viewed the ladder set-up as an “open and obvious” danger, ICC could argue that it wasn’t liable for Ellis’ injury.
However, the court noted the “open and obvious” exception comes with exceptions of its own. Indeed, the second half of the sentence addressing open and obvious hazards carves out room for these exceptions. It says that the possessor isn’t liable “unless the possessor should anticipate the harm despite such knowledge or obviousness.”
Here, the court noted that Illinois law allows for a “deliberate encounter” exception to the idea of open and obvious dangers. The deliberate encounter exception acknowledges that people may, in certain situations, feel the advantages of interacting with open and obvious dangers may outweigh the risks. In the case of Ellis, this means that he felt compelled by his work interests to brave the ladders.
A look beyond summary judgment
Injury defense is often complicated, and summary judgments aren’t the only way forward.
It’s important to remember that people could possibly disagree about whether it was reasonable for Ellis to climb a shaky ladder set-up. Yet, as the appellate court reminds us, that is a question for a jury to address. It’s not the place for a trial court judge to make decisions on facts during summary judgment. Because the appellate court felt the law supported a reasonable argument, it said ICC could have owed Ellis a duty of care.
For now, that’s the point general contractors will want to remember: Their duty of care may reach beyond the stated terms of their contracts. They need to understand general standards and precedential decisions. Their duties don’t end just because they give up control of a worksite, and their roles an employers may weigh against them when courts consider the “deliberate encounter” exception to the concept of open and obvious hazards.