Jeffrey Gerasi appealed an order granting summary judgment to the defendant, Gilbane Building Company Inc. The issue on appeal was whether there was a  material fact existing as to whether Gilbane retained control over the work of its subcontractor, Geary Electric. Gilbane could have been directly liable under section 414 of the Restatement (Second) of Torts for its negligence in exercising its retained control. Originally Gerasi’s lawsuit pursued a theory of liability against Gilbane under the theory of vicarious liability. He later abandoned that argument.

Gibane was hired by AT&T Services Inc. to act as general contractor for the replacement of two air conditioning systems to cool AT&T’s Wabash telecommunications building at 520 South Federal St. in Chicago. Johnson Controls inspects, maintains and performs or arranges for repairs to the Wabash building. Gilbane hired Geary Electric to do the electrical work on this project.

Gilbane had a written contract with both AT&T and Geary. Gilbane was to conduct weekly safety meetings. The AT&T/Gilbane contract required Gilbane to place “the highest importance and priority on health and safety for the [w]ork performed” and provided that Gilbane was “responsible for the safety and protection of the [w]ork, workers of [c]ontractors and [s]ubcontractors, and any other persons or public or private property as required by law.”

As AT&T was worried about service interruption, the contract also stated that Gilbane was required to maintain “electric power, light energy and telephone service *** without interruption at all times.”

Pursuant to the Gilbane/Geary contract, Geary’s work was performed under the general direction of Gilbane. Gilbane had control over schedules and milestones. Geary agreed to abide by Gilbane’s safety plan “so as to avoid injury or damage to persons or property, and to be directly responsible for damage to persons and property resulting from the failure to do so.”

The project periodically required use of temporary electrical power to equipment operated by subcontractors and pipefitters who were doing welding.

On Dec. 5, 2011, Gerasi was injured by exposure to a live electric contact. He was not wearing a face shield and other personal safety protection. The electrical tie-in was made to allow Gerasi and others to do their work, including welding. In the lawsuit filed by Gerasi, he claimed that Gilbane, AT&T and JCI (the maintenance manager) had a duty to (i) supervise the work on the project, (ii) ensure that the work was being performed in a safe and suitable manner, (iii) determine that the equipment used in the course of the project was safe, and(iv) stop work that was being done in an unsafe manner or on equipment that was unsafe, improperly maintained, or that had not been properly tested to determine its safety. Gerasi also claimed that Gilbane was negligent for not warning that circuit breaker on which Gerasi worked was energized.

After summary judgment was granted as to Gilbane, Gerasi settled with AT&T and JCI for $2.5 million.

Gerasi appealed the dismissal of Gilbane. The appeals in affirming the dismissal order of Gilbane stated that the evidence in the record, viewed in the light most favorable to Gerasi, reveals no genuine issue of material fact regarding Gilbane’s breach of duty or any proximate relationship between a breach and Gerasi’s injuries. Therefore, the trial court properly granted summary judgment in favor of Gilbane.

The court’s opinion also provided a strong dissent. Under section 414, Gilbane must have retained control over the manner of work. The court’s majority said that Gilbane must have acted or failed to act and the act or failure to act “was negligent in the manner in which it exercised, or failed to exercise, its retained control.” (Emphasis added.) The dissenting justice said that the issue is: was Gilbane negligent in allowing or failing to stop Gerasi from performing the tie-in in an unsafe manner — not whether to do a tie-in? It was stated that here, there is certainly a question of material fact as to whether Gilbane should have known that plaintiff was performing electrical tie-ins without proper personal protective equipment. A contractor’s knowledge of unsafe conditions or inadequate equipment can be a sufficient basis to find direct liability for failure to exercise general supervisory control with reasonable care, when the contractor took no steps to stop the work or otherwise remedy the situation.

Gerasi v. Gilbane Buidling Company, Inc., AT&T Services Inc. and Johnson Controls Inc., 2017 IL App (1st) 133000 (March 14, 2017)

Robert D. Kreisman and Kreisman Law Offices have been handling work injury cases, construction accident cases and traumatic brain injury cases for individuals, families and loved ones who have been injured, harmed or killed by the negligence of another for more than 40 years in and around Chicago, Cook County and surrounding communities including North Riverside, Palos Park, Oak Forest, Yorkfield, Westchester, Harwood Heights, Rolling Meadows, Deerfield and Cicero, Ill.

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