Kreisman Law Offices Professional Corporation
The Illinois Supreme Court has ruled that the Union Pacific Railroad Co. did not maintain control over a bridge demolition project after selling the bridge to a scrap contractor. During work on the demolition, a bridge wall severed Patrick Joseph Carney’s legs below the knee. The accident occurred more than ten years ago.
In a 6-1 decision, the high court ruled the railroad was not negligent in selecting the contractor, Happ Inc., in Chicago Heights, Ill. The court also ruled that the railroad did not definitively know about the location of a steel plate that was part of what caused the injuries to Carney because the bridge was built in the early 20th century, and it was not in use when the company bought it.
This Illinois Supreme Court’s decision affirmed the ruling by a Cook County circuit court judge who initially granted summary judgment for the railroad before reversing the decision twice after each party moved for reconsideration. The Supreme Court’s decision reinstated summary judgment for the railroad.
While this case was pending at the 1st District Appellate Court in 2013, Carney settled the lawsuit with the contractor for $5 million. In 2014, an Illinois Appellate Court panel reversed, writing that issues of fact still existed to support the claim that the railroad was liable in the case.
According to the Supreme Court decision, someone who employs an independent contractor is not responsible for harm caused by the contractor’s errors. However, under Section 414 of the Restatement of Torts, the employer can be responsible for its own negligence if it retained some control over the contractor.
The contract between the railroad and the contractor showed that the railroad company did not retain control over the project for purposes of liability. In general, it stated that Happ’s, the contractor, was to furnish “all superintendence” of the project and provide all the “labor, tools, equipment, materials and supplies” necessary. It also stated the contractor’s workers “are not and shall not be considered employees” of the railroad company.
“These provisions do not evince an intent by defendant to retain control over Happ’s work.”
On behalf of Carney, it was argued that other provisions of the contract gave the railroad control by allowing it to stop work on the bridge if it was deemed unsatisfactory and also remove equipment it deemed unsafe. But the court pointed to a comment in the Restatement of Torts suggesting that it “is not enough that [the employer] has merely a general right to order the work stopped or resume . . . or to prescribe alterations and deviations” in order to be deemed to have some control over the work. The court also rejected the claim that Union Pacific was negligent for selecting Happ’s as its contractor. Section 411 of the restatement says employers may be liable for injuries to “third persons” caused by failure to hire a careful and competent contractor.”
The court first found that at the time of the incident in 2006, Carney was an employee of his father’s company, Carney Group, which Happ’s had used as a subcontractor to help complete the bridge work. The court also noted that Carney had received worker’s compensation benefits after the incident and that previous uses of Section 411 have not mentioned job site workers as individuals who could rely on claims for a negligent selection of a contractor.
The court also said that Carney’s claim of premises liability under Section 343 of the Restatement of Torts did not apply. That section holds that one who possesses land is liable for physical harm to invitees under certain conditions. But the Supreme Court wrote that the claim did not pass the first test, which is that the complaint must stem from a “condition on the land.” The steel plate that helped cause Carney’s injuries was part of the bridge, not the land, and the bridge was owned by Happ’s.
In addition, there was no evidence in the record that the railroad knew that the plate how far it extended in the ground where Carney was standing. The railroad acquired the Polk Street bridge in 1996, several decades after it was built and it had largely been out of use since 1982.
Because the record showed that the company “did not build the bridge, did not possess the plans for the bridge, did not use the bridge and had no reason to know that the steel floor extended several feet into the roadbed, we hold that the trial court did not err in entering summary judgment in favor of defendant on plaintiff’s premises liability claim.”
There was one dissenting opinion filed by Justice Thomas L. Kilbride. He wrote that factual disputes made summary judgments on all three counts a “drastic” outcome; that some jurisdictions consider subcontractor employees to be “third persons” under the Restatement of Torts and that the majority’s conclusion that the company should not have been expected to know about the steel floor was questionable. Although Happ’s may have owned the bridge at the time of the accident, Union Pacific had owned it the previous decade . . . I think reasonable minds can disagree on whether defendant knew or should have known about the underground steel plate and whether the plate posed an unreasonable risk of harm to the construction workers involved in removing the bridge.”
Patrick Joseph Carney v. Union Pacific Railroad Co., Illinois Supreme Court No. 118984.
Kreisman Law Offices has been handling construction injury cases, forklift accident cases, truck accident cases, crane accident cases, bicycle injury cases, motorcycle accident cases and pedestrian injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Morton Grove, Crestwood, Forest Park, Palos Hills, South Barrington, Lake Forest, Mundelein, Northbrook, Orland Park, Round Lake Beach, Skokie, St. Charles, Geneva, Bolingbrook, Romeoville, Winfield, Sauk Village, Winnetka, Willow Springs, Prospect Heights, Olympia Fields, Chicago (Garfield Ridge, Mount Greenwood, Beverly, Washington Heights, Pullman), Dolton and Calumet City, Ill.
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