Dismissal of Construction Site Case Reversed by Court of Appeals; Sojka v. Bovis Lend Lease

Christopher Sojka was working as a carpenter on Chicago’s Trump Tower as it was under construction in 2008. While standing on the upper floors of the construction project, Sojka attempted to fix a steel cable when the wind knocked him back and a piece of metal struck him in the eye causing serious injuries. Although Sojka was wearing safety glasses, they did not fit his face correctly. A small gap was left at the top of his eyes, allowing the debris to penetrate.

Sojka brought a lawsuit against Bovis Lend Lease in the Circuit Court of Cook County for recovery of his injuries. The case was removed to the federal district court in Chicago because the parties had complete diversity of citizenship in that Sojka was domiciled in Illinois and Bovis was a Florida corporation with its principal place of business in New York. The amount in controversy to make the jurisdictional level exceeded $75,000.

The complaint that Sojka filed contained one count for construction negligence, a cause of action recognized in Illinois law. It was also alleged in the complaint that Bovis had a duty to provide a safe workplace; Sojka listed seven theories about how Bovis had violated that duty. One of the first theories was that Bovis knew or should have known that the weather conditions at the site were unsafe at the time of Sojka’s injury.

During the discovery process, Bovis moved for summary judgment presenting arguments in support. It said that it owed no duty to Sojka under Illinois law, and even if it did have that legal duty, it did not breach it because it had no knowledge that Sojka’s eyeglasses were not adequate. In Sojka’s response to the summary judgment motion, he argued that Bovis did have a duty to him and otherwise responded only generally to the Bovis argument about breach with respect to his safety glasses.

Although Sojka did not elaborate in his memorandum in opposition to the summary judgment motion about the dangerous conditions that caused his injury, he did attach his Federal Rule 56.1 statement of facts showing that wind was a constant problem on the higher floors at this worksite. Bovis employees had the authority to stop the work in unsafe wind conditions and had done so in the past. But they did not stop the work on the day Sojka was injured. The 56.1 statement pointed to the fact that Sojka was not an experienced carpenter and should have been working with more experienced “journeymen.”

In a reply brief, Bovis pointed out that Sojka chose not to respond to its argument about breach with respect to the safety glasses and therefore, the district court should find that Sojka conceded that issue. The district court adopted Bovis’ suggestion about the safety glasses and granted summary judgment based on Sojka’s failure to respond to the argument by Bovis about the eye protection.

A motion was filed by Sojka to reconsider the finding in the district court, but it was denied. This appeal was taken. The U.S. Court of Appeals for the 7th Circuit in Chicago concluded that a dispute of material facts remained and that summary judgment was wrong. The court held that Sojka conceded that there was no dispute of material fact on the eyewear issue, his submissions in response to the summary judgment motion set out facts that supported his theory that Bovis was negligent in permitting the work to go on under those windy conditions. Because Bovis had the authority to stop the work in inclement weather — high winds — it chose not do so. Further, the court said that Sojka should have been working with a more experienced carpenter who could have been of help to him.

For litigants in the Northern District of Illinois, the 56.1 statement is a critical and required component of the litigant’s response to summary judgment. Because of that and because the court did not want the burden of laying out facts twice, having filed the 56.1 statement along with the response to the motion for summary judgment was sufficient to raise material facts still to be decided by a jury.

Lastly the court considered Illinois law on whether Bovis, as an independent contractor, was entrusted with the control to stop the work. The court found that Bovis had a high degree of control over the worksite. Bovis was the project manager and owed the contractor’s employees the duty of care only if it “retains control of any part of the work.” Madden v. F.H. Paschen, 395 Ill.App.3d 362 (2009) (quoting Restatement (Second) of Torts §414).

Having considered all of these issues and the law, the court of appeals reversed the grant of summary judgment and returned the case to the trial judge for further proceedings.

Christopher Sojka, Jr. v. Bovis Lend Lease, Inc., 686 F.3d 394 (7th Cir. 2012).

Kreisman Law Offices has been representing individuals and families in construction site injury cases for more than 37 years in and around Chicago, Cook County and its surrounding areas, including Melrose Park, Chicago (Little Village), River Grove, Hickory Hills, Robbins, Crestwood, Park Forest, Calumet City, Chicago (Little Italy), Elmwood Park and Glenview, Ill.

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