Illinois Appellate Court Affirms Dismissal for Subcontractor After Ironworker Injury – Oshana v. FCL Builders

An Illinois construction worker’s lawsuit was dismissed after the trial judge found that the plaintiff had failed to show sufficient evidence to support his claim against the one of the construction job subcontractors. While the plaintiff attempted to overturn this ruling in his appeal, the Illinois Appellate Court agreed with the trial court, thereby dismissing the plaintiff’s Illinois construction injury claims against the ironwork subcontractor. Oshana v. FCL Builders.pdf.

The personal injury claim was based on an injury that occurred at the Willow Inn construction site. Plaintiff Anwar Oshana was working as an ironworker for JAK Ironworks when he fell from a steel beam. Oshana filed a personal injury claim against Suburban Ironworks, the site’s ironwork subcontractor that was responsible for fabricating and delivering the project’s structural steel. Oshana claimed that Suburban Ironworks was responsible for ensuring that the steel was erected in a safe manner.

However, Suburban Ironworks argued that it was not responsible for JAK Ironworks’s employees safety. Suburban Ironworks pointed out that it did not have an ongoing presence at the job site and therefore was not responsible for overseeing the safety of the various employees involved in erecting its steel structures. Under this theory, Suburban Ironworks moved to dismiss the case on the basis that Oshana had not presented sufficient evidence to show that Suburban had control of the construction site. The trial judge agreed and dismissed Oshana’s claim against Suburban Ironworks, a decision that Oshana then appealed.

In his appeal, Oshana argued that Suburban had fabricated and delivered the structural steel for the construction project and therefore retained sufficient control over the erection work and JAK’s employees. Oshana argued that he had shown sufficient evidence to demonstrate that the retained control exception of Section 414 of the Restatement (Second) of Torts applied.

While generally a principal is not liable for the acts and omissions of an independent contractor, Section 414 of the Restatement (Second) of Torts sets out an exception to that rule.

“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 employee owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement (Second) of Torts §414.

The courts have further clarified the application and purpose of this exception. According to the current case law, when a principal contractor entrusts a part of a work to subcontractors, but superintends the entire job through a foreman, the principal contractor is subject to liability if it:
(1) fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others,
(2) knows or should know the work was being so done, and
(3) has the opportunity to prevent it by exercising his retained power of control. Id. Cmt.b.

Oshana claims that Suburban retained control of the steel work even after it delivered the fabricated steel to the Willow Inn construction site. And while there was evidence that Suburban had agreed to fabricate and erect the project’s structural steel, there was also evidence that suggested that Suburban had then contracted out the erection to the construction site’s general contractor, FCL.

During the case’s discovery, the job supervisor testified that Suburban had not been involved in decisions regarding the type of fall protect that JAK and its employees would use at the job site. It was undisputed that Oshana had fallen from the first-floor steel beam because he had not been tied down at the time. Further evidence demonstrated that Suburban had not had an ongoing day-to-day presence at the construction site. Suburban had subcontracted the control of the safe erection of the fabricated steel to FCL, who had in turn subcontracted that work out to JAK. Therefore, JAK was responsible for ensuring that its ironworkers were working safely during the steel’s erection.

After reviewing the case facts, the appellate court found that Oshana had failed to show that Suburban maintained control over either JAK or its employees and had not met the retained control exception of Section 414. Therefore, the trial court’s ruling stood and all claims against Suburban were dropped.

Kreisman Law Offices has been handling Illinois construction accident matters for more than 35 years in and around Chicago, Cook County, and surrounding areas, including Cicero, Franklin Park, Schiller Park, Harwood Heights, Calumet City, and Harvey.

Similar blog posts:

Construction Company Loses Bid for Injury Contribution Claim – McMackin v. Weberpal Roofing

$8 Million Jury Verdict for Bricklayer Who Fell 30 Feet at Construction Site – Mazzorana v. Emil Perrotta Co.

$850,000 Jury Award for Painter Who Falls From Elevated Train Tracks – Luna v. Chicago Transit Authority