Are the IPI Instructions on Construction Negligence an Accurate Statement of Illinois Law?

Feature Article Judge Donald J. O Brien, Jr. (ret.) * Johnson & Bell, Ltd., Chicago Are the IPI Instructions on Construction Negligence an Accurate Statement of Illinois Law? The current version of the IPI 55.00 series jury instructions does not accurately reflect the language of the Restatement (Second) of Torts at Section 414. Further, the current version of the IPI 55.00 series does not accurately reflect Illinois case law. This paper will explore the discrepancies between the jury instructions, Restatement (Second) of Torts at Section 414, and Illinois case law. The 55.00 series of the Illinois Pattern Jury Instructions (Instructions) is based on Restatement (Second) of Torts (Restatement), 414. Section 414 of the Restatement reads as follows: 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 employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Comment a. If the employer of an independent contractor retains control over the operative detail of doing any part of the work, he is subject to liability for the negligence of the employees of the contractor engaged therein, under the rules of that part of the law of Agency which deals with the relation of master and servant. The employer, may, however, retain a control less than that which is necessary to subject him to liability as master. He may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others. Comment b. The rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself. So, too, he is subject to liability if he knows or should know that the subcontractors have carelessly done their work in such a way as to create a dangerous condition, and fails to exercise reasonable care either to remedy it himself or by the exercise of his control cause the subcontractor to do so. IDC Quarterly Volume 26, Number 1 (26.1.21) Page 1

Comment c. In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. Restatement (Second) of Torts 414 (2015 Lexis). IPI 55.00 Series Pattern Jury Instructions At the same time, the 55.00 series of the Instructions reads as follows: 55.01 Construction Negligence Work Entrusted To Another A[n] [owner] [contractor] [other] who entrusts work to a [subcontractor] [contractor] [other] can be liable for injuries resulting from the work if the [owner] [contractor] [other] retained some control over the safety of the work and the injuries were proximately caused by the [owner s] [contractor s] [other s] failure to exercise that control with ordinary care. 55.02 Construction Negligence Duty A party who retained some control over the safety of the work has a duty to exercise that control with ordinary care. 55.03 Construction Negligence Issues Made by the Pleadings/Burden of Proof Plaintiff seeks to recover damages from defendant[s]. In order to recover damages, the plaintiff has the burden of proving: 1. [The defendant] [Defendants,, and ] retained some control over the safety of the work; 2. Defendant[s] [acted] [or] [failed to act] in one or more of the following ways: a. ; or b. ; or c. ; IDC Quarterly Volume 26, Number 1 (26.1.21) Page 2

and in so [acting] [or] [failing to act], was [were] negligent in the manner in which it [exercised] [or] [failed to exercise] its control. 3. Plaintiff [name] was injured; and 4. [The defendant s] [Defendants,, or ] negligence was a proximate cause of plaintiff s injuries. [You are to consider these propositions as to each defendant separately.] If you find that any of these propositions has not been proven as to [the defendant] [any one] [or more] [or all] [of the defendants], then your verdict should be for [the] [that] [those] defendant[s]. On the other hand, if you find that all of these propositions have been proven as to [the defendant] [any one] [or more] [or all] [of the defendants], then you must consider defendant[ s] [s ] claim[s] that the plaintiff was contributorily negligent. As to [that] [those] claim[s], defendant[s] has the burden of proving: A. Plaintiff [name] acted or failed to act in one or more of the following ways: 1. ; or 2. ; or 3..; and in so [acting] [or] [failing to act] was negligent, and B. Plaintiff s negligence was a proximate cause of [his injury] [and] [damage to his property]. If you find that plaintiff has proven all the propositions required of [him] [her], and the defendant[s] ha[s][ve] not proven all of the propositions required of the defendant[s], then your verdict should be for the plaintiff as to [that] [those] defendant[s] and you will not reduce plaintiff s damages. If you find that defendant[s] [has] [have] proven all of the propositions required of [the] [those] defendant[s], and if you find that the plaintiff s contributory negligence was greater than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for [that] [those] defendant[s]. If you find that defendant[s] [has] [have] proven all of the propositions required of [the] [those] defendant[s], and if you find that the plaintiff s contributory negligence was less than 50% of the total proximate cause of the injury or damage for which recovery is sought, then your verdict should be for the plaintiff as to [that] [those] defendant[s] and you will reduce the plaintiff s damages in the manner stated to you in these instructions. IDC Quarterly Volume 26, Number 1 (26.1.21) Page 3

55.04 Construction Negligence More Than One Person Having Control One or more persons may have some control over the safety of the work. Which person or persons had some control over the safety of the work under the particular facts of this case is for you to decide. Elements of Construction Negligence Action Under Section 414 Based on the Restatement at Section 414, there are certain elements of the cause of action which must be reflected in the jury instructions. These elements are: 1. Existence of relationship there must be a relationship between the employer of the independent contractor and the independent contractor. 2. Retention of some degree of control over part of the work the employer of the independent contractor must have maintained some degree of control over any part of the work by retaining sufficient control over: a. The manner, means and methods of the work being done; or b. The operative details of the work being done. 3. Duty of reasonable care the employer must owe a duty to others, and must be found to have breached the duty by failing to exercise reasonable care with respect to the exercise of its retention of some degree of control over any part of the work. Comment a vicarious liability (law of agency) The first half of Comment a to section 414 provides for vicarious liability of the employer for the conduct of the independent contractor. The employer of the independent contractor is subject to liability for the negligence of the employees of the independent contractor retained by the employer under agency principles. The employer may be liable for retention of some degree of control which can be less than that which is necessary to subject the employer to liability as the master. Comment c. defines the degree of retained control that the employer of the independent contractor must exercise to subject the employer of the independent contractor to vicarious liability based on respondeat superior or the laws of agency. In other words, the employer is subject to liability for damages if: a. The employer retains at least some degree of control over the manner, means, and methods of the work being done; and; and IDC Quarterly Volume 26, Number 1 (26.1.21) Page 4

b. There exists the retention of a right of supervision by the employer of the subcontractor such that the contractor is not entirely free to do the work in his own way. Comment b direct liability The second theory of liability under section 414 is the theory of direct liability. Under most circumstances, direct liability in a constructive negligence context applies when the principal contractor (general contractor) entrusts a part of the work to subcontractors and superintends the entire job. Under these circumstances, the principal contractor is subject to liability if the principal contractor: a. fails to prevent subcontractors from doing even the details of the work in a manner unreasonably dangerous to others; and b. if the principal contractor knew or should have known that the subcontractor s work was being done in an unreasonably dangerous manner; and c. had the opportunity to prevent the risk of harm by exercising the power of control which the principal contractor had retained in itself. In addition, the principal contractor is subject to liability if: d. the principal contractor knew or should have known that the subcontractors carelessly performed their work as to create a dangerous condition; and e. failed to exercise reasonable care either to remedy the dangerous condition, or, through the exercise of the principal contractor s control, caused the subcontractor to remedy the dangerous condition. The IPI instructions do not require that the plaintiff prove actual or constructive knowledge of the principal contractor under a direct liability theory. However, Comment b, which defines the theory of direct liability under Section 414, clearly requires that the plaintiff prove actual or constructive knowledge of the principal contractor before the principal contractor may be subject to liability. (For a discussion of Restatement Section 414 as to Comments a, b, and c, see Cochran v. George Sollitt Constr. Co., 358 Ill. App. 3d 865, 876-879 (1st Dist. 2005), and Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d 333, 341-342 (1st Dist. 2008). Discussion of Illinois Case Law As of the writing of this paper, five cases have addressed the issue of whether the IPI 55.00 series accurately states Illinois law. The first case to address the issue was Jones v. DHR Cambridge Homes, 381 Ill. App. 3d 18 (1st Dist. 2008), which addressed the giving of IPI 55.01, 55.02, and 55.03. The court found that the IPI accurately states Illinois law. Jones was a vicarious liability case which invokes Comments a. and c. of the Restatement. IDC Quarterly Volume 26, Number 1 (26.1.21) Page 5

The next case to address the issue was Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13 (1st Dist. 2009). This was a direct liability case, and the court addressed IPI 55.01, 55.02, and 55.03 but found that the IPI accurately stated Illinois law involving a direct liability case which invokes Comments a and b. The next case to address the issue was Calloway v. Bovis Lend Lease, 2013 IL App (1st) 112746, wherein the court found that IPI 55.00 series accurately states Illinois law. The case involved both direct and vicarious liability, and the court addressed Restatement (Second) Comments a, b, and c. The next case was Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663. This case involved both vicarious and direct liability. The court addressed IPI 55.01 and found that 55.01 was not a correct statement of Illinois law, the reasons being that the Restatement requires that one person be in control of the work by the use of the phrase one who entrusts work to an independent contractor, but who maintains the control of any part of the work. Ramirez, 2014 IL App (1st) 123663, 120. IPI 55.01 does not use the control, but rather, some control, and because the jury is not instructed as to the amount of control required, a jury could find that minimal control over safety is sufficient. The court also found that IPI 55.01 does not contain an explanation of retained control, and 55.01 does not define what conduct constitutes control. The court found that IPI 55.01 was not an accurate statement of Illinois law, but did not reverse because they found that the instruction resulted in no serious prejudice to the defendant. Id. 173. The final case was Lee v. Six Flags Theme Parks, Inc., 2014 IL App (1st) 130771, which involved both vicarious and direct liability. The court addressed IPI 55.01 and adopted the Ramirez decision, and held that IPI 55.01 does not accurately state Illinois law. In regards to Jones, I do not believe that it has any precedential value because the issue before the court was whether Martens v. MCL Construction Corp., 347 Ill. App. 3d 303 (1st Dist. 2004), rendered the IPI 55.00 series inaccurate. In Jones, the parties and the court assumed the IPI 55.00 series to be an accurate statement of law, and only made a determination as to whether Martens changed the accuracy of 55.01. The court found that it did not. Diaz was a direct liability case. Comment b establishes two sets of circumstances that create direct liability. The first is when the subcontractors do their work in a dangerous manner and second is where the subcontractor creates a dangerous condition, keeping in mind that a direct liability case invokes the second half of Comment a and Comment b. Comment b requires that the contracting entity have actual or constructive knowledge that the subcontractor is doing its work in a manner unreasonably dangerous to others and/or the contracting entity knew or should know that subcontractor has created a dangerous condition. The court found that the IPI accurately stated Illinois law; yet, if one looks at 55.03 (Construction Negligence Issues Made By The Pleadings/Burden of Proof), there is no requirement that plaintiff prove actual or constructive knowledge of the employing defendant. However, the Restatement requires actual or constructive knowledge in the case of direct liability. The case law also requires actual or constructive knowledge in a direct liability case. (See O Gorman v. Paschen, 2015 IL App (1st) 133472, 100; see also Cochran, 358 Ill. App. 3d at 879-880; Lee, 2014 IL App (1st) 130771, 102; Calderon, 381 Ill. App. 3d at 347. As for 55.01, that instruction is flawed because it does not define the amount of control required, nor does it define what conduct constitutes control. Further, the instruction does not incorporate Comment c, which points out certain actions by the contracting party that do not constitute control. 55.01 s biggest flaw is that it does not require the degree of control necessary, i.e., where the subcontractor is not free to do the work in his own way. 55.01 only requires some control, which is not accurate and not consistent with the Restatement. Therefore, 55.01 is not an accurate statement of Illinois law, nor is it consistent with the Restatement. IDC Quarterly Volume 26, Number 1 (26.1.21) Page 6

A recent Second District case, Hiatt v. Western Plastics, Inc., 2014 IL App (2d) 140178, has narrowed the scope of control. Hiatt held that the control of the work must extend to the safety of the work and must include the safety of the work being done by the injured employee. A broad right of control is not enough, but the control must extend to the work being done by the injured employee. As to vicarious liability, IPI 55.01, 55.02, 55.03, and 55.04 are not correct statements of the law in another regard. Because a breach of due care by the hiring entity must proximately cause the injuries, the control sufficient to impose liability must be specific to that aspect of the work in which plaintiff is involved. Put another way, in order to have a proximate nexus, the control must be specific to plaintiff s work. Two examples of how IPI 55.01, 55.02, 55.03, and 55.04 would lead to an incorrect result are as follows: (a) assume the hiring entity retains sufficient control over the carpentry work, but not over the plumbing work, and plaintiff is doing plumbing when injured; (b) assume the hiring entity has retained sufficient control over all of the foundation work, but has not retained sufficient control over the roofing work, and plaintiff is injured while working on the roof. In each of the two examples, the hiring entity would have sufficient control over some, but not all, of the work. Yet, under IPI 55.01, 55.02, 55.03, and 55.04, the hiring entity would be subject to liability because IPI 55.01, 55.02, 55.03, and 55.04 do not restrict themselves to control over the work that plaintiff is doing. Therefore, the hiring entity, while having the requisite control over some of the work, could then be subject to liability under IPI because the IPI does not restrict itself to control over the work plaintiff is doing, but just talks about control over the safety of the work. Because there must be a proximate nexus between the requisite control and the injuries, the current IPI does away with the requisite nexus by allowing a hiring entity to become liable for the requisite control that has no proximate nexus to the injuries. In regard to the use of the phrase some control over the safety of the work in IPI 55.02, 55.03, and 55.04, I do not believe this statement is consistent with 414 of the Restatement. The Restatement does not use the term safety of the work, but uses the term control of the work. All of the references to control are directed to the work and not the safety of the work. An example of how the phrase some control over the safety of the work could lead to an incorrect result is as follows: Assume the general contractor has a supervisor on the job whose sole function was to note safety violations, and bring them to the attention of the subcontractor. Said supervisor s job could be construed as having some control over the safety of the work, even though the supervisor would have no control over the details of the work, and, therefore, could not forbid the work being done, nor could he correct a dangerous condition or cause the subcontractor to correct the same. Thus, under the current IPI 55.00 series, the general contractor would be subject to liability, while under the Restatement 414 he would not be subject to liability. Proposed Jury Instructions The author proposes the following instructions which the author believes more accurately reflect the Restatement and the Illinois case law than the existing IPI 55.00 series: 55.01 Liability of One who Employs an Independent Contractor One who employs an independent contractor normally is not liable for the acts or omissions of the independent contractor. However, if the employer of an independent contractor retains sufficient control over IDC Quarterly Volume 26, Number 1 (26.1.21) Page 7

the means and methods and the operative details of the independent contractor s work, he may subject himself to liability for the acts or omissions of the independent contractor. He may also become liable if he retains sufficient control to supervise the work done by the independent contractor and knows or should know that the work is being done in a dangerous manner or in such a way as to create a dangerous condition and fails to exercise his control in such a manner to remedy the dangerous condition or cause the subcontractor to do so, and/or that he fails to prevent the work being done in a dangerous manner, said failures proximately causing injuries. 55.02 Construction Negligence Duty A party who retains sufficient control over the work being done by the plaintiff has a duty to exercise that control with ordinary care. 55.03 Retains Sufficient Control When I used the term retains sufficient control, I mean that the [owner] [contractor] [other] must have maintained some degree of control over the manner, means and methods and/or the operative details of the work being done by the plaintiff. Alternatively the [owner] [contractor] [other] may have retained sufficient control if he has supervisory control that allows him to forbid the work being done in a dangerous manner; if he knows or should know that the work is being so done; or if he knows or should know that the work has been done in such a way as to create a dangerous condition and he fails to remedy the dangerous condition himself or cause the subcontractor to do so. 55.04 What is not Sufficient Control For purposes of making the [owner] [contractor] [other] liable for the acts or omissions of the subcontractor: The [owner] [contractor] [other] does not have sufficient control if he merely: (a) has a general right to order the work stopped or resumed; and/or (b) a general right to inspect the progress of the work; and/or (c) a general right to receive reports on the work being done; and/or (d) a general right to make suggestions or recommendations which need not necessarily be followed; and/or (e) a general right to prescribe alterations and deviations. 55.05 Construction Negligence Issues made by the Pleadings/Burden of Proof In the case of vicarious liability, under Restatement Comments a. and c., paragraph 1 should read: [The defendant] [Defendants,, and ] retained sufficient control over the work being done by the plaintiff. IDC Quarterly Volume 26, Number 1 (26.1.21) Page 8

In the case of direct liability under the last half of Restatement Comment a. and Comment b., paragraph 1 should read the same as paragraph 1 above. In the case of direct liability, paragraph 2 should read: The defendant knew or by the exercise of reasonable care [should know that the subcontractor was doing the work in a way unnecessarily dangerous to others] [or knew or should know that the subcontractors have carelessly done their work in such a way as to create a dangerous condition. Then continue with numbers 2 through 4 and the rest of IPI 55.03 as presently set out in IPI. 55.06 Construction Negligence More than One Person Having Sufficient Control One or more persons may have sufficient control over the work, which person or persons had sufficient control over the work under the particular facts of this case is for you to decide. It is noteworthy that the last time the Illinois Supreme Court addressed the Restatement (Second) of Torts, 414, was in 1965, in Larson v. Commonwealth Edison, 33 Ill. 2d 316 (1965), in the context of a Structural Work Act case (Said Act was subsequently repealed.)further, the Supreme Court has never addressed the accuracy of the IPI 55.00 series. Conclusion It is the author s hope that the Illinois Supreme Court eventually addresses the accuracy of the IPI series 55.00 construction negligence jury instructions. Indeed, the jury instructions need to be amended to reconcile the inconsistencies discussed in this paper. The proposed IPI 55.00 series jury instructions set forth in this paper accurately reflect the law of construction negligence and provide a framework for further discussion. About the Author Judge Donald J. O Brien, Jr., B.S., graduated from Northwestern University School of Law, 1963, J.D. Judge O Brien was principal in the firm of O Brien, Redding and Hyde for 27 years. He has 27 years of experience as a trial lawyer, including arguing and trying cases in both the state and federal courts and the appellate level in both the state and federal courts. Appointed Cook County Circuit Court Judge, 1990; assigned 1991 to Law Division hearing major personal injury cases and contract disputes. Elected to Cook County Circuit Court for full six-year term in November 1992. As an active trial lawyer, Judge O Brien tried 107 cases to verdict. As a Presiding Judge, he presided over approximately 320 cases that went to verdict before a jury. * The author wishes to thank colleague and friend Chuck Rantis for his insight and input during the preparation of this article. IDC Quarterly Volume 26, Number 1 (26.1.21) Page 9

About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org or contact us at PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, idc@iadtc.org. IDC Quarterly Volume 26, Number 1 (26.1.21) Page 10