Steve Becker Wins Summary Judgment In Construction Case; Upheld Upon Reconsideration

Steve Becker was awarded summary judgment on behalf of a developer and a general contractor, in the case of Botello v. Lexington Homes, LLC, et al., 2015 L 5620 (Cook County, IL). The plaintiff, an employee of a carpenter subcontractor (ACC, Inc.), was injured while trimming a 3rd-floor window of a new-construction townhome. His ladder was resting on an unsecured platform that his foreman had built due to cramped conditions on the job site. When the platform shifted, the ladder kicked out from under the Plaintiff, causing him to fall 3 stories, hitting the platform and a parked van, before landing on the ground. The plaintiff sustained serious injuries, including a T10-L1 compression fracture, and multiple injuries to his back, knees and ribs.

With respect to the Restatement Section 414 (Construction Negligence) counts, Steve argued that our client’s contract with ACC did not give our client the requisite right of supervision to confer a duty on either of our clients. The plaintiff attempted to argue that the “sequencing” of the job made it impossible for ACC (and the Plaintiff) to perform their work safely, and thus, our client controlled the incidental aspects or “means and methods” of the plaintiff’s work. Steve pointed to the language in the contract, as well as the deposition testimony of the plaintiff and his co-workers, both of which made clear that our client did not supervise ACC’s work, and that the ACC foreman and employees determined their own work methods. Judge Gomolinski agreed, and granted summary judgment on the “construction negligence” counts.

The second part of the motion addressed the Restatement 343 (Premises Liability) counts. Steve argued lack of notice, despite the plaintiff’s testimony that our client’s superintendent came by the site 4 or 5 times on the previous work day while they were working on the allegedly dangerous platform, and that our client spoke to the Plaintiff’s foreman while he was on the platform. Steve cited Calderon v. Residential Homes of America, 381 Ill.App.3d 333 (1st Dist. 2008), in which the appellate court declined to attribute notice to the general contractor, despite the fact that the defendant’s on-site representative had a daily presence at the construction site, and that the Plaintiffs believed that the representative had seen them performing their work in an unsafe manner. Steve emphasized that in both cases the defendant’s representative denied actual knowledge of the unsafe practice, and in both cases he denied being present when the accident occurred. Steve also argued that Premises Liability law did not impose liability in this situation, because the alleged hazard was not a “condition on the land,” within the meaning of Section 343; rather, it was a device that was created, maintained, and used exclusively by ACC. Although caselaw was somewhat ambiguous on that issue, Steve argued that our clients should not have a duty with respect to a condition wholly outside of their control. Summary judgment was granted on both premises liability counts.

There were several other components to our motion, including an “open and obvious” argument (to which the plaintiff responded by asserting the “deliberate encounter” exception) and our argument that the “Direct Liability” counts were duplicative of the “construction negligence” counts. After oral argument, Judge Gomolinski granted summary judgment on all 6 counts of the complaint.

Plaintiff’s counsel filed a motion to reconsider, conceding the Section 414 and “Direct Liability” counts, but arguing that summary judgment should not have been granted on the Section 343 counts, because the configuration of the building and its balcony limited the methods by which the work could be performed, and therefore it was foreseeable that the plaintiff would have to perform his work under dangerous conditions. The plaintiff also argued that by allowing residents to move in to the buildings that had already been completed, the residential traffic made it dangerous to put ladders on the ground level, thus further limiting the methods by which the Plaintiff’s crew could have performed the work. Steve disputed the plaintiff’s assertions, and cited passages from the plaintiff’s deposition transcript, in which he testified that there were several methods that they could have used to perform the work. Judge Gomolinski held 3 separate hearings on plaintiff’s motion, and on October 13, 2017, he denied the motion to reconsider, with prejudice.