SmithAmundsen's Construction Law Update

November 15, 2017
Michael McGowan



Recent Illinois decisions have clarified direct and vicarious liability pursuant to Section 414 of the Restatement (Second) of Torts in construction negligence cases. In one of these cases, the Illinois Supreme Court stated that Section 414 does not provide a basis for a vicarious liability claim of one contractor for the alleged negligent conduct of another contractor.

The court in essence adopted a two-part test to assess whether a contractor had exerted sufficient supervisory control over the work of the plaintiff’s employer to trigger a legal duty under Section 414. It stated that the best indicator of whether the defendant retained sufficient control to trigger a duty under Section 414 is the written contract between the parties. It then noted that if the written contract provided no evidence of retained control, then, alternatively, control may be demonstrated by conduct (both before and after the incident) on the part of the defendant.  

In both prongs of the supervisory control analysis, the court emphasized that there must be such a retention of a right to supervision that the plaintiff’s employer is not entirely free to do the work in its own way. Contractual provisions that reserved the right to order the work stopped, to inspect its progress, to receive reports, to make suggestions and recommendations, to prescribe alterations and deviations, and perhaps most importantly, to require that the work be performed safely, did not give rise to a duty under Section 414.

The court stated that the fact that the defendants had a safety program, safety manuals, or a safety director also did not constitute supervisory control over the work.

It should be noted that this new legal development in Illinois does not preclude the filing of vicarious liability causes of action in construction injury cases, but it does establish that any such causes of action cannot look to Section 414 as a basis.

The Takeaway
The path to summary judgment victory for general contractors and prime contractors in Illinois has been made less difficult.

 Attribution to my law partner Dennis Cotter and his law clerk Katarina Savic