New Appellate Decision Upholding Summary Judgment for a General Contractor

In a July opinion, the Illinois Appellate Court for the Second District upheld summary judgment for the defendant general contractor, holding that where the employee of a subcontractor is injured, the general contractor does not owe that employee a duty of care unless it enforced actual control over the subcontractor’s actions.

Abbey Paving & Sealcoating Company Inc. (Abbey) was a general contractor for excavation work, overseeing and supervising the excavation, construction, design, inspection and maintenance of a storm sewer line. Thomas Neisendorf was an employee of Campton Construction Inc. (Campton), a subcontractor on the site. While Neisendorf was working in a trench which had been excavated that day, the dirt shoring wall collapsed on him, causing injury. He filed suit against Abbey, alleging Abbey’s continued role in initiating, maintaining and supervising all safety precautions at the job site amounted to construction negligence. Abbey moved for summary judgment.

Abbey argued it did not owe Neisendorf a duty because it did not retain requisite control of the worksite and had no notice of the alleged dangerous condition. Abbey emphasized it did not direct or intervene with Campton’s work, did not dig the trench or get consulted on its construction, and no representative of Abbey was on the site until four minutes prior to the accident. The trial court granted the motion for summary judgment, and Neisendorf appealed.

On appeal, Neisendorf focused upon Abbey’s retention of the right to enforce safety in its contract with Campton, its general ability to stop work, and its presence or daily communication with onsite workers.  The appellate court disregarded those arguments and upheld the trial court’s ruling, reiterating the principle that the general right to stop work or enforce safety is insufficient to impose a duty on a general contractor.  Furthermore, the mere presence of a safety program does not demonstrate control; instead, that program must actually affect a subcontractor’s means and methods of doing work.

This decision will be highly useful as we continue to defend general contractors from Section 414 claims, particularly those cases in which the general contractor passively allows subcontractors to direct and manage the work they contract to perform.  Thomas W. Neisendorf v. Abbey Paving & Sealcoating Company Inc., 2024 IL App (2d) 230209.