JUSTICE WOLFSON delivered the opinion of the court:
With the repeal of the Structural Work Act, a general contractor's
liability for injury to an independent subcontractor's employee
at a worksite will be based on common law negligence principles.
Still, the question of who controls the work must be answered
before it can be said a duty exists to use reasonable care.
In this case, we find the trial judge correctly determined
the general contractor owed no duty to the independent contractor's
Lincoln Lofts, Inc. (Lincoln) owned the building located at
3151 North Lincoln Avenue in Chicago. In an effort to rehab the
property into lofts for sale, Lincoln entered into a contract
with Brookhaven Constructors, Inc. (Brookhaven). Brookhaven,
as general contractor, entered into contracts with several subcontractors,
including Drywall Services, Inc. (Drywall).
Drywall, according to its contract with Brookhaven, was to
provide all labor, materials, tools, plant, equipment, competent
full-time supervision and services, and "do all things necessary
for the proper performance, installation, construction and completion
of all the Steel Studs and Gyp board hereinafter called
the `Work' under and in accordance with the General Contract
***." (Emphasis in original.)
At about 8 a.m. on August 28, 1996, 26-year-old Martin Rangel
(Rangel) arrived at the Lincoln Lofts project. Rangel was employed
by Drywall as a drywall hanger -- a job he had done for various
employers over the past six years. When Rangel arrived at the
worksite he reported to his supervisor, Francisco Morphin, and
was given his work assignment. Rangel was told to work on a scaffold,
which Drywall constructed two days earlier. The scaffold was
located at the rear entrance of the Lincoln Lofts building, on
a ramp leading to the underground garage. The scaffold was a
large structure, 10-15 feet tall and consisting of three towers
joined by wooden planks. The scaffold had been leveled and braces
were added to keep the scaffold from slipping down the ramp.
On August 27, 1996, the previous day, Rangel and his co-workers
worked on the scaffold all day, putting up drywall on the ceiling.
This day, Rangel used the same scaffold, which had not been moved,
to put up dry wall on the walls.
Rangel said Morphin instructed him on the morning of August
28th regarding the installation of the drywall. Morphin told
Rangel he should step on the braces that extended out from the
scaffold when it was necessary to maneuver the drywall into place.
Rangel did as he was instructed. As he assisted in positioning
the drywall, Rangel stepped down on brace 1 and brace 2 without
incident. However, when he stepped onto the third brace it gave
way and Rangel fell 7-10 feet to the concrete floor below. Rangel
lost consciousness when he fell and suffered a basal skull fracture.
He also suffered a broken left arm and a broken finger on the
Rangel brought suit against Brookhaven, the general contractor
for the Lincoln Lofts project. Relying on section 414 of the
Restatement (Second) of Torts, Rangel contended Brookhaven owed
him a duty of care, which it breached by failing to inspect the
scaffold and/or by failing to warn him of the dangerous condition
the scaffold presented.
Brookhaven filed a motion for summary judgment, claiming it
owed no duty to Rangel, the employee of an independent contractor.
The trial court granted the motion and Rangel brought this appeal.
Rangel's cause of action against Brookhaven is premised on
common-law negligence. In any action for negligence, the plaintiff
must present sufficient evidence to establish the defendant owed
a duty to the plaintiff. Wojdyla v. City of Park Ridge, 148
Ill. 2d 417, 592 N.E.2d 1098 (1992); Rogers v. West Construction
Co., 252 Ill. App. 3d 103, 623 N.E.2d 799 (1993). Whether
a duty exists is a question of law to be decided by the court,
and if no duty exists there can be no recovery. Schoenbeck
v. Du Page Water Comm'n, 240 Ill. App. 3d 1045, 607 N.E.2d
693 (1993). We review the trial court's grant of summary judgment
in favor of Brookhaven under a de novo standard. Outboard
Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d
90, 102, 607 N.E.2d 1204 (1992).
As a general rule, one who employs an independent contractor
is not liable for the acts or omissions of the latter. Gomien
v. Wear-Ever Aluminum, Inc., 50 Ill. 2d 19, 276 N.E.2d 336
(1971); Pasko v. Commonwealth Edison Co., 14 Ill. App.
3d 481, 302 N.E.2d 642 (1973). Section 414 of the Restatement
(Second) of Torts, a recognized expression of Illinois law, provides
an exception to the general rule. See Larson v. Commonwealth
Edison Co., 33 Ill. 2d 316, 211 N.E.2d 247 (1965).
Section 414 of the Restatement (Second) of Torts states:
"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." (Emphasis added.) Restatement (Second) of Torts §
The "retained control" concept is explained in comment
(c) to section 414, which states:
"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." (Emphasis added.) Restatement
(Second) of Torts § 414, comment c, at 388 (1965).
In the present case, the subcontract agreement between Drywall
and Brookhaven provided:
"The General Contractor shall have the right to exercise
complete supervision and control over the work to be done by
the Subcontractor, but such supervision and control shall not
in any way limit the obligations of the Subcontractor."
Rangel, citing Sobczak v. Flaska, 302 Ill. App. 3d
916, 706 N.E.2d 990 (1998), contends this contract, along with
affidavits presented to the trial court, raised a fact question
on whether Brookhaven exerted sufficient control over Drywall
to be held liable. We disagree.
In Sobczak, there was evidence the injured employee
was working under the direct supervision of the property owner
(Flaska), who listed himself as general contractor on the permit
for renovations at his home. The evidence showed Flaska "told
Sobczak what to do and how to do it, or passed such information
through others." Sobczak, 302 Ill. App. 3d at 923.
In this case, Brookhaven's reservation of the right of supervision
over Drywall is a general right. It does not refer, directly
or indirectly, to a right to direct the installation of drywall
or the erection of the scaffold.
There is no evidence to suggest Drywall was not entirely free
to perform the work in its own way. The evidence showed Brookhaven
never directed the "operative details" of the work
performed by Drywall and Rangel. Drywall, not Brookhaven, supplied
the scaffold on which Rangel worked. A Drywall supervisor, not
Brookhaven, directed Rangel to utilize the braces when necessary
for positioning the drywall. This unsafe method of performing
the work, which led to Rangel's injury, was proposed by Rangel's
employer just hours before the accident. Here, as in Bezan
v. Chrysler Motors Corp., 263 Ill. App. 3d 858, 864, 636
N.E.2d 1079 (1994), there is nothing to suggest that the general
contractor "knew or had notice of the hazardous method employed
within this restrictive time period."
We find there can be no liability imposed on Brookhaven because,
as the court said in Fris v. Personal Products Co., 255
Ill. App. 3d 916, 924, 627 N.E.2d 1265 (1994), "[the employer]
controlled the ends, [the independent contractor] was responsible
for the means by which those ends were achieved." That is,
even where the employer or general contractor retains the
right to inspect the work done, orders changes to the specifications
and plans, and ensures that safety precautions are observed and
the work is done in a safe manner, no liability will be imposed
on the employer or general contractor unless the evidence shows
the employer or general contractor retained control over the
"incidental aspects" of the independent contractor's
work. Fris, 255 Ill. App. 3d at 924. See also,
Steuri v. Prudential Insurance Co. of America, 282 Ill.
App. 3d 753, 668 N.E.2d 1066 (1996)(summary judgment proper where
it is shown the employer delegated responsibility for the details
of the work to the independent contractor); Rogers v. West
Const. Co., 252 Ill. App. 3d 103, 623 N.E.2d 799 (1993)(no
liability found under section 414 of the Restatement when the
responsibility of the general contractor is primarily focused
on checking daily progress, not supervising the manner in which
work was done).
We agree with the trial court that under the circumstances
of this case the section 414 exception does not apply. Brookhaven
owed no duty to Rangel, an employee of the independent contractor,
Drywall. We find summary judgement in Brookhaven's favor was
proper. We affirm the order granting Brookhaven's motion for
Cerda, and Burke, JJ., concur.