Editor's comment: The Illinois Supreme Court restored a ruling in favor of Union Pacific Railroad in a court fight with a worker, employed by a third-party contractor, whose legs were amputated removing and scrapping an abandoned railroad bridge in Chicago, as the court’s majority ruled the IL Appellate Court erroneously overturned the ruling of a Cook County judge who found the railroad owed no duty in this case to the scrap contract worker.
IL Supreme Court Justice Mary Jane Theis wrote the majority opinion, filed Oct. 20; Chief Justice Rita B. Garman and justices Charles E. Freeman, Robert R. Thomas, Lloyd A. Karmeier and Anne M. Burke concurred. Justice Kilbride dissented.
The accident took place July 31, 2006, during removal of a bridge on Polk Street in Chicago. This happened when a crane operator encountered difficulty lifting a girder, a worker made a cut in a crossbeam to clear the obstruction. The crossbeam snapped, causing a different girder to fall and move a gravel-covered steel plate on the ground, propelling Plaintiff Patrick Joseph Carney forward to slide under the falling girder, unfortunately severing his legs below the knees. On Aug. 8, 2007, Plaintiff Carney who worked for his father’s company, Chicago Explosive Service filed a complaint against scrap contractor Happ’s Inc., and thereafter amended the complaint to add Defendant Union Pacific. Justice Theis’ background notes Carney’s company and Happ’s “had a 20-year business relationship, and Happ had frequently listed Carney’s assistance for bridge removal jobs.” Happ’s, the scrapper, actually bought the old bridges from Union Pacific and contracted to remove, dismantle, scrap and sell them following purchase. From our review, Union Pacific no longer owned the bridge—they simply wanted it removed by the scrapper.
While various third-party claims and counterclaims were filed and settled, the unresolved issue centered on Plaintiff Carney’s allegation Defendant Union Pacific was negligent in knowing about or disclosing the presence of the steel plate. Carney further alleged Union Pacific failed to develop an appropriate demolition plan and to adequately supervise the work, and also said it was negligent in hiring Happ’s. While the case was pending in Cook County Circuit Court, Defendant Union Pacific filed a motion for summary judgment. Though the Circuit Court granted the motion, Carney appealed; the First District Appellate Court reversed that decision. The IL Appellate Court remanded the case for further proceedings. Its ruling allowed that employers typically are not liable for independent contractors, but noted an exception when the employer “retains the control of any part of the work,” and specifically such control was an issue of fact to be determined at trial.
Union Pacific then appealed to our State’s highest court. In arguing before the IL Supreme Court, Union Pacific said its contract with Happ’s placed supervision of bridge removal with the contractor, and nothing the railroad did before or after the accident returned any part of that control to them. In agreeing with Union Pacific, Justice Theis quoted the contract saying Happ’s, its agents and employees “are not and shall not be considered as employees” of the railroad. Plaintiff Carney facts and arguments in opposition were found by the majority to be provisions of part of the very general and nonspecific rights reserved to anyone who employs any contractor or subcontractor.
The handling of the steel plate causing injury came down to Union Pacific’s assertion it was not a condition of the land it owned, rather a part of the bridge it sold to Happ’s. Plaintiff and Defendant’s testimony supported this position. Further, Justice Theis wrote for the majority, “the recordaffirmatively demonstrates (Union Pacific) did not build the bridge, did not possess the plans for the bridge, did not use the bridge, and had no reason to know that the steel floor plate extended several feet into the roadbed.”
In all matters, the IL Supreme Court found the Circuit Court was correct to grant summary judgment based on the facts and law presented to it. The IL Supreme Court allowed several groups to file amicus curiae briefs in support of Union Pacific: the Illinois Chamber of Commerce, Illinois Construction Industry Committee, and Associated Builders and Contractors; the Associated General Contractors of Illinois; and the Illinois Association of Defense Trial Counsel. It also allowed ITLA or the Illinois Trial Lawyers’ Association to file their brief in support of Carney.
Justice Kilbride’s dissent asserted the majority overlooked the fact the railroad owned the land in question since 1996 and “was arguably in a better position to know the location of the bridge’s underground steel plate than Happ’s, who acquired the bridge” less than two weeks before the accident. He further asserted “reasonable minds could disagree on whether defendant knew or should have known about the underground steel plate and whether the plate posed an unreasonable risk of harm to the construction workers involved in removing the bridge,” arguing that is enough to render summary judgment inappropriate.
In some ways, the entire IL defense industry remains concerned about the sweeping coverage that ended with the repeal of the IL Structural Work Act many years ago. This ruling confirms that odd legal concept isn’t returning any time soon.
The foregoing was originally published on the Keefe, Campbeel, Beiry Blog and is reproduced here with permission of the author. No further republication is permitted without the author’s consent.
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