Reasonable Delegation of Responsibility by Contractor Negates Breach of Duty
AGUIRRE v. TURNER CONSTRUCTION COMPANY (September 30, 2009)
Jose Aguirre was employed as a bricklayer by one of the subcontractors involved in the renovation of Chicago's Soldier Field. He was seriously injured when he fell off a scaffold. He brought this personal injury suit against the joint venture that was acting as general contractor for the project. The court first found that the general contractor had no duty to Aguirre and that Aguirre could not avail himself of res ipsa loquitur, in that the general contractor did not have exclusive control of the scaffold. It granted summary judgment to the defendants. On appeal, the Seventh Circuit reversed on both grounds, concluding that the defendants assumed a duty and that exclusive control is not an element of res ipsa loquitur. On remand, the case was tried to a defense verdict. Aguirre appeals.
In their opinion, Judges Posner, Ripple and Kanne affirmed. The general rule, stated the Court, is that a general contractor is not liable to someone injured as a result of the negligence of a subcontractor. An exception applies, however, when the contractor either by law or contract is required to care for the safety of the subcontractor's employees. Here, the general contractor took active steps to ensure the safety of all employees on the project. The exception therefore applies. Having found a duty, the Court proceeded to address the issue of whether it was breached. The subcontractor itself assembled the scaffold hours before the accident. Although the general contractor imposed strict requirements for scaffolds and inspected them frequently, the Court concluded that it did not breach its duty by not inspecting every one before it was used. The accident was caused either by the negligence of Aguirre or the subcontractor. Finally, the Court addressed the fact that the scaffold was missing a middle railing, the presence of which might have prevented the injuries by giving Aguirre something to grab as he fell. The problem with that, said the Court, is that the middle railing is not designed for that purpose. To rely on the absence of a safety measure, the injury complained of must be one that the safety measure was designed to prevent.
