{ "id": 4282777, "name": "NATIVIDAD F. GARCIA, Plaintiff-Appellant, v. WOOTON CONSTRUCTION, LTD., Defendant-Appellee (Smithfield Properties Development, L.L.C., et al., Defendants)", "name_abbreviation": "Garcia v. Wooton Construction, LTD.", "decision_date": "2008-12-29", "docket_number": "No. 1-07-1883", "first_page": "497", "last_page": "510", "citations": [ { "type": "official", "cite": "387 Ill. App. 3d 497" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "302 N.E.2d 642", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "pin_cites": [ { "parenthetical": "\"evidence supports the submission to the jury the question\" of the defendant's negligence" } ], "opinion_index": 0 }, { "cite": "14 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2688683 ], "year": 1973, "pin_cites": [ { "page": "490", "parenthetical": "\"evidence supports the submission to the jury the question\" of the defendant's negligence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/14/0481-01" ] }, { "cite": "649 N.E.2d 1323", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "the facts of the case were not \"sufficiently one-sided\" that the court could determine the issue of proximate cause as a matter of law" } ], "opinion_index": 0 }, { "cite": "165 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483569 ], "year": 1995, "pin_cites": [ { "page": "118", "parenthetical": "the facts of the case were not \"sufficiently one-sided\" that the court could determine the issue of proximate cause as a matter of law" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0107-01" ] }, { "cite": "758 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "197 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259095 ], "year": 2001, "pin_cites": [ { "page": "476" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0466-01" ] }, { "cite": "807 N.E.2d 480", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "347 Ill. App. 3d 303", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3950731 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "306" }, { "page": "318-20" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0303-01" ] }, { "cite": "794 N.E.2d 937", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3473765 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "738" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0730-01" ] }, { "cite": "728 N.E.2d 726", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "parenthetical": "general contractor should have been aware of the unsafe, manual hoisting method being used by the plaintiff to lift the metal sheets" } ], "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 1051", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411636 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "1059", "parenthetical": "general contractor should have been aware of the unsafe, manual hoisting method being used by the plaintiff to lift the metal sheets" }, { "page": "1054" }, { "page": "1063" }, { "page": "1063" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/1051-01" ] }, { "cite": "501 F.3d 825", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 3706938 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "831", "parenthetical": "duty of care arose where \"specific alternative design requirements on the scaffold from which [the plaintiff] fell\" were imposed by general contractor" }, { "page": "831" }, { "page": "831" } ], "opinion_index": 0, "case_paths": [ "/f3d/501/0825-01" ] }, { "cite": "211 N.E.2d 247", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "33 Ill. 2d 316", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2883616 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/ill-2d/33/0316-01" ] }, { "cite": "821 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "parenthetical": "\"the lack of proximate cause may be determined by the court as a matter of law where the facts\" are legally insufficient" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 351", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448906 ], "year": 2004, "pin_cites": [ { "page": "395-96", "parenthetical": "\"the lack of proximate cause may be determined by the court as a matter of law where the facts\" are legally insufficient" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0351-01" ] }, { "cite": "719 N.E.2d 174", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "307 Ill. App. 3d 835", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173514 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "838" }, { "page": "837" }, { "page": "839" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0835-01" ] }, { "cite": "629 N.E.2d 569", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "257 Ill. App. 3d 905", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2889169 ], "year": 1994, "pin_cites": [ { "page": "909" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/257/0905-01" ] }, { "cite": "325 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 637", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2788378 ], "year": 1975, "pin_cites": [ { "page": "640-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0637-01" ] }, { "cite": "489 N.E.2d 867", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "111 Ill. 2d 229", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3166688 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "240" }, { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/111/0229-01" ] } ], "analysis": { "cardinality": 1161, "char_count": 31639, "ocr_confidence": 0.772, "pagerank": { "raw": 5.99351890452814e-08, "percentile": 0.37248291309647785 }, "sha256": "f358e4054e7ef079207028c915deadbf569ec5b7c43ecbbeb16368866e8b6a27", "simhash": "1:4a9f9452969fae20", "word_count": 5178 }, "last_updated": "2023-07-14T22:05:00.567552+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "NATIVIDAD F. GARCIA, Plaintiff-Appellant, v. WOOTON CONSTRUCTION, LTD., Defendant-Appellee (Smithfield Properties Development, L.L.C., et al., Defendants)." ], "opinions": [ { "text": "JUSTICE GARCIA\ndelivered the opinion of the court:\nThe plaintiff in this construction negligence case, Natividad Garcia, injured his back while employed by JP Cullen & Sons, an iron-working subcontractor, doing work on a condominium project. The plaintiff appeals the grant of summary judgment in favor of the defendant, Wooton Construction, Ltd., the general contractor of the project. We are presented with two questions: (1) whether Wooton retained sufficient control over the work by Cullen to impose a duty of reasonable care under section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts \u00a7414 (1965)) and (2) whether a material question of fact exists as to the proximate cause element of the plaintiffs negligence claim against Wooton. For the reasons that follow, we find the facts give rise to a duty of care and it is for a jury to decide the question of proximate cause. Accordingly, we reverse and remand.\nBACKGROUND\nIn August 2002, a condominium complex known as \u201cKingsbury on the Park\u201d in Chicago was being developed. The property was owned by Smithfield Properties Development, L.L.C. Wooton Construction, Ltd., the general contractor, was a subsidiary of or otherwise affiliated with Smithfield.\nWooton contracted with Zalk Josephs Fabricators, L.L.C., to fabricate structural steel. Zalk subcontracted with the plaintiff\u2019s employer, JP Cullen & Sons, to erect the steel.\nRoss Nasca was Wooton\u2019s superintendent on the Kingsbury project; Bob Robertson was the head of Wooton\u2019s safety department and Harles Epps was Wooton\u2019s safety director. William Dohnke was Cullen\u2019s general foreman. Kary Eckhardt was Cullen\u2019s \u201craising gang\u201d foreman and the plaintiffs direct supervisor. Rudy Saunders was the union steward.\nShortly before his lunch break on August 28, 2002, the plaintiff, an ironworking apprentice with the Cullen raising gang, was in the process of unloading a crane basket containing approximately 10 kegs of bolts. Each keg weighed between 100 and 200 pounds. The plaintiff was standing inside the basket and was handing the kegs to another Cullen employee, Larry Dempsey, when the plaintiff felt something \u201cpop\u201d in his back and he experienced severe pain. He reported the injury to Dohnke.\nOn September 4, 2002, the plaintiff went to Northwestern Hospital and was eventually diagnosed with a herniated disc. The plaintiff underwent surgery to repair the herniated disc, but was not \u201ccleared\u201d by his doctor to return to ironworking.\nOn August 2, 2004, the plaintiff filed a one-count construction negligence complaint in the circuit court of Cook County, naming Wooton, Smithfield, and Harris Management, Ltd., as defendants. The plaintiff filed a first-amended complaint on September 20, 2005, adding Zalk as a defendant. Wooton, Smithfield, and Zalk filed a third-party complaint for contribution against Cullen on July 27, 2006.\nOn August 10, 2006, the plaintiff filed a second-amended complaint. The plaintiff alleged the defendants committed nine instances of negligence, only two of which are pertinent to the issues before us: (1) the defendants failed to provide a crane or other mechanical device to move the kegs of bolts and (2) the defendants permitted the plaintiff to move the kegs manually where they knew or should have known a crane or other device was necessary.\nUltimately, Wooton filed a motion for summary judgment. Wooton contended it did not owe a duty to the plaintiff because it did not retain control over Cullen\u2019s work under section 414 of the Restatement (Second) of Torts. Wooton also argued the plaintiff could not establish its acts or omissions proximately caused the plaintiff\u2019s injury.\nAmongst the evidence attached to Wooton\u2019s motion and the plaintiff\u2019s response are depositions from the plaintiff, Nasca, Dohnke, William Harris Smith, the president of Smithfield, and ironworkers Lawrence Dempsey, Michael Barrett, and Truman \u201cDerrick\u201d Keene III, all of whom were employed by Cullen. Also attached are the contract between Wooton and Zalk, the subcontract between Zalk and Cullen, and Wooton\u2019s \u201cSub-Contractor Safety Orientation Packet\u201d (safety packet).\nSection 2.1 of the Wooton-Zalk contract states that Zalk \u201cshall perform and furnish all labor, supervision, services, appliances, materials, equipment, tools, scaffolds, hoisting, transportation, storage and all other things necessary to prosecute and complete the Work.\u201d The agreement between Zalk and Wooton provided that a crane for subcontractor\u2019s use would be provided. Section 2.7 provides that Zalk \u201cagrees that the prevention of accidents to workers engaged upon or in the vicinity of the Work is its responsibility, even if [Wooton] establishes a safety program for the entire Project. Subcontractor shall establish and implement safety measures, policies and standards conforming to those required or recommended by governmental or quasi-governmental authorities having jurisdiction and by [Wooton] and [Smithfield].\u201d\nThe Zalk-Cullen subcontract indicates Cullen is to \u201cFurnish Supervision, Labor, Equipment, Consumable Materials, Electrical Power, Hoisting, and Rigging to unload and erect structural steel and Precast.\u201d Cullen was not to furnish a crane. Cullen also agreed to be bound by the Wooton-Zalk contract, which was incorporated into the subcontract.\nWooton leased the crane for the jobsite and, as acknowledged in Wooton\u2019s brief, \u201cthe general practice in the construction industry\u201d is for the general contractor to have \u201cultimate control of job site cranes.\u201d Cullen employees Lawrence Dempsey, William Dohnke, Truman Keene and Michael Barrett in their depositions expressed dismay over Cullen not having exclusive use of the crane. Cullen did supply its own lifting basket and rigging for the crane.\nWooton\u2019s safety packet consists of 13 pages and contains 17 specific topics, including a dress code, protective equipment, \u201cfall protection,\u201d and \u201cgeneral safety regulations.\u201d The safety packet generally provides the workers must wear shirts, long pants and work boots. They must utilize hard hats, protective eyewear, and, where necessary, earplugs. It also prohibits the use of illegal drugs, alcohol, firearms, and cameras. It directs how ladders and scaffolds are to be utilized and sets forth seven regulations regarding the use of \u201cCranes and Rigging,\u201d including that only authorized personnel may operate cranes and that the \u201cCapacities of rigging equipment shall not be exceeded.\u201d The final page states the packet is \u201cto be given to every employee prior to beginning work.\u201d It also states that employees are required to sign a form demonstrating \u201ccompletion of the safety and health orientation.\u201d No employee may begin work prior to completing orientation.\nSmithfield president William Harris Smith testified that Wooton\u2019s superintendent, Ross Nasca, was the highest-ranking Wooton employee on the jobsite daily. Nasca\u2019s duties included being familiar with the daily progression of the job and making sure the work stayed on schedule.\nSmith testified Wooton\u2019s safety packet was part of Wooton\u2019s overall safety plan. Wooton required each subcontractor to comply with the safety packet and OSHA regulations. Nasca had authority to require compliance with the safety packet and OSHA. If Nasca thought work was being performed unsafely, he had the authority to stop the work, but \u201c[t]hat is all he would be authorized to do.\u201d He could keep the work stopped until the work could be completed safely.\nRoss Nasca testified his duties as the superintendent included compiling the job schedule, monitoring the progress of the work, and ensuring the work stayed on schedule. Nasca testified that Wooton safety employees, Robertson and Epps, were responsible for placing the project safety packet in the hands of the foreman of each subcontractor. The foremen were expected to share the information with their employees. He described the packet as outlining \u201cgeneric\u201d rules Wooton thought to be important. Subcontractors were also required to hold weekly \u201ctoolbox talks,\u201d to discuss safety measures. The subcontractor foremen would decide the topic of the talks. Sign-in sheets for the talks were required to be given to Nasca.\nIf a subcontractor employee felt a work condition was unsafe, he or she was free to talk to Nasca about the concern. Nasca would do what he could to remedy it.\nNasca explained there was only one crane available on the Kings-bury project. Wooton leased the crane, which was operated by employees of another company controlled by Smithfield. Nasca testifled Cullen \u201ccontrolled\u201d the crane, but Nasca, as the superintendent, could make the crane available to other subcontractors. Nasca and Cullen would make decisions regarding the availability of the crane. Nasca explained:\n\u201c[W]e gave them [Cullen] the crane with the idea that they had a hundred percent use of the crane; so whatever I would have to schedule as far as other subcontractors would have to be done, A, during their break, lunch period, or we would have to cover the premium time for our vendor as opposed to paying their raising gang. You know, if I take \u2014 if I was to theoretically take the crane away from them, now I have all their ironworkers, they\u2019re looking at me saying, well, you owe me for that. That\u2019s a path that\u2019s, you know, I would not go down.\u201d\nAccording to Nasca, Cullen never complained about the unavailability of the crane. Rather, the other subcontractors complained about Cullen having first priority.\nNasca also testified that the Cullen employees were responsible for their own safety. Nasca was not involved in how they \u201crigg[ed]\u201d or lifted their bolts. He also did not direct the Cullen employees on how to move the kegs of bolts. \u201cHow they move their bolts around is up to them.\u201d However, Nasca had never seen kegs of bolts moved in any manner other than with a crane.\nWilliam Dohnke, Cullen\u2019s general foreman, testified that neither Nasca nor any other Wooton employee told the Cullen employees how to perform their jobs. However, Nasca could stop the work if he saw an unsafe practice or if the work did not match the project specifications.\nDohnke was required by Wooton and Cullen to complete weekly safety reports. Saunders, the union steward, also conducted weekly safety meetings. All ironworkers were required to attend but no minutes were kept.\nDohnke also testified about the crane. According to Dohnke, Wooton provided the \u201chook\u201d but Cullen provided the \u201cbasket\u201d and \u201cchokers.\u201d Dohnke denied that Nasca limited other subcontractors\u2019 use of the crane to times when Cullen would not otherwise be using it. Dohnke testified that Nasca would take the crane away from Cullen without limitation. Nasca\u2019s taking of the crane sometimes prevented Cullen from completing the crane-dependent work Cullen had started. Dohnke complained to Nasca about this practice on several occasions before the date of the plaintiffs injury. Dohnke told Nasca the unavailability of the crane was putting his employees\u2019 safety at risk.\nOn the day the plaintiff was injured, Nasca told Dohnke he was taking the crane but would return it after lunch. Dohnke did not know whether Nasca meant right after lunch or hours later. Because the crane was being taken, the plaintiff could not use the preferred, but more time-consuming, method of using a choker and the crane to unload the kegs from the basket. Instead, the plaintiff unloaded the kegs manually. This was done at the direction of Kary Eckhardt, the raising gang foreman. Eckhardt also directed the plaintiff to empty the basket before the lunch break.\nThe plaintiff testified in his deposition that Nasca never told him how to do his work but, on several occasions, stopped workers who were not properly tied off. The plaintiff often saw Wooton\u2019s \u201csafety person\u201d on the jobsite. The person would regularly check to see that workers were wearing the necessary safety equipment and that they were \u201ctied on.\u201d He attended weekly safety meetings that were conducted by his union steward.\nAccording to the plaintiff, Nasca set a \u201ccrane schedule\u201d that would permit other subcontractors to use the crane while the Cullen employees were on a break, such as lunch. On the day of his injury, the plaintiff was manually unloading the kegs of bolts at the direction of his foreman, Kary Eckhardt. Eckhardt told the plaintiff to hurry and finish moving the kegs of bolts by lunch because another subcontractor needed to use the crane. The plaintiff would have preferred to \u201ccinch\u201d the kegs individually with the crane to unload them. This method involved less manual lifting, because the crane did the work, but took more time. According to the plaintiff, it is not unusual for an ironworker to have to lift a single keg of bolts, but it was unusual for a worker to have to unload multiple kegs from a crane basket. In his view, he would not have been injured if he had not been in a rush to finish emptying the basket by lunch.\nLawrence Dempsey was working with the plaintiff when he was injured. Eckhardt instructed that the basket had to be unloaded before lunch because another subcontractor needed the crane. Dempsey also explained the usual way to unload the basket was to use the crane to individually lift them out. However, Dempsey and the plaintiff were unloading it manually because they were in a hurry to finish before lunch. Dempsey testified it was \u201cunusual\u201d for the general contractor to supply the crane, which the Cullen raising gang needed to perform its work. Dempsey testified that Nasca had \u201csupreme say so\u201d on the job. Although he had several conversations with Nasca, he did not recall whether Nasca ever told him how to do his job.\nDerrick Keene testified that nobody from Wooton ever told him how to do his job. However, if Nasca would have told him to stop his work for a safety reason, Keene would have listened. According to Keene, the Cullen employees were not free to do their job in the manner in which they preferred when the crane was absent. Instead, they had to use unsafe practices contrary to their training. Prior to the plaintiff\u2019s injury, Keene complained to Nasca because the unavailability of the crane required Keene to manually move a 20-foot \u201cperimeter angle.\u201d According to Keene, Nasca \u201cblew off\u201d his complaint.\nMichael Barrett testified the customary way to unload a basket in the ironworking industry is to use a \u201cchoker\u201d and a crane to lift the kegs individually. This was why ironworkers usually supplied their own cranes: so they could lift things safely. Wooton\u2019s control of the crane caused problems because Wooton would let other subcontractors use it. When this happened, the Cullen employees either had to manually lift items or risk being \u201cshut down.\u201d That the crane was unavailable at times was a problem for Cullen during the whole job. Screaming matches between the employees from Cullen and the employees from Wooton would often result.\nBarrett testified he was \u201cworking the phones\u201d with the crane operators on the day the plaintiff was injured. He was about 10 feet from the plaintiff and also near Nasca and Eckhardt. Barrett heard Nasca tell Eckhardt that Wooton was taking the crane. \u201c[Qjuite a few swear words\u201d and \u201can argument\u201d resulted. In response to Eckhardt\u2019s protests, Nasca told him that the Cullen employees would have to \u201clift the stuff manually\u201d because he was pulling the crane.\nThe trial court granted Wooton\u2019s motion for summary judgment, finding Wooton retained only a general right of supervision, which was insufficient to invoke a duty of care under section 414. Without explaining its reasoning, the court also found the plaintiff failed to present evidence to establish proximate cause. This timely appeal followed.\nANALYSIS\nSummary judgment is proper if \u201cthe pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.\u201d 735 ILCS 5/2 \u2014 1005(c) (West 2006); Purtill v. Hess, 111 Ill. 2d 229, 240, 489 N.E.2d 867 (1986). Wooton, as the moving and successful party on the summary judgment motion, does not (and cannot) challenge the facts in this case as presented to the circuit court below, as summary judgment \u201cis not designed to try an issue of fact, but rather to determine whether one exists.\u201d Rivan Die Mold Corp. v. Stewart Warner Corp., 26 Ill. App. 3d 637, 640-41, 325 N.E.2d 357 (1975). We construe what is contained in the papers on file most liberally in favor of the opponent. Rivan Die Mold Corp., 26 Ill. App. 2d at 640. \u201cIf, from a review of the pleadings and evidentiary material before the trial court, a reviewing court determines that *** the summary judgment was based upon an erroneous interpretation of the law, a reversal is warranted.\u201d Pagano v. Occidental Chemical Corp., 257 Ill. App. 3d 905, 909, 629 N.E.2d 569 (1994).\nIn its written order granting summary judgment, the trial court gave two grounds. First, Wooton owed no duty of care to the plaintiff. See Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 838, 719 N.E.2d 174 (1999). Second, in any event, the plaintiff could not show that his injury was proximately caused by Wooton\u2019s alleged breach of its duty of care. See City of Chicago v. Beretta US.A. Corp., 213 Ill. 2d 351, 395-96, 821 N.E.2d 1099 (2004) (\u201cthe lack of proximate cause may be determined by the court as a matter of law where the facts\u201d are legally insufficient). Our review is de novo. Purtill, 111 Ill. 2d at 240.\nI. Duty\nThe general rule is that one who employs an independent contractor is not liable for the independent contractor\u2019s acts or omissions. Section 414 provides an exception to this general rule.\n\u201cOne 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.\u201d Restatement (Second) of Torts \u00a7414, at 397 (1965).\nThis exception, known as the \u201cretained control exception,\u201d was recognized by our supreme court in Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 211 N.E.2d 247 (1965). In order for this exception to apply, it must be shown that the general contractor retained sufficient control over the work of the subcontractor so that the law recognizes the existence of a duty to exercise that \u201csupervisory control with reasonable care.\u201d Aguirre v. Turner Construction Co., 501 F.3d 825, 831 (7th Cir. 2007) (duty of care arose where \u201cspecific alternative design requirements on the scaffold from which [the plaintiff] fell\u201d were imposed by general contractor). Whether Wooton retained a level of control sufficient to give rise to a duty of reasonable care is a question of law. Rangel, 307 Ill. App. 3d at 837.\nAt oral argument, the plaintiff made clear that his negligence claim is based on comment c of section 414, where a duty of care is recognized when a general contractor \u201cretained *** some degree of control over the manner in which the work [of the subcontractor] is done.\u201d Restatement (Second) of Torts \u00a7414, Comment c, at 388 (1965). In essence, the plaintiff contends a sufficient degree of control over the work by Cullen was exercised by Wooton\u2019s control over the only crane available at the work site. The Cullen raising gang, of which plaintiff was a part, required the use of a crane to perform its work. The contract between Wooton and Zalk, which was incorporated into the contract between Zalk and Cullen, expressly provided that Wooton would provide the crane and, in accordance with industry practice, would control its use. Dempsey, from the Cullen raising gang, testified it was unusual for Cullen not to have provided its own crane.\nWe understand the gravamen of the plaintiff\u2019s claim to be that Wooton, in controlling the use of the crane, had a duty to exercise reasonable care in taking the crane from use by Cullen. In other words, before Wooton removed the crane from the Cullen raising gang, Wooton had a duty to ensure that the raising gang had completed its crane-dependent work. More specifically, because the safe and customary practice in the steel-raising industry was to use the crane to remove multiple kegs of bolts from a transporting basket, Wooton should have made clear at the time it announced the \u201ctaking\u201d of the crane that Cullen complete the unloading of the basket with the crane before relinquishing the crane to Wooton. With Wooton assuming control over the only crane at the work site and in light of the conceded need for the use of the crane for the raising gang to perform its work, it follows that Wooton retained some degree of control over the manner in which the work of the Cullen raising gang was done. See Restatement (Second) of Torts \u00a7414, Comment c, at 388 (1965). Our conclusion is amply supported by the facts in the record.\nDempsey testified that Nasca had \u201csupreme say so\u201d on the job. Nasca testified that Wooton, as the general contractor, in line with industry practice, controlled the use of the crane. Dohnke told Nasca that the unavailability of the crane was putting his employees\u2019 safety at risk. According to Keene, he complained to Nasca that the unavailability of the crane forced him to move a 20-foot \u201cperimeter angle\u201d manually but that Nasca \u201cblew off\u201d his complaint. Nasca himself testified that he had never seen kegs of bolts moved manually, but he had never seen more than one moved in any manner other than with a crane. As Wooton acknowledges in its brief, it is \u201cstandard practice in the steel erection industry to load and unload kegs of bolts with the use of a crane.\u201d Nasca also admitted that the Cullen raising gang required the use of a crane to do its work.\nJust prior to the incident involving the plaintiff, Nasca told Dohnke, Cullen\u2019s general foreman, that Wooton was taking the crane and would return it after lunch. It appears Dohnke conveyed Nasca\u2019s intention to take the crane to Eckhardt, Cullen\u2019s raising gang foreman, who in turn directed the plaintiff and Dempsey to manually unload the basket full of kegs of bolts to relinquish the crane quickly to Wooton. Consistent with the industry standard, the preferred, but more time-consuming, method of unloading kegs of bolts is by use of a choker and crane. Nasca did not condition his taking of the crane on completing the unloading of the basket in line with the safe and preferred method by use of the crane. In the course of unloading the basket, after it appears several kegs had been lifted out of the basket by the plaintiff, the plaintiff suffered the herniated disk.\nGiven that Wooton had \u201csupreme say so\u201d over the use of the crane, and that Wooton told Cullen that it was taking the crane after Wooton through Nasca had been told that the Cullen raising gang was forced to engage in unsafe practices when the crane was unavailable, it was foreseeable that Cullen would direct that the unloading of the basket full of kegs of bolts be done in a manner that would provide the crane to Wooton in as short a time as possible, that is, by manually unloading the basket, rather than taking the safer but more time-consuming method of using the choker and crane.\nWooton\u2019s control over the use of the crane \u2014 equipment that all acknowledge the raising gang needed to perform its work \u2014 supports a finding that Wooton had a duty of care to reasonably exercise its control over the use of the crane so as not to expose the raising gang to foreseeable danger of harm. Wooton\u2019s control over the use of the crane is not unlike the alternative design of scaffolding imposed by the general contractor in Aguirre. In Aguirre, the scaffolding used by the plaintiff and from which he fell was constructed in accordance with \u201cspecific alternative design requirements\u201d imposed by the general contractor. Aguirre, 501 F.3d at 831. In effect, the general contractor controlled the subcontractor\u2019s \u201cmeans and methods of doing its work\u201d by directing that the subcontractor do its work with scaffolding devised by the general contractor. Here, Wooton controlled the \u201cmeans and methods\u201d of the work contracted to be done by the Cullen raising gang, by Wooton depriving Cullen of the use of the crane to do crane-dependent work. See Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1059, 728 N.E.2d 726 (2000) (general contractor should have been aware of the unsafe, manual hoisting method being used by the plaintiff to lift the metal sheets).\nThe circumstances leading to the injury sustained by the plaintiff in unloading the kegs of bolts manually are not unlike the circumstances leading to the injury to the plaintiff in Bokodi. In Bokodi, the plaintiff, a subcontractor employee, sued the general contractor after he injured his back lifting sheets of metal siding. Although the plaintiff would have preferred to use a mechanical device to lift the metal sheets, he used a \u201cmanual well wheel and handline\u201d at the time of his injury. Bokodi, 312 Ill. App. 3d at 1054. In Bokodi, we found the contractual language and the general contractor\u2019s actions demonstrated sufficient control to trigger a duty of care under section 414. In that case, the general contractor held weekly safety meetings and had the authority to stop a subcontractor\u2019s work if an unsafe practice was suspected. Further, the contract between the general contractor and the subcontractor required the subcontractor to comply with 29 specific safety measures and the general contractor hired a full-time safety manager to ensure the subcontractor\u2019s compliance. We emphasized that the general contractor should have been aware of the unsafe, manual hoisting method being used by the plaintiff to lift the metal sheets. Bokodi, 312 Ill. App. 3d at 1063. We concluded the general contractor \u201cwent to great lengths to control the safety standards at the work site,\u201d despite contractual language that indicated the subcontractor was to maintain control of its work and the safety of its employees. Bokodi, 312 Ill. App. 3d at 1063. The evidence of Wooton\u2019s control over the means and methods of the Cullen raising gang\u2019s work is considerably stronger than the control exerted by the general contractor in Bokodi.\nHere, direct evidence was presented of Wooton\u2019s exercise of control over the unloading of the kegs of bolts by the plaintiff. Barrett testified that Wooton through Nasca directed that the basket full of kegs of bolts be unloaded manually. While Barrett\u2019s version of the conversation between Wooton and Cullen may stand alone among those within earshot of that conversation, at this junction we take the evidence and all reasonable inferences to be drawn from the evidence in the light most favorable to the plaintiff.\nBased on the facts in the record, we conclude, as the court did in Aguirre, that the general contractor, Wooton, \u201cretained sufficient control over the safety of [the crane-dependent work] and construction to give rise to a duty of reasonable care under section 414 of the Restatement. Of course, this holding does not mean [Wooton is] liable for [the plaintiff\u2019s] injuries; [the alleged breach of that duty] remains a question for the jury.\u201d Aguirre, 501 F.3d at 831.\nWe find the cases on which Wooton primarily relies, Rangel, Shaughnessy v. Skender Construction Co., 342 Ill. App. 3d 730, 794 N.E.2d 937 (2003), and Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 807 N.E.2d 480 (2004), to be distinguishable on their facts. In Rangel, we affirmed summary judgment in favor of the general contractor because there was no evidence the general contractor constructed the scaffolding from which the plaintiff fell. In fact, the evidence was that only the subcontractor controlled the use of the scaffolding and that the subcontractor told the plaintiff to use the scaffolding in an unsafe manner. Rangel, 307 Ill. App. 3d at 839. In Shaughnessy, the plaintiff fell after a rotten wooden board he used as a \u201cbridge\u201d over a gap broke. The evidence showed the subcontractor had furnished its own equipment, including a more safe way for the plaintiff to perform his work. No evidence was presented that the general contractor was aware of the unsafe practice the plaintiff undertook. Shaughnessy, 342 Ill. App. 3d at 738. In Martens, the plaintiff was injured in a fall. His claim of negligence against the general contractor was one of \u201cfailing to provide fall protection.\u201d Martens, 347 Ill. App. 3d at 306. The plaintiff never presented any facts to connect his falling to any control, either by contract or by \u201coperational control,\u201d exercised by the general contractor. Martens, 347 Ill. App. 3d at 318-20. Accordingly, we reject Wooton\u2019s position that this case is more like Shaughnessy, Martens, and Rangel than like Aguirre and Bokodi.\nWe reverse the trial court\u2019s determination that the facts in this case did not give rise to a duty of care on the part of Wooton owed to the plaintiff.\nII. Proximate Cause\nA plaintiff in a negligence case must present some evidence that the defendant\u2019s alleged negligence proximately caused his or her injury. Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 476, 758 N.E.2d 848 (2001). Wooton\u2019s only contention regarding a showing of proximate cause is that it was Eckhardt that directed the plaintiff to unload the basket manually. This is true, but Wooton fails to consider that the chain of events that resulted in the injury to the plaintiff began with Wooton\u2019s demand that Cullen relinquish control of the crane. We reject Wooton\u2019s contention that, as a matter of law, a finder of fact could not find Wooton, as the agent that put in motion the chain of events at issue, to have proximately caused the plaintiffs injuries. See Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 118, 649 N.E.2d 1323 (1995) (the facts of the case were not \u201csufficiently one-sided\u201d that the court could determine the issue of proximate cause as a matter of law); Pasko v. Commonwealth Edison Co., 14 Ill. App. 3d 481, 490, 302 N.E.2d 642 (1973) (\u201cevidence supports the submission to the jury the question\u201d of the defendant\u2019s negligence).\nThe plaintiff presented sufficient evidence to support his claim that he would not have lifted the kegs manually but for Wooton\u2019s control over the crane, which it sought to take from Cullen to give to another subcontractor. Dohnke and Barrett both testified that Nasca was aware that the Cullen raising gang engaged in unsafe practices when the crane was unavailable, and Barrett testified that Nasca told Eckhardt that the Cullen employees would have to \u201clift the stuff manually.\u201d\nThe trial court erred in granting summary judgment on the element of proximate cause.\nCONCLUSION\nFor the reasons stated above, we reverse the trial court\u2019s grant of summary judgment and remand this matter for further proceedings.\nReversed and remanded.\nR. GORDON, P.J., and WOLFSON, J., concur.\nSmithfield and Zalk filed separate motions for summary judgment. Subsequently, the plaintiff voluntarily dismissed Smithfield. Zalk\u2019s motion was granted but is not raised on appeal.", "type": "majority", "author": "JUSTICE GARCIA" } ], "attorneys": [ "Daniel V O\u2019Connor and Jeffrey S. Jordan, both of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago, for appellant.", "Stephen A. Rehfeldt, of Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton, for appellee." ], "corrections": "", "head_matter": "NATIVIDAD F. GARCIA, Plaintiff-Appellant, v. WOOTON CONSTRUCTION, LTD., Defendant-Appellee (Smithfield Properties Development, L.L.C., et al., Defendants).\nFirst District (1st Division)\nNo. 1 \u2014 07\u20141883\nOpinion filed December 29, 2008.\nDaniel V O\u2019Connor and Jeffrey S. Jordan, both of Anesi, Ozmon, Rodin, Novak & Kohen, Ltd., of Chicago, for appellant.\nStephen A. Rehfeldt, of Mulherin, Rehfeldt & Varchetto, P.C., of Wheaton, for appellee." }, "file_name": "0497-01", "first_page_order": 513, "last_page_order": 526 }