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Doe v. Big Brothers Big Sisters of America8/16/2005
ork stopped or resumed." Coty, 58 Ill. App. 3d at 242. Ultimately, the Coty court concluded that the facts before it were insufficient to satisfy the reasoning of the employer-independent contractor theory and concluded that the franchisor was not liable. Coty, 58 Ill. App. 3d at 242.
In Foster, a wrongful death action against a hospital, anesthetist, nurse, and surgeon, the plaintiff sought to hold the surgeon liable for the nurse's negligence. Foster, 19 Ill. App. 3d at 1057. The court again found that the employer-independent contractor cases and section 414 were analogous to the situation before it. Foster, 19 Ill. App. 3d at 1061. Specifically, the Foster court stated
"that analogous authority supports the general rule that a doctor may be held liable for the negligence of a hospital employee who is subject to the doctor's control or supervision. The law imposes a duty, for example, on one who entrusts work to an independent contractor, but retains the control of any part of the work, to exercise that control with reasonable care." Foster, 19 Ill. App. 3d at 1061.
The Foster court concluded there was sufficient evidence that the surgeon retained direct supervision and control over the nurse to allow the question to go to the jury. Foster, 19 Ill. App. 3d at 1064.
Coty and Foster are the only two occasions when Illinois courts have extended section 414 to cover nonconstruction work case scenarios. Neither case, however, analyzed section 414, nor stated any specific analysis or rationale for extending section 414 to the circumstances before the courts. Rather, Coty and Foster simply found the principle analogous. Moreover, these cases are over 25 years old. No recent case has applied section 414 to any situation other than a construction work case.
Even assuming we found section 414 applicable, we find that its requirements cannot be satisfied under the facts present here. Section 414 is an exception to the general rule that an employer of an independent contractor is not liable for the independent contractor's acts or omissions. Moorehead v. Mustang Construction Co., 354 Ill. App. 3d 456, 460, 821 N.E.2d 358 (2004). Section 414 is deemed the "retained control" concept and provides:
"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." Restatement (Second) of Torts, §414, at 387 (1965).
The theory is further explained by Comment c, which provides:
"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 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." Restatement (Second) of Torts §414, Comment c, at 388.
Plaintiff argues that the question of whether a duty exists under section 414 turns on who controls safety, relying on Moss v. Rowe Construction Co., 344 Ill. App. 3d 772, 801 N.E.2d 612 (2003). According to plaintiff, America here retained control of the safety and protection of children enro
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