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Doe v. Big Brothers Big Sisters of America8/16/2005
lled in the Big Brothers program. In Moss, the Fourth District rejected the notion that the question was who retained control over the means and methods of performance of the work. Moss, 344 Ill. App. 3d at 777. According to the Moss court, " he issue is not control of the 'means and methods' of performing the task, but rather who contractually and/or physically has the duty to control safety of the project." Moss, 344 Ill. App. 3d at 777. Specifically, the Moss court held that " he law requires the trial court to review the contractual language regarding the general contractor's duty to maintain safety of workers." Moss, 344 Ill. App. 3d at 783.
This narrow analysis has subsequently been rejected, specifically by Martens v. MCL Construction Corp., 347 Ill. App. 3d 303, 807 N.E.2d 480 (2004), relied upon by America. The Martens court noted that, if courts found language in a contract with respect to the right to control safety alone sufficient to subject a general contractor to liability under section 414, "then the distinction in Comment c * between retained control versus a general right of control would be rendered meaningless." Martens, 347 Ill. App. 3d at 316. The Martens court specifically rejected the plaintiff's argument, based on Moss, that " 'the central issue is the defendant's ability to affect worker safety.' [Citation.]" Martens, 347 Ill. App. 3d at 318. Rather, according to the Martens court, " he central issue is retained control of the independent contractor's work, whether contractual, supervisory, operational, or some mix thereof." Martens, 347 Ill. App. 3d at 318. Specifically, the court stated that
"the existence of a safety program, safety manual or safety director does not constitute retained control per se; the court must still conduct an analysis pursuant to the section 414 retained controlled exception. [Citation.] We recognize, of course, that if a defendant's safety program sufficiently affected a contractor's means and methods of doing its work, then such program could bring the defendant within the ambit of the retained control exception." Martens, 347 Ill. App. 3d at 318-19.
See also Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1071, 793 N.E.2d 68 (2003): Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 839, 719 N.E.2d 174 (1999). In other words, Comment c must be incorporated into the duty analysis. Martens, 347 Ill. App. 3d at 319; Ross, 341 Ill. App. 3d at 1072. As such, again,
" hether a duty exists under section 414 is a question of law and turns on whether the defendant controls the work in such a manner that he should be held liable. [Citation.] For the rule 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 make recommendations which may or may not be followed. There must be such a retention of a right of supervision that the subcontractor is not entirely free to do the work in his own way." Moorehead, 354 Ill. App. 3d at 459.
The Martens court undertook a detailed analysis of the facts of the case before it with respect to whether the general contractor retained control by contract, supervision, or operation. With respect to contractual control, the court noted that the general contractor was responsible for initiating and supervising a safety program; however, the subcontractor, in accordance with the general contractor's safety program, provided a safety manual to the general contractor that dictated that its foreman was responsible for putting safety rules into practice. Martens, 347 Ill. App. 3d at 316. The Marte
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