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 while removing and scrapping an abandoned railroad
bridge in Chicago, as the court’s majority said a state appeals court was wrong
to overturn the ruling of a Cook County judge who found the railroad owed no
duty in this case to the scrap contract worker.
Justice Mary Jane Theis wrote the majority opinion, which was
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 Thomas L. Kilbride dissented.
The root incident in the case took place July 31, 2006, during
removal of a bridge on Polk Street in Chicago. 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, in turn propelling plaintiff
Patrick Joseph Carney forward to slide under the falling girder, severing his
legs below the knees.
On Aug. 8, 2007, Carney — who worked for his father’s
company, Chicago Explosive Services — filed a complaint against scrap
contractor Happ’s Inc., and soon thereafter amended the complaint to add Union Pacific
as a defendant. 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 bought bridges from Union Pacific
and pledged to remove them.
While various third-party claims and counterclaims were
filed and settled, the unresolved issue centered on Carney’s allegation the
railroad was negligent in knowing about or disclosing presence of the steel
plate. Carney further alleged Union Pacific failed to develop a demolition plan
and to adequately supervise the work, and also said it was negligent in hiring
While the case was pending in Cook County Circuit Court,
Union Pacific filed a motion for summary judgment. Though the court granted the
motion, Carney appealed; the First District Appellate Court reversed that
decision, however, and 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 that such control was an issue of fact to be
determined at trial.
Union Pacific then appealed to the state high court, arguing
the appellate court had erred.
In arguing before the Supreme Court, Union Pacific said its
contract with Happ’s placed supervision of bridge removal with the contractor,
and that nothing the railroad did before or after the accident puts that
control in doubt. In agreeing with Union Pacific, Theis quoted the contract
saying Happ’s, its agents and employees “are not and shall not be considered as
employees” of the railroad. Language Carney cited in opposition was found,
Theis wrote, to be provisions part of general rights reserved to anyone who
employs a contractor.
The matter of the steel plate 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 testimony supported this
position. Further, Theis wrote, “the record affirmatively 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 Supreme Court found the circuit court
was correct to grant summary judgment.
The 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 the Illinois Trial
Lawyers’ Association to file in support of Carney.
Kilbride’s dissent said 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.
According to Cook County court records, Carney was represented in the action by the firm of Cogan & McNabola, of Chicago.
Union Pacific was defended by the firm of Fedota Childers P.C., of Chicago.