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“Controlling employer” under OSHA is not sufficient control under section 414 in Illinois

1/3/25

By: Kolton A. Reed

Under Illinois common law, a general contractor who employs a subcontractor is not liable for the subcontractor’s acts or omissions. However, under section 414 of the Restatement Second of Torts, where a general contractor retains sufficient control over the subcontractor, the general contractor may be held liable for the subcontractor’s torts: 

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 (1965).  

For section 414 to apply, a general contractor must retain control over the operative detail of the independent contractor’s work, specifically the manner in which the work is done. It is not enough that a general contractor has a right to stop work, order changes to plans, inspect work and progress, make suggestions or recommendations, or ensure work is done safely. 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. The evidence must show that the general contractor retained control over the incidental aspects of the subcontractor’s work.  

In Wiberg v. Metro Storage, LLC, 2024 IL App (1st) 24027, the plaintiff was injured when he fell entering a trench. He was using a six-inch piece of precast concrete protruding from the side of the trench to step in and out of the trench, despite alternative ramp paths. Plaintiff stepped on the piece of concrete, and it came loose from the soil causing him to fall.  

Plaintiff brought suit against the general contractor on the project Metro Storage, LLC, (“Metro”), as well as the owner and a subcontractor. The plaintiff worked for Brandonisio & Company (“B&C”), a subcontractor hired by Metro to perform the concrete work on the project. Metro moved for summary judgment, arguing, among other things, that it did not retain sufficient control over the operative details of Plaintiff’s work to impose liability under section 414. 

The general facts reflect that B&C controlled their portion of the work. B&C’s superintendent decided how to do the concrete work, B&C did not receive daily tasks from Metro, and Metro did not direct B&C employees on how to move or install concreting forms or footings. Furthermore, B&C used its own tools, did not receive any safety training from Metro, and B&C employed its own safety director who was on-site every other day.  

In his response to the motion for summary judgment, Plaintiff put forth an argument based on his expert’s opinion equating a “controlling employer” under OSHA with retained control under the Restatement. Under OSHA a “controlling employer” has general supervisory authority over the worksite, including the power to correct safety violations. In contrast, retained control under the Restatement requires the general contractor to control the operative details of the subcontractor’s work. The court rejected this approach, finding these levels of control are not the same. The plaintiff’s expert did not opine that Metro directed the plaintiff how to install or move concrete forms or perform any other work, which would have been classified as incidental aspects of the plaintiff’s work.  

The Wiberg opinion highlights several factual scenarios, favorable to general contractors, that do not rise to the level of retained control to create a duty under section 414 of the Restatement. Most notably, the court established an important distinction between a “controlling employer” under OSHA and retained control under the Restatement.  

For more information, please contact Kolton A. Reed at kolton.reed@fmglaw.com or your local FMG attorney.