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Appellate Court Date: 2022.08.05
14:15:13 -05'00'
Studer v. Central Illinois Scale Co., 2021 IL App (3d) 200277
Appellate Court RODRICK S. STUDER, Plaintiff-Appellant, v. CENTRAL
Caption ILLINOIS SCALE COMPANY, Defendant-Appellee.
District & No. Third District
No. 3-20-0277
Filed August 19, 2021
Rehearing denied September 8, 2021
Decision Under Appeal from the Circuit Court of Peoria County, No. 15-L-101; the
Review Hon. Michael D. Risinger, Judge, presiding.
Judgment Reversed.
Counsel on Christopher H. Sokn, of Kingery Durree Wakeman & O’Donnell
Appeal Associates, of Peoria, for appellant.
Nicholas J. Bertschy, Robert R. Tenney, of Heyl, Royster, Voelker &
Allen, P.C., of Peoria, and Christopher J. Drinkwine, of Heyl, Royster,
Voelker & Allen, P.C., of Rockford, for appellee.
Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.
Justices Holdridge and O’Brien concurred in the judgment and
opinion.
¶6 On December 3, 2014, defendant’s employees arrived on the business premises of
Providence Ag for the purpose of servicing three of Providence Ag’s four scales, including the
truck scale. It is undisputed that the above-depicted manhole was covered when defendant’s
employees arrived on the premises. However, without notice to plaintiff or Providence Ag’s
employees, defendant’s employees removed the cover to that manhole. After leaving the
manhole unmarked and unattended, defendant’s employees continued their work.
¶7 Further, it is undisputed that shortly before plaintiff stepped into the open manhole,
defendant’s employee, Tim Duncan, entered Providence Ag’s business office in order to
monitor scale readings displayed in a scale room. While Duncan was in the foyer of the
business office, plaintiff briefly greeted Duncan. Immediately thereafter, plaintiff walked
outside the business office, together with a business associate, Jonathan Hubble.
¶8 After exiting the business office, plaintiff observed another employee of defendant, Robert
Bort, standing outside of the business office on the physical surface of the truck scale. Bort
was operating a gas-powered weight cart. Since Bort was looking at plaintiff, plaintiff waved
“hello” to Bort. Simultaneously, as plaintiff rounded the corner to the business office, while
walking along the sidewalk, plaintiff stepped into the open manhole. Plaintiff suffered physical
injuries, including a broken foot and a strained back.
¶9 According to plaintiff, he walked over the covered manhole approximately 300,000 times
during his 40-year history on the premises. However, plaintiff only observed the manhole
without a cover on approximately 20 occasions during that time. Plaintiff believed he had the
opportunity to enter the manhole 6 to 12 times for cleaning and maintenance of the truck scale
during those four decades. The last time plaintiff witnessed the manhole without a cover was
in 2011 or 2012.
¶ 10 On August 5, 2015, plaintiff filed an amended complaint, alleging, on the date of the
accident, he was not aware that defendant’s employees had begun the process of servicing the
truck scale or that defendant’s employees had removed the cover to the manhole just outside
the business office. Plaintiff also alleged defendant’s employees negligently failed to place
cones, signs, or barricades around the open manhole for purposes of warning persons on the
premises of that danger. Likewise, the amended complaint alleged defendant’s employees
failed to close off Providence Ag’s main entrance and exit door, located near the open manhole.
These omissions by defendant’s employees allegedly violated established safety standards for
servicing truck scales. 1
¶ 11 On August 21, 2015, defendant answered plaintiff’s amended complaint, admitting its
employees uncovered the manhole. However, defendant denied owing plaintiff a duty of care
while its employees were present on Providence Ag’s premises. Nearly two years later, on
February 14, 2017, defendant alternatively asserted an affirmative defense of comparative
negligence, alleging, inter alia, plaintiff negligently failed to avoid the danger presented to him
by the open manhole.
¶ 12 A. Motions for Summary Judgment
¶ 13 On May 8, 2020, defendant filed two separate motions for summary judgment. The
motions were based on defendant’s status as an independent contractor and the open and
Plaintiff later sought leave to file a second amended complaint. However, the circuit court granted
1
summary judgment for defendant before allowing plaintiff to file his second amended complaint.
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obvious danger rule. In response, plaintiff asserted, as a matter of law, an independent
contractor hired to perform work on an owner or possessor’s premises may be liable in
negligence for creating dangerous conditions on that premises. Further, even if the manhole
was open and obvious, plaintiff argued it was reasonably foreseeable that someone would be
injured by the open manhole or become distracted by noticing Bort and the noise from the gas-powered weight cart.
¶ 14 B. Judgment of the Circuit Court
¶ 15 On July 2, 2020, the circuit court held a hearing on defendant’s motions for summary
judgment and later announced its ruling for defendant on July 6, 2020. The circuit court found
there was no genuine issue of material fact because there was “just no discrepancy of the facts.”
The circuit court then found, despite the fact that defendant “was the possessor of the [truck]
scale,” an independent contractor, like defendant, did not owe plaintiff a duty of care. The
circuit court noted, while defendant’s employees possessed or controlled “the immediate area”
where they were working, they did not possess or control the entire premises for purposes of
premises liability. The circuit court found no exceptions applied to impose a duty of care on
defendant.
¶ 16 Plaintiff filed a timely notice of appeal on July 24, 2020.
¶ 17 II. ANALYSIS
¶ 18 Plaintiff filed an action against defendant, alleging defendant’s employees negligently
created and then failed to safeguard against a dangerous condition on Providence Ag’s
premises, causing plaintiff to suffer physical injuries. The circuit court concluded, as a matter
of law, an independent contractor cannot be subjected to liability, based in negligence, for
physical injuries sustained on premises the independent contractor neither owned nor entirely
possessed and/or controlled. The circuit court granted defendant’s motion for summary
judgment. On appeal, plaintiff challenges the circuit court’s ruling as contrary to wellestablished precedent. Consequently, plaintiff requests for our court to reverse the judgment of
the circuit court.
¶ 19 For purposes of this appeal, the parties agree the material facts are undisputed. Plaintiff, as
the general manager of Providence Ag, hired defendant to recalibrate and recertify a truck scale
located on Providence Ag’s premises. Defendant’s employees arrived on the premises and, in
order to gain access to the truck scale’s underground mechanisms, removed the cover to a truck
scale manhole. The manhole was located in a sidewalk leading to and from the main entrance
and exit to Providence Ag’s business office. After exiting the business office, plaintiff stepped
into the open manhole, which was not marked with safety devices or guarded by an attendant.
¶ 20 Under the Code of Civil Procedure, summary judgment “shall be rendered without delay
if the 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.” 735 ILCS 5/2-1005(c) (West 2018). Summary judgment is a
drastic measure that is proper only if the movant’s right is clear and free from doubt. Seymour
v. Collins, 2015 IL 118432, ¶ 42. The circuit court must construe the record strictly against the
movant and liberally for the nonmovant. Id. Our review on appeal is de novo.
Id.
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¶ 21 A. Sections 383 and 384 of the Restatement (Second) of Torts
¶ 22 First, we note that the circuit court’s ruling is contrary to the Restatement (Second) of Torts.
Section 383 clearly states:
“One who does an act or carries on an activity upon land on behalf of the possessor
is subject to the same liability, and enjoys the same freedom from liability, for physical
harm caused thereby to others upon and outside of the land as though he were the
possessor of the land.” (Emphases added.) Restatement (Second) of Torts § 383 (1965).
According to the comments to section 383, persons acting “on behalf of the possessor” include
persons “acting” as independent contractors “not only for the purposes of the possessor but
also by his direction or consent and therefore by his authority.” Id. § 383 cmt. a. As such, the
independent contractor must account for the likelihood that persons invited or permitted to
come onto the land will do so. Id. § 383 cmt. b. In the area where the independent contractor
is acting “on behalf of the possessor,” the independent contractor must “conduct his activities
with reasonable care not to injure such licensees.” Id. (citing id. § 341). This duty of care is
not restricted to persons whom the independent contractor knows the possessor invited or
permitted onto the premises. Id. Rather, the duty of care extends to those persons the possessor,
without the independent contractor’s knowledge, invites or permits onto the land. Id.
¶ 23 Similarly, the circuit court’s ruling is contradicted by section 384 of the Restatement, which
provides:
“One who on behalf of the possessor of land erects a structure or creates any other
condition on the land is subject to the same liability, and enjoys the same freedom from
liability, as though he were the possessor of the land, for physical harm caused to others
upon and outside of the land by the dangerous character of the structure or other
condition while the work is in his charge.” (Emphases added.) Id. § 384.
According to the comments to section 384, section 384 applies to independent contractors who
“create[ ] any … artificial condition” on the premises or who “alter[ ] [the land’s] physical
condition on behalf of its possessor.” Id. § 384 cmts. a, c. Further, section 384 determines the
liability of an independent contractor causing bodily harm “while he remains in charge and
control of the erection or creation” of the condition. Id. § 384 cmt. g. The independent
contractor is “put in exclusive charge of a part of the land for the purposes of accomplishing
the possessor’s will,” so the independent contractor must warn licensees of dangerous
conditions for which he or she, but perhaps not the licensee, has knowledge. (Emphasis added.)
Id. § 384 cmt. h. But see Restatement (Second) of Torts § 387 cmt. a (1965) (section of the
Restatement that, unlike sections 383 and 384, contemplates an independent contractor with
“the entire charge of the land,” who is undertaking work beyond specific repairs or
inspections).
¶ 24 Long ago, after relying on sections 383 to 387 of the Restatement (Second) of Torts, our
supreme court held a party who creates a dangerous condition on premises, or who controls
premises containing a dangerous condition, on behalf of the owner or possessor is subject to
the same liability for injuries resulting from the dangerous condition as the owner or possessor.
See Corcoran v. Village of Libertyville, 73 Ill. 2d 316, 324 (1978) (citing Kahn v. James Burton
Co., 5 Ill. 2d 614, 620 (1955), and Restatement (Second) of Torts §§ 383-387 (1965)). Indeed,
our supreme court unequivocally stated: “It is firmly established in Illinois that a party that
creates a dangerous condition will not be relieved of liability because that party does not own
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or possess the premises upon which the dangerous condition exists.” Id. (citing Kahn, 5 Ill. 2d
at 620, and Stedwell v. City of Chicago,
297 Ill. 486, 489-90 (1921)).
¶ 25 Based on this longstanding precedent and the unique facts of record, we conclude
defendant’s employees created a dangerous condition on Providence Ag’s premises by
removing the cover to the manhole. Therefore, it is inconsequential that defendant’s employees
did not entirely possess or control Providence Ag’s premises. It was sufficient that defendant’s
employees, while possessing or controlling the immediate area around the truck scale on behalf
of plaintiff and/or Providence Ag, created a potentially dangerous condition by altering the
physical nature of the sidewalk and the manhole contained on those premises. See id.;
Restatement (Second) of Torts §§ 383, 384 cmts. c, g, h (1965); see also Madden v. F.H.
Paschen/S.N. Nielson, Inc., 395 Ill. App. 3d 362, 378 (2009); Randich v. Pirtano Construction
Co., 346 Ill. App. 3d 414, 424 (2003). Again, we emphasize that defendant’s employees chose
to exercise possession or control over the immediate area, near the truck scale’s manhole, by
taking on the responsibility of uncovering that manhole. By doing so, for purposes of the
specialized work fully in their charge, defendant’s employees altered the physical condition of
the premises without notice to plaintiff or Providence Ag’s employees. See Restatement
(Second) of Torts § 384 cmts. g, h (1965).
¶ 26 Therefore, with respect to the dangerous condition created by defendant, an independent
contractor, we conclude that defendant is not immune from liability for plaintiff’s injuries
simply because its employees possessed or controlled only a portion of Providence Ag’s
premises. Consequently, the circuit court erroneously granted summary judgment for
defendant on the ground that defendant cannot be liable to plaintiff under these circumstances.
¶ 27 B. Duty of Care Factors
¶ 28 Our supreme court has noted the Restatement speaks to the “general question of liability”
and not “specifically to the existence of a duty [of care]” to the plaintiff. See Ward v. K Mart
Corp., 136 Ill. 2d 132, 151 (1990). Therefore, while longstanding supreme court precedent and
sections 383 and 384 of the Restatement support the general proposition that an independent
contractor, such as defendant, may be liable for plaintiff’s physical injuries under the right set
of circumstances, our next task is to decide whether the undisputed facts of record create a duty
of care that must be placed on defendant for the benefit of plaintiff. See id.
¶ 29 Whether a duty of care exists with respect to defendant presents a question of law, shaped
by public policy, to be decided by the court. Id. at 140; accord Bruns v. City of Centralia,
2014
IL 116998, ¶ 13; see also LaFever v. Kemlite Co.,
185 Ill. 2d 380, 388 (1998). The duty of care
factors include (1) the reasonable foreseeability of injury, (2) likelihood of injury, (3) burden
of guarding against the injury, and (4) consequences of placing the burden of guarding against
the injury on the defendant. Ward, 136 Ill. 2d at 140-41, 151; accord LaFever,
185 Ill. 2d at
389; Deibert v. Bauer Brothers Construction Co.,
141 Ill. 2d 430, 438 (1990); Bruns,
2014 IL
116998, ¶ 14. The weight given to each duty of care factor depends upon the circumstances of
the case. Bruns, 2014 IL 116998, ¶ 14. For a complete analysis, we examine the duty of care
factors in light of the undisputed facts on appeal.
¶ 30 1. Reasonable Foreseeability and Likelihood of Injury to Plaintiff
¶ 31 Initially, we focus on the undisputed fact that defendant’s employees independently
removed the cover to the manhole without first seeking the approval or permission of plaintiff
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or other Providence Ag employees. Based on this undisputed fact, it is an inescapable
conclusion that defendant’s employees not only exerted control over a portion of Providence
Ag’s premises but also altered the physical condition of the sidewalk near the business office.
¶ 32 By uncovering the manhole in the center of the sidewalk, defendant’s employees were
responsible for creating a dangerous condition for all pedestrians traversing that portion of the
walkway. In other words, the sidewalk, with the manhole cover in place, was not a dangerous
condition that existed on the premises before defendant’s employees’ actions. Instead of
ensuring plaintiff or Providence Ag had an opportunity to safely reroute pedestrians away from
the small segment of the sidewalk, defendant’s employees took it upon themselves to act on
behalf of Providence Ag by removing the cover to the manhole without placing safety devices
or an attendant around that dangerous condition. See Henderson v. Lofts at Lake Arlington
Towne Condominium Ass’n, 2018 IL App (1st) 162744, ¶ 56 (finding “as the defendants
carried out the work, they were in the best position to identify and guard against any hazardous
condition resulting from that work”).
¶ 33 Further, it is undisputed that defendant’s employees, at the very least, deviated from a prior
practice of utilizing safety devices, namely, safety cones, while performing services on the
premises. In fact, defendant’s own internal safety manual, as well as other established safety
regulations and industry standards, suggest such simple safety precautions are customary.
Obviously, the mere existence of these documented safety practices and resource materials
constitutes both strong and compelling evidence of the foreseeability of plaintiff’s injury. 2
This is especially true because the manhole was located on a sidewalk leading to and from the
main entrance and exit to Providence Ag’s business office. For persons like plaintiff, who
might be exiting Providence Ag’s business office, the open 4 to 4½ foot deep manhole was
located in the center of the sidewalk, just a few feet around the corner of that building.
¶ 34 Based on these undisputed facts, we conclude plaintiff’s injury was both reasonably
foreseeable and extremely likely. See Ward, 136 Ill. 2d at 153-54 (despite reasonable care,
momentary forgetfulness, or previous encounters by customers, it was reasonably foreseeable
to the defendant that a customer carrying a large item would collide with a post “located
immediately outside” the exit of the defendant’s store).
¶ 35 2. Burden of Guarding Against Plaintiff’s Injury
and the Consequences of Placing That Burden on Defendant
¶ 36 Next, we consider whether it would have been relatively easy and inexpensive for
defendant’s employees to guard against plaintiff’s injury after removing the cover to the
manhole on the premises. While servicing the truck scale, defendant’s employees could have
easily placed cones, signs, barricades, or an attendant around the small area near the open
manhole.
¶ 37 Notably, the location of the potentially dangerous condition was confined to a very small
area—the width of the sidewalk surrounding the open manhole. Therefore, the burden of
2
We agree with defendant that safety regulations, industry standards, and defendant’s own internal
safety manual, by themselves, do not impose a duty of care where one does not otherwise exist as a
matter of law. See Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d 333, 343 (2008);
Recio v. GR-MHA Corp., 366 Ill. App. 3d 48, 57-58 (2006). However, we conclude the existence of
such guidelines may inform the duty of care analysis.
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guarding against plaintiff’s injury, by warning of or restricting access to that small area, and
the consequences of placing that burden on defendant were virtually nonexistent. The fact that
defendant’s employees have taken similar precautionary actions on other worksites constitutes
persuasive evidence that such precautions are not overly burdensome for defendant. A simple
orange safety cone could have sufficed to place pedestrians on notice of the dangerous
condition of the open manhole. See id. at 154, 156 (burden of protecting against the danger of
a post “located immediately outside” the defendant’s store was slight, as a “simple warning”
might have sufficed); Henderson, 2018 IL App (1st) 162744, ¶ 56 (the defendant “undertook
the work” causing the dangerous condition, so the burden of guarding against injuries from
that dangerous condition was not “too great”).
¶ 38 Having carefully applied the undisputed facts to the four traditional duty of care factors,
we conclude, as a matter of law, defendant owed plaintiff a duty of care in this case.
¶ 39 C. Open and Obvious Danger Rule
¶ 40 Next, we address the open and obvious danger rule. If the manhole created an open and
obvious danger that went unnoticed by plaintiff, then it would be possible for this court to
affirm the trial court’s decision to grant summary judgment for defendant. Initially, having
determined that defendant is subject to the same degree of liability as the owner or possessor
of the premises, we recognize that defendant similarly enjoys “the same freedom from
liability” as the owner or possessor of the premises. Restatement (Second) of Torts §§ 383-384
(1965). Thus, defendant may invoke and potentially benefit from an application of the open
and obvious danger rule.
¶ 41 The open and obvious danger rule does not automatically bar the imposition of a duty of
care against a defendant but instead affects the first two factors in the traditional duty of care
analysis, namely, the reasonable foreseeability and likelihood of an injury to the plaintiff.
Bruns, 2014 IL 116998, ¶ 19; see also Ward,
136 Ill. 2d at 147-148. If the open and obvious
danger rule applies, then those two factors will be considered slight and weigh against
imposing a duty of care. Bruns, 2014 IL 116998, ¶ 19 (citing Bucheleres v. Chicago Park
District, 171 Ill. 2d 435, 456-57 (1996)); accord Alqadhi v. Standard Parking, Inc.,
405 Ill.
App. 3d 14, 17 (2010).
¶ 42 Under the rule, “ ‘a party who owns or controls land is not required to foresee and protect
against an injury if the potentially dangerous condition is open and obvious.’ ” Bruns, 2014 IL
116998, ¶ 16 (quoting Rexroad v. City of Springfield,
207 Ill. 2d 33, 44 (2003)). The rule
derives from section 343A of the Restatement, stating a “possessor of land is not liable to his
invitees for physical harm caused to them by any activity or condition on the land whose danger
is known or obvious to them, unless the possessor should anticipate the harm despite such
knowledge or obviousness.” Restatement (Second) of Torts § 343A(1) (1965); Deibert, 141
Ill. 2d at 434-35. “ ‘Obvious’ ” means “ ‘both the condition and the risk are apparent to and
would be recognized by a reasonable man, in the position of the visitor, exercising ordinary
perception, intelligence, and judgment.’ ” Bruns, 2014 IL 116998, ¶ 16 (quoting Restatement
(Second) of Torts § 343A cmt. b (1965)). In other words, “[t]he open and obvious nature of
the condition itself gives caution.” Bucheleres, 171 Ill. 2d at 448. If the physical nature of the
potentially dangerous condition is undisputed, then a question of law exists for the court.
Bruns, 2014 IL 116998, ¶ 18; Alqadhi,
405 Ill. App. 3d at 17; Wilfong v. L.J. Dodd
Construction, 401 Ill. App. 3d 1044, 1053 (2010).
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¶ 43 Based on our careful review of this record, we conclude the manhole, uncovered by
defendant’s employees, was not immediately visible to persons taking the first few steps upon
the sidewalk while walking away from Providence Ag’s business office. It is very foreseeable
that any reasonable person could have safely walked over the covered manhole en route to the
business office, entered and conducted his or her business in the office, and then, within a
relatively short period of time, departed from the business office by retracing his or her steps
on the same sidewalk. Under this foreseeable set of circumstances, pedestrians conducting
business in the business office would not have a reason to anticipate encountering a newly
created danger, located in the center of the sidewalk recently traversed without risk of danger
or incident. Such a person, like plaintiff, would have had little time to perceive and then react
to the open manhole, located at the beginning of the walkway leading away from the business
office.
¶ 44 Again, after carefully considering the undisputed but unique facts contained in this record,
we conclude the uncovered manhole was not an open and obvious danger that weighs against
imposing a duty of care on defendant for the benefit of plaintiff. See Bruns, 2014 IL 116998,
¶ 19 (citing Bucheleres,
171 Ill. 2d at 456-57); accord Alqadhi,
405 Ill. App. 3d at 17. Stated
differently, defendant’s employees should have anticipated the foreseeable risk and likelihood
of harm to a pedestrian, such as plaintiff, after the removal of the manhole cover. By virtue of
this holding, we need not consider the distraction exception to the open and obvious danger
rule.
¶ 45 D. Sections 404 and 413 of the Restatement (Second) of Torts
¶ 46 As an aside, we note that defendant invokes sections 404 and 413 of the Restatement in
support of the argument that defendant did not owe plaintiff a duty of care. See Restatement
(Second) of Torts §§ 404, 413 (1965). Section 404 pertains to negligence in the making,
rebuilding, or repairing of a chattel. See id. § 404. Obviously, the present appeal does not
involve an independent contractor who built or repaired a chattel. Therefore, section 404 is
inapplicable.
¶ 47 Similarly, at a minimum, section 413, relating to the duty of an employer to provide for the
taking of precautions against dangers involved in work entrusted to an independent contractor,
invokes plaintiff’s comparative negligence. See id. § 413. Comparative negligence is an issue
for the trier of fact and is currently beyond the scope of this appeal. Bier v. Leanna Lakeside
Property Ass’n, 305 Ill. App. 3d 45, 62-63 (1999). In other words, section 413 cannot negate
a duty of care otherwise owed by defendant. See Deibert, 141 Ill. 2d at 447 (“[p]laintiff’s own
comparative negligence did not negate defendant’s duty, rather it reduced the amount of
plaintiff’s recovery”). 3 However, it is unclear how plaintiff could provide for the taking of
3
We point out, however, section 413 “is not concerned with the taking of routine precautions, of a
kind which any careful contractor could reasonably be expected to take, against all of the ordinary and
customary dangers which may arise in the course of the contemplated work.” Restatement (Second) of
Torts § 413 cmt. b (1965). These routine precautions “are the responsibility of the [independent]
contractor; and if the employer has exercised reasonable care to employ a contractor who is competent
and careful [citation], he is not required to provide, in the contract or otherwise, that the contractor shall
take them.” Id. Instead, section 413 concerns “special risks, peculiar to the work to be done, and arising
out of its character, or out of the place where it is to be done, against which a reasonable man would
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special precautions if, as is undisputed on appeal, plaintiff was not informed that defendant’s
employees began their work on the truck scale or uncovered the manhole.
¶ 48 III. CONCLUSION
¶ 49 In sum, the trial court erred by finding, as a matter of law, defendant could not be liable for
creating a dangerous condition on Providence Ag’s premises while possessing or controlling
only a limited portion of that premises. Further, based on the traditional duty of care factors,
the trial court erred by finding defendant did not owe plaintiff a duty of care. Finally, the open
and obvious danger rule does not apply to weigh against imposing a duty of care on defendant.
For these reasons, the judgment of the circuit court of Peoria County is reversed.
¶ 50 Reversed.
recognize the necessity of taking special precautions.” Id. The situation is one where “a risk is created
which is not a normal, routine matter of customary human activity, such as driving an automobile, but
is rather a special danger to those in the vicinity, arising out of the particular situation created, and
calling for special precautions.” Id. “ ‘Peculiar’ ” means a special or recognizable danger “arising out
of the work itself.” Id.; see also Apostal v. Oliveri Construction Co., 287 Ill. App. 3d 675, 681 (1997)
(First District describing the work with which section 413 is concerned as “dangerous or inherently
dangerous”).
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