Illinois Appellate Court Finds That OSHA Violations Did Not Raise Duty of Care to Hold Parties Responsible

On July 19, 2007, Jose Torres was a day worker hired by Brandenburg Industrial Services Co., a contractor responsible for labor, material, equipment and supervision. The contractor agreed to provide all of the safety measures necessary for the demolition of the Gutmann Leather operation and tannery on the Chicago River. Gutmann had closed in 2006, and it chose to demolish its tannery. The tannery had been in operation since 1870.

Gutmann hired Gabriel Environmental Services because of federal Environmental Protection Agency guidelines regarding heavy metal contamination caused by the tannery’s operation. Gabriel was hired to assess the site, plan what action needed to be taken and hire a contractor to prepare the Gutmann property for sale. Gabriel also was to supervise the work that was being done in the demolition. Gabriel hired Brandenburg to do the demolition work.

In turn, Brandenburg hired Windy City Antique Brick Co. to retrieve, organize and haul away bricks at the site. Jose Torres was killed when a front-end loader owned by Brandenburg and operated by another Brandenburg employee ran into him.

Windy City employees were at the job site at the time, but they were not involved in the incident. Neither Torres nor his co-workers were wearing reflective or high disability clothing. The next day, the Occupational Safety and Health Administration (OSHA) visited the job site and found it to be hazardous and that both Brandenburg and Windy City were responsible for the lack of safety at the site.

Further, OSHA stated that the laborers, including Jose Torres, were not trained in demolition safety and how to minimize the hazards of the job. Yolanda Torres, Jose’s wife, filed a lawsuit against Gutmann, Gabriel and Windy City and later against Brandenburg.

Gutmann, Gabriel and Windy City all moved for summary judgment claiming that responsibility for Jose’s death was on Brandenburg, which exclusively occupied the job site and safety issues. With her response to the motions for summary judgment, Torres filed documents including OSHA documents from the investigation and a video taken by OSHA of the job site along with various depositions.

The court ruled that there was not adequate foundation for the Torres exhibits from OSHA and granted summary judgment in favor of Gutmann, Gabriel and Windy City. Torres appealed.

The issue on appeal was whether Gutmann, Gabriel and Windy City retained control over Brandenburg’s work at the job site. Torres argued that there were two bases for the duty of care: The duty an employer has for an independent contractor who has been hired and the duty of care owed by a property owner to people invited onto the work site.

First, the court considered Windy City’s obligations. The court found that this company was a subcontractor of Brandenburg’s whose employees were not involved in the incident. Gabriel was responsible only for environmental monitoring. Gutmann’s contract with Brandenburg explicitly gave exclusive control of the site and responsibility for all of the safety measures and precautions on the site to Brandenburg unless the person was on the site without Brandenburg’s authorization.

Gutmann owed a duty of care only as to environmental issues and Torres’s lawsuit was not about the condition of the land. Torres was killed because of the behavior of a Brandenburg employee, not because of the environment of the property.

Torres maintained that the OSHA documents were evidence that demonstrated that there were unsafe working conditions at the site. The appellate court stated that even if the documents demonstrated unsafe working conditions, Gutmann, Gabriel and Windy City were not responsible for those conditions. The duty rested firmly with Brandenburg, and the motion dismissing the other defendants was affirmed.

Yolanda Torres , as special administrator of the estate of Jose Torres, Sr. v. Gutmann Leather, LLC, GRE, LLC, et al., No. 2014 IL App (1st) 122460-U.

Kreisman Law Offices has been handling work accident cases, wrongful death cases and construction site accidents for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including Palatine, Oak Lawn, Harvey, Bridgeview, Glenview, Berkeley, Melrose Park, Cicero, Franklin Park, Rolling Meadows, Buffalo Grove, Wilmette, Skokie, Lincolnshire, Western Springs, Oakbrook Terrace and Inverness, Ill.