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Contractors and Sub-Contractors Hired by School Found Not Liable for Injuries Sustained by School Employee on Construction Site

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The Illinois Appellate Court recently issued an opinion in Michael Madden v. F.H. Paschen, et al., No. 1-08-1811 (3rd Dist. 2009), finding that a school maintenance worker could not maintain a negligence action against a construction manager and design consultant hired by the school for injuries sustained on the construction site. 

Consolidated High School District 230 hired a general contractor and construction manager to build a new theater at Stagg High School.  The School was issued a temporary occupancy permit for use of the premises while work on the theater was being completed. In August 2002, Michael Madden, a maintenance worker employed by the School, was performing his duties in the vicinity of the construction site when he fell over nine feet into the orchestra pit in the floor of the theater’s stage. Madden, who sustained permanent injuries, sued the general contractor, construction manager, architect and design consultant for negligence. The trial court granted summary judgment for all of the defendants except the architect; and Madden obtained a $1.6 million verdict against the architect at trial. Madden subsequently dismissed his claim against the general contractor, and appealed the denial of summary judgment against the construction manager and design consultant. 

The Appellate Court held that Madden could not recover damages from the remaining defendants under a premises liability theory because they maintained no physical control over the property at the time of the accident. The School – not the contractors – was in possession of the premises. Moreover, these parties were not responsible for creating the dangerous condition. The construction manager was responsible for coordinating the schedules of subcontractors, not actually erecting the structure. Similarly, the design consultant had no influence over the safety measures implemented at the site. And since these defendants had no supervisory control over Madden’s work, the court found they could not be held vicariously liable for conduct of the School in preparing the theater for occupancy. 

Although the Tort Immunity Act likely deterred the employee from suing the School, the case is a reminder that school districts should take extra precautions when contracting work to third parties. And school districts should be vigilant in monitoring the access of their employees, students and visitors when accessing construction sites. The Tort Immunity Act may deter many claims, but the limited amount of parties that can be found liable in light of this case may inspire a plaintiff to include a deep pocketed school in a lawsuit.