First District Appellate Court of Illinois Addresses Construction Manager Liability


The question in Calloway v. Bovis Lend Lease, Inc. is whether the defendant construction manager can be held liable for injuries to a construction worker caused by a contractor hired by the owner. Calloway v. Bovis Lend Lease, Inc. 2013 IL App (1st) 112746.  Based on the recent decision of Calloway, the answer is yes.

Liability of construction managers in this situation is analyzed under Section 414 of the Restatement (Second) of Torts which states:

“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.”

In Calloway v. Bovis Lend Lease, Inc., the defendant construction manager argued in its appeal following a jury verdict in favor of the plaintiff that it did not entrust any work to the subcontractor who was performing work at the time of the accident because it did not hire or enter into a contract with the subcontractor Calloway v. Bovis Lend Lease, Inc. 2013 IL App (1st) 112746.

In support of its contention, the construction manager in Calloway cited the recent decision of O’Connell v. Turner Construction Co., 409 Ill.App.3d 819, 949 N.E.2d 1105 (1st Dist. 2011).  In O’Connell, a school district entered into a contract with the construction manager and the construction manager handled the bidding process for hiring subcontractors; however, the actual signatories on the contracts were the school district and the contractors and subcontractors.  The O’Connell court noted that the prerequisite to analyzing a case under Section 414 of the Restatement (Second) of Torts was whether the defendant entrusted work to an independent contractor and absent such entrustment Section 414 would not apply.  The O’Connell court noted under those facts that the construction manager did not entrust work to any contractors or subcontractors and therefore the plaintiff’s claim under Section 414 failed.

The Calloway court agreed with other federal court decisions that the issue of entrustment, like that of control, should be decided based upon whether the circumstances of each case showed that the construction manager actually entrusted work to a subcontractor and not based upon a bright-line test such as whether the construction manager actually signed a contract with the subcontractor.  The Callowaycourt stated that a construction manager could meet the control requirement when there is evidence that the construction manager’s actions demonstrate that it retained a sufficient level of control, even where contractual language exists formally assigning control to the independent contractor.  The Calloway court held that entrustment should be evaluated in the same manner.  Therefore, the court found that the entrustment requirement could be satisfied when the totality of circumstances demonstrated that the construction manager actually entrusted work to a subcontractor even if the construction manager did not actually sign the contract with the subcontractor.  TheCalloway court stated that the defendant’s argument that entrustment could only be found if it signed the contract with the subcontractor was “overly narrow and formalistic” and therefore the court declined to adopt it.  If the defendant’s argument was accepted, the court noted that it would allow “project owners, construction managers and general contractors to easily avoid the reach of Section 414.”  Therefore, theCalloway court held that there was sufficient evidence that the defendant entrusted its work to the subcontractor to create a question of fact for the jury.