Under Illinois Workers Compensation Law, an employee injured on the job cannot sue his employer. Rather, his remedy against the employer is limited to filing a workers compensation claim, per 820 ILCS 305, § 5a. If some entity other than the employer is responsible for the accident, that entity can be sued.

For instance, a Federal Express delivery driver struck and injured by someone who runs a red light can sue that driver.

What about this workers comp situation?

A carpenter is injured when a scaffold on which he is working collapses. His employer erected an unsafe scaffold. The general contractor employed no tradesmen of its own, but supervised the project through an employee on-site maybe an hour per day. The superintendent did not tell the carpenters how to construct the scaffold. In fact, the superintendent never told the carpenters how to do any of their work, never inspected their work, and did not furnish any tools to the carpenters. Can the general contractor be held liable for the carpenter’s injuries? The answer is - it depends if the general contractor “retained control” over the work at the project site.

The common rule is that a general contractor, which hires an independent contractor, will not be liable for the negligence of an independent sub-contractor. This is because the general contractor generally does not supervise the details of the independent contractor’s work and, as a result, is not in a position to prevent the contractor from working in a negligent manner. An exception exists when a general contractor “retains control” over the work efforts of the independent contractor. Where this occurs, and the employee of a sub-contractor is injured, workers compensation suit can be brought against the general contractor.

There are two types of “retained control.” The first is where the general contractor retains control over the operative details of the work, i.e. controls the means, methods or manner in which the independent contractor is to work, or where the general contractor has agreed to retain control for safety at the project site. Where this occurs, the general contractor will be “vicariously liable” for the sub-contractor’s negligence. The second type of retained control exists when the general contractor superintends the entire job, knows or should know that a sub-contractor is working in an unsafe manner, and has an opportunity to prevent an accident by exercising the degree of control which he has retained over the sub-contractor. In a standard construction contract, the general contractor retains the right to insist that a sub-contractor works in a safe manner, or to terminate the sub-contractor for failing to do so. Where this occurs, the general contractor is liable for its personal negligence in supervising the sub-contractor.

The Illinois Court needs to closely examine the general contractor-subcontractor agreement to see what promises the general contractor has made with regard to the construction work. Similarly, Courts will examine the Safety Manual of a general contractor to see if there is specific language regarding safety, inspections and compliance with OSHA and other generally accepted construction standards. Lastly, Courts will look at the actual job-site activity of the general contractor to determine its involvement in the construction process. Because the value of a personal injury lawsuit, if successful, will far exceed that of a workers’ compensation claim, exploring the potential liability of the general contractor in a construction accident setting should be mandatory.

The experienced attorneys of Lipkin & Apter in Chicago, IL are available for consult at no cost to you. If you have suffered a personal injury at your workplace, and believe you may have a workers compensation claim, our legal team will meet with you face-to-face or by phone to determine how we can successfully work together.