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Now you're cold as ice, and so are the sidewalks (p.2)

We are continuing our discussion of a workplace injury case that settled in December. The victim is a Cook County construction worker (a subcontractor) who slipped on ice at the construction site and seriously injured his back. The injury led to complications that have kept him from re-entering the workforce in any capacity. He sued the general contractor for failing to keep the site clear of ice and snow.

As a worker, though, shouldn't his only remedy been workers' compensation?

The victim said it was the general contractor's fault, not his company's, that the ice had not been cleared. He said, too, that his company's work in that area was complete. He wasn't suing his employer, and he was not really on the job or on his employer's worksite. That all added up to the general contractor being a third party, ruling out the possibility of workers' comp.

Contractor and subcontractor cases, however, are a little more subtle. Because the two can work side-by-side on the same project at the same site, it is not clear which has responsibility to keep the workplace safe -- at least, neither the Illinois General Assembly nor the state courts have drawn a bright line.

The construction industry, then, has adopted the practice of addressing liability for workplace conditions in the contract between the general and the sub. In this case, the provision stated that the subcontractor -- the victim's employer -- was responsible for removal of snow and ice "as needed" or "if requested." The defendant argued that this clause laid the blame firmly at the feet of the subcontractor. It also argued that the victim was at fault: He had not exercised proper caution under the conditions, conditions that he knew or should have known existed. Again, he knew the conditions existed because he knew it was his responsibility to clear the area and he knew he hadn't done so.

The victim responded by pointing out that the subcontractor's work was done on that area. The subcontractor had no duty to clean up an area that was not in its control. According to the victim's attorney, this argument would have prevailed, had the trial gone to verdict.

As it was, the parties settled before the court could rule. The victim received a $3.5 million damage award. By settling, the contractor does not have to accept responsibility, to accept the duty to keep the worksite safe. In the end, then, the courts still have no uniform approach to these types of accidents.

Source: Chicago Law Bulletin, "Slip on ice nets $3.5M settlement," Lauraann Woodlaw, Dec. 30, 2015

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Kujawski Marcus, LLC - Attorney At Law