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Construction-Site Injuries: Retained-Control Liability After the Structural Work Act

Workers’ compensation pays the medical bills but rarely makes a badly injured worker whole. The rest of the recovery usually turns on how much control the general contractor kept.

By Lincoln Square Law · 8-minute read

Construction work produces some of the most serious injuries in Illinois: falls from scaffolds and roofs, trench collapses, crushing injuries from equipment, and electrocutions. For an injured worker, the first source of recovery is almost always workers’ compensation. Compensation pays medical bills and a portion of lost wages without regard to fault, but it does not pay for pain and suffering, and its wage benefits rarely replace what a skilled tradesperson would have earned over a career. When the injury was caused by someone other than the employer, a third-party negligence claim can make up much of the difference. On a construction site, the most important question in that claim is usually how much control a general contractor or owner kept over the work.

The world after the Structural Work Act

For most of the twentieth century, Illinois construction workers had a powerful statutory remedy. The Structural Work Act imposed liability on those “having charge of” work involving scaffolds, hoists, ladders, and similar devices who willfully violated its safety requirements. The General Assembly repealed that Act in 1995 (P.A. 89-2). Since then, a construction worker’s claim against someone other than the employer generally rests on ordinary negligence principles, including premises liability and the rules for those who hire independent contractors.

The general rule and its exception

The general rule is that a person who hires an independent contractor is not liable for injuries caused by the contractor’s negligence. The contractor controls its own work, and its employees look to their employer, and to compensation, for recovery.

The exception, recognized in Illinois through section 414 of the Restatement (Second) of Torts, applies when the hiring party retains control over the work. In Carney v. Union Pacific Railroad Co., 2016 IL 118984, the Illinois Supreme Court clarified how that exception works. Section 414 is a theory of direct liability. It holds the hiring party responsible for its own negligence in exercising the control it retained, not vicariously for the contractor’s negligence. The control that matters is control over the operative details of the work, the manner, means, and methods by which it is done, to the point that the contractor is not entirely free to do the work its own way.

Carney also marked what is not enough. A general right to start or stop the work, to inspect its progress, to receive reports, to make suggestions, or to require that safety rules be followed does not, by itself, establish the required control. The court also emphasized that the contract between the hiring party and the contractor is the best starting point for deciding who controlled what, and that liability further requires that the hiring party knew or should have known of the dangerous condition or practice that caused the injury.

Where the evidence of control lives

Because the question is how control was actually allocated and exercised, the evidence is found in documents and on the site, and much of it is in the defendants’ hands.

• The contracts. The prime contract between the owner and the general contractor, and each subcontract, allocate responsibility for means and methods, safety programs, and site conditions.
• Site safety plans and programs. A general contractor that writes a site-specific safety plan, runs mandatory safety orientations, and dictates how particular hazards must be handled may have gone beyond general supervision.
• Daily logs, meeting minutes, and inspection reports. These show who directed the work, who identified hazards, and what was done about them.
• Communications. Emails, texts, and messaging-app threads between superintendents and foremen often reveal who actually decided how the work would be done.
• The equipment and the scene. Scaffolds, ladders, guardrails, and trench protection should be photographed and preserved before they are changed or removed.
• Witnesses. Coworkers, other trades, and site personnel scatter quickly when a project ends. Their names should be gathered early.

Federal construction safety standards (29 C.F.R. Part 1926) and any OSHA inspection file can help explain what safe practice required, and the inspection file can often be obtained through a public records request. Whether and how those standards are used at trial depends on the claim and the evidence rules, and they do not by themselves establish who controlled the work.

How the analysis plays out: a hypothetical

Consider a roofer employed by a subcontractor who falls through an uncovered skylight opening. If the general contractor’s only involvement was a contract clause requiring subcontractors to follow OSHA rules, periodic walk-throughs, and the right to stop unsafe work, Carney suggests that is general supervisory authority, not retained control. The roofer’s claim against the general contractor would be difficult.

Change the facts. Suppose the general contractor’s superintendent decided the order in which the roof openings would be covered, told the roofing crew to work around the uncovered openings to keep the schedule, and had been told about the uncovered skylight the day before. Now the general contractor arguably controlled the method of the work that created the hazard and knew of the danger. The same injury, on the same roof, can support a claim or not depending on facts that only the project records and witnesses will show.

Premises liability and other theories

Retained control is not the only route. An owner or contractor in possession of the premises may be liable for dangerous conditions on the land under ordinary premises liability principles, and an equipment manufacturer may be liable for a defective product. Each theory has its own elements and defenses. In Carney, for example, the court also addressed whether a hazard was open and obvious, which can limit a landowner’s duty. A careful investigation considers every potential defendant, including the property owner, the general contractor, other subcontractors whose work created the hazard, and the makers of the equipment involved.

Coordinating compensation and the third-party claim

The workers’ compensation claim and the third-party claim proceed on separate tracks, but they affect each other at every stage.

• Exclusive remedy. An injured worker generally cannot sue the employer in negligence. Compensation is the exclusive remedy against the employer (820 ILCS 305/5(a)).
• Reimbursement of the compensation lien. When the worker recovers from a third party, the employer or its insurer is reimbursed from that recovery for compensation it paid, less its share of attorney fees (25% of the gross amount reimbursed) and a proportionate share of costs (820 ILCS 305/5(b)).
• Contribution and the Kotecki cap. A third-party defendant may seek contribution from the employer, but the employer’s contribution liability is ordinarily limited to the amount of its workers’ compensation liability (Kotecki v. Cyclops Welding Corp., 146 Ill. 2d 155 (1991)). Contracts between employers and general contractors often address whether the employer has waived that limit.
• Settlement sequencing. A settlement in one case can affect the other, including the employer’s lien and future medical benefits. The two should be negotiated with each other in view.

Deadlines

A third-party negligence claim generally must be filed within two years of the injury (735 ILCS 5/13-202). If a public body owns the site or employs a responsible party, the period may be one year (745 ILCS 10/8-101). A compensation claim has its own deadlines, and the employer must be notified of the accident within 45 days (820 ILCS 305/6(c)). Because much of the evidence of control is created and held by the defendants, a preservation letter should go out early, before project records are archived or discarded.

Retained control, knowledge of the hazard, and early proof

After the Structural Work Act, a construction worker’s recovery beyond compensation depends on proving that someone other than the employer was negligent. Where a general contractor or owner is the target, that usually means proving retained control over the manner and methods of the work, not just general safety authority, and knowledge of the hazard. The proof lives in contracts, safety plans, logs, and communications that the injured worker does not have. Getting them, and preserving the site, is the work that determines whether a third-party claim exists.