Workplace Injuries and Restatement's Section 411

Articles & Publications

Chicago Daily Law Bulletin
May 28, 2015

A recent 1st District Appellate Court Rule 23 brought to light an issue of first impression in Illinois as to whether on onsite employee of an independent contractor constitutes a "third person" under Section 411 of the Restatement (Second) of Torts and thus is entitled to advance negligent hiring claims against a general contractor or owner. Carney v. Union Pacific Railroad, 2014 IL App (1st) 130105-U.

Most injured employees first turn to Section 414 of the Restatement (Second) of Torts to Pursue a third-party action against a general contractor or owner since the Illinois Workers' Compensation Act limits an injured party's recourse against an employer.

Under section 414 the injured employee would argue that one or more of those parties controlled the "operative details" of the injured employee's work. However, Illinois courts have yet to conclusively answer whether an injured onsite employee of an independent contractor can pursue a negligent hiring count under Section 411 against the general contractor or entity that hired the employer. Under such a theory, the injured employee would allege that the employer would not have been injured but for the general contractor's or owner's failure to exercise reasonable care in selecting an appropriate contractor, even if the allegedly unqualified contractor is the plaintiff's employer.

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