Construction company moves for dismissal on failure to state cause of action grounds

By Heather Isringhausen Gvillo | May 1, 2014

A construction company accused in a dump truck accident resulting in a man losing part of his left leg has moved for dismissal of a Madison County lawsuit.

According to the complaint filed March 12, William and Faith Smith claim William was performing asphalt density tests for his employer, Quality Testing and Engineering, on June 7 in Maryville. At the same time, defendant Thomas G. Volmer was operating a 1998 Mack dump truck full of asphalt for defendant B.P. Hauling and drove over William Smith, the suit states.

Due to the incident, William Smith had his left leg and ankle partially amputated and suffered from deep vein thrombosis and pulmonary embolism, among other injures, the lawsuit states.

The Smiths accuse Volmer and his employer of negligently failing to keep a proper lookout, failing to keep his dump truck under control, backing in a construction zone without an audible reverse signal alarm and without an observer, backing the dump truck without first determining that no one was in the backing zone and failing to implement a comprehensive safety program, among other acts.

They also name Thiems Construction Company and The Kilian Corporation as defendants.

Thiems was a general contractor on the site where the incident occurred and Kilian had been hired to perform asphalt work.

However, Thiems filed a motion to dismiss on April 11, raising three reasons for dismissal:

-First, it fails to state a claim upon which relief may be granted;

-Second, it fails to specifically set forth facts upon which their claim is based;

-Third, the complaint is based upon a written instrument which is neither attached nor recited.

Thiems argues that Illinois is a fact-pleading jurisdiction, meaning “complaints must allege facts essential to the cause of action which brings the claim ‘within the scope of the cause of action asserted.’”

In cases making allegations of negligence, plaintiffs must present sufficient evidence to show the defendant owed a duty to the claimants.

Thiems added that according to Illinois law, companies employing independent contractors are typically not held liable for the acts of omissions of those they employ.

So, in order to show liability in the part of the employer, plaintiffs must show that the employer was in control over the operative details of the contractor’s work.

The case at hand fails to allege any facts showing Thiems retained control over the work of its subcontractors, the motion states.

The plaintiffs state in their complaint that Thiems “’was in charge of and retained and exercised control’ of the construction project;” however, they failed to allege any specific facts supporting the idea, the motion states.

Furthermore, the complaint does not make any allegations that Thiems was present at the jobsite or that it monitored the dump trucks and asphalt laying process.

As for Thiems’ third defense, it states that according to Illinois law, claims founded on a written instrument must include an attached copy as an exhibit or recited therein.

In their complaint, the plaintiffs allege Thiems owed a duty based on a “’written policy for safety in construction,’” but failed to attach the policy to the complaint or recite it therein.

Instead, the complaint quotes provisions of the alleged written policy.

Thiems argues the quotes included in the complaint “fall far short of a recital” because they consist of bits and pieces of clauses, presented without context, description, or citation.

“Because the document is not attached and since plaintiffs have taken extensive liberty with their quotations, it is unclear to whom the provisions are directed, for what purpose, and whether they are even authentic,” Thiems added.

Both Thiems and Kilian are blamed for negligently allowing a dump truck to be backed in a construction zone without having an audible reverse signal alarm and without an observer, allowing a dump truck to be driven too fast in a construction zone, allowing a dump truck to be backed in the construction zone without requiring the driver to determine no one was in the zone and allowing a dump truck to be backed on hot asphalt before it was tested for density, the suit states.

Kilian answered the complaint on April 11 denying the allegations.

According to its affirmative defenses, Kilian accuses William Smith of contributing to his alleged injuries for failing to keep a careful lookout and failing to protect himself on the job site.

The claimant also failed to mitigate his damages by returning to work or seeking other employment as soon as reasonably possible, the answer states.

The plaintiffs responded denying each and every affirmative defense.

The Smiths seek a judgment of more than $400,000.

W. Jeffrey Muskopf, Anne Elizabeth Bode and L. Dean Henke of SmithAmundsen in St. Louis represented Thiems when its motion for dismissal was filed. Then on April 25, SmithAmundsonmoved for leave to withdraw and substitute counsel.

Stephen M. Strum, Aaron D. French and Timothy B. Niedbalski of Sanberg, Phoenix & vonGontard in St. Louis have simultaneously requested to be substituted as Thiems’ counsel.

David K. Simkins of Wuestling & James law firm in St. Louis represents The Kilian Corporation.

Eric J. Carlson of Byron, Carlson, Petri & Kalb in Edwardsville represents the Smiths.

Madison County Circuit Court case number 14-L-391

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