SECOND DIVISION Date Filed: March 4, 2008
No. 1-05-3526
ANDREW JONES, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) DHR CAMBRIDGE HOMES, INC., ) ) No. 00 L 06717 Defendant-Appellant and ) Third-Party Plaintiff- ) Appellant ) ) ) Honorable ) Ralph Reyna, (Residential Carpentry, Inc., ) Judge Presiding. ) Third-Party Defendant- ) Appellee). )
JUSTICE HALL delivered the opinion of the court:
The plaintiff, Andrew Jones, filed a complaint against the
defendant, DHR Cambridge Homes, Inc. (Cambridge), seeking damages
for personal injuries he sustained while working on a
construction site. Cambridge filed a third-party complaint
against the plaintiff's employer, Residential Carpentry, Inc.
(RCI), seeking contribution pursuant to the Joint Tortfeasor
Contribution Act (740 ILCS 100/1 et seq. (2000)). Prior to
sending the case to the jury, the trial court granted RCI's
motion for a directed verdict on Cambridge's contribution claim.
The jury returned a verdict in favor of the plaintiff.
Cambridge appeals raising the following issues: (1) whether
the trial court erred in granting RCI's motion for a directed
verdict; (2) whether the trial court erred in failing to include No. 1-05-3526
RCI on the verdict form apportioning damages; (3) whether the
trial court erred in failing to include a nonparty on the jury
verdict form; (4) whether the trial court erred in barring the
use of a surveillance videotape of the plaintiff; (5) whether the
trial court erred in barring any testimony that OSHA had failed
to issue any citations for walking on sill plates; (6) whether
the plaintiff's counsel's remarks during closing argument
required a new trial; and (7) whether the trial court erred in
refusing to give Cambridge's nonpattern jury instructions. The
pertinent evidence is summarized below.
For the Plaintiff
The plaintiff was employed as a carpenter by RCI.
Cambridge, the owner and general contractor, subcontracted with
RCI to perform the carpentry work on the Cambridge Walk
subdivision it was constructing. The plaintiff described the
process of erecting first floor joists. The sill plates were
affixed to the steel beams set in place and braced by the
ironworkers. Sometimes the carpenters have to move the steel
slightly and rebrace it. There were several houses in the
subdivision on which the plaintiff had to restraighten the
bracing before the sill plates could be placed. The plaintiff
reported the problem to Mr. Zembruzski, the RCI foreman, but the
problem did not get resolved.
On November 4, 1999, the plaintiff walked out on a wooden
sill plate that was mounted on a structural steel beam to take
2 No. 1-05-3526
measurements for the layout of the floor joists. The sill plate
was approximately eight to nine feet off the ground and was wider
than the steel beam. The "brace," which the plaintiff had
secured the day before, ran perpendicular to the sill plate on
which the plaintiff stood and spanned the distance between that
sill plate and an adjacent sill plate and beam. In performing
his measurement, the plaintiff placed his left foot upon the
brace and leaned forward to obtain a measurement. The brace
flipped up causing the plaintiff to fall forward into the
basement area.
According to the plaintiff, he was never told he could not
walk out on a sill plate on a steel beam. While he was trained
not to walk on a brace, he was never told he could not place the
weight of his foot on the brace. It was not unusual to put a
foot on a brace.
The subcontract agreement between Cambridge and RCI provided
in pertinent part as follows:
"Safety Precautions and Procedures - The Subcontractor
shall take all reasonable safety precautions with respect to
the Work and shall comply with all safety measures required
by Contractor and by all applicable laws, ordinances, rules,
regulations and orders of any public authority for the
safety of persons or property, including but not limited to
the provisions of the Occupational Safety and Health Act,1
1 Hereinafter referred to as "OSHA."
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as amended from time to time and all regulations relating
thereto."
And
"Temporary Facilities and Services - Subcontractor
shall furnish all temporary offices, sheds and tool houses,
equipment, power, water, temporary lights, hoistings,
scaffolding, ladders, deckings, stagings, runways, and all
other facilities required in connection with the Work."
The subcontract agreement also provided that "the latest edition
of the General Conditions of the Contract for Construction, AIA
Document A-201" was also made part of the subcontract agreement.
Mark Tuma was the construction superintendent for Cambridge
on the project. Cambridge scheduled and sequenced the work of
the various trades on the project. It would also inspect the
work of the trades for compliance with the subcontracts, which
included compliance with Cambridge's safety manual. It was part
of Mr. Tuma's job to make sure that the trades adhered to the
safety manual. Cambridge held weekly meetings to discuss the
progress of the work and to address problems, including safety
issues. He would inform a trade to fix a problem. Each trade
had to provide a safety manual.
Mr. Tuma acknowledged that the subcontract agreement
identified Cambridge as the "contractor," that RCI was a
subcontractor and that the AIA Document A-120 general conditions
were made part of the subcontractor agreement. Mr. Tuma was then
4 No. 1-05-3526
questioned by the plaintiff's counsel about specific provisions
of the general conditions as follows:
"Q. Section 3.3 of these general conditions are
entitled 'supervision and construction procedures;' do you
see that?
A. Yes.
Q. And 3.3.1 reads as follows - - tell me if I've
read correctly.
'The contractor shall supervise and direct the
work using the contractor's best skill and attention. The
contractor shall be' keyword here 'solely' - - do you see
that?
Q. 'Solely responsible for and have control over
construction means, methods, techniques, sequences and
procedures and for having coordination - - and for
coordinating all portions of the work under the contract
unless the contract documents give other specific
instructions concerning these matters.' Do you see that?
So far I am reading it right?
Q. It goes on to read, 'if the contract documents
give specific instructions concerning construction means,
methods, techniques, sequences or procedures, the contractor
shall evaluate the job site safety thereof and as except
5 No. 1-05-3526
stated below, shall be fully and solely responsible for the
job site safety of such means, methods, techniques,
sequences or procedures."
Mr. Tuma agreed that was what the general conditions provided.
Mr. Tuma was then questioned about article 10 of the general
conditions as follows:
"I'm referring you to specifically to article ten which
is entitled 'protection of persons and property;' do you see
Q. 10.1, 'safety precaution and programs;' do you see
Q. 10.1.1, reads as follows - - tell me if I'm not
reading it correctly, please.
'The contractor shall be responsible for
initiating, maintaining and supervising all safety
precautions and programs in connection with the performance
of the contract.' Do you see that?
Q. And if you go down to 10.2.1, safety of persons
and property, it reads:
'The contractor shall take reasonable precautions
for the safety of and shall provide reasonable protection to
prevent damage, injury, or loss to .1, employees on the
6 No. 1-05-3526
work,' correct?
A. Yes."2
According to Mr. Tuma, if he observed an OSHA violation or
an unsafe practice on a construction site, he could stop it.
OSHA required that residential construction workers have some
type of fall protection if they were exposed to a six-foot or
greater fall. A "controlled access zone" (CAZ) was used to
control the environment for particular work. Other than
"awareness," no other fall protection was in place, even though
Mr. Tuma was aware that the RCI carpenters were working nine feet
in the air on the sill plates. Mr. Tuma did not think this was
dangerous; it was a common practice and utilizing a CAZ complied
with OSHA. While there were safer alternatives to walking the
sills, he chose not to instruct the trades on how to perform
their jobs. He did recall that someone from RCI brought the
problems with the steel to his attention. Mr. Tuma had no
problems with RCI on the project.
At the time of the plaintiff's accident, Randall Jensen was
employed by RCI and was the safety coordinator for the project.
He described the plaintiff as a very qualified carpenter and not
known to take any unnecessary risks. While working on the
project, he observed Cambridge supervisors, Mr. Tuma and Mark
2 The AIA Document A-201 general conditions were contained in
the plaintiff's trial exhibit No. 2. However, the exhibit was
not made a part of the record on appeal.
7 No. 1-05-3526
Gagliano inspecting the work on the site. If the supervisors
requested that a trade correct a problem, the trade would do so.
Only Cambridge had authority to change specifications. No safety
issue was ever raised about working off the sill plates. If
Cambridge had directed RCI to stop the practice, it would have
done so. While it was safer to use a ladder, the job then took
longer. Neither Cambridge nor RCI told the carpenters they could
not use ladders. Cambridge's weekly safety meetings were
attended by RCI's foremen, who would then meet with RCI
employees, because it was RCI's job to educate its employees, not
Cambridge's.
Richard Lamb was a regional director for Cambridge. At the
time of the plaintiff's accident, he was overseeing 14 projects
including the Cambridge Walk project. Mark Tuma and Mark
Gagliano worked under him as superintendents. Part of the
superintendents' job was to enforce Cambridge's safety manual.
Cambridge's safety regulations applied to all the subcontractors
on the site. If a superintendent observed a safety violation, it
was his responsibility to see that it was corrected. At the time
of the plaintiff's accident, the superintendents were trained to
enforce the OHSA six-foot fall protection rule. While there were
no exceptions to the fall protection rule, there were alternative
fall protection means, such as creating a CAZ. Mr. Lamb
acknowledged that a CAZ did not protect against injuries
sustained in falls.
8 No. 1-05-3526
Mr. Lamb acknowledged that Cambridge did not tell its
subcontractors how to do their jobs. Safety barriers, railings
and the like were the responsibility of the carpentry contractor.
Cambridge's duties were to coordinate the project and make sure
that the job was done according to the specifications and that
the contractors were in the right place. He never told a
carpentry contractor that the employees should not walk on a sill
plate. He understood that activity was permitted by OSHA.
At the time of the plaintiff's accident, Jerome Coleman was
employed by RCI as a superintendent at the Cambridge Walk
project. He was the highest-ranking RCI employee on the site.
By entering into a subcontract with Cambridge, RCI was required
to conform to Cambridge's safety program and to follow its rules
with regard to safety. Cambridge could and did dictate safety
rules with regard to RCI's work. Mr. Tuma could stop RCI's work
if he thought the employee was doing something unsafe. If
Cambridge thought that RCI was not doing its work safely, it
could remove RCI from the job. Mr. Coleman reviewed the accident
report, which noted that the plaintiff had one foot on the brace
and which was considered okay. Mr. Coleman did not have a
criticism of the plaintiff's actions. Mr. Coleman had taken OSHA
classes and attended safety meetings where the OSHA regulations
were reviewed. To his knowledge, OSHA did not prohibit walking
on sill plates.
According to Mr. Coleman, RCI supplied all of its own
9 No. 1-05-3526
equipment in connection with its work for Cambridge. RCI
required all its employees to attend its weekly safety meetings.
He was unaware of anyone from Cambridge instructing the plaintiff
to walk on the sill plates. All of the means and methods of
doing the work were the responsibility of RCI, not Cambridge.
RCI did not permit new carpenters on heights or dangerous areas
initially. If the plaintiff had stepped on a brace that was
unsecured or possibly unsecured, he was not following the safety
rules.
Phillip Colleran was a self-employed safety and health
consultant, specializing in construction safety. He had worked
for OSHA for 17 years and rose to become a senior compliance
officer. While working for OSHA, he received training and took
courses and seminars on workplace safety. He provides teaching
for OHSA and does work for the agency on small projects. He has
also written articles on residential construction site safety,
including one on fall protection.
Mr. Colleran explained that, as of 1995, OSHA required that
residential construction employers provide fall protection for
any operation requiring work six feet or higher above the ground.
There was a presumption that it was feasible and would not create
a greater hazzard to implement fall protection systems, such as
guardrails, personal fall arrest systems, nets or other types of
systems that provide a measure of protection against falls, such
as ladders or scaffolds. The employer had the burden of
10 No. 1-05-3526
establishing that it was appropriate to implement a fall
protection plan which complied with OSHA's regulations in lieu of
implementing one of those systems. Both Cambridge and RCI were
subject to OSHA.
According to Mr. Colleran, under OSHA's regulation, the
plaintiff should have been provided fall protection, suited to
the job at hand, which, in this case, would have been ladders or
sawhorses with planks. The regulations also required
inspections. In terms of who was to carry out the inspections,
Mr. Colleran stated as follows:
"I'm talking about RCI, obviously, but I'm also talk
[sic] about Cambridge who knew full well that this activity
was going on and said it's a matter of money as to why it
wasn't abated or that it was basically something that was
commonplace and accepted at that. And they were in a
position certainly with their pursestrings authority to have
intervened and said, RCI, you're imperiling people up here
by allowing them to walk these beams. You've got to
basically stop this, just as they have in their contract.
You have to abide by OSHA."
Mr. Colleran agreed that after the plaintiff, the best line of
protection for the plaintiff was his employer.
Michael Zembruzski was a foreman for RCI at the time of the
plaintiff's accident. At the time of trial, he was employed by
Cambridge as a superintendent and had the same duties as Mr. Tuma
11 No. 1-05-3526
at the time of the plaintiff's accident. These duties included
stopping a subcontractor's work if it was not working in
accordance with Cambridge's safety program. Prior to sending RCI
to work on a lot, Mr. Tuma would have been expected to make sure
that the lot was ready and safe for RCI, i.e., that the steel was
properly erected. After the plaintiff complained to Mr.
Zembruzski about the setting of the steel, Mr. Zembruzski took
the matter up with Mr. Tuma and understood that the problems were
going to be fixed.
Mr. Zembruzski explained that the carpenters laying out the
sill plates had no fall protection, other than the CAZ, which
only warned of a fall hazzard. Neither RCI nor Cambridge
provided the plaintiff with training regarding walking on the
sill plates. Walking on a sill plate would not have been a
violation of RCI's policies at the time of the accident. The
work could have been done from a ladder, but would have been a
bit slower. If Mr. Tuma had considered walking on the sill plate
to be unsafe, he had the authority to stop the work. Cambridge
did not tell RCI how to do its work.
For Cambridge
Mark Gagliano was employed by Cambridge and was responsible
for the preparation of the contract between Cambridge and RCI.
Although the contract specified such things as the quality of
wood to be used in construction, it did not provide instructions
to the subcontractors as to how to do their work. The contract
12 No. 1-05-3526
required RCI to perform its work in compliance with federal,
state and local laws and the minimum statutory health and safety
requirements. Each trade was responsible for providing its own
safety equipment. Cambridge did not supply any scaffolding or
ladders or equipment of any sort. If needed, they would be
supplied by RCI in this case.
Mr. Gagliano explained that the AIA Document A-201 was not
physically included in the contract. It was designed to provide
general conditions between the owner and the general contractor.
In this case, Cambridge was both the owner and the general
contractor. An ambiguity was created because RCI was referred to
as the subcontractor. However, the intention was to bind RCI and
Cambridge to these general conditions. While he maintained that
Cambridge did not really dictate the means and methods of doing
the subcontractors' work, Mr. Gagliano agreed sections 3.3.1 and
10.1.1 of the general conditions provided that Cambridge, as the
contractor, was solely responsible for and had control over the
means and methods of the work and was responsible for safety in
connection with the work. If Cambridge had not wished to
undertake these obligations, it could have chosen not to
incorporate them into the contract with RCI.
Eugene Holland was Cambridge's expert witness on
construction safety. His work in construction safety predated
OSHA. He had taken the 10-hour OSHA course, belonged to the
American Society of Safety Engineers and taught courses at the
13 No. 1-05-3526
University of Illinois, at Chicago, having to do with materials
used in construction. OSHA rules were included in those courses.
He had provided consulting services to OSHA on a nonpaid basis.
He was familiar with the OSHA regulations pertaining to fall
protection.
According to Mr. Holland, it was a custom and practice in
the construction industry for workers to walk on sill plates
while laying out or measuring the floor joists. Based on his 45-
years of experience, he believed that it was a safe practice.
While OSHA's six-foot rule required fall protection, the methods
required were not reasonable when applied to walking on sill
plates. OSHA regulations recognized that construction involved
certain hazzards for which there was no complete fall protection.
The use of the CAZ allowed for work to be done without the
standard fall protection requirements in residential
construction.
Mr. Holland explained that OSHA rules required an employee
to be responsible for his actions and conduct and required the
employer to furnish a working environment free from hazards
likely to cause death or serious harm to the employees. In this
case, RCI was the plaintiff's employer and had the obligation to
provide a safe workplace. The direct employer is responsible for
supplying safety equipment. There was no OSHA regulation that
would require Cambridge to provide such equipment to someone it
is not employing.
14 No. 1-05-3526
According to Mr. Holland, RCI was in direct, operative
control over its employees and was responsible for defining the
means and methods of performing the work, including the
procedures and the safe way of doing them. Whether the
measurement was done from a ladder or walking on the sill plate,
it was a means or method of performing the work. There was no
evidence that Cambridge had the same authority to control the
means and methods. Mr. Holland opined that no action on the part
of Cambridge had anything to do with the plaintiff's accident.
However, he acknowledged that at his deposition he had stated
that, had the steel been erected correctly, the accident could
have been avoided and that Cambridge should have inspected the
lot prior to allowing RCI to work on it.
At the close of the evidence, RCI moved for a directed
verdict. RCI pointed out that none of the witnesses testified
that RCI had done anything wrong. The trial court granted the
motion. Following deliberations, the jury returned a verdict in
favor of the plaintiff and against Cambridge. Following the
denial of its posttrial motion, Cambridge filed a timely notice
of appeal.
ANALYSIS
I. Directed Verdict for RCI
A. Standard of Review
"The grant or denial of a motion for [a] directed verdict is
reviewed de novo." Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill.
15 No. 1-05-3526
App. 3d 444, 460, 818 N.E.2d 713 (2004). The Kim court
recognized that there was contrary authority as to the
appropriate standard of review but concluded that de novo review
was appropriate "because the evidence presented at trial must be
considered '"'[a]new; afresh; a second time.'"'" (Emphasis in
original.) Kim, 353 Ill. App. 3d at 460, quoting Susnis v.
Radfar, 317 Ill. App. 3d 817, 826, 739 N.E.2d 960 (2000), quoting
City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 633, 668 N.E.2d
601 (1996), quoting Black's Law Dictionary 435 (6th ed. 1990).
"A directed verdict is appropriate where the plaintiff has
failed to establish a prima facie case." Kim, 353 Ill. App. 3d
at 460. "A directed verdict is granted improperly where 'there
is any evidence, together with reasonable inferences to be drawn
therefrom, demonstrating a substantial factual dispute, or where
the assessment of credibility of the witnesses or the
determination regarding conflicting evidence is decisive to the
outcome.'" Kim, 353 Ill. App. 3d at 460, quoting Maple v.
Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508 (1992).
B. Discussion
In its third-party complaint, Cambridge alleged that RCI had
a duty to exercise reasonable and ordinary care for the safety of
the plaintiff and breached its duty to the plaintiff in the
following respects:
"(a) negligently and carelessly failed to properly
train and supervise the Plaintiff;
16 No. 1-05-3526
(b) negligently and carelessly failed to warn the
Plaintiff of the dangers of the job site;
(c) negligently and carelessly created an unsafe work
environment by the means and methods used in its work;
(d) negligently and carelessly caused and required the
Plaintiff to perform his work from the structural steel
support beams of the subject building under conditions which
were dangerous and unsafe;
(e) negligently and carelessly caused and required
carpenters to utilize five inch wide steel beams as a
temporary support while laying out floor joists;
(f) negligently and carelessly failed to provide
adequate safeguards to prevent Plaintiff from injury while
lawfully upon said premises;
(g) failed to make a reasonable inspection of the
premises and the work being done thereon, when it knew, or
in the exercise of ordinary care should have known, that
said inspection was necessary to prevent injury to the
Plaintiff;
(h) carelessly and negligently coordinated the work in
an unsafe and improper manner; and
(i) required the Plaintiff to work in an unsafe area."
"In any negligence action, plaintiff bears the burden of
proving not only a duty and breach of duty but also that the
breach of that duty was the proximate cause of plaintiff's
17 No. 1-05-3526
injury." Taake v. WHGK, Inc., 228 Ill. App. 3d 692, 711, 592
N.E.2d 1159 (1992). "The plaintiff must present at least some
evidence on every element essential to his cause of action
[citations], and a directed verdict in favor of the defendant is
appropriate where the plaintiff has not established a prima facie
case [citation]." Saxton v. Toole, 240 Ill. App. 3d 204, 210,
608 N.E.2d 233 (1992). The above rule applies to a third-party
action for contribution. See Victory Memorial Hospital Ass'n v.
Schmidt, Garden & Erickson, 158 Ill. App. 3d 931, 934, 511 N.E.2d
953 (1987).
RCI maintains that Cambridge itself did not present any
evidence that RCI was negligent and argues that Cambridge may not
rely on the evidence introduced by the plaintiff. A similar
argument was rejected in Frisch v. International Harvester Co.,
33 Ill. App. 3d 507, 338 N.E.2d 90 (1975). In that case, the
plaintiff sued the manufacturer and the seller of a product. The
reviewing court held that the elements of strict liability had
been shown by competent evidence and that it would be a waste of
judicial resources to require the seller, who counterclaimed
against the manufacturer, to separately prove the elements of
strict liability. Frisch, 33 Ill. App. 3d at 521.
Byrne v. SCM Corp., 182 Ill. App. 3d 523, 538 N.E.2d 796
(1989) is also instructive. In that case, the plaintiffs filed a
products liability case against the manufacturer of paint the
husband used as part of his job. The manufacturer filed a third-
18 No. 1-05-3526
party complaint for contribution against the husband's employer.
At the close of all the evidence, the trial court directed
verdict for the employer on the issue of ventilation. The jury
returned a verdict for the plaintiffs and against the
manufacturer.
On appeal, the reviewing court upheld the granting of the
directed verdict for the employer. The court noted that
"defendant trial counsel was placed in an awkward position, on
[t]he one side arguing the ventilation was adequate to combat
plaintiffs' claims and on the other side arguing the issue of
adequate ventilation should nevertheless be submitted to the jury
in order to keep the contribution action in the case." Byrne,
182 Ill. App. 3d at 562-63. The court concluded that the
manufacturer's problem was "not the argument, it [was] the
evidence. The product was inherently dangerous. The defect was
the inadequacy of the warning. Experts testified that even if
the painting was done outdoors, a proper mask must be used.
Therefore, although the ventilation was a condition, it was not a
contributing cause." Byrne, 182 Ill. App. 3d at 563. In
reaching its conclusion, the reviewing court did not appear to
limit itself to the manufacturer's evidence as opposed to the
evidence as a whole.
Similarly, in the present case, on one hand, Cambridge
argued that walking on the sill plates was not dangerous. On the
other hand, it argued that if walking on the sills was dangerous,
19 No. 1-05-3526
RCI was responsible or at least partly responsible for the
plaintiff's safety. Cambridge introduced evidence establishing
RCI's duty, but relied on the plaintiff's evidence to establish
that RCI breached its duty to the plaintiff by allowing him to
walk on the sills and that this breach resulted in the
plaintiff's injury.
"[I]n ruling on a motion for a directed verdict, courts must
evaluate the relative strength of the nonmovant's evidence in the
context of the entire record at the time the motion is
presented." Williams v. Chicago Osteopathic Health Systems, 274
Ill. App. 3d 1039, 1047, 654 N.E.2d 613 (1995). Since RCI moved
for a directed verdict at the close of all the evidence, all the
evidence, including that introduced by the plaintiff, must be
considered. "In determining whether the court erred in directing
a verdict, it is immaterial upon which side the evidence is
introduced. If evidence introduced by either side, with its
legitimate and natural inferences tends to establish the claim of
the party opposing the motion, the motion should not be allowed."
Bay Island Drainage & Levee District No. 1 v. Nussbaum, 388 Ill.
131, 134, 56 N.E.2d 615 (1944).
Viewing all the evidence in the light most favorable to
Cambridge, the nonmoving party, we disagree that a verdict could
never stand against RCI. The plaintiff was injured as the result
of walking on a sill plate without fall protection. The
responsibility for providing the fall protection was disputed at
20 No. 1-05-3526
trial. The plaintiff presented evidence that Cambridge was
responsible for all of the safety issues. However, Cambridge
presented the testimony of Mr. Holland who opined that RCI was
responsible for the means and methods of performing the work on
the project and for providing a safe work place for the
plaintiff.
We conclude that the trial court erred in directing a
verdict in favor of RCI and therefore, this case must be remanded
for a new trial. We will address those issues which may arise on
retrial of this case.
II. Verdict Form
A trial court's determination of jury instructions will not
be disturbed absent a clear abuse of discretion. Hiscott v.
Peters, 324 Ill. App. 3d 114, 125, 754 N.E.2d 839 (2001). "An
abuse of discretion occurs when the ruling is arbitrary,
fanciful, or unreasonable, or when no reasonable person would
take the same view." Check v. Clifford Chrysler-Plymouth of
Buffalo Grove, Inc., 342 Ill. App. 3d 150, 157, 794 N.E.2d 829
(2003).
Cambridge contends that the trial court abused its
discretion when it refused Cambridge's verdict form, which
included Residential Steel, the steel contractor on the project.
Residential Steel was never a party in this case. Nonetheless,
21 No. 1-05-3526
Cambridge points out that in the comment to Illinois Pattern Jury
Instructions, Civil, No. B45.03A (2000) (hereinafter IPI Civil
(2000) No. B45.03A, the committee recognized that the
"[i]nclusion of 'nonparties' within the calculation of fault may
be necessary for correct consideration of comparative fault,
joint and several liability and contribution." IPI Civil (2000)
No. B45.03A, Comment. However, Cambridge misinterprets the term
"nonparties."
In the version applicable to this case, section 2-1117 of
the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994))
provided in pertinent part that "[a]ny defendant whose fault, as
determined by the trier of fact, is 25% or greater of the total
fault attributable to the plaintiff, the defendants sued by the
plaintiff, and any third party defendants who could have been
sued by the plaintiff, shall be jointly and severally liable for
all other damages." As explained by our supreme court in
Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 783
N.E.2d 1024 (2002):
"Section 2-1117 does not include in the division of fault
'anyone who could have been sued by the plaintiff.' Rather,
it includes 'any third-party defendant who could have been
sued by the plaintiff.' In other words, the party must
already have been brought into the case by a defendant for
that party to be included in the division of fault."
(Emphasis in original.) Unzicker, 203 Ill. 2d at 78.
22 No. 1-05-3526
Likewise, in the present case, in order for Residential
Steel to be included on the verdict form, it must have been named
as a party by Cambridge. Therefore, the trial court did not
abuse its discretion in refusing Cambridge's jury verdict form.
III. Video Tape
"The admission of a film into evidence is within the sound
discretion of the trial court [citation], and an abuse of
discretion occurs only where no reasonable person would agree
with the trial court's conclusion." Velarde v. Illinois Central
R.R. Co., 354 Ill. App. 3d 523, 529, 820 N.E.2d 37 (2004).
discretion when it refused to admit into evidence a surveillance
videotape of the plaintiff. Prior to trial, the court barred the
admission of the videotape because it had been disclosed after
the discovery cutoff. During the trial, Cambridge requested
reconsideration of the trial court's ruling. After viewing the
videotape, the trial court again denied the admission of the
video tape.
"When evidence is excluded, the offer of proof is the key to
preserving [the] error." Kankakee County Board of Review v.
Property Tax Appeal Board, 316 Ill. App. 3d 148, 155, 735 N.E.2d
1011 (2000). "The purpose of the offer of proof is to disclose
the nature of the evidence offered to the trial judge and
23 No. 1-05-3526
opposing counsel and to the reviewing court in order that it may
determine whether the exclusion of evidence was erroneous."
Kankakee County Board of Review, 316 Ill. App. 3d at 155.
The plaintiff maintains that in order to be sufficient, the
offer of proof in this case should have included the videotape.
Compare Kankakee County Board of Review, 316 Ill. App. 3d at 153
(if the offer of proof pertains to a document, the party should
be allowed to place the document into the record); People v.
Phillips, 186 Ill. App. 3d 668, 679, 542 N.E.2d 814 (1989) (where
the document was not made part of the record on appeal, counsel's
statement about the content of the document was insufficient to
show that the defendant was prejudiced by the court's refusal to
allow cross-examination of a witness based on the document). The
plaintiff concludes that in the absence of the videotape,
Cambridge has waived any error with regard to its admissibility.
See Schmitz v. Binette, 368 Ill. App. 3d 447, 453, 857 N.E.2d 846
(2006) (failure to make offer of proof will waive a claim that
evidence was improperly excluded).
"'[A]n offer of proof is not required if it is apparent that
the trial judge understood the nature of the objection and the
character of the evidence sought to be introduced or if the
questions themselves and the circumstances surrounding them show
the purpose and materiality of the evidence.'" Schmitz, 368 Ill.
App. 3d at 454, quoting Carter v. Azaran, 332 Ill. App. 3d 948,
956, 774 N.E.2d 400 (2002), citing Bafia v. City International
24 No. 1-05-3526
Trucks, Inc., 258 Ill. App. 3d 4, 7-8, 629 N.E.2d 666 (1994). An
offer of proof is sufficiently specific "if it adequately shows
the court what the evidence would be, allowing a court of review
to assess the prejudice allegedly inuring from the exclusion."
People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785
(2002).
In the present case, the offer of proof consisted of
Cambridge's counsel's statement as to the identities of the
videographers, the type of equipment they used and their work
experience in recording and editing videotapes. Counsel further
stated that if called as witnesses, the two videographers would
have testified that the videotape was a recording of the
plaintiff and his activities on February 10, 2005, and that the
videotape accurately portrayed their observations of the
plaintiff's activities on that date.3
In this case, since the trial court actually viewed the
videotape, the court was made aware of what the evidence would
be. However, "'[t]he offer serves no purpose if it does not
demonstrate, both to the [circuit] court and to reviewing courts,
the admissibility of the testimony which was foreclosed by the
sustained objection.'" Kim, 353 Ill. App. 3d at 451, quoting
People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126 (1992).
3 The record does contain a surveillance report describing
the videographers' observations of the plaintiff's activities,
but that was not included in offer of proof.
25 No. 1-05-3526
Since the videotape is not available to this court and the offer
of proof does not describe what activities the plaintiff was
engaged in and under what circumstances these activities were
undertaken, we are unable to determine whether its exclusion was
proper.
A new trial should be ordered "'only when evidence
improperly admitted appears to have affected the outcome of the
trial.'" Schmidt v. Ameritech Illinois, 329 Ill. App. 3d 1020,
1040-41, 768 N.E.2d 303 (2002), quoting Tzystuck v. Chicago
Transit Authority, 124 Ill. 2d 226, 243, 529 N.E.2d 525 (1988).
"In other words, a new trial is necessary where the exclusion of
evidence was the result of 'serious and prejudicial errors made
at trial.'" Schmidt, 329 Ill. App. 3d at 1041, quoting Lagestee
v. Days Inn Management Co., 303 Ill. App. 3d 935, 942, 709 N.E.2d
270 (1999).
According to the videographers' surveillance report in the
record, the plaintiff was observed doing carpentry work for
another employer. However, the plaintiff testified he was able
to do carpentry work, even though he was slower now, and
hammering, for example, caused him pain. Moreover, Cambridge
candidly concedes that it cannot prove the videotape would have
altered the outcome of the trial. Therefore, even if the
exclusion of the videotape was an abuse of discretion, the
exclusion of the videotape would not have required that Cambridge
receive a new trial.
26 No. 1-05-3526
IV. Absence of OSHA Violations
"An abuse of discretion standard applies when this court
reviews a trial court's evidentiary rulings." Chapman v. Hubbard
Woods Motors, Inc., 351 Ill. App. 3d 99, 105, 812 N.E.2d 389
(2004).
Cambridge agreed with the trial court's ruling barring any
evidence of OSHA violations. However, Cambridge contends that
the trial court abused its discretion when it barred any evidence
that OSHA had never issued citations for walking on sill plates.
Cambridge maintains that such evidence supported Cambridge's
argument that its conduct was reasonable.
A party may introduce evidence of a lack of prior accidents
or incidents when that party establishes a proper foundation.
McKenzie v. SK Hand Tool Corp., 272 Ill. App. 3d 1, 11, 650
N.E.2d 612 (1995). A proper foundation would require evidence
"establishing that such absence took place under conditions
substantially similar to those surrounding the accident sued
upon." Parson v. City of Chicago, 117 Ill. App. 3d 383, 388, 453
N.E.2d 770 (1983). In Parson, the court recognized that
"'evidence of absence of accidents has less probative value than
evidence of previous accidents, and thus is more easily
outweighed by the factor that the collateral issue will result in
jury confusion *** Evidence of absence of accidents usually
27 No. 1-05-3526
involves generally unreliable negative evidence *** and does not
tend directly to prove absence of negligence.'" Parson, 117 Ill.
App. 3d at 388-89, quoting Grubaugh v. City of St. Johns, 82
Mich. App. 282, 288, 289, 266 N.W.2d 791 (1978).
Cambridge argues that the testimony of Mr. Colleran and Mr.
Holland laid a sufficient foundation for the admission of the
evidence that OSHA had not issued violations for allowing a
worker to walk on a sill plate. However, Mr. Colleran's
testimony was that he was unaware that OSHA had ever issued a
violation in such circumstances. Mr. Holland's testimony that
OSHA had never cited anyone for walking on a sill plate was
limited to his own knowledge. This testimony failed to establish
that, under the conditions substantially similar to those
surrounding the plaintiff's accident, OSHA would not have issued
a citation. Therefore, the trial court did not abuse its
discretion in barring evidence as to the lack of OSHA citations.
V. Non-IPI Instructions
We review a trial court's determination whether or not to
provide a particular jury instruction under the abuse of
discretion standard. Webber v. Wight & Co., 368 Ill. App. 3d
1007, 1020, 858 N.E.2d 579 (2006). A reviewing court will not
disturb the trial court's determination absent a clear abuse of
discretion. Webber, 368 Ill. App. 3d at 1020.
28 No. 1-05-3526
At trial, Cambridge maintained that the IPI instructions
pertaining to construction negligence set forth an inaccurate
statement of the law and tendered non-IPI instructions on that
issue. The plaintiff objected, and the trial court gave the jury
the IPI construction negligence instructions.
Accordingly, the jury was instructed as follows:
"A contractor who entrusts work to a subcontractor can
be liable for injuries resulting from the work if the
contractor retained some control over the safety of the work
and the injuries were proximately caused by the contractor's
failure to exercise that control with ordinary care." IPI
Civil (2005) No. 55.01.
Cambridge's proposed instruction read as follows:
contractor retained some control over the means and methods
or operative detail of the subcontractor's work and the
injuries were proximately caused by the contractor's failure
to exercise that control with ordinary care."
The jury was also given IPI Civil (2005) No. 55.02 as follows:
"A party who retained some control over the safety of
the work has a duty to exercise that control with ordinary
care."
29 No. 1-05-3526
"A party who retained some control over the means and
methods or operative detail of the subcontractor's work has
a duty to exercise that control with ordinary care."
The jury was also given IPI Civil (2005) No. 55.03, which is in
pertinent part as follows:
"Plaintiff, Andrew Jones, seeks to recover damages from
defendant Cambridge Homes, Inc. In order to recover
damages, the plaintiff has the burden of proving:
1. The defendant retained some control over the
safety of the work."
Cambridge's proposed instruction read in pertinent part as
follows:
"Plaintiff, Andrew Jones seeks to recover damages from
defendant DRH Cambridge Homes, Inc. The Plaintiff claims
and in order to recover damages, the plaintiff has the
burden of proving:
1. The defendant, DRH Cambridge Homes, Inc.,
retained some control over the means and methods or
operative detail of the work."
Finally, the jury was given IPI Civil (2005) No. 55.04 as
"One or more persons may have some control over the
safety of the work. Which person or persons had some
control over the work under the particular facts of this
case is for you to decide."
30 No. 1-05-3526
"[T]he trial court has the discretion to determine if a
particular jury instruction is applicable, supported by evidence
in the record, and an accurate statement of the law." Luye v.
Schopper, 348 Ill. App. 3d 767, 773, 809 N.E.2d 156 (2004).
"Once a trial court determines an instruction is to be given,
then Supreme Court Rule 239(a) (177 Ill. 2d R. 239(a)) creates a
presumption that the Illinois Pattern Instructions (IPI) are to
be used." Luye, 348 Ill. App. 3d at 773. Whether an instruction
is an accurate statement of the law is reviewed de novo. Luye,
348 Ill. App. 3d at 773.
In its introduction to the construction negligence series of
the IPI instructions, the committee reviewed a number of cases on
the issue of control of the work and concluded as follows:
"Due to the lack of consensus among the appellate
courts and no Supreme Court cases on this subject since
[Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 211
N.E.2d 247 (1965)], the concept of 'control' caused the
committee great difficulty. The committee chose to
concentrate on the area of 'safety' in these instructions.
The committee believed that the overriding consideration
throughout all of these cases is the ability of the
controlling entity to affect overall job safety. It would
appear that the ability to stop unsafe work and not permit
it to be resumed until done to the satisfaction of the
controlling entity satisfies both the requirement of
31 No. 1-05-3526
'control' and demonstrates that the contractor is 'not
entirely free to do the work in his own way.'" IPI Civil
(2005) No. 55.00, Committee Comment b.
The committee further observed that the Larson court chose not to
define "'having charge of the work,'" stating it was a "'generic
term of broad import.' [Citation.] Whether the term 'control'
will be treated similarly will depend on further judicial
interpretation to help guide the committee." IPI Civil (2005)
No. 55.00, Committee Comment b.
"The Illinois Supreme Court has held that pattern
instructions are not exempt from challenge." Luye, 348 Ill. App.
3d at 776. "Pattern instructions do not receive advance approval
by the Illinois Supreme Court and are only approved or rejected
through judicial questioning and consideration." Luye, 348 Ill.
App. 3d at 776.
Cambridge's argument that the IPI instructions on
construction negligence do not accurately state the law is based
on this court's decision in Martens v. MCL Construction Corp.,
347 Ill. App. 3d 303, 807 N.E.2d 480 (2004). In that case, we
upheld a summary judgment in favor of the general contractor
finding that the plaintiff had failed to raise a question of fact
as to whether the general contractor had retained control or
exercised supervisory or operational control over the
subcontractor to be held liable. Martens, 347 Ill. App. 3d at
315.
32 No. 1-05-3526
In Martens, the plaintiff, relying on the analysis in Moss
v. Rowe Construction Co., 344 Ill. App. 3d 772, 801 N.E.2d 612
(2003), asserted that the central issue was the general
contractor's ability to affect worker safety. Martens, 347 Ill.
App. 3d at 318; see Moss, 344 Ill. App. 3d at 777 ("The issue is
not control of the 'means and methods' of performing the task,
but rather who contractually and/or physically has the duty to
control safety of the project"). We disagreed with Moss stating
as follows:
"The central issue is retained control of the independent
contractor's work, whether contractual, supervisory,
operational, or some mix thereof. The party who retains
control is the logical party upon whom to impose the duty to
ensure worker safety." Martens, 347 Ill. App. 3d at 318.
See also Doe v. Big Brothers Big Sisters of America, 359 Ill.
App. 3d 684, 695-96, 834 N.E.2d 913 (2005) (reiterating that
Martens rejected Moss's view that the right to control safety
alone sufficient to subject a general contractor to liability).
Cambridge maintains that the decision in Martens means that
the construction negligence IPI instructions no longer reflect
the common law on construction negligence. Therefore, its
proposed jury instructions, which incorporated the holding from
Martens, should have been given to the jury. We disagree, noting
that the Martens court referred to IPI Civil (2005) No. 55.02
without criticism, stating as follows:
33 No. 1-05-3526
"Penalizing a general contractor's efforts to promote safety
and coordinate a general safety program among various
independent contractors at a large jobsite hardly serves to
advance the goal of work site safety. A party who retains
some control over the safety of the work has a duty to
exercise that control with ordinary care. [IPI Civil (supp.
2003) No. 55.02]. Nevertheless, the existence of a safety
program, safety manual or safety director does not
constitute retained control per se; the court must still
conduct an analysis pursuant to the section 414 retained
control exception. [Citation.] We recognize, of course,
that if a defendant's safety program sufficiently affected a
contractor's means and methods of doing its work, then such
program could bring the defendant within the ambit of the
retained control exception. [Citation.]" Martens, 347 Ill.
App. 3d at 318-19.
In Martens, the general contractor could make safety
recommendations but could not demand that the subcontractor's
employees comply with a safety standard that exceeded the OSHA
requirement. In contrast, Cambridge could require compliance with
its safety standards and stop the work if RCI's employees were
violating its safety rules. We note that "our courts take a dim
view of 'culling passages from opinions and incorporating them
into instructions. Costa v. Dresser Industries, Inc., 268 Ill.
App. 3d 1, 12, 642 N.E.2d 898 (1994), quoting People v. Bush, 157
34 No. 1-05-3526
Ill. 2d 248, 256, 623 N.E.2d 1361 (1993). Moreover, the Martens
court's cite to the pattern instructions on construction
negligence does not suggest that the court intended its decision
to mean that the pattern instruction no longer reflected an
accurate statement of the law.
We conclude that the trial court did not abuse its
discretion in refusing Cambridge's non-IPI instructions.
VI. Special Interrogatory
A trial court's denial of a request for a special
interrogatory presents a question of law and is reviewed de novo.
Hooper v. County of Cook, 366 Ill. App. 3d 1, 6, 851 N.E.2d 663
(2006); 735 ILCS 5/2-1108 (West 2004).
The giving of special interrogatories is governed by section
2-1108 of the Code of Civil Procedure, which provides in
"Unless the nature of the case requires otherwise, the
jury shall render a general verdict. The jury may be
required by the court, and must be required on request of
any party, to find specially upon any material question or
questions of fact submitted to the jury in writing. Special
interrogatories shall be tendered, objected to, ruled upon
and submitted to the jury as in the case of instructions.
*** When the special finding of fact is inconsistent with
35 No. 1-05-3526
the general verdict, the former controls the latter and the
court may enter judgment accordingly." 735 ILCS 5/2-1108
(West 2004).
A trial court has no discretion but to submit to the jury a
special interrogatory, requested by a party, as long as it is in
the proper form. Northern Trust Co. v. University of Chicago
Hospitals & Clinics, 355 Ill. App. 3d 230, 251, 821 N.E.2d 757
(2004). "A special interrogatory is in [the] proper form if (1)
it relates to an ultimate issue of fact upon which the rights of
the parties depend, and (2) an answer responsive thereto is
inconsistent with some general verdict that might be returned."
Northern Trust Co., 355 Ill. App. 3d at 251. "The required
inconsistency arises when the special interrogatory is '"clearly
and absolutely irreconcilable with the general verdict."'"
Northern Trust Co., 355 Ill. App. 3d at 251, quoting Simmons v.
Garces, 198 Ill. 2d 541, 556, 612 N.E.2d 85 (2002), quoting
Powell v. State Farm Fire & Casualty Co., 243 Ill. App. 3d 577,
581, 612 N.E.2d 85 (1993). "If a special interrogatory does not
cover the issues upon which the jury is called to render a
decision and a '"reasonable hypothesis"' is left unaddressed that
would allow the special interrogatory to be construed
consistently with the general verdict, the special interrogatory
is not 'absolutely irreconcilable' with the general verdict, is
improper in form, and thus, may not be submitted to the jury."
Northern Trust Co., 355 Ill. App. 3d at 251, citing Simmons, 198
36 No. 1-05-3526
Ill. 2d at 556, citing Powell, 243 Ill. App. 3d at 581. Finally,
a special interrogatory that is repetitive, misleading,
confusing, or ambiguous is not in proper form. Blakey v. Gilbane
Building Corp., 303 Ill. App. 3d 872, 882, 708 N.E.2d 1187
(1999).
Cambridge tendered the following special interrogatory:
"Did DRH Cambridge Homes, Inc. retain control over the
means and methods or the operative detail of Residential
Carpentry, Inc. and/or the plaintiff?"
In determining whether a special interrogatory meets the
criteria of being in the proper form, the court should consider
the language of the special interrogatory within the context of
all of the jury instructions. Johnson v. Owens-Corning Fiberglas
Corp., 313 Ill. App. 3d 230, 236, 729 N.E.2d 883 (2000). In this
case, the instructions to the jury referred to control over
safety while the special interrogatory referred only to control
over the work. We agree with the plaintiff that the special
interrogatory was confusing and ambiguous when considered in
connection with the other instructions given to the jury.
More significantly, even if it had answered Cambridge's
special interrogatory negatively, the jury still could have
concluded that Cambridge, by virtue of its ability to stop the
work if RCI violated Cambridge's safety rules, retained control
of the safety issues, rendering it liable to the plaintiff.
Therefore, the special interrogatory was not absolutely
37 No. 1-05-3526
irreconcilable with the general verdict. Therefore, the trial
court was correct in refusing to submit the special interrogatory
to the jury.
Following the issuance of the original disposition in this
case, the plaintiff filed a petition for rehearing requesting
that this court affirm the damages award in this case and limit
the retrial of this case to the issue of liability. The
plaintiff argued that the retrial in this case should be limited
to liability only since Cambridge did not raise any issue as to
damages in its appeal.
Pursuant to Supreme Court Rule 367(d) (210 Ill. 2d R.
367(d)), this court ordered RCI and Cambridge to answer the
petition for rehearing. In their responses, both Cambridge and
RCI argued that because the trial court granted RCI's motion for
a directed verdict, RCI never had the opportunity to offer jury
instructions and to argue the question of damages to the jury.
The plaintiff argues that RCI never challenged the damages
evidence at trial.
This court has held that "[a]n appellate court should limit
the issues to be resolved on retrial only where it is plain that
any error that has crept into one element of the verdict did not
affect the determination of any other issue." Phillips v.
Gannotti, 327 Ill. App. 3d 512, 521, 763 N.E.2d 820 (2002). "A
limited retrial should not be granted if it might be prejudicial
to either party." Phillips, 327 Ill. App. 3d at 521; see
38 No. 1-05-3526
Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730, 769, 631
N.E.2d 1186 (1994) (a retrial limited to damages is appropriate
only if the questions of liability and damages are so separate
and distinct that a retrial only as to damages is not unfair).
In Ready v. United/Goedecke Services, Inc., 367 Ill. App. 3d
272, 854 N.E.2d 758 (2006), appeal allowed, 222 Ill. 2d 600, 861
N.E,2d 664 (2006), this court limited the retrial of the case to
the issue of liability where the defendant-appellant failed to
raise an issue on appeal as to the amount of damages awarded.
Likewise, in the present case, Cambridge never argued on appeal
that the damages were excessive. However, unlike Ready, this
case involves another defendant, RCI, which was an appellee in
this appeal.
After considering the parties' arguments and the authorities
cited in support thereof, we conclude that the effect of the
reversal of the directed verdict in its favor and a remand for a
new trial, if limited to liability, would be to deny RCI its
right to argue the damages issue. Therefore, in the interests of
fairness and a just result, we direct that the retrial of this
case include both liability and damages issues.
The directed verdict in favor of RCI is reversed. The cause
is remanded for a new trial on both liability and damages,
consistent with the views expressed in this opinion.
Reversed and remanded with directions.
SOUTH and KARNEZIS, JJ., concur.
39 No. 1-05-3526