FIRST DIVISION March 3, 2008
No. 1-05-1700
WILLIAM OLDENSTEDT, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) MARSHALL ERDMAN AND ASSOCIATES, INC. ) ) No. 00 l 1933 Defendant-Appellant, ) ) ) ) The Honorable (Brongiel Plumbing, ) James Varga, ) Judge Presiding. Third-Party Defendant-Appellee). )
JUSTICE GARCIA delivered the opinion of the court.
The plaintiff, William Oldenstedt, sued the defendant,
Marshall Erdman & Associates, Inc. (Erdman), after he injured his
back at a construction site. At the time of the injury,
Oldenstedt was employed by third-party defendant Brongiel
Plumbing (Brongiel), with which Erdman had subcontracted. The
trial court granted Brongiel's motion for a directed verdict and
the jury subsequently returned a verdict in Oldenstedt's favor.
On appeal, Erdman contends it is entitled to a new trial because
Oldenstedt's rebuttal closing argument was "slanderous and
grossly prejudicial," the trial court erroneously instructed the
jury, and the trial court erroneously refused Erdman's special 1-05-1700
interrogatories. Erdman also contends the trial court erred in
granting Brongiel's motion for a direct verdict.
BACKGROUND
Erdman is a construction company specializing in the
designing and building of medical facilities. In 1996, Erdman
was hired as the general contractor in a small construction
project underway at Little Company of Mary Affiliated Services,
Inc. (Little Company), in Evergreen Park. The design/build
contract drafted by Erdman and entered into by Erdman and Little
Company (the Erdman-Little Company contract) contained the
following provisions.
"ARTICLE 20
Subcontractors
*** [Erdman] shall be responsible to
[Little Company] for all acts and omissions
of subcontractors of all tiers and their
employees. [Erdman] shall also be responsible
for the construction of [Erdman's] work and
the work of all subcontractors including, but
not limited to, all suppliers and
materialmen.
ARTICLE 21
Covenants of Designer/Builder
21.1 [Erdman] shall supervise and direct
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the Work, using his best skill and attention.
[Erdman] shall be solely responsible for all
construction means, methods, techniques,
sequences and procedures and for coordinating
all portions of the Work under the Contract
Documents. ***
* * *
21.7 [Erdman] shall be responsible for
initiating, maintaining and supervising all
safety precautions and programs in connection
with the Project.
21.9 [Erdman] shall erect and maintain,
as required by existing conditions and
performance of the Contract Documents, all
reasonable safeguards for safety and
protection, including posting danger signs
and other warnings against hazards,
promulgating, safety regulations and
notifying owners and users of adjacent
utilities."
Erdman subcontracted with Brongiel to provide plumbing
services on the Little Company project. The subcontract between
Erdman and Brongiel provided as follows.
"1. [Brongiel] agrees to furnish and
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provide all work, labor, materials,
supervision and whatsoever else may be
required to fully do, perform and complete,
and will complete without any exceptions
(unless specifically noted in this
Subcontract), in a neat, first-class, good
and workmanlike manner, the following
described work:
Furnish and install a complete plumbing
system ***.
18. Safety: [Brongiel] agrees to
observe and comply with all provisions and
requirements of the Occupational Safety and
Health Act of 1970 in performance of the work
under this Subcontract, to assume all
responsibilities of [Erdman] with respect to
the work under this Subcontract and to
indemnify and hold harmless [Erdman] from all
penalties, damages or other loss resulting
from failure of [Brongiel] in performance of
this Subcontract to comply with the
Occupational Safety and Health Act of 1970
and the responsibilities with respect to such
performance."
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William Oldenstedt was a plumbing foreman for Brongiel at
the Little Company project. On July 22, 1996, Oldenstedt injured
his back unloading a toilet from a rolling Dumpster. Oldenstedt,
a smoker who was overweight and suffered from other health
conditions, was eventually referred to a neurosurgeon.
Oldenstedt presented with preexisting degenerative disc
disease and was diagnosed with L4-L5 disc herniation with
intractable right L5 radiculopathy. On March 17, 1997,
Oldenstedt underwent surgery at the L4-L5 site. The surgery,
however, only temporarily relieved his pain.
On June 24, 1999, Oldenstedt and his wife filed case number
99 L 4642, a 12-count complaint against Erdman and Little Company
alleging negligence and loss of consortium. That suit was
dismissed, and, on February 17, 2000, Oldenstedt and his wife
filed case number 00 L 1933 against Erdman and Little Company.
Mrs. Oldenstedt later dropped her loss of consortium claims, and
Oldenstedt and Little Company settled. Erdman filed a third-
party complaint for contribution against Brongiel.
On November 22, 2004, Oldenstedt filed a two-count second-
amended complaint. He subsequently filed a one-count third-
amended complaint alleging construction negligence against
Erdman.
A jury trial commenced on December 1, 2004. William
Oldenstedt testified that shortly after he arrived at the Little
Company project on July 22, 1996, a Brongiel truck arrived with
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plumbing fixtures, including sinks and toilets. The driver of
the truck helped Oldenstedt unload the fixtures onto the parking
lot.
Edward "Butch" Colbert, Erdman's superintendent at the
project, told Oldenstedt to move the fixtures to a second-floor
storage room. Oldenstedt asked the Brongiel driver whether he
had a platform or device Oldenstedt could use to transport the
fixtures. The driver did not. Oldenstedt then asked Colbert
whether he had an appropriate device. Colbert told Oldenstedt to
use one of the rolling Dumpsters at the site that belonged to
Little Company. Unbeknownst to Oldenstedt, there were at least
two dollies at the site.
Oldenstedt did as Colbert instructed. While he was
unloading a 50-pound handicap-accessible toilet from the
Dumpster, he felt his feet slipping. Oldenstedt fell head first
into the Dumpster and felt pain in his back and leg. When he was
able to pull himself out of the Dumpster, Oldenstedt noticed a
substance on the floor that looked like sand or grit.
It was the job of Steven Bunge, an Erdman project manager,
to ensure quality and safety at the jobsite. Bunge was
questioned about the Erdman-Little Company contract, including
those portions stated above. Erdman also had its own safety
rules in effect in 1996, and each subcontractor was required to
have in place its own safety policies and procedures. Bunge also
testified that in his education, training, and experience, each
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subcontractor was primarily responsible for the safety of its
employees. Erdman, however, had a responsibility to keep the
jobsite clean and free of debris.
According to Bunge, Butch Colbert, as superintendent, was
responsible for supervising, directing, and otherwise controlling
the subcontractors' work. Colbert did not dictate the "means or
methods" of that work, but had the right to stop the work if an
unsafe practice was occurring. Colbert was also required to
conduct daily safety inspections at the site and document the
inspection by filling out a form.
John Hetland, an Erdman senior project manager, also
testified. According to Hetland, a subcontractor foreman was
responsible for ensuring his or her own safety, as well as the
safety of his or her crew, and was responsible for providing safe
tools. Hetland was familiar with the Erdman safety rules and was
aware that Erdman, through its superintendent, was to conduct
regular safety meetings with subcontractors on its jobsites.
Hetland additionally testified it was Colbert's duty as project
superintendent to keep a record of all safety meetings and to
document all safety inspections. Hetland, however, did not know
whether any such meetings or inspections took place at the Little
Company project and did not know where any such documentation was
or why it was not tendered to Oldenstedt's attorney. According
to Hetland, it would be contrary to Erdman's policies to discard
documents that might be relevant to a lawsuit.
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Oldenstedt's attorney also questioned Ronald Wanke, Erdman's
safety director, about the missing safety documentation. Wanke
testified he did not know when any forms related to the Little
Company project were disposed of, including whether they were
disposed of before or after Oldenstedt filed suit. Wanke also
explained Erdman adhered to a three-year document retention
policy. Although Wanke did not know when Oldenstedt's suit was
filed, he did not dispute the representation made by Erdman's
attorney that suit was filed in 2000.
Butch Colbert testified that two dollies were on site at the
Little Company project and that it was common practice in the
construction industry for the employee of a subcontractor to use
tools belonging to the general contractor. Colbert also
testified he had no recollection of telling a Brongiel employee
to use a Dumpster to move a toilet.
Peter Cucuz, a liability expert retained by Oldenstedt,
testified that in his opinion, to a reasonable degree of
certainty within the field of construction, the Erdman-Little
Company contract indicated Erdman was in control of the project.
Timothy Galarnyk, a liability expert retained by the defendant,
opined it was Oldenstedt's responsibility as Brongiel's foreman
to provide the devices to transport the plumbing fixtures and
that Oldenstedt and Oldenstedt alone was responsible for his
injuries.
Regarding Brongiel's liability on Erdman's counterclaim,
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Ronald Wanke testified he did not see any documentation
indicating Brongiel did anything wrong. Peter Cucuz additionally
opined that, based on all the documents he reviewed in the case,
Brongiel "did absolutely nothing wrong." Timothy Galarnyk, like
Cucuz, testified Brongiel "did absolutely nothing wrong."
After the completion of the evidence, the trial court
addressed Brongiel's motion for a directed verdict on Erdman's
counterclaim. The court asked any party to "point to some
evidence, because [it did not] see any [supporting the
counterclaim]." While counsel for Erdman objected to the
granting of a directed verdict for Brongiel, she did not argue
that sufficient evidence had been presented. Rather, she argued
that, "if there's no negligence on behalf of Brongiel Plumbing
***, we also would have no negligence in this matter." The trial
court granted the motion.
The jury instruction conference next took place, and the
parties gave their closing arguments. After deliberating, the
jury returned a verdict in favor of Oldenstedt in the amount of
$1,202,093.60, but reduced the award by 35% to $781,360.84 due to
Oldenstedt's negligence. The trial court entered judgment on the
verdict, but subsequently reduced the award by $10,000, the
amount of the settlement between Oldenstedt and Little Company.
Erdman's motion for a new trial was denied, and this timely
appeal followed.
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ANALYSIS
I. Rebuttal Closing Argument
Erdman contends Oldenstedt's rebuttal closing argument
amounted to a "diatribe" that denied it a fair trial.
In his opening closing argument, counsel for Oldenstedt
argued that Oldenstedt was a hard-working man who was asking for
a "fair shake." Counsel argued the evidence demonstrated Erdman
had contractual control of the work and that Butch Colbert
instructed Oldenstedt to move the plumbing fixtures with the
Dumpster. Counsel also argued that Oldenstedt was credible and
Erdman's evidence was not.
In her closing argument, counsel for Erdman went beyond
merely arguing that Oldenstedt was not credible; she repeatedly
urged that Oldenstedt "lied," including about how the accident
occurred. Counsel also argued that Oldenstedt was more than 50%
at fault. Counsel also sought to explain Erdman's lack of safety
documentation for the date of claimed accident:
"Now, why don't they have the document?
Because this happened in 1996. And, first of
all, they were never notified of the
incident. Second of all, there was no
lawsuit filed until 1999, which was more than
three years after they would have been
notified; and it was their policy to get rid
of documents."
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In rebuttal, Oldenstedt's attorney turned the claim of
"liar" on Erdman.
"Who's lying? Let me tell you who's
lying. Remember she just told you that this
lawsuit was filed more than three years after
this happened? That's a lie. Here it is:
June 24th, 1999, less than three years. And
why does that matter? Because they were
supposed to keep their records three years.
So you know what happened? They got
sued. Picture this: Marshall Erdman &
Associates, Incorporated. Picture the
boardroom at this corporation, the CEO, the
CFO, the CPO, the CEA, whatever the heck they
are. And somebody says, 'What's on the
agenda?'
'I've got something on the agenda.
'What is it?
'We got sued by this [man] in Chicago.
'What happened?
'Well, back in '96, this guy got hurt
and we were hoping it would go away and it
didn't. He sued us.
'Well, what do we do? What do we know
about it?
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'Well, we've got the incident report
that Butch filled out at the time. But you
know what we don't have? We don't have any
of the forms, the safety forms we're supposed
to have. What are we going to do?
'Well, we've got two choices. One, we
can step up and do the right thing. Or two,
we can try to crush this guy.'
So what does the corporation decide to
do? Crush him. Step one, throw out all the
documents. Throw them out because then they
wouldn't be able to show--And then we'll
attack him and say, We don't have any record
it happened.
Number two, let's hire--you know, the
law firm this guy hired is just this one guy,
Wadington. Let's hire a firm in Chicago with
about nine names and destroy this guy because
that's what corporations try to do. And
that's what happened here. Okay? Let's hire
a 10,000-dollar expert, God know how many
other thousand-dollar experts. And you know
what they forgot? Here's what they forgot:
They underestimated the intelligence of a
Cook County jury. Okay?
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I'm not attacking Ms. Goggin-Ward
[Erdman's counsel] personally. She's just
the messenger. But the message is insidious:
A corporation trying to crush that guy, and
it only happens if you let them. Okay. If
they didn't know it happened, do you think
they would have spent 10,000 bucks on Kanter
and God knows how may thousand bucks on Zelby
because if it didn't happen, you never get to
damages. Make sense?
Somebody is lying here. Here's the
document that shows who's lying. They got
sued within the time they're supposed to have
the documents: June 24th, 1999. Not what she
told you but less than three years. And so
what do corporations do? They attack him.
They try to crush him. They try to make him
a liar. It didn't work. He didn't lie once.
Who's lying? You want to call my guy a
liar, I'm coming after you. You,
Corporation, in Cook County want to call a
working man a liar, I'm coming after them
because Chicago is a working man's town. And
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corporations can't be allowed to get by with
this. And only, only if your verdict is
fully just will corporations like this learn
that you can't do that in Chicago. You can't
do that to guys like this. They live their
whole life, they ask nothing of the system.
And the one time they do, the corporate
boardroom decides to smash them.
Please hear the truth and don't let them
do that. Here's the truth. Here's the lie
(indicating).
Thank you."
Because Erdman's claim of error regarding the rebuttal
argument is based on the absence of supporting record evidence
and the prejudicial nature of the argument itself, we address its
claim of error in two parts.
A. No Evidentiary Support
First, Erdman argues that Oldenstedt's counsel improperly
argued in rebuttal that the lawsuit had been filed on June 24,
1999, thus placing Erdman on notice within its three-year
document retention period for safety forms based on the date of
the claimed accident of July 22, 1996. In its main brief, Erdman
states, "However, it is the date of service *** that establishes
Erdman's knowledge of this lawsuit, and there is no record
evidence regarding *** when [] Erdman was served." (Emphasis in
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original.)
To preserve its claim of error that there is no record
evidence to establish the date Erdman became aware of the lawsuit
to trigger the retention of its safety documents, trial counsel
for Erdman should have objected. See Bulleri v. Chicago Transit
Authority, 41 Ill. App. 2d 95, 104, 190 N.E.2d 476 (1963)
(finding it improper for counsel to argue to the jury facts in
his own knowledge, not testified to by any witness). Because no
objection was made, the claim is waived. Simmons v. University
of Chicago Hospitals & Clinics, 162 Ill. 2d 1, 12, 642 N.E.2d 107
(1994).
However, our resolution of this claim of error is not based
solely on waiver. We note that it was Erdman's trial counsel
that first mentioned the date of 1999 during its closing
argument: "[T]here was no lawsuit filed until 1999, which was
more than three years after they would have been notified; and it
was [Erdman's] policy to get rid of documents." To rebut
Erdman's claim that the filing of the lawsuit was more than three
years after Oldenstedt's injury, Oldenstedt's counsel argued that
the accident happened on July 22, 1996, and that the a complaint
was filed against Erdman on June 24, 1999. (The only one in the
record that was filed in 1999.)
Even in the absence of waiver, we would find no reversible
error. To the extent Erdman argued that the filing of the 1999
lawsuit was more than three years after the accident, we reject
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any claim of error based on an Oldenstedt's argument in rebuttal
that directly challenged the argument advanced by Erdman. "Our
decisions have repeatedly held that a defense attorney cannot
provoke a reply to his own improper argument and then claim
error." Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226,
246, 529 N.E.2d 525 (1988).
B. Prejudicial Nature
The second part of Erdman's claim of error is based on the
prejudicial nature of the rebuttal argument. We find this more
substantial.
Erdman complains that Oldenstedt's counsel "explicitly
accus[ed] Erdman of deliberately discarding the safety
documentation in order to 'crush' and 'smash' plaintiff.
Plaintiff did this by describing an illusory 'meeting' of
Erdman's directors where they chose to throw out the safety
documentation and attack plaintiff for even filing suit." Erdman
further contends that Oldenstedt's argument, that a Cook County
jury would not be so easily swayed by the destruction of
documents that would have supported Oldenstedt's claim that he
was injured on the job, amounted to an effort "to whip the jury
into a frenzy, to incite the jury into a blind rage, all so that
the jury, in an act of vengeance, would convict Erdman."
According to Erdman, the incitement to a frenzy also was the
product of Oldenstedt's argument that Erdman "underestimated the
intelligence of a Cook County jury," that "Chicago is a working
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man's town," that "corporations can't be allowed to get by with
this. And only, only if your verdict is fully just will
corporations like this learn that you can't do that in Chicago,"
and "[y]ou can't do that to guys like this."
Because Erdman's trial counsel did not object, Erdman
asserts the plain error exception to the waiver rule.
Oldenstedt, in addition to waiver, contends his rebuttal
argument "merely responded to Erdman's counsel's slanderous
attack, making fair comment upon the actual evidence and
testimony to make it clear that the only party that was not being
forthcoming with the jury was Erdman." Oldenstedt contends in
his brief that on "no less than nine separate occasions" Erdman
either directly or indirectly called Oldenstedt a liar. Some
examples include:
"[T]he plaintiff, William Oldenst[e]dt, has
not told the truth about what he did or did
not do on July 22 of 1996 at Little Company
of Mary Hospital. Nor has be told the truth
about any back condition or conditions he may
or may not have sustained on, before, during,
or after that date."
"[T]he plaintiff, William Oldenst[e]dt, is
not to be believed."
"[W]e know the plaintiff lied about how he
testified this accident happened. We just
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know that."
"[T]he accident plaintiff describes was
physically and scientifically impossible to
have happened that way."
"[P]laintiff lied. Pure and simple, he faked
it."
A counsel's failure to object to claimed prejudicial
comments during closing argument will generally waive the issue
for review. Simmons, 162 Ill. 2d at 12. However, in some cases,
a reviewing court may find plain error sufficient to overcome the
waiver bar. In the context of closing arguments, our supreme
court has explained:
"If prejudicial arguments are made without
objection of counsel or interference of the
trial court to the extent that the parties
litigant cannot receive a fair trial and the
judicial process stand without deterioration,
then upon review this court may consider such
assignments of error, even though no
objection was made and no ruling made or
preserved thereon." Belfield v. Coop, 8 Ill.
2d 293, 313, 134 N.E.2d 249 (1956).
The supreme court has instructed reviewing courts, when
applying the Belfield test, to "strictly apply the waiver
doctrine unless the prejudicial error involves flagrant
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misconduct or behavior so inflammatory that the jury verdict is a
product of biased passion, rather than an impartial consideration
of the evidence." Gillespie v. Chrysler Motors Corp., 135 Ill.
2d 363, 375-76, 553 N.E.2d 291 (1990).
On the record before us, we need not decide whether
Oldenstedt's rebuttal argument was within the proper bounds of a
response to the closing argument made by Erdman. It is clear on
the record that this was a contentious trial, with each party
challenging the veracity of the other. Such matters, where
neither party is blameless for the escalating nature of the
attacks, are best left to the trial judge to address. See Torrez
v. Raag, 43 Ill. App. 3d 779, 357 N.E.2d 632 (1976) (no abuse of
discretion found in trial court granting new trial because trial
court is in a better position to determine the prejudicial effect
of defense counsel's remarks on the jury).
Of course, the trial judge, except in the most rare of
cases, must be presented with an objection in order to intercede.
As Erdman did not object, we need only decide whether
Oldenstedt's rebuttal argument involved such flagrant misconduct
or inflammatory behavior that the waiver bar is overcome. In
order to so find, we must conclude that the complained-of
portions of Oldenstedt's rebuttal argument resulted in such
prejudice to Erdman that it was denied "a fair trial and
substantially impaired the integrity of the judicial process
itself." (Emphasis in original.) Gillespie, 135 Ill. 2d at 377.
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Thus, to invoke plain error, it is not enough for Erdman to
claim that Oldenstedt's story of an Erdman board meeting where
Erdman executives opted to "crush" Oldenstedt by "throw[ing] out
all the documents" was not based on the evidence at trial, or
that the rebuttal argument "created evidence out of whole cloth."
Rather, we must determine whether the rebuttal argument
undermined the judicial process itself. We must examine the
rebuttal argument in context, keeping in mind the nature of the
argument put forth by Erdman. See People v. Wheeler, 226 Ill. 2d
92, 122, 871 N.E.2d 728 (2007).
The record suggests that Oldenstedt's reference to a mock
board meeting at Erdman was made in response to Erdman's own
contentions that Oldenstedt was a liar and Erdman's
representation that it had no knowledge of the accident until
after the safety documents were disposed of. While Erdman
maintains that the jury might have been misled by the rebuttal
argument into believing that such a board meeting actually took
place, we do not agree. As Erdman rightly contends, the record
is barren of any evidence that such a corporate meeting took
place; the absence of any such evidence persuades us that the
jury was not so easily swayed to believe that Oldenstedt's
rebuttal argument was meant to suggest that such a meeting
actually occurred. See Pomrenke v. Betzelberger, 41 Ill. App. 2d
307, 316, 190 N.E.2d 522 (1963) ("we do not believe that our
juries should be regarded as a class of persons easily deceived
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or misled").
In addition, Oldenstedt's argument regarding the mock
meeting was prefaced with "Picture this," making clear that what
followed was a response to Erdman's contention that no accident
took place, that Oldenstedt's claim of injury was false, that he
lied. It was Oldenstedt's contention that the safety records, no
longer in existence, would have supported his claim. It is
apparent that Oldenstedt's argument regarding the mock Erdman
meeting where the destruction of the safety records was discussed
was the flip side of Erdman's argument that Oldenstedt lied about
the accident itself. See Lewis v. Cotton Belt Route-Saint Louis
Southwestern Ry. Co., 217 Ill. App. 3d 94, 122, 576 N.E.2d 918
(1991) (argument "that the jury should 'stand up and be counted'
and 'not to let the [defendant and its expert] get away with
things that have been happening' [was found] to be fair response
on rebuttal to defendant's argument in support of its defense of
physical impossibility and of plaintiff's credibility with regard
to his alleged injury. Therefore, these comments were also based
on the evidence ***").
We are aware of no authority that compels Oldenstedt, before
responding to Erdman's claim that Oldenstedt was a liar, to limit
himself to the record of "supporting evidence [of such] a
'meeting' of Erdman's board of directors in which plaintiff's
lawsuit was discussed" (emphasis omitted) before he is permitted
to respond in kind. While two improper arguments may not make a
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right result, we cannot say that Oldenstedt's argument would have
been made had Erdman not challenged Oldenstedt's testimony in the
manner in which it did. See Moore v. Centreville Township
Hospital, 246 Ill. App. 3d 579, 590, 616 N.E.2d 1321 (1993),
rev'd on other grounds, 158 Ill. 2d 543, 634 N.E.2d 1102 (1994)
("Although two improper arguments do not a make a right result
[citation], a party may not claim error based on invited
remarks").
We do not suggest, however, that had Oldenstedt's rebuttal
argument been challenged by a timely objection, such an objection
should have been overruled. See, e.g., Simmons, 162 Ill. 2d at
12-13. The trial judge was in a better position to determine
that question. See Torrez v. Raag, 43 Ill. App. 3d 779, 783, 357
N.E.2d 632 (1976) (trial court in a superior position to gauge
prejudicial effect of an improper closing argument); Moore, 246
Ill. App. 3d at 590 (new trial motion claiming plain error is
within trial court's discretion, as it is in the best position to
assess prejudice).
We only decide that, on the record before us, Erdman's claim
of error based on Oldenstedt's rebuttal argument does not rise to
plain error. See Holder v. Caselton, 275 Ill. App. 3d 950, 657
N.E.2d 680 (1995) ("hometown" doctor theme in opening,
examination of witness, and closing argument did not meet
stringent standard of plain error to warrant reversal); Bruske v.
Arnold, 44 Ill. 2d 132, 137, 254 N.E.2d 453 (1969) (statements
22 1-05-1700
made in closing were improper, but did not rise to level of
prejudice contemplated in Belfield). As our supreme court made
clear in Gillespie, the cases in which it applied the Belfield
standard and granted a new trial "involved blatant
mischaracterizations of fact, character assassination or base
appeals to emotion and prejudice," resulting in a deterioration
of the judicial process. Gillespie, 135 Ill. 2d at 377. This is
not such a case.1
II. Jury Instructions/Special Interrogatories
Erdman next contends the trial court improperly instructed
the jury and improperly refused two special interrogatories.
A. Jury Instructions
Whether to give or deny a particular jury instruction is
within the discretion of the trial court. Dillon v. Evanston
Hospital, 199 Ill. 2d 483, 505, 771 N.E.2d 357 (2002). We review
the trial court's exercise of discretion to determine "whether,
taken as a whole, the instructions are sufficiently clear so as
not to mislead and whether they fairly and correctly state the
1 We also note that the jury found Oldenstedt 35% negligent
for his injuries, supporting that the jury decided this case on
the evidence, contrary to Erdman's claim that the jury was
incited into a "blind rage" to seek "vengeance" by Oldenstedt's
rebuttal argument.
23 1-05-1700
law." Dillon, 199 Ill. 2d at 505.
At the jury instruction conference, the parties disputed the
applicability of the so-called "construction negligence
instructions" (Illinois Pattern Jury Instructions, Civil, Nos.
55.01, 55.02, 55.03 (2006) (hereinafter IPI Civil (2006)).
Oldenstedt's attorney advocated their use, while Erdman's counsel
argued the general premises liability instruction (IPI Civil
(2006) No. 120.09) was applicable. Erdman's attorney
eventually informed the court that she was objecting "to any of
the 55 instructions being used," but because the trial court had
ruled against her, the parties had "reached [an] agreement *** to
[the] language," which slightly modified the IPI language.
Accordingly, the court instructed the jury as follows:
"A contractor who entrusts work to a
subcontractor can be liable for injuries
resulting from the work if the contractor
retained control over the methods and/or
means of the work and the injuries were
proximately caused by the contractor's
failure to exercise that control with
ordinary care to ensure workers' safety."
See IPI Civil (2006) No. 55.01.
"A party who has retained control over
the methods and/or means of the work has a
duty to exercise that control with ordinary
24 1-05-1700
care to ensure workers' safety."
See IPI Civil (2006) No. 55.02.
"Plaintiff William Oldenstedt seeks to
recover damages from defendant Marshall
Erdman & Associates. In order to recover
damages, the plaintiff has the burden of
proving (1), the defendant retained control
over the methods and/or means of the work;
(2), the defendant acted or failed to act in
one or more of the following ways: [(A)]
Failed to provide Bill Oldenst[e]dt with a
two-wheeled cart/dolly to move the plumbing
fixtures. (B), provided Bill Oldenst[e]dt
with a [D]umpster to move the plumbing
fixtures. (C), failed to inspect the storage
room before directing Bill Oldenst[e]dt to
place the fixtures there. (D), failed to
inform Bill Oldenst[e]dt [that] there were
two-wheeled cart/dollies on the job site.
(E), failed to remove the waste or debris
from the storage room floor. (F), failed to
provide the proper lighting in the storage
room. (G), failed to provide an Erdman
carpenter or laborer to assist Bill
Oldenst[e]dt in moving the fixtures and, in
25 1-05-1700
so acting or failing to act, was negligent in
the manner which it exercised or failed to
exercise its control to ensure workers'
safety. (3), plaintiff Bill Oldenst[e]dt was
injured. (4), the defendant's negligence was
a proximate cause of plaintiff's injuries."
See IPI Civil (2006) No. 55.03.
Erdman argues the language of the Erdman-Little Company
contract was insufficient as a matter of law to support a finding
that Erdman retained control over the method and means of the
work of the project. Erdman argues the jury should have been
instructed about the contract's insufficiency.
This contention fails. First, Erdman, by failing to tender
alternative instructions, has waived this issue for review.
Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 549, 475 N.E.2d
817 (1984).
Second, any error that may have occurred was invited by
Erdman. After the trial court determined the IPI, Civil, 55
series (IPI Civil (2006) No. 55.00 et seq.) were applicable in
this case, Erdman's attorney informed the court she "reached
agreement" with Oldenstedt's attorney regarding the language to
be used. Because Erdman's attorney acquiesced to the language of
the instructions, Erdman cannot complain of it on appeal.
"Simply stated," the doctrine of invited error prohibits a party
from complaining of an error on appeal "which that party induced
26 1-05-1700
the court to make or to which that party consented." In re
Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283 (2004).
Finally, it bears noting that one of the complained-of
instructions, IPI Civil (2006) No. 55.03, was submitted to the
jury in a manner that undoubtably favored Erdman's defense. The
instruction given omitted the word "or" between the allegations
contained in subparagraphs (A) through (G). Thus, the jury was
instructed that it was required to find that Oldenstedt met his
burden of proof as to all of the allegations contained in those
subparagraphs, rather than to only one of them.
In sum, we find no reversible error occurred where trial
counsel not only failed to proffer alternative instructions at
trial, but where a given instruction, presumably in accordance
with the agreement reached by counsel, substantially favored the
defense.
B. Special Interrogatories
Erdman next contends the trial court erred in rejecting two
of its special interrogatories regarding Erdman's retention of
control. The interrogatories, initially offered, stated:
"[1.] Do you find that Marshall Erdman &
Associates retained control over the means,
methods, and safety of Brongiel Plumbing's
work?
[2.] Do you find that William
Oldenstedt's injuries were proximately caused
27 1-05-1700
by Marshall Erdman & Associates' failure to
exercise control over the means, methods[,]
and safety of Brongiel Plumbing's work with
ordinary care?"
The trial court refused the interrogatories because it found
the wording of the interrogatories created confusion because the
interrogatories used the word "safety" while the IPI, Civil, 55
series instructions to be given omitted that word and where the
interrogatories referred to Brongiel rather than Oldenstedt. The
following morning, Erdman's attorney again submitted special
interrogatories.2 Oldenstedt's attorney objected to the
interrogatories again because of their wording. Counsel for
Erdman stated, "I understand the concern from the plaintiff's
counsel. I think this could, in fact, be reworded, however."
The court explained:
"You know, I need a case on this. I
warned you about special interrogatories. ***
And, you know, if you're going to ask to
reamend, I don't know how many times I can
keep reamending. You just reamended last
night. You gave them to me late. Go ahead
and make your record. I mean, there's some
2 It is unclear how the special interrogatories read when
resubmitted.
28 1-05-1700
point where I've got to say, 'You've had a
couple bites out of the apple; you're done.
You're late.' But go ahead. I may let you
do it, okay?"
The revised special interrogatories were submitted and were
again rejected by the court.
As Erdman points out, "a trial court has no discretion to reject a special interrogatory that is proper in form." Thomas
v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1033, 801
N.E.2d 90 (2003), citing 735 ILCS 5/2-1108 (West 2002). The
trial court does, however, retain a traditional right of
discretionary control over its own docket. See, e.g., People ex
rel. Devine v. Sharkey, 221 Ill. 2d 613, 622, 852 N.E.2d 804
(2006). Despite being given numerous opportunities to do so,
counsel admittedly failed, on numerous occasions, to present
interrogatories that were, according to the trial court, in
proper form. Furthermore, absent a showing on the record before us that the interrogatories were in proper form, we can find no
reversible error occurred.
III. Directed Verdict for Brongiel
Erdman's final contention is that the trial court erred by
directing a verdict in Brongiel's favor on its counterclaim.
A directed verdict should be granted only where all of the
evidence, when viewed in the light most favorable to the
nonmoving party, so overwhelmingly favors the moving party that
29 1-05-1700
no contrary verdict can stand. Mulloy v. American Eagle
Airlines, Inc., 358 Ill. App. 3d 706, 712, 832 N.E.2d 205 (2005),
citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510,
229 N.E.2d 504 (1967). A directed verdict should not be granted
where " 'reasonable minds might differ as to inferences or
conclusions to be drawn from the facts presented.' " York v.
Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d 147, 178, 854 N.E.2d 635 (2006), quoting Pasquale v. Speed Products
Engineering, 166 Ill. 2d 337, 351, 654 N.E.2d 1365 (1995).
Our standard of review is de novo. Bermudez v. Martinez
Trucking, 343 Ill. App. 3d 25, 29, 796 N.E.2d 1074 (2003).
In support of its counterclaim, Erdman points to
Oldenstedt's testimony indicating the Brongiel truck driver
delivered the plumbing fixtures, but did not supply any kind of
device to transport them. Erdman contends this testimony
combined with Brongiel's contractual duty to furnish and provide
all work, labor, materials, and supervision "constitutes sufficient evidence of Brongiel's negligence to have survived a
motion for a directed verdict." Erdman, however, did not raise
this argument at trial when the court specifically asked Erdman's
attorney to "point to some evidence" to support its contribution
claim.
More to the point, while this argument addresses duty and
breach, to avoid a directed verdict, the element of proximate
cause must also be established in a prima facie case. Bermudez,
30 1-05-1700
343 Ill. App. 3d at 29. "While proximate cause is generally a
question of fact, it becomes a question of law when the facts
alleged indicate that a party would never be entitled to recover.
[Citations.] Accordingly, if the plaintiff fails to establish
the element of proximate cause, he has not sustained his burden
of making a prima facie case and a directed verdict is proper."
Bermudez, 343 Ill. App. 3d at 29-30. While Erdman does not specifically address the issue of
proximate cause in its brief, Erdman's claim of "sufficient
evidence" is founded on Oldenstedt's testimony that Brongiel did
not provide a moving device when it dropped off the plumbing
fixtures. That testimony is, at best, circumstantial evidence
from which negligence may be inferred. "[C]ircumstantial
evidence is sufficient to establish proximate cause *** as long
as the inference in question may reasonably be drawn from the
evidence." Nowak v. Coghill, 296 Ill. App. 3d 886, 896, 695
N.E.2d 532 (1998). Erdman's contention, that the failure to provide a "dolly
for [Oldenstedt] to use to move the toilets from the parking lot
into the building" supports an inference of negligence that the
jury may draw to hold Brongiel liable on the counterclaim, fails
to consider that before a trier of fact may be allowed to draw an
inference of negligence based upon circumstantial evidence, "the
circumstances [must be] of a nature and so related to each other
that it is the only conclusion that can be drawn therefrom, and
31 1-05-1700
mere conjecture, guess, or suspicion is insufficient." Coulson
v. Discerns, 329 Ill. App. 28, 32, 66 N.E.2d 728 (1946).
We do not find an inference of negligence to be the only
conclusion that can be drawn from Oldenstedt's testimony
regarding Brongiel's failure to leave a dolly to allow the jury
to render a verdict on Erdman's counterclaim. Erdman does not
persuade us that it was more probable that Brongiel's failure to leave a dolly was a proximate cause of Oldenstedt's injuries than
that it was not a proximate cause. See McInturff v. Chicago
Title & Trust Co., 102 Ill. App. 2d 39, 53, 243 N.E.2d 657
(1968), quoting Vance v. Picken, 93 Ill. App. 2d 294, 298, 235
N.E.2d 266 (1968), quoting Celner v. Prather, 301 Ill. App. 244,
227, 22 N.E.2d 347 (1939) (" ' "It cannot be said one fact can be
inferred, when the existence of another inconsistent fact can be
drawn with equal certainty" ' "). We do not agree that an
inference of negligence may reasonably be drawn from Oldenstedt's
testimony, even in the face of Brongiel's contractual duty. We do not agree that Oldenstedt's testimony is the sort of
affirmative and positive evidence that would justify a jury to
conclude that Brongiel was negligent in that regard. See
McInturff, 102 Ill. App. 2d at 48 (plaintiff's burden to show
"affirmatively and positively" that claimed negligence was
proximate cause of injury).
In fact, the evidence established that a dolly was present
at the shipping area when the plumbing fixtures were delivered.
32 1-05-1700
Uncontradicted testimony, however, was presented that Erdman's
project superintendent, Colbert, directed Oldenstedt to use the
Dumpster to transport the fixtures. In the face of this
evidence, no reasonable certainty exists that Brongiel's failure
to provide a dolly was a legal cause of Oldenstedt's injury. See
Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416 N.E.2d 328
(1981) ("No liability can exist unless the defendant's alleged negligence is the legal cause of the plaintiff's injury");
McInturff, 102 Ill. App. 2d at 48 (negligence involved in the
violation of a duty imposed by an ordinance does not impose
liability unless it proximately causes the injury). In fact, the
only affirmative and positive evidence on the issue presented by
the counterclaim came from Ronald Wanke, Peter Cucuz, and Timothy
Galarnyk and that evidence was that Brongiel did nothing wrong.
The circuit court did not err in entering a directed verdict
in favor of Brongiel on Erdman's counterclaim.
CONCLUSION The judgment of the circuit court of Cook County is
affirmed.
WOLFSON and R. GORDON, JJ., concur.
33 1-05-1700
REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT ________________________________________________________________ WILLIAM OLDENSTEDT, Plaintiff-Appellee, v. MARSHALL ERDMAN AND ASSOCIATES, INC. Defendant-Appellant, and BRONGIEL PLUMBING, Third-Party Defendant-Appellee. ________________________________________________________________ No. 1-05-1700
Appellate Court of Illinois First District, First Division
Filed: March 3, 2008 _________________________________________________________________ JUSTICE GARCIA delivered the opinion of the court.
Wolfson and R. Gordon, JJ., concur. _________________________________________________________________ Appeal from the Circuit Court of Cook County Honorable James Varga, Judge Presiding _________________________________________________________________
For DEFENDANT - Brian A. Schroeder APPELLANT CASSIDAY SCHADE LLP 20 N. Wacker Drive, Suite 1040 Chicago, Illinois 60606
For PLAINTIFF - Robert N. Wadington APPELLEE ROBERT N. WADINGTON & ASSOCIATES 111 W. Washington Street, Suite 1460 Chicago, Illinois 60602
For THIRD PARTY J. Michael West DEFENDANT- MAISEL & ASSOCIATES APPELLEE 200 N. LaSalle Street, Suite 2000 Chicago, Illinois 60601