Jones v. DHR Cambridge Homes ( 2008 )


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  •                                     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."
    3
    No. 1-05-3526
    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?
    A.   Yes.
    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?
    A.   Yes.
    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
    that?
    A.   Yes.
    Q.   10.1, 'safety precaution and programs;' do you see
    that?
    A.   Yes.
    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?
    A.   Yes.
    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.   Standard of Review
    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).
    B.   Discussion
    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
    A.   Standard of Review
    "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).
    B.     Discussion
    Cambridge contends that the trial court abused its
    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
    A.   Standard of Review
    "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).
    B.   Discussion
    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
    A.    Standard of Review
    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
    B.   Discussion
    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:
    "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 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."
    Cambridge's proposed instruction read as follows:
    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
    follows:
    "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.    Standard of Review
    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).
    B.   Discussion
    The giving of special interrogatories is governed by section
    2-1108 of the Code of Civil Procedure, which provides in
    pertinent part as follows:
    "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
    40