Diaz v. Legat Architects, Inc. - Corrected 12/23/09 ( 2009 )

FIRST DIVISION
Date Filed: December 14, 2009
Nos. 1-08-3622 & 1-08-3635 Cons.
JOSE DIAZ and MARIA DIAZ, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees and ) Cook County.
Cross-Appellants, )
)
v. )
) No. 04 L 2874
LEGAT ARCHITECTS, INC., a )
Corporation, and THE DURANT )
COMPANY, a Corporation, )
)
Defendants )
)
(Boller Construction Company, ) Honorable Clare Elizabeth
Inc., a Corporation, ) McWilliams,
) Judge Presiding.
Defendant-Appellant and )
Cross-Appellee and )
Third-Party Plaintiff- )
Appellant; )
)
Larmco Construction Company, )
)
Third-Party Defendant- )
Appellee and Cross- )
Appellant). )
PRESIDING JUSTICE HALL delivered the opinion of the court:
The plaintiffs, Jose Diaz, and his wife, Maria Diaz, filed
a complaint against defendant Boller Construction Company, Inc.
(Boller), for personal injuries he sustained while working on a
construction site. Boller filed a third-party complaint against
Mr. Diaz's employer, Larmco Construction Company (Larmco),
seeking contribution pursuant to the Joint Tortfeasor
Contribution Act (740 ILCS 100/1 et seq. (West 2004)). The jury
Nos. 1-08-3622 & 3635 Cons.
returned a verdict for the plaintiffs and against Boller. The
jury also returned a verdict for Boller and against Larmco in the
third-party suit. After reducing the award by the percentage of
Mr. Diaz's negligence, the jury awarded Mr. Diaz $1,246,875 and
awarded Mrs. Diaz $50,000 for loss of consortium.
Following the filing of posttrial motions, the trial court
ordered a remittitur of the jury award based on the improper
admission at trial of future medical costs. The trial court
denied the plaintiffs' request to adjudicate Larmco's workers'
compensation lien and granted Larmco's motion to dismiss Boller's
third-party complaint for contribution. After allowing other
setoffs and credits, not at issue in this case, Mr. Diaz's award
was reduced to $1,029,270.06, and Mrs. Diaz's award was reduced
to $47,500, resulting in a total award of $1,076,770.06.
Both Boller and the plaintiffs have appealed from the
judgment in this case. The plaintiffs and Larmco have also filed
cross-appeals. This court ordered the consolidation of the
plaintiffs' and Boller's appeals and the cross-appeals for
purposes of review and decision.1
1
In its cross-appeal, Larmco requested that the plaintiffs'
appeal and cross-appeal and Boller's appeal be denied. In the
alternative, Larmco requested a judgment n.o.v. be entered in its
favor on Boller's third-party complaint or that it be granted a
2
Nos. 1-08-3622 & 3635 Cons.
Boller raises the following issues on appeal: (1) whether
Boller's motion for a directed verdict should have been granted
or a judgment n.o.v. entered; (2) whether the trial court erred
in instructing the jury with the pattern construction negligence
instructions; (3) whether trial court errors require a new trial,
either individually or cumulatively; and (4) whether the trial
court erred in granting Larmco's motion to dismiss Boller's
third-party complaint. In their appeal, the plaintiffs contend
that the trial court erred in denying their motion to adjudicate
Larmco's workers' compensation lien. In their cross-appeal, the
plaintiffs contend that the trial court erred in granting the
remittitur. Due to the length of the record in this case, we
will limit our recitation of the facts to the trial testimony
pertinent to the issues raised on appeal.
BACKGROUND
Boller performs general construction and concrete work. It
was one of 17 "prime" contractors hired to perform work on the
Highland Park High School project (the project). Thereafter,
Boller entered into a contract with Larmco to perform the masonry
work on the project.
I. Trial Court Proceedings
A. Liability Testimony
new trial.
3
Nos. 1-08-3622 & 3635 Cons.
In March 2002, Mr. Diaz was 53 years of age, and he was
working on the project for Larmco as a laborer. As part of his
duties he would assist in the building of scaffolds. Larmco used
two kinds of scaffolds, either Non-Stops or Morgans.
On March 19, 2002, Mr. Diaz and the other laborers were
working on a Non-Stop scaffold. A laborer named "Al"2 put an
extension on the scaffold. Mr. Diaz explained that, when an
extension was added to a scaffold, it was necessary to put up two
cross braces. A second extension required two more cross braces
and a straight brace at the top. Al told Mr. Diaz that he was
only using one cross brace because there was not a lot of
material.
In the afternoon, Mr. Diaz was working on the scaffolding
with other laborers. There were two types of planks on the
scaffold; one for materials, such as bricks and mortar, and one
used for walking. While he was walking across the scaffold, a
pile of bricks on the material plank broke open and fell on the
bricklayers' plank. Mr. Diaz went back to remove the bricks so
that the bricklayers would not trip over them. When he stepped
on the material plank, it gave way, and he fell. He briefly
2
"Al" was never identified, although it was suggested that
Mr. Diaz was referring to Mr. Allen. However, Mr. Allen was the
foreman, not a laborer.
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Nos. 1-08-3622 & 3635 Cons.
lost consciousness. After he regained consciousness, he was
transported to the hospital. He remained in the hospital over
night and was released the next day.
On cross-examination, Mr. Diaz denied complaining to Al that
there was a problem with the scaffold. However, he acknowledged
that he felt there was something wrong when Al was putting up the
extensions and told him he was going to put up only a single
brace. Mr. Diaz considered the scaffold safe. Mr. Diaz took all
of his instructions from Ed Allen from Larmco. He did not take
any instructions from anyone from Boller. He did not hear any
warning not to step on the plank. He never complained to Mr.
Allen about the scaffold. He did not know whether the lack of
the braces caused his accident.
Miguel Diaz (Miguel)3 testified that he was employed by
Larmco as a laborer and was working with Mr. Diaz on March 19,
2002. One of the material planks holding bricks fell. "Maris,"
one of the bricklayers, told them to be careful. Mr. Diaz
grabbed on to the tower portion of the scaffolding and stepped on
the plank. The plank fell with Mr. Diaz on top of it.
According to Miguel, the laborers took their instructions
for extending the scaffold and as to safety issues from Mr.
Allen. Miguel did not notice anything unusual about the scaffold
3
No relation to the plaintiffs.
5
Nos. 1-08-3622 & 3635 Cons.
prior to the accident. He did not pay any attention to the
position of the planks. Miguel and Mr. Diaz cranked the scaffold
up to about 15 or 20 feet.
Miroslaw Kundzicz testified that he was employed as a
laborer by Larmco. On March 19, 2002, just prior to Mr. Diaz's
fall, Mr. Kundzicz was standing on one of the walking planks and
noticed that one of the material planks was not completely on the
angle iron where it normally rested. About an inch of the plank
was resting on the angle iron. Mr. Kundzicz told the laborers
nearby that the plank was not positioned correctly and warned
them to be careful; he thought Miguel was behind him and would
have heard the warning. After turning back to his work, he heard
the bricks fall to the walking platform. He noticed that the
Boller superintendent was always walking around the project.
On cross-examination by Boller, Mr. Kundzicz testified that
he took all of his orders from Mr. Allen. He took no orders or
directions from Boller. The planks that fell were material
planks. Material planks are not intended for walking. He was
not sure what Mr. Diaz was walking on when he fell. The only
planks that moved prior to the fall were material planks. He
told the laborers that there was something wrong with the planks
because it was their job to fix it.
Francisco Gutierrez testified that he was employed as a
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Nos. 1-08-3622 & 3635 Cons.
machine operator by Larmco. Prior to that, he had been a laborer
and had assisted in assembling Non-Stop scaffolds and adding
extensions to them. On March 19, 2002, he was operating a crane,
lifting up bricks to the scaffolding. After he saw Mr. Diaz
fall, he stopped the crane and went over to where Mr. Diaz was on
the ground. He observed a plank on the ground. When he looked
up at the scaffold, two planks were missing. Based on his
experience, a straight brace would be placed at the top of the
scaffold.
On cross-examination by Boller, Mr. Gutierrez testified that
Mr. Allen directed how the scaffold was to be built. Mr.
Gutierrez had not been trained to assemble that type of scaffold,
but he had assembled them. He had also done pipe scaffolding but
that was different from a Non-Stop scaffold. Mr. Allen would be
the appropriate person to decide where and when straight braces
should be put on the scaffold. Mr. Allen was his foreman; all
the directions and orders came from him. Mr. Gutierrez had no
dealings with Boller. Larmco employees were the only ones to
erect and maintain the scaffold. He did not know what caused the
planks to fall or why Mr. Diaz fell. After Mr. Diaz fell, Mr.
Gutierrez looked up and saw the straight brace was missing. On
redirect examination, Mr. Gutierrez testified that, at the height
of the scaffold in this case, when no cross braces are used, a
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Nos. 1-08-3622 & 3635 Cons.
straight brace is placed at the bottom and the top of the
scaffold.
Edward Allen, field superintendent for Larmco, testified as
an adverse witness. As a field superintendent, he was in charge
of projects for Larmco. He had taken an OSHA4 course in
scaffolding. At the time of Mr. Diaz's accident, he was a
foreman but was still in charge of supervising the Larmco workers
on the project. OSHA required scaffolds to be built under the
direction and supervision of a competent person. According to
Mr. Allen, he was considered a competent scaffold person. There
were scaffold builders but, as the foreman, he was responsible
for making sure that the scaffolds were erected correctly.
The day following Mr. Diaz's fall, Mr. Allen inspected the
site of the accident in compliance with Larmco's safety manual.
In his report of the accident, he noted that two material planks
had fallen off the scaffold, one of which fell when Mr. Diaz
stepped on it. Mr. Allen acknowledged that there was no straight
arm brace at the top of the scaffold but explained that the Non-
Stop scaffold used here did not require it. He acknowledged
that, at his deposition, he stated that the straight arm brace
was to be placed between the two cross braces. During his
inspection of the scaffold, he observed that five other straight
4
Occupational Safety and Health Act (29 U.S.C. §651 (2000)).
8
Nos. 1-08-3622 & 3635 Cons.
braces were missing. While Mr. Allen stated that the height of
the scaffold in this case did not require a straight brace at
every interval where there was no cross brace, he acknowledged
that, at his deposition, he had stated that the straight braces
were required.
Mr. Allen explained that, as part of his duties, he walked
the jobsite every morning and checked the scaffolds to make sure
they were safe. They had to be checked every day due to changing
conditions, such as the weather. He had checked the scaffolding
the morning of Mr. Diaz's accident. Had he noticed the missing
braces then, he would have ordered that they be installed.
However, he explained that scaffold changes also took place
during the day. Mr. Allen was familiar with the tagging system;
a scaffold would be tagged to indicate it was okay to use or had
problems. Boller did not require Larmco to use the tagging
system. It was his understanding that the straight arm braces
were taken off when the extensions were added to the scaffold
prior to the accident but were not put back on the scaffold.
Mr. Allen identified Ben Chambers as Boller's job
superintendent for the project. While Larmco was responsible for
the scaffolding, if Mr. Chambers noticed a problem, he would
inform Mr. Allen, and the problem would have to be fixed. Mr.
Chambers was in charge of where and when Larmco did its work.
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Nos. 1-08-3622 & 3635 Cons.
Mr. Chambers had the right to stop work for safety reasons. Mr.
Chambers had the right to instruct Larmco personnel to implement
safety procedures for scaffolding, but only if he knew what they
were.
On cross-examination by Boller's attorney, Mr. Allen
explained that at the time of his deposition, he had confused the
Non-Stop scaffold with the Morgan scaffold and had testified
about the Morgan scaffold rather than the Non-Stop scaffold that
Larmco used in the project. The Non-Stop scaffold required
bracing at a higher level, 36 feet, than did the Morgan scaffold.
The scaffold in this case was not required to go to 36 feet.
As part of his job, Mr. Allen oversaw the safety aspect of
Larmco's work. Larmco had safety training for its workers and
laborers, including weekly safety meetings. The bracing of the
scaffold was Larmco's job. There had been no complaints about
the scaffolding. Boller would not have any reason to believe
that there was a problem with Larmco's scaffold.
On redirect examination, Mr. Allen acknowledged, based on
his investigation, it was possible Mr. Diaz's fall was due to the
missing straight brace, which caused the scaffold to separate.
On re-cross-examination by Boller, Mr. Allen stated that the
measurements he took during his investigation indicated that the
scaffold was in the same position it was in prior to the
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Nos. 1-08-3622 & 3635 Cons.
accident.
Benjamin Chambers testified as an adverse witness. Mr.
Chambers worked for Boller as a construction superintendent and,
as such, was the Boller person responsible for preventing
accidents on the project. Mr. Chambers would arrive on the
project site at 6:30 a.m. and would spend 30 minutes inspecting
the site. He would look at the scaffolding every morning to make
sure there were no safety deficiencies. He also walked around
the site at other times during the day looking for safety
problems. As the Boller construction superintendent, Mr.
Chambers had the authority to stop the work if a subcontractor
was using unsafe equipment or doing work in an unsafe manner. On
two occasions, he had stopped excavation work on the site. While
he had experience in excavation work, he had no experience in
scaffolding. He did not know when straight braces were required
or the number of bricks that could be placed safely on the
material planks.
All of the subcontractors were required to give Mr. Chambers
a copy of their safety manuals. According to Larmco's safety
manual, there was a checklist for tower scaffolding. However,
Mr. Chambers never collected the checklists to determine if
Larmco was using and following them in its work on the project.
He was not familiar with the tagging system. He did not know
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Nos. 1-08-3622 & 3635 Cons.
what the qualifications were for someone like Mr. Allen to
oversee the construction of the scaffold.
On March 19, 2002, Mr. Chambers did not see anything wrong
with the scaffold at 6:30 am. Shortly after lunch on that day,
he looked at the scaffold again but did not observe any problem
with it.
On cross-examination by Boller, Mr. Chambers described his
safety responsibilities on the project: establishing entrances
and exits, signage for the construction area, providing fire
extinguishers, telephone access and emergency plans. Boller had
a safety program dealing with safety hazards that could arise on
the project site. Boller was the general contractor on the
science building wing. While there were 17 other prime
contractors, eventually, Boller began to coordinate those
contractors as well.
Mr. Chambers acknowledged that he had no training in
scaffolding, but for many years, he had watched them be
constructed and knew "what is supposed to happen." He relied on
Mr. Allen to use the scaffold correctly. There were no
complaints about the scaffold, and Mr. Chambers observed nothing
to indicate that Larmco was not competent in its use of its own
scaffold. He saw nothing on the morning of the accident to
indicate that the scaffold was unsafe. Mr. Chambers relied on
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Nos. 1-08-3622 & 3635 Cons.
Mr. Allen to make that decision whether a brace was required.
William Hickey testified that he had been a part owner of
Larmco and had been employed as a general superintendent. He had
been a bricklayer and had worked on a variety of scaffolds. He
had taken 10-hour and 40-hour OSHA courses. At the time of Mr.
Diaz's accident, Mr. Hickey was Larmco's general superintendent.
He would spend at least one day a week on the project site. He
attended the job meetings and discussed scheduling, safety issues
and problems with Mr. Allen. He was not informed of any safety
issues with the Non-Stop scaffolding. Weekly safety meetings
were held to discuss safety issues. Larmco had its own safety
manual, which covered scaffolding.
Mr. Hickey testified further that he inspected the scaffold
the day after the accident and found nothing wrong with it. The
scaffold appeared to be braced properly. There were no straight
braces missing from the top of the scaffold. Straight bracing
was used on a Non-Stop scaffold once it reached 36 feet in
height.
Mr. Hickey further testified that the general contractor did
not tell Larmco laborers how to build the scaffolding. He would
not expect the general contractor to tell Larmco's foreman or
laborers to put in a straight brace at 36 feet. The contract
between Larmco and Boller required Larmco to furnish a competent
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Nos. 1-08-3622 & 3635 Cons.
person as its representative on the site. In this case, that
person was Mr. Allen. The laborers received on-the-job training
with regard to the scaffold building and maintenance. Mr. Diaz
would have received such training.
On cross-examination by the plaintiffs, Mr. Hickey
acknowledged that he did not see the scaffolding prior to the
accident. He denied that when a scaffold is constructed, a
straight brace was placed at the top. He further denied that a
straight brace was required on the scaffold for stability
purposes. He did not recall his deposition testimony in which he
stated that there should be a straight brace at the top of the
scaffold for stability and because "[i]t's the way the scaffold's
built."
On redirect examination, Mr. Hickey testified that the
straight braces were not necessary because each tower worked
individually. He believed that the scaffold had been adequately
braced.
Frank L. Burg, the plaintiff's expert, testified that he was
a certified safety professional. He had worked for OSHA as a
compliance officer and then as a training director. He became
head of the voluntary protection program, which required him to
look at companies and determine the adequacy of their safety
programs. Mr. Burg participated in writing the standards at the
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Nos. 1-08-3622 & 3635 Cons.
American National Standards Institute (ANSI), especially for
cranes, scaffolding and safety programs.
Mr. Burg testified that he was familiar with the Non-Stop
scaffold used in this case. He stated that a straight brace was
required at the bottom and at the top between the scaffolding
towers to keep the towers from separating. If the scaffolding
was properly constructed, the material planks would not fall out.
Mr. Burg opined that Boller had control and responsibility
for the proper construction of the scaffolding based on its
control of the safety of the project site. Based on his
experience, as part of its control of the project site, Boller
would be expected to make sure that its subcontractors were
competent, qualified and properly trained. Mr. Burg opined that
Boller did not meet its responsibilities regarding scaffold
safety, explaining as follows:
"They didn't make sure that the people that were doing the
scaffolding were properly trained, that they were competent,
that they were qualified, that they had a system of
accountability for the scaffolding."
Mr. Burg further opined that Mr. Allen was not a competent
or qualified person under OSHA standards because he allowed an
untrained worker to erect the scaffold and acknowledged in his
deposition that he was unsure who had training and who did not.
15
Nos. 1-08-3622 & 3635 Cons.
The tagging system was not used, an important factor given
workers' lack of fluency in English. Boller's duty was to make
sure the masonry company it hired used trained personnel who
followed procedures and that there was a system of
accountability, i.e., records of the inspections. In this case,
Boller's written safety program consisted of one page. It
contained no specific safety rules for the erection of a Non-Stop
scaffold. In Mr. Burg's opinion, Boller's safety manual was not
adequate to ensure safety at the project site.
Mr. Burg testified further that, as project superintendent,
Ben Chambers had responsibility for safety, both under the terms
of the contract between Boller and the school district and his
job description. Mr. Burg noted that, in his deposition, Mr.
Chambers acknowledged that he did not know anything about Non-
Stop scaffolds. Mr. Burg explained that, while the general
contractor does not have to have complete knowledge of its
subcontractors' work, Boller needed sufficient knowledge to
assess whether its subcontractor is qualified and competent.
When the scaffold was altered by adding the extension, OSHA
standards required that it be supervised by a competent person
and then reinspected to ensure its safety. In this case, no such
inspection was performed.
On cross-examination by Boller, Mr. Burg acknowledged, that
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Nos. 1-08-3622 & 3635 Cons.
with respect to the bracing, Boller or Larmco personnel would
have thought that the scaffold conformed to the requirements of
the Non-Stop manual. While he understood that the wall the
bricklayers were working on would not reach 36 feet and the
manual did not call for bracing below 36 feet, Mr. Burg explained
that the ground conditions could change or the scaffold might be
affected by the weather, causing it to be unbalanced. He did not
know if the scaffold was in fact unbalanced. He did acknowledge
that the planks might have been cracked or might have been
knocked out of place by the bricks.
Mr. Burg testified further that OSHA standards provide the
minimum requirements. Following OSHA or ANSI standards would not
ensure safety. According to Mr. Burg, Mr. Allen was not
competent, even though he was trained in scaffold use. Mr. Burg
opined that Boller did not do what was reasonable and normal for
a general contractor to do as far as implementing a safety
program; had they done so, Mr. Diaz's accident would not have
occurred. While the scaffold looked in perfect condition when
Mr. Chambers viewed it, it should have been reinspected after the
addition of the extension. Had the planks been checked, the
accident would not have happened. Mr. Burg agreed that the Non-
Stop manual stated that braces were not needed until the scaffold
reached 36 feet.
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Nos. 1-08-3622 & 3635 Cons.
On redirect examination, Mr. Burg testified that a 2006 Non-
Stop publication showed scaffolds at the same height as or
shorter than the one from which Mr. Diaz fell; there were
straight braces at the top of the scaffolds. In his deposition
testimony, Mr. Allen agreed with Mr. Burg that straight braces
should have been provided on the scaffold in this case. Mr. Burg
opined that the Larmco safety manual was not implemented on this
project. Boller was required to make sure that its
subcontractors had a safety program and that they were competent
and qualified. Had the straight brace been at the top, the plank
would not have fallen out.
Wendell Rust, Boller's expert, testified that he was
employed as a safety professional. Previously, he worked for
OSHA as an inspector and a consultant. While working for OSHA,
he inspected many construction projects, including scaffolding.
He was an authorized OSHA trainer and had taken training for
scaffold construction and use.
Mr. Rust testified that, under OSHA rules, Boller was the
"controlling" employer and was not normally required to inspect
for hazards or have the same level of knowledge of the applicable
standards for the trades. It was Larmco's responsibility to
train its workers who utilized the scaffolds. Mr. Rust opined
that Boller did nothing to cause the accident in this case. He
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Nos. 1-08-3622 & 3635 Cons.
found no evidence that would have indicated to Boller that Mr.
Allen was not competent to oversee the scaffold.
According to Mr. Rust, Boller met its responsibilities on
the construction site by providing training for their management
personnel, by using a safety consultant to do additional safety
management and by having a safety director/superintendent (Mr.
Chambers) who had the authority to stop the work if he saw
something wrong. Mr. Chambers had taken a 30-hour training
course and checked the jobsite for unsafe conditions. Had there
been anything obviously wrong with the scaffolding, Mr. Chambers
could order the work stopped and require the subcontractor and
his employees to fix it.
Mr. Rust testified that, based on OSHA regulations, the Non-
Stop assembly instructions and the Larmco safety manual, there
was no need to place a straight brace at the top of the scaffold.
If one of the towers was not secure because of swaying, there
would have been an obvious problem with the scaffold.
On cross-examination by the plaintiffs, Mr. Rust
acknowledged that the contract between Boller and the school
district required Boller to be responsible for safety in
performance of the contract and required it to provide a
competent superintendent. He agreed that the superintendent
should be able to identify hazards or unsafe conditions in the
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Nos. 1-08-3622 & 3635 Cons.
scaffolding. He was familiar with Mr. Chambers's statements in
his deposition that he had no specific training in scaffolding
and that he was not certified by OSHA to build scaffolding.
B. Damages Testimony
Dr. Ernest John Saliba, Jr., an emergency room physician at
Evanston Hospital, examined Mr. Diaz following his fall from the
scaffold. The plaintiff had fallen from a height of 20 to 30
feet; 50% of the people experiencing such a fall do not survive.
Mr. Diaz exhibited swelling in his right forearm and a scalp
laceration. He had abrasions on his lower back and complained of
pain in that area. A CT scan of his head revealed no injury. On
cross-examination, Dr. Saliba testified that the CT scan of Mr.
Diaz's neck was negative but did show degenerative changes. The
CT scan of his abdomen showed that there were no fractures or
dislocations to his spine.
Mr. Diaz testified that, for the first few days following
his fall, he remained in bed; he felt very bruised and could not
move. He saw either Dr. Marcus or Dr. Vanderbilt and complained
of pain throughout his body. He was given pills and prescribed
physical therapy. Dr. Marcus performed surgery on his right knee
after which he returned for more physical therapy. In November
2002, Mr. Diaz was examined by Dr. Shenker. Mr. Diaz complained
of pain in his neck, back and his eyes.
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Nos. 1-08-3622 & 3635 Cons.
Mr. Diaz was next examined by Dr. Skaletsky. Mr. Diaz
complained of constant headaches, dizziness and neck and shoulder
pain. He also complained of pain in his lower back radiating
into his leg.5 Recently, Dr. Skaletsky referred him to Dr. Jain
at PainNet. Dr. Jain treated him with injections. He still has
pain in his neck and back. He takes medication for the pain and
wears a back brace. He also has pain in his jaw; when he opens
his mouth a lot, it cracks.
Mr. Diaz explained that he felt very stressed from not being
able to move or to work. He has been unsuccessful at obtaining
work in other industries and was not working at the time of
trial.
Ronald Agrigento, a physical therapist, testified that he
examined Mr. Diaz on April 9, 2002. The examination revealed
that Mr. Diaz had a diminished range of motion and strength in
his shoulder and his right knee; the knee was swollen, and he had
a large bruise on his lower extremity. Mr. Diaz rated his pain
as very high. He had three sessions of therapy after which he
had surgery on his knee. On June 4, 2002, he returned for more
therapy, primarily on his knee. He then began the work-hardening
therapy program. Mr. Diaz worked hard at his therapy. An
evaluation showed that he did not meet the requirements for heavy
5
Mr. Diaz did not specify which leg.
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Nos. 1-08-3622 & 3635 Cons.
work but was able to perform medium work.
Mr. Agrigento testified further that, in March 2005, Mr.
Diaz returned for an evaluation and treatment of his lower back
pain. Testing revealed that he had diminished range of motion in
his lumbosacral spine and a diminished curve indicating some form
of tightness or spasm in the spine. By the end of April 2005, he
showed improvement; his pain levels were reduced and his range of
motion nearly doubled. Mr. Diaz was still having problems and
complained of experiencing a slight headache every morning.
On cross-examination by Boller, Mr. Agrigento testified
that, in May 2002, Mr. Diaz had undergone surgery to repair a
meniscus tear in his right knee. At the time of the first
evaluation in June 2002, there was no mention of lower back pain.
At the time of the second evaluation in July 2002, Mr. Diaz
complained of headaches and that his right knee gave out
occasionally. He also experienced a sensation of "pins and
needles" in his right knee except when walking. There was no
complaint of lower back pain at that time.
Dr. Gary S. Skaletsky, a board-certified neurosurgeon,
testified that he first examined Mr. Diaz on March 25, 2003. Mr.
Diaz complained of pain in his head and neck, and pain, as well
as numbness and weakness, in his right arm. His examination
revealed a muscle spasm in the right trapezius muscle. Given Mr.
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Nos. 1-08-3622 & 3635 Cons.
Diaz's history and his examination, Dr. Skaletsky concluded that
Mr. Diaz's complaints were related to his fall. The doctor
ordered X-rays of Mr. Diaz's neck and an MRI of his spine. The
X-ray showed degenerative changes but no instability. The MRI
showed the degenerative changes expected in a man of Mr. Diaz's
age but not a slipped disc. The doctor explained that
degenerative changes do not typically result in pain, but a
traumatic event can cause the changes to produce pain.
When Mr. Diaz returned to see Dr. Skaletsky in May 2003, his
symptoms had not changed. Dr. Skaletsky opined that Mr. Diaz's
fall irritated the nerve root and resulted in loss of sensation
and pain in his right arm. The doctor further opined that Mr.
Diaz should not return to his work as a laborer; his pain and
limited motion and the difficulty in using his right arm put him
and people working with him at risk. Dr. Skaletsky recommended
physical therapy. However, Mr. Diaz could not afford physical
therapy at that time.
On September 15, 2003, Dr. Skaletsky examined Mr. Diaz who,
for the first time, complained of low back pain radiating into
his right leg all the way to his ankle; the pain was worse with
activity. Mr. Diaz had a limited range of motion, and straight
leg tests indicated he had an irritation of the sciatic nerve,
the nerve stemming from the L5-S1 level. The doctor recommended
23
Nos. 1-08-3622 & 3635 Cons.
epidural steroid injections and that Mr. Diaz undergo a course of
physical therapy to build and strengthen his muscles. In the
spring of 2005, Dr. Skaletsky referred Mr. Diaz for physical
therapy, but he continued to complain of pain in his lower back.
Dr. Skaletsky referred Mr. Diaz to Dr. Jain at PainNet. On
March 20, 2008, Dr. Jain performed a nucleoplasty to reduce the
irritation on the disc. It was necessary to wait 6 to 12 weeks
to determine the success of the procedure. If the nucleoplasty
were unsuccessful, the next step would be for Mr. Diaz to undergo
an MRI to determine the general state of the nerves. If the MRI
showed nerve root compression, decompression surgery at the L5-S1
level would be an option. Dr. Skaletsky estimated the attendant
costs to be $100,000 for the surgery and $75,000 for
hospitalization. Postoperative physical therapy would take about
6 months, at three times a week for $1,000 per week.
Prior to trial in this case, on April 4, 2008, Dr. Skaletsky
examined Mr. Diaz, who still complained of pain in his lower
back. He also complained of neck pain, greater on the left side;
the pain extended into his right shoulder and forearm. The pain
was worse with repetitive movements and prolonged positioning.
He also had pain in the back of his head radiating from his neck.
The doctor noted that these were the same symptoms Mr. Diaz had
complained of in 2003. The doctor further noted that Mr. Diaz
24
Nos. 1-08-3622 & 3635 Cons.
had a limited range of motion in turning his neck to the left; he
had tenderness at the back of the neck and the trapezius muscle.
He had diminished strength and sensation in his upper right arm.
Dr. Skaletsky reviewed the multiple MRIs of Mr. Diaz's low
back. Using the 2006 MRI, the doctor explained that Mr. Diaz had
a condition known as spondylolisthesis at the L5-S1 level. Such
a condition made him more susceptible to a nerve injury due to
trauma.
Dr. Skaletsky opined that Mr. Diaz's lower back pain was
related to his fall from the scaffold. Prior to the fall, he had
no symptoms of lower back pain or dysfunction. Following the
fall, he experienced a rapid onset of symptoms, initially noted
in his knee but also in his lower back. Dr. Skaletsky opined that
Mr. Diaz's fall aggravated his preexisting condition of
spondylolisthesis.
Dr. Skaletsky then testified that, in late 2007 or the
beginning of 2008, he received information that Mr. Diaz was
having difficulties with his memory and attention span and that
he was very irritable. At his April 4, 2008, visit, Mr. Diaz
acknowledged those symptoms to the doctor. Because Mr. Diaz
reported a loss of consciousness at the time of the accident, the
doctor ordered a CT scan, but the results were normal. Dr.
Skaletsky explained that some damaged connections were too small
25
Nos. 1-08-3622 & 3635 Cons.
to be seen on a CT scan. The fact that there was a delay in
reporting the symptoms could be attributed to Mr. Diaz's failure
to recognize the symptoms as a medical problem. Dr. Skaletsky
opined that Mr. Diaz's symptoms of irritability, memory loss and
confusion were causally connected to his fall. He further opined
that Mr. Diaz's conditions are permanent.
On cross-examination by Boller, Dr. Skaletsky acknowledged
that Mr. Diaz did not complain of lower back pain until September
2005, and that prior to September 2005, none of the other doctors
had treated Mr. Diaz for back pain. He further acknowledged that
at the time of his deposition in January 2005, he testified that,
in his opinion, Mr. Diaz's back pain was not related to his fall.
However, at his deposition, he had qualified that opinion by
stating that it was based on the information he had at the time.
At his deposition in January 2007, he was shown the Evanston
Hospital emergency room records; these records formed the basis
of his opinion of causality: Mr. Diaz's fall aggravated existing
conditions in his neck and back.
Dr. Skaletsky testified that, except for a complaint at his
initial examination in 2003, Mr. Diaz made no complaints relative
to his head until his April 4, 2008, examination. The doctor
acknowledged that the emergency room records showed that Mr. Diaz
did not lose consciousness. Dr. Skaletsky acknowledged that it
26
Nos. 1-08-3622 & 3635 Cons.
was impossible to say within a reasonable degree of medical
certainty whether or not Mr. Diaz would require surgery in the
future.
Dr. Daniel Fortuna, a chiropractic physician, testified that
he examined Mr. Diaz on January 3, 2004. Mr. Diaz complained of
experiencing headaches, dizziness and lower back and neck pain
since he had fallen off a scaffold in 2002. The doctor's
examination revealed tenderness in his neck, the trapezius muscle
and the right-side muscles from his mid to lower back. Tests
showed an irritation of the nerve. Dr. Fortuna opined that these
symptoms were related Mr. Diaz's fall because he had no
complaints prior to the fall. He ordered an MRI; the results
indicated spondylolisthesis. The doctor ordered muscle relaxing
treatments, stabilization and strengthening exercises.
Dr. Fortuna further testified that, in March 2004, he
reassessed Mr. Diaz's condition. While Mr. Diaz had made
progress in muscle strength, he still had tension and pain in the
nerves. Since Mr. Diaz was not recovering as the doctor had
expected, the doctor referred him to an orthopedic surgeon. In
April 2004, Dr. Fortuna examined Mr. Diaz. While he was feeling
better, Mr. Diaz complained of headaches, three or four times a
week. He had constant lower back pain but of a milder intensity.
The pain increased with sitting.
27
Nos. 1-08-3622 & 3635 Cons.
Dr. Fortuna testified further that he examined Mr. Diaz in
October 2006. Mr. Diaz filled out a questionnaire to provide
information as to his pain level and the effect it was having on
his life. Mr. Diaz indicated that his pain level was very
intense and did not vary. The pain affected his sleeping, his
ability to sit and even his ability to wash and dress himself.
He could lift only very light weights. The pain restricted his
social life and his ability to walk and to travel. Mr. Diaz
indicated that the pain extended from his low back up to his neck
and the back of his head; the sides of his head hurt. He had
continuous jaw pain; it was hard to chew and to swallow. He had
numbness and a tingling sensation from his right knee down. The
right knee felt like it had no strength, and he felt as if he
would fall. Mr. Diaz felt angry and depressed and believed that
his personality had changed. His mood change began about two
years after the accident. He experienced right shoulder pain
intermittently. Dr. Fortuna opined that, given his condition,
Mr. Diaz could not work.
Testimony from family members and a friend confirmed Mr.
Diaz's personality change and memory problems. There was expert
testimony from Charles Linke, an economist, establishing that the
average life expectancy for Mr. Diaz was 21 years.
ANALYSIS
28
Nos. 1-08-3622 & 3635 Cons.
I. Boller's Appeal
A. Directed Verdict/Judgment N.O.V.
Boller contends that it was entitled to a directed verdict
or a judgment n.o.v. because there was no evidence of its
liability pursuant to section 414 of the Restatement (Second) of
Torts (Restatement (Second) of Torts §414 (1965)). Section 414
recognizes two theories of liability under which an injured
worker may seek to hold a general contractor liable: vicarious
and direct liability. In its opening brief, Boller argued that
the plaintiffs failed to present evidence to establish its
vicarious liability for the plaintiff's injury. However, the
plaintiffs maintain that their suit was premised on Boller's
direct liability. Therefore, we will confine our discussion to
whether the evidence established Boller's direct liability under
section 414 for Mr. Diaz's accident.
1. Directed Verdict
a. Standard of Review
The court applies the de novo standard of review to the
denial of a motion for a directed verdict. Jones v. DHR
Cambridge Homes, Inc., 381 Ill. App. 3d 18, 28, 885 N.E.2d 330(2008). "'A directed verdict is appropriate where the plaintiff
has failed to establish a prima facie case.'" Jones, 381 Ill.
App. 3d at 28, quoting Kim v. Mercedes-Benz, U.S.A., Inc., 353
29
Nos. 1-08-3622 & 3635 Cons.
Ill. App. 3d 444, 460, 818 N.E.2d 713 (2004). "'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."'"
Jones, 381 Ill. App. 3d at 28, quoting Kim, 381 Ill. App. 3d at
460, quoting Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d
508 (1992).
b. Discussion
A cause of action for common law negligence under section
414 requires that the plaintiff allege a duty on the part of the
defendant, a breach of that duty and a compensable injury
resulting from the breach. Bokodi v. Foster Wheeler Robbins,
Inc., 312 Ill. App. 3d 1051, 1059, 728 N.E.2d 726 (2000).
Boller contends that it did not owe a duty to the plaintiff
because it did not retain any contractual control over Larmco's
work on the project.
i. Existence of Duty
"As a general rule, one who entrusts work to an independent
contractor will not be liable for the acts or omissions of that
independent contractor." Calderon v. Residential Homes of
America, Inc., 381 Ill. App. 3d 333, 340, 885 N.E.2d 1138 (2008).
30
Nos. 1-08-3622 & 3635 Cons.
The "retained control exception" to this rule is set forth in
section 414 of the Restatement (Second) of Torts (Restatement
(Second) of Torts §414 (1965)). Section 414 provides as follows:
"One who entrusts work to an independent contractor,
but who retains the control of any part of the work, is
subject to liability for physical harm to others for whose
safety the employer owes a duty to exercise reasonable care,
which is caused by his failure to exercise his control with
reasonable care." Restatement (Second) of Torts §414, at
387 (1965).
Comment a to section 414 explains the distinction between
"vicarious" liability and "direct" liability, which is at issue
in this case, as follows:
"If the employer of an independent contractor retains
control over the operative detail of doing any part of the
work, he is subject to liability for the negligence of the
employees of the contractor engaged therein, under the rules
of that part of the law of Agency which deals with the
relation of master and servant. The employer may, however,
retain a control less than that which is necessary to
subject him to liability as master. He may retain only the
power to direct the order in which the work shall be done,
or to forbid its being done in a manner likely to be
31
Nos. 1-08-3622 & 3635 Cons.
dangerous to himself or others. Such a supervisory control
may not subject him to liability under the principles of
Agency, but he may be liable under the rule stated in this
Section unless he exercises his supervisory control with
reasonable care so as to prevent the work which he has
ordered to be done from causing injury to others."
Restatement (Second) of Torts §414, Comment a, at 387
(1965).
As this court noted in Cochran v. George Sollitt Construction
Co., 358 Ill. App. 3d 865, 832 N.E.2d 355 (2005), comment a
clarifies that "the general contractor, by retaining control over
the operative details of its subcontractor's work, may become
vicariously liable for the subcontractor's negligence;
alternatively, even in the absence of such control, the general
contractor may be directly liable for not exercising his
supervisory control with reasonable care." Cochran, 358 Ill.
App. 3d at 874.
Comment b to section 414 explains the theory of direct
liability described in comment a of section 414. Comment b
provides:
"The rule stated in this Section is usually, though not
exclusively, applicable when a principal contractor entrusts
a part of the work to subcontractors, but himself or through
32
Nos. 1-08-3622 & 3635 Cons.
a foreman superintends the entire job. In such a situation,
the principal contractor is subject to liability if he fails
to prevent the subcontractors from doing even the details of
the work in a way unreasonably dangerous to others, if he
knows or by the exercise of reasonable care should know that
the subcontractors' work is being so done, and has the
opportunity to prevent it by exercising the power of control
which he has retained in himself. So too, he is subject to
liability if he knows or should know that the subcontractors
have carelessly done their work in such a way as to create a
dangerous condition, and fails to exercise reasonable care
either to remedy it himself or by the exercise of his
control cause the subcontractor to do so." Restatement
(Second) of Torts §414, Comment b, at 387-88 (1965).
Comment c to Section 414 explains that for the "retained"
control exception to apply:
"[T]he employer must have retained at least some degree
of control over the manner in which the work is done. It is
not enough that he has merely a general right to order the
work stopped or resumed, to inspect its progress or to
receive reports, to make suggestions or recommendations
which need not necessarily be followed, or to prescribe
alterations and deviations. Such a general right is usually
33
Nos. 1-08-3622 & 3635 Cons.
reserved to employers, but it does not mean that the
contractor is controlled as to his methods of work, or as to
operative detail. There must be such a retention of a right
of supervision that the contractor is not entirely free to
do the work in his own way." Restatement (Second) of Torts
§414, Comment c, at 388 (1965).
The determination of whether Boller owed a duty of care to
the plaintiff depends on whether Boller controlled the work in
such a manner that it should be held liable. Bokodi, 312 Ill.
App. 3d at 1059. The following portions of the contract between
Boller, the school district and the architect were entered into
evidence at trial:
"The contractor shall take reasonable precautions for
the safety of and shall provide reasonable protection to
prevent damage, injury or loss to: One, employees who work
or other persons who may be affected thereby.
* * *
The contractor shall designate a responsible member of
contractor's organization at the site whose duty shall be
the prevention of accidents.
* * *
The contractor shall be responsible for initiating,
maintaining and supervising all safety precautions and
34
Nos. 1-08-3622 & 3635 Cons.
programs in connection with the performance of the contract.
* * *
The contractor shall employ a competent superintendent
and necessary assistants who shall be in attendance at the
project site during the performance of the work.
* * *
The contractor shall supervise and direct the
performance of the work using his best skill and attention.
The contractor shall be solely responsible for all
construction means, methods, techniques, sequences and
procedures and for coordinating all portions of the work
under the contract."
An employer need only retain control over any part of the
work in order to be subject to liability for a failure to
exercise his control with reasonable care. Brooks v. Midwest
Grain Products of Illinois, Inc., 311 Ill. App. 3d 871, 726
N.E.2d 153 (2000). "[A] general right to ensure that safety
precautions are observed and that work is done in a safe manner
will not impose liability on the general contractor unless the
evidence shows that the general contractor retained control over
the means and methods of the independent contractor's work."
Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1071, 793 N.E.2d
68 (2003). "In determining whether that level of control has
35
Nos. 1-08-3622 & 3635 Cons.
been retained, Illinois courts ask whether the principal merely
retained general oversight of work progress and safety or
actually engaged in detailed supervision and/or control of the
subcontractors' methods and means of performing work." Aguirre
v. Turner Construction Co., 501 F.3d 825, 830 (7th Cir. 2007).
Whether a contractor has retained sufficient control to trigger
liability under section 414 is generally a question of fact.
Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 884
N.E.2d 208 (2008)
Boller argues that it did not retain any contractual control
over Larmco because the language giving it control over
construction means, methods and techniques was stricken from the
contract. However, controlling the operative details of the
subcontractors' work is necessary for vicarious liability; direct
liability stems from the failure to exercise general supervisory
control. Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d
286, 300, 862 N.E.2d 1044 (2007).
In the present case, the plaintiffs presented sufficient
evidence to establish a prima facie case that Boller retained
sufficient control over the safety of the project to trigger its
liability for the plaintiff's injuries. The provisions of the
contract between Boller, the school district and the architect
placed the responsibility for the safety of the project site with
36
Nos. 1-08-3622 & 3635 Cons.
Boller. Under the contract, Boller was responsible for
preventing injuries on the project site. It was required to
initiate, maintain and supervise all of the safety precautions
and programs in the performance of its contract. It also was
required to designate a person responsible for the prevention of
accidents and to employ a "competent" superintendent. Boller was
solely responsible for "all construction means, methods,
techniques, sequences and procedures and for coordinating all
portions of the work under the contract." Under the contract
between Boller and Larmco, Larmco was responsible for the safety
and training of its employees. However, that contract also
required Larmco to follow all of Boller's safety directions and,
in emergency situations, Boller could implement the safety
measures and require Larmco to pay for them.
The testimony at trial confirmed the extent of Boller's
control of safety of the project site. Mr. Rust, Boller's expert
witness, testified that the contract between Boller and the
school district required Boller to be responsible for safety in
the performance of the contract. In meeting those
responsibilities, Mr. Rust pointed out that Boller provided
training for its management personnel, provided a safety
consultant to do additional safety management and gave its
superintendent the authority to stop work if he observed a
37
Nos. 1-08-3622 & 3635 Cons.
problem. Mr. Hickey testified that weekly safety meetings were
held to discuss safety issues. Mr. Chamberlain, Boller's
superintendent, testified that it was his job to prevent
accidents. He had the authority to stop the work of a
subcontractor if the contractor was using unsafe equipment or
doing the work in an unsafe manner. On two occasions, he had
stopped an excavation on the project site. See Wilkerson, 379
Ill. App. 3d at 497 (the assertion of the general contractor's
discretionary authority was the best evidence of the retention of
more than a general right of supervision). The subcontractors
were required to give Mr. Chambers a copy of their safety
manuals. He walked the project site to check for safety
deficiencies. Mr. Allen testified that, if Mr. Chambers observed
a problem with Lamarco's work, Mr. Chambers had the authority to
stop the work and order the problem fixed. According to Mr.
Allen, provided he knew what safety measures were required, Mr.
Chambers had the right to instruct Larmco personnel to implement
those safety procedures for the scaffolding,
Boller also argues that the responsibility for the
prevention of accidents was passed on to Larmco under the terms
of its contract with Larmco. Under the Boller/Larmco contract,
Larmco assumed the same duties toward Boller which Boller assumed
toward the school district. However, given the evidence in this
38
Nos. 1-08-3622 & 3635 Cons.
case, whether Boller actually passed on the ultimate
responsibility for the safety of the project site to Larmco was a
question for the jury to resolve.
ii. Notice
The general contractor's knowledge, actual or constructive,
of unsafe work methods or a dangerous condition is a precondition
to direct liability. Cochran, 358 Ill. App. 3d at 879-80. In
Cochran, the court upheld summary judgment for the general
contractor where the evidence showed that the unsafe ladder setup
was in existence for only an hour prior to the plaintiff's
injury. The court noted that none of the contractor's
"'competent persons'" had observed the unsafe setup during that
short period of time. Cochran, 358 Ill. App. 3d at 880.
Boller maintains that, because Mr. Chambers acknowledged he
was unfamiliar with the Non-Stop scaffold and would not have
known that the failure to place a straight brace at the top was a
potential safety hazard, it cannot be held to have had actual or
constructive knowledge of any safety hazard. We disagree.
Under the contract, Boller was required to furnish a
"competent superintendent." According to the plaintiff's expert,
Mr. Burg, Mr. Chambers was not competent because he admitted that
he was unfamiliar with the Non-Stop scaffold used by Larmco. Mr.
Burg explained that, while the general contractor was not
39
Nos. 1-08-3622 & 3635 Cons.
expected to have substantive knowledge about every
subcontractor's trade, to be competent, its superintendent needed
to be able to ask the right questions to make sure the
subcontractor was qualified and competent. Mr. Rust, Boller's
expert, agreed that the superintendent should be able to identify
hazards or unsafe conditions in the scaffolding.
On the morning of the accident, Mr. Chambers checked the
scaffold around 6:30 a.m. and observed nothing wrong with it.
Although he was in charge of safety and preventing accidents at
the project site, Mr. Chambers lacked the training and experience
to recognize a problem with the scaffold. Sometime thereafter,
the scaffold was extended without placing the straight brace at
the top. Around 1 p.m., Mr. Chambers again looked at the
scaffolding, but he failed to observe that the scaffold had been
extended and did not check to see if a reinspection of the
scaffold had been made after the extension had been added. The
plaintiff's accident happened about an hour later. Thus, there
was evidence that Boller should have known that the scaffold
presented a safety hazard.
We conclude that the plaintiffs presented sufficient
evidence to establish a prima facie case as to Boller's notice of
a dangerous condition. Therefore, the trial court did not err in
denying Boller's motion for a directed verdict.
40
Nos. 1-08-3622 & 3635 Cons.
2. Judgment n.o.v.
a. Standard of Review
"A trial court should enter a judgment non obstante
veredicto (judgment n.o.v.) only if all the evidence, viewed in
the light most favorable to the nonmoving party, so
overwhelmingly favors the moving party that no contrary verdict
could ever stand." Check v. Clifford Chrysler-Plymouth of
Buffalo Grove, Inc., 342 Ill. App. 3d 150, 156, 794 N.E.2d 829(2003). This court reviews whether the trial court met that
standard de novo. Check, 342 Ill. App. 3d at 156.
b. Discussion
Our supreme court has held that "a judgment n.o.v. may not
be granted merely because a verdict is against the manifest
weight of the evidence." Maple, 151 Ill. 2d at 453. In ruling
on a motion for a judgment n.o.v., the trial court "does not
weigh the evidence, nor is it concerned with the credibility of
the witnesses; rather it may only consider the evidence, and any
inferences therefrom, in the light most favorable to the party
resisting the motion." Maple, 151 Ill. 2d at 453. "[I]f 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
41
Nos. 1-08-3622 & 3635 Cons.
outcome," the trial court has no right to enter a judgment n.o.v.
Maple, 151 Ill. 2d at 454.
In this case, the jury heard conflicting testimony relating
to the necessity of straight braces at the top of the scaffold.
The expert witnesses for the plaintiffs and Boller presented
conflicting testimony as to the control exercised by Boller over
the project and as to the competency of Mr. Chambers and Mr.
Allen. The verdict as to liability in this case was based on the
jury's resolution of these conflicts in the evidence. Therefore,
the trial court did not err in denying Boller's motion for a
judgment n.o.v.
3. Section 343 Liability
Because we have determined that Boller was liable under
section 414 of the Restatement (Second) of Torts, we need not
address its liability under section 343 of the Restatement
(Second) of Torts.
B. Jury Instructions
Boller contends that it is entitled to a new trial because
the IPI construction negligence instructions given to the jury
did not set forth an accurate statement of the law. It argues
that the trial court erred by rejecting the non-IPI instructions
it tendered.
1. Standard of Review
42
Nos. 1-08-3622 & 3635 Cons.
In Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163,
886 N.E.2d 976 (2008), our supreme court held that when the issue
is whether jury instructions accurately reflect the applicable
law, the court's review is de novo. Barth, 228 Ill. 2d at 170.
2. Discussion
Boller proposed to modify Illinois Pattern Jury
Instructions, Civil, No. 55.01 (2006) (hereafter IPI Civil (2006)
No. 55.01) as follows:
"One who entrusts work to an independent contractor but
who retained some control over the manner in which the work
is done owes a duty to exercise reasonable care with respect
to its retained control.
One who retained some control over the manner in which
the work is done can be liable for injuries resulting from
the work if the injuries were proximately caused by the
failure to exercise that control with ordinary care."
The trial court rejected the modified instruction, and 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
43
Nos. 1-08-3622 & 3635 Cons.
Civil (2006) No. 55.01.
Boller tendered a modified IPI Civil (2006) No. 55.02, which
read as follows:
"A party who retained some control over the manner in
which the work is done, has a duty to exercise that control
with ordinary care.
When I use the words, 'retained control' the party
must have retained at least some degree of control over the
manner in which the work is done. To be liable, a party
must have more than a general right to order the work
stopped or resumed, to inspect its progress or to receive
reports, to make suggestions or recommendations which need
not necessarily be followed, or to prescribe alterations and
deviations. There must be such a retention of a right of
supervision that the contractor is not entirely free to do
the work his own way."
The trial court refused Boller's modified IPI Civil (2006)
No. 55.02 instruction. The court did modify the first sentence
of the IPI instruction. The instruction the jury received read
as follows:
"A party who retained some control over the safety
and/or the manner in which the work is done has a duty to
exercise that control with ordinary care."
44
Nos. 1-08-3622 & 3635 Cons.
The trial court rejected Boller's proposed issues
instruction. Over its objection, the jury received IPI Civil
(2006) No. 55.03, which in pertinent part stated as follows:
"Plaintiffs Jose and Maria Diaz seek to recover damages
from the Defendant Boller Construction Co. In order for
Jose and Maria Diaz to recover, they have the burden of
proving:
1. Defendant Boller Construction Co., retained some
control over the safety of the work ***."
Finally, over Boller's objection, the jury received IPI
Civil (2006) No. 55.04, which read 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."
Boller maintains that the IPI construction negligence
instructions did not accurately state the law because they failed
to qualify the term "some control over the work." This court
rejected the same argument in Jones.
In Jones, the contractor tendered modified IPI construction
negligence instructions similar to the ones tendered by Boller in
this case. The trial court refused to instruct the jury with the
modified instructions. On appeal, the contractor argued that the
45
Nos. 1-08-3622 & 3635 Cons.
patterned instructions did not accurately reflect the law based
on the decision in Martens v. MCL Construction Corp., 347 Ill.
App. 3d 303, 807 N.E.2d 480 (2004). In Martens, this court
rejected the holding in Moss v. Rowe Construction Co., 344 Ill.
App. 3d 772, 801 N.E.2d 612 (2003), that the central issue was
the contractor's ability to control the safety of the project.
Instead, the court in Martens held that "'[t]he central issue is
retained control of the independent contractors'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.'" Jones, 381 Ill. App.
3d at 37, quoting Martens, 347 Ill. App. 3d at 318.
In Jones, this court pointed out that, despite its holding,
the court in Martens referred to IPI Civil (2005) No. 55.02
without criticism. In Martens, there was no evidence that the
mere existence of the safety program affected the contractor's
means and methods of doing his work. However, in Jones, the
general contractor could require compliance with its safety
standards and stop the work if the subcontractor's employees were
violating its safety rules. Jones, 381 Ill. App. 3d at 38.
While maintaining a general right to safety would not be
sufficient under Martens, in this case, as in Jones, Boller had
the right to stop the work if Larmco was doing work in an unsafe
46
Nos. 1-08-3622 & 3635 Cons.
manner.
We conclude that the IPI construction negligence
instructions continue to reflect an accurate statement of the
law. Moreover, Boller's proposed instructions were premised on
vicarious liability. The jury found Boller directly liable. As
the jury was properly instructed, Boller is not entitled to a new
trial.
C. Trial Court Errors
Boller contends that trial court errors, either individually
or cumulatively, require that it receive a new trial.
1. Standard of Review
The trial court's evidentiary rulings are reviewed under the
abuse of discretion standard. Jones, 381 Ill. App. 3d at 34.
2. Discussion
a. Failure to Allow Cross-examination as an Adverse Witness
Boller contends that the trial court erred when it refused
to allow it to cross-examine as adverse witnesses, William
Hickey, Edward Allen, Miroslaw Kundzicz, Francesco Gutierrez and
Miguel Diaz.
With the exception of Mr. Hickey's testimony, Boller failed
to provide citations to the record where it was denied the
opportunity to cross-examine the above witnesses and failed to
provide argument on the issue. Boller merely states that it was
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Nos. 1-08-3622 & 3635 Cons.
prejudiced. Supreme Court Rule 341(h)(7) requires citation to
the pages of the record where the denial took place, as well as
argument in support of the issue. 210 Ill. 2d R. 341(h)(7).
Failure to comply with our supreme court rules is grounds for
disregarding the argument on appeal. Burmac Metal Finishing Co.
v. West Bend Mutual Insurance Co., 356 Ill. App. 3d 471, 825
N.E.2d 1246 (2005).
Boller does argue that it should have been permitted to
cross-examine Mr. Hickey as an adverse witness pursuant to
section 2-1102 of the Code of Civil Procedure. 735 ILCS 5/2-1102
(West 2008) (allowing officers, directors, managing agents or
foreman of any party to the action to be cross-examined). While
Mr. Hickey had been an employee and part owner of Larmco, at the
time of trial, he had been retired for three years. See Bassett
v. Burlington Northern R.R. Co., 131 Ill. App. 3d 807, 476 N.E.2d
31 (1985) (section 2-1101 requires that the witness be in a
supervisory position with the opposing party at the time the
witness is called to testify).
Fornoff v. Parke Davis & Co., 105 Ill. App. 3d 681, 434
N.E.2d 793 (1982), relied on by Boller, is distinguishable. In
that case, the reviewing court held that no showing of adversity
was required before a codefendant could examine another
codefendant as an adverse witness. The fact that it was to each
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Nos. 1-08-3622 & 3635 Cons.
codefendant's advantage to shift the liability was considered
sufficient adversity by the court to allow one codefendant to
call and cross-examine another codefendant. Fornoff, 105 Ill.
App. 3d at 690. In this case, Mr. Hickey was not a codefendant.
We conclude that the trial court did not abuse its
discretion when it denied Boller's request to examine Mr. Hickey
as an adverse witness. We further conclude that the issue is
waived as to the remaining witnesses specified by Boller.
b. Mention of Workers' Compensation/Insurance
During direct examination, Mr. Diaz was questioned as follows:
"When you were going to the clinic, did Larmco have a
nurse who was following - -"
Larmco's attorney objected based on a motion in limine barring
reference to Mr. Diaz's workers' compensation case. The objection
was sustained. The trial court advised the plaintiffs' attorney to
instruct Mr. Diaz not to refer to workers' compensation.
Later during direct examination, Mr. Diaz was questioned about
his November 2002, examination by Dr. Shenker. When asked if the
doctor prescribed any treatment, the plaintiff testified:
"No. The only thing he said at that time was that he
didn't know that he would give a report to the company or the
insurance. I don't know. But that's all he told me."
The trial court denied Larmco's attorney's request to be heard but
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Nos. 1-08-3622 & 3635 Cons.
instructed the jury to disregard the last portion of Mr. Diaz's
response and ordered the questioning to continue.
During a break in Mr. Diaz's testimony, Larmco moved for a
mistrial based on Mr. Diaz's references to insurance and workers'
compensation. The trial court found that the reference was
unintentional and denied the motion.
Not every mention of insurance in a personal injury trial
requires the court to declare a mistrial. Neyzelman v. Treitman,
273 Ill. App. 3d 511, 515, 652 N.E.2d 1300 (1995). "A reference to
insurance is only prejudicial if it directly indicates that the
defendant is insured [citation] or if it is the product of conduct
by counsel intended to influence or prejudice the jury [citation]."
Neyzelman, 273 Ill. App. 3d at 515. Neither of those instances is
present in this case. Moreover, the trial court instructed the
jury to disregard the reference to insurance. In general, the
prejudicial impact of a remark may be cured if the trial court
sustains the objection and instructs the jury to disregard the
objectionable testimony. See Nickon v. City of Princeton, 376
Ill. App. 3d 1095, 877 N.E.2d 776 (2007).
We conclude that Boller was not prejudiced by the reference to
workers' compensation and insurance.
c. Closing Argument
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Nos. 1-08-3622 & 3635 Cons.
Boller contends that the following remark by the plaintiffs'
attorney during closing argument required that the trial court
declare a mistrial.
During closing argument, the plaintiff's attorney stated as
follows:
"I would also like to suggest to you in using your common
sense and ordinary experience in the affairs of life that when
Mr. Daley [Boller's attorney] cross-examined Mr. Allen and
then Mr. Gutierrez, I think your common sense should tell you
and probably does tell you that this is a team effort."
The trial court sustained Boller's objection.
At the conclusion of the plaintiffs' closing argument, Boller
made a motion for a mistrial; Larmco joined in the motion. While
the trial court agreed the remark was improper, it found no
prejudice and denied the motion.
In his rebuttal argument, the plaintiffs' attorney stated:
"It's Boller who brought Larmco into this case, not the Diaz'.
But you could never tell that from what's happened in this
courtroom over the last two weeks because there's a love fest
between those two."
The trial court sustained Larmco's objection.
Improper comments at closing do not constitute reversible
error unless they result in substantial prejudice to the party.
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Nos. 1-08-3622 & 3635 Cons.
Tierney v. Community Memorial General Hospital, 268 Ill. App. 3d
1050, 1061, 645 N.E.2d 284 (1994). Counsel is allowed broad
latitude in drawing reasonable inferences and conclusions from the
evidence. Tierney, 268 Ill. App. 3d at 1061. The trial court's
ruling on whether counsel has stayed within the bounds of proper
argument will not be reversed absent a clear abuse of discretion.
Tierney, 268 Ill. App. 3d at 1061; but see People v. Wheeler, 226
Ill. 2d 92, 871 N.E.2d 728 (2007) (court now applies de novo review
to whether remarks in closing argument require a new trial for a
criminal defendant).
While discussing Mr. Allen's testimony with the parties'
attorneys, the trial court expressed concern that the jury might be
confused. The court stated to Boller's and Larmco's attorneys that
"it really looks like you're bootstrapping each other's cases and
it's two on one in there." Therefore, the plaintiffs' attorney's
argument could be construed as reasonable comments on how Boller
and Larmco were conducting their respective defenses in this case.
Even if the remarks were error, a new trial will not be
granted unless the remarks are clearly improper, prejudicial and
denied the party a fair trial when the trial is viewed in its
entirety. Tierney, 268 Ill. App. 3d at 1061. While Boller claims
it was prejudiced, there is no indication that the jury's verdict
against Boller was in any way influenced by the two comments by the
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Nos. 1-08-3622 & 3635 Cons.
plaintiffs' attorney. The trial court did sustain the objection,
and the jury was properly instructed as to the purpose of closing
arguments. We conclude that the denial of Boller's motion for a
mistrial was not an abuse of discretion.
Finally, Boller maintains that the cumulative effect of these
errors require that it receive a new trial. Boller's reliance on
Christou v. Arlington Park-Washington Park Race Tracks Corp., 104
Ill. App. 3d 257, 432 N.E.2d 920 (1982) is misplaced. In that
case, the reviewing court held that cumulative effect of trial
court errors and the introduction of improper evidence of damages
amounted to prejudicial error requiring a new trial. Christou, 104
Ill. App. 3d at 260-61. In the present case, there was no error
with regard to the denial of cross-examination. As to the other
alleged errors, Boller suffered no prejudice from the mention of
workers' compensation, insurance or from the plaintiffs' closing
argument. Therefore, whether these errors are considered singly or
cumulatively, Boller was not denied a fair trial.
D. Dismissal of Third Party Complaint
1. Standard of Review
The court reviews the granting of a section 2-619 motion to
dismiss de novo. Westmeyer v. Flynn, 382 Ill. App. 3d 952, 889
N.E.2d 671 (2008).
2. Discussion
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Nos. 1-08-3622 & 3635 Cons.
Boller contends that the trial court erred in dismissing its
third-party complaint for contribution against Larmco. Boller
points out that the dismissal of its complaint against Larmco for
contribution renders it responsible for the entire judgment amount
of $1,076,270.06. That amount exceeds the $1 million amount of
insurance coverage Larmco was required to provide Boller under the
terms of their contract. Larmco responds that by agreeing that
Larmco would provide insurance for Boller, the parties intended
that they would look only to the insurance and not impose
liability on each other. Larmco relies on the rule stated in
Briseno v. Chicago Union Station Co., 197 Ill. App. 3d 902, 557
N.E.2d 196 (1990), that where the parties agree that insurance will
be provided as part of their contract, the contract must be
interpreted as providing mutual exculpation to the bargaining
parties. Briseno, 197 Ill. App. 3d at 905.
Briseno is distinguishable from the present case. There,
the reviewing court ruled that the third-party contribution action
was properly dismissed where the parties' liability had been
determined and satisfied from the proceeds of the insurance policy.
Briseno, 197 Ill. App. 3d at 906. The dispositive issue in cases
involving the purchase of insurance in the context of contractor
indemnification is the status of the underlying suit: "whether a
settlement or judgment within the policy's limits was reached
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Nos. 1-08-3622 & 3635 Cons.
and fully funded by the insurer." Kehoe v. Commonwealth Edison
Co., 296 Ill. App. 3d 584, 588, 694 N.E.2d 1119 (1998).
In Kirincich v. Jimi Construction Co., 267 Ill. App. 3d 51,
640 N.E.2d 958 (1994), the reviewing court held that the contractor
could pursue its contribution action against the subcontractor for
the amount that was not covered by insurance. Kirincich, 267 Ill.
App. 3d at 55. The court noted that the cases holding that
contribution was barred by the rule of mutual exculpation arose in
a factual context where the parties' joint insurance had absorbed
the entire liability of the party seeking contribution. "Where the
joint insurance policy has not fully protected one of the parties
against liability, contribution should be allowed to the extent of
the party's actual loss." Kirincich, 267 Ill. App. 3d at 55.
Under the Boller/Larmco contract, Lamarco was required to
"indemnify and hold harmless [Boller] from and against all claims,
damages, loss, and expenses" in connection with the performance
of Larmco's work. Larmco provided $1 million in initial coverage
to Boller. Following the granting of the remittitur and other
credits, the verdict for the plaintiffs totaled $1,076,770.06.
Since the insurance funds did not completely indemnify Boller,
the trial court erred in granting the dismissal of the contribution
action.
II. Plaintiffs' Appeal and Cross-Appeal
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Nos. 1-08-3622 & 3635 Cons.
The plaintiffs originally appealed from the denial of their
motion to adjudicate Larmco's workers' compensation lien. After
Boller filed its appeal, the plaintiffs filed a cross-appeal from
the grant of the remittitur. If the trial court erred in granting
the remittitur, we need not address the issue of the adjudication
of the workers' compensation lien. Therefore, we will address
first the cross-appeal issue of the granting of the remittitur.
A. Grant of the Remittitur
The plaintiffs contend that the trial court erred in granting
the remittitur. The trial court granted Boller's motion for a
remittitur, stating as follows:
"After reviewing the testimony of Dr. Skeletsky, it is
the court's position that this testimony was based on
speculation, relative to the potential future surgery, and
further, that the court erred in allowing sanctity [sic]
presented to the jury.
The calculations of $100,000 for future surgery,
[illegible] for potential future hospitalization, and $26,000
for potential physical therapy costs were inappropriately
allowed to present it to the jury. This total is $201,000."
After allowing other setoffs and credits, the court offered the
plaintiffs the choice of a new trial or a reduction in the judgment
by $217,604.94. The plaintiffs accepted the remittitur.
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Nos. 1-08-3622 & 3635 Cons.
1. Procedural Bar to the Plaintiffs' Appeal
Supreme Court Rule 366 provides in pertinent part that
"[c]onsenting to a remittitur as a condition to the denial of a new
trial does not preclude the consenting party from asserting on
appeal that the amount of the verdict was proper. No cross-appeal
is required." 155 Ill. 2d R. 366(b)(2)(ii). However, "a party who
consents to a remittitur is bound thereby and is precluded from
appealing the entry of the remittitur unless the opposing party
appeals from the judgment." Haid v. Tingle, 219 Ill. App. 3d 406,
415, 579 N.E.2d 913 (1991), citing Anderson v. Greyhound Lines,
Inc., 34 Ill. App. 3d 643, 339 N.E.2d 465 (1975).
Boller maintains that the plaintiffs are procedurally barred
from raising the remittitur issue because they filed a notice of
appeal from the judgment. The plaintiffs' appeal raised only the
adjudication of Larmco's workers' compensation lien. It was
only after Boller filed its notice of appeal from the judgment that
the plaintiffs' filed a cross-appeal raising the issue of the
remittitur. Therefore, the plaintiffs are not procedurally barred
from raising the issue of granting of the remittitur on appeal.
2. Standard of Review
A ruling on a motion for a remittitur is reviewed for an abuse
of discretion. See Kindernay v. Hillsboro Area Hospital, 366 Ill.
App. 3d 559, 572, 851 N.E.2d 866 (2006).
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Nos. 1-08-3622 & 3635 Cons.
3. Discussion
The trial court granted the remittitur after it ruled that Dr.
Skaletsky's testimony as to future medical costs had been
improperly admitted into evidence. We first address whether the
trial court abused its discretion when it ruled Dr. Skaletsky's
testimony was inadmissible. Jones, 381 Ill. App. 3d at 34
(evidentiary rulings are reviewed for an abuse of discretion).
a. Striking of Dr. Skaletsky's Testimony
The plaintiffs contend that the trial court erred in striking
Dr. Skaletsky's testimony as to the costs of Mr. Diaz's future
treatment. Boller responds that striking of this testimony was
proper because Dr. Skaletsky could not testify within a reasonable
degree of certainty that Mr. Diaz would require surgery and
physical therapy in the future.
Possible future damages are not recoverable by the plaintiff
unless they are reasonably certain to follow. Terracina v.
Castelli, 80 Ill. App. 3d 475, 480, 400 N.E.2d 27 (1979). Evidence
as to damages which is speculative, remote or based upon mere
probability is improper. Terracina, 80 Ill. App. 3d at 480.
"'Expert testimony is admissible or required as evidence of the
certainty of the need and as to the reasonable value of the
services to be rendered.'" Biehler v. White Metal Rolling &
Stamping Corp., 30 Ill. App. 3d 435, 445, 333 N.E.2d 716 (1975),
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Nos. 1-08-3622 & 3635 Cons.
quoting 22 Am. Jur. 2d Damages §312 (1965).
In Terracina, the reviewing court upheld the striking of a
doctor's testimony that further surgery for the plaintiff was
possible. Noting that future consequences must be reasonably
certain to follow, the court stated as follows:
"Here, the question did not call for an opinion based upon a
reasonable degree of medical certainty nor did the answer
indicate that future surgery was reasonably certain to follow.
Rather, in response to the question, '[I]n your opinion based
on the hypothetical question previously asked of you, do you
believe that Mr. Terracina is a candidate for future surgery?'
Dr. Moody replied, 'It's possible.' Accordingly, we believe
that the court properly struck this testimony as being
speculative." Terracina, 80 Ill. App. 3d at 480.
The plaintiffs rely on Jeffers v. Weinger, 132 Ill. App. 3d
877, 477 N.E.2d 1270 (1985). In Jeffers, the doctor testified
that it was possible the plaintiff might lose her foot as a
result of the defendant's malpractice. On cross-examination,
the doctor testified that the possibility that the plaintiff
might lose her foot was less than 1%. The reviewing court found
that the doctor's testimony should be considered by the jury
because, regardless of the percentage number, the possibility
remained that the plaintiff would suffer the loss of her foot.
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Nos. 1-08-3622 & 3635 Cons.
Jeffers, 132 Ill. App. 3d at 884.
In the present case, Dr. Skaletsky was not testifying as to a
possible consequence flowing from the negligence in this case based
on his expertise. Instead, he was asked to predict what treatment
course Mr. Diaz would follow, which was dependant on future test
results and Mr. Diaz's own decisions as to the treatment. Dr.
Skaletsky's testimony did not rise to the "strong possibility" for
the need of future treatment testified to by the doctor in Zitzmann
v. Miller, 194 Ill. App. 3d 477, 484, 551 N.E.2d 707 (1990).
The plaintiff also relies on Kamp v. Preis, 332 Ill. App. 3d
1115, 774 N.E.2d 865 (2002). In that case, the court held that as
long as the increased risk of future injury is proven within a
reasonable degree of medical certainty, evidence of future
damages is not speculative. Kamp, 332 Ill. App. 3d at 1121.
While Dr. Skaletsky did testify that Mr. Diaz was subject to the
risk of future injury, his testimony as to the costs of future
surgery and physical therapy was not related to the risk of
future injury.
We conclude that Dr. Skaletsky's testimony as to the costs
for surgery, hospitalization and physical therapy Mr. Diaz might
undergo in future was properly stricken as speculative.
b. Evidence of Mr. Diaz's Need for Future Medical Care
Even without Dr. Skaletsky's testimony, the plaintiffs
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Nos. 1-08-3622 & 3635 Cons.
maintain that other evidence supported the jury's award of future
medical expenses. Our supreme court has observed that "[w]hen
reviewing an award of compensatory damages for a nonfatal injury,
a court may consider, among other things, the permanency of the
plaintiff's condition, the possibility of future deterioration,
the extent of the plaintiff's medical expenses, and the
restrictions imposed on the plaintiff by the injuries."
Richardson v. Chapman, 175 Ill. 2d 98, 113-14, 676 N.E.2d 621(1997).
Even without the evidence as to the costs of future
treatments, the medical evidence established that Mr. Diaz's
condition was permanent and that he was at risk for further injury.
While the evidence showed that none of the treatments he had
undergone so far had been successful, the evidence did not indicate
that there was nothing further the doctors could do for him. Apart
from the stricken portion regarding costs, Dr. Skaletsky's
testimony indicated that there was an ongoing treatment plan for
Mr. Diaz.
As our supreme court observed in Richardson, "[t]he
determination of damages is a question reserved to the trier of
fact, and a reviewing court will not lightly substitute its
opinion for the judgment rendered in the trial court."
Richardson, 175 Ill. 2d at 113. "A verdict will not be set aside
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Nos. 1-08-3622 & 3635 Cons.
by a court unless it is so excessive that it indicates that the
jury was moved by passion or prejudice or unless it exceeds the
necessarily flexible limits of fair and reasonable compensation or
is so large that it shocks the judicial conscience." Kindernay,
366 Ill. App. 3d at 572. A remittitur should not be granted if
the jury's award falls within the flexible range of conclusions
reasonably supported by the evidence. Kindernay, 366 Ill. App.
3d at 572.
We conclude that the trial court abused its discretion in
granting a remittitur in the amount of costs for future treatment
testified to by Dr. Skaletsky. The evidence established that Mr.
Diaz's condition was permanent and that he remained at risk for
future injury. The evidence further established that he continued
to experience pain and loss of strength and that there were further
treatments available to give him some relief. It was, therefore,
reasonable inference from the evidence that Mr. Diaz will
continue to incur medical and medically-related expenses for pain
relief and to help him cope with the restrictions imposed on him
as a result of his injuries. Given that his past medical bills
were $132,000 for the 6 years between his accident and the trial
in this case and that his life expectancy was 21 years, an award
of $201,000 for future medical expenses was supported by the
evidence.
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Nos. 1-08-3622 & 3635 Cons.
B. Adjudication of Workers' Compensation Lien
In their appeal, the plaintiffs contend that the trial court
erred when it denied their motion to reduce Larmco's workers'
compensation lien rights to zero based on granting of the
remittitur. As we have determined that the granting of the
remittitur was error, we need not address this issue.
III. Conclusion
The jury's verdict as to liability is affirmed. The
dismissal of Boller's third-party complaint is reversed, and the
cause is remanded for further proceedings. On remand, the trial
court is directed to vacate $201,000 of the remittitur and enter
judgment in favor of the plaintiffs in the amount awarded by the
jury, minus the reductions not contested in this appeal.
Affirmed in part and reversed in part; cause remanded with
directions.
GARCIA and LAMPKIN, JJ., concur.
63