Ramirez v. FCL Builders, Inc.

2014 IL App (1st) 123663

FIFTH DIVISION
Modified Opinion filed January 31, 2014

No. 1-12-3663

)
TEODORO RAMIREZ, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 L 6482
)
FCL BUILDERS, INC., an Illinois Corporation, ) Honorable
) Susan Zwick,
Defendant-Appellant. ) Judge Presiding.
)

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
Justices McBride and Palmer concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Teodoro Ramirez was injured while employed as a roofer for Sullivan Roofing, a

nonparty to this litigation. At the time of plaintiff’s injury, Sullivan Roofing was operating as a

subcontractor for defendant FCL Builders, Inc., the general contractor for a warehouse project.

Plaintiff filed suit against defendant, alleging that defendant was negligent and, after a jury trial,

the jury found defendant liable, awarding plaintiff damages in the amount of $1.588 million.

Defendant appeals, arguing that (1) the trial court erred in not granting judgment notwithstanding

the verdict in favor of defendant, where defendant had no liability for plaintiff’s injuries as a

matter of law; and, alternatively, (2) the trial court should have granted defendant a new trial

where the trial court improperly instructed the jury, made errors in the admission of evidence,

and failed to sanction plaintiff for several discovery violations. For the reasons that follow, we

affirm.
No. 1-12-3663

¶2 BACKGROUND

¶3 I. Complaint

¶4 On June 13, 2008, plaintiff filed a complaint against defendant; the complaint was

amended twice and it was the second amended complaint on which the parties went to trial.1 The

second amended complaint alleges that, on or before September 29, 2004, defendant was a

general contractor responsible for the design, construction, and maintenance of a warehouse

facility in Romeoville, Illinois. Plaintiff was working on the roof of the warehouse on September

29, 2004, when plaintiff and his coworkers from Sullivan Roofing were manually pushing a

“large, bulky and heavy roll of roofing membrane material” on the roof of the warehouse,

causing plaintiff’s injuries. Although plaintiff was working on the roof of the warehouse as an

employee of Sullivan Roofing, defendant “was present during the course of the construction

project, supervised and coordinated the work being done, designated various work methods,

maintained and checked work progress, and participated in scheduling the work and the

inspection thereof.” Additionally, defendant “had the authority to stop the work, refuse the work,

tools and materials, and to order changes in the work in the event that the work was being

performed in a dangerous manner or for any other reason.”

¶5 The second amended complaint alleges that, at the time of the injury, defendant, through

its agent, knew or should have known of the manner in which plaintiff’s work was being

performed and defendant had a duty to exercise reasonable care under the circumstances to

1
Plaintiff also filed suit against the property owner, but that claim was settled prior to
trial and is not part of the instant appeal.

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protect the safety of plaintiff. Notwithstanding that duty, defendant was negligent in one or more

of the following ways:

“a. Failed to permit Honda [all-terrain vehicles (ATVs)] to

be used by the roofing crew to move heavy roofing materials; or

b. Allowed an improper work practice to occur as it relates

to material handling in violation of OSHA Standard 2236; or

c. Failed to place plywood planking at various locations on

the metal deck thereby allowing Honda ATV’s to be used to move

heavy roofing materials; or

d. Failed to instruct the Sullivan Roofing crew in the

recognition and avoidance of an unsafe condition as it relates to

material handling in violation of CFR 1926.21(b)(2); or

e. Failed to follow the safe customs and practices of the

construction industry in the manner in which the workers, such as

the plaintiff, were required to perform their duties; or

f. Failed to ensure handling of heavy roofing materials

were done in a reasonably careful manner.”

The second amended complaint alleges that, as a result of one or more of defendant’s acts or

omissions, plaintiff suffered injuries “of a personal and pecuniary nature.”

¶6 As an affirmative defense, defendant alleges that plaintiff had the duty to exercise

reasonable care and caution for his own safety and failed to do so in one or more of the following

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ways:

“a. Failed to properly move and/or push roofing materials;

b. Failed to make a reasonable inspection of the premises

to ensure that he was familiar with the premises;

c. Failed to use appropriate methods in the moving and/or

pushing of roofing materials;

d. Performed his work in a manner in which the Plaintiff

knew, or in the exercise of ordinary care, should have known was

harmful or dangerous;

e. Was otherwise careless and negligent.”

¶7 II. Discovery

¶8 Since defendant raises several arguments concerning discovery, we relate the relevant

facts.

¶9 On August 12, 2010, plaintiff filed answers to defendant’s Rule 213 interrogatories,

disclosing his anticipated witnesses, including five Rule 213(f)(2) independent expert witnesses

and no Rule 213(f)(3) controlled expert witnesses. Ill. S. Ct. R. 213 (eff. Jan. 1, 2007). On

January 11, 2011, the trial court ordered plaintiff to answer defendant’s Rule 213(f)(3)

interrogatories by April 1, 2011. On March 13, 2011, the court entered an order that discovery

was to close on May 4, 2011. On April 5, 2011, the trial court ordered plaintiff to disclose any

Rule 213(f)(3) witnesses by April 4, 2011, with the witnesses to be deposed by May 5, 2011; the

court again ordered discovery closed on May 4, 2011.

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No. 1-12-3663

¶ 10 On April 20, 2011, plaintiff filed supplemental Rule 213 disclosures, including an

additional Rule 213(f)(1) lay witness and one Rule 213(f)(3) controlled expert witness, Dennis

Puchalski, a construction safety consultant.

¶ 11 On September 16, 2011, plaintiff’s current attorneys filed an appearance as additional

attorneys of record and, in October 2011, plaintiff’s current attorneys replaced the former

attorneys as plaintiff’s counsel.

¶ 12 On February 21, 2012, the attorneys for the parties certified that all fact, medical, and

opinion discovery was complete; that all deposition of Rule 213(f)(1), (2), and (3) witnesses had

been taken or waived in writing or in a court order; that all necessary evidence depositions had

been taken; and that no dispositive motions were pending or would be filed by any party prior to

trial. On March 8, 2012, the case was set for trial on May 3, 2012.

¶ 13 On April 24, 2012, plaintiff filed a notice of videotaped evidence deposition for Jaime

Rojas, which would take place via telephone on April 26, 2012, since Rojas was located in

Colorado. On April 26, 2012, defendant filed an emergency motion to quash the videotaped

telephone evidence deposition. In the motion, defendant argued that two days’ notice for a

videotaped evidence deposition was insufficient and would not allow defense counsel the

opportunity to attend the deposition in person and to cross-examine the deponent in person.

Further, defendant claimed that the deponent, Jamie Rojas, had not been listed by plaintiff as a

Rule 213(f)(1), (2), or (3) witness. On the same day, the trial court denied defendant’s motion to

quash the deposition and further ordered the May 3, 2012, trial date to stand.

¶ 14 On May 8, 2012, during trial, defendant filed a motion in limine seeking to bar plaintiff

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No. 1-12-3663

from calling David Gibson as a trial witness. The motion claimed that, on October 28, 2011,

plaintiff made an oral motion seeking to disclose an additional Rule 213(f)(3) damages witness,

which the trial court granted over defendant’s objection. Plaintiff’s disclosure of Gibson as an

additional witness “resulted in defense counsel being compelled to retain its own defense expert

on the issue of damages,” causing prejudice. On the same day, the trial court denied defendant’s

motion.

¶ 15 Defendant also filed a motion in limine seeking to bar plaintiff from calling Jaime Rojas

as a witness for three reasons: “insufficient notice of an evidence deposition, violation of the

Supreme Court 213(f)(2), and subsequently after taking the deposition learning of additional

documentation that was relevant to the functional capacity evaluation that Mr. Rojas was

testifying about on that given day.” Defendant argued that, despite plaintiff’s claim that a letter

was sent in January 2012 disclosing Rojas as a witness, defense counsel never received such a

letter. The trial court denied defendant’s motion.

¶ 16 III. Trial

¶ 17 Trial began on May 7, 2012. Evidence was presented concerning the installation of the

roof in the case at bar, as well as plaintiff’s medical history following the injury. Several

witnesses also testified about the safety of the procedures used on the roof, as well as plaintiff’s

damages.

¶ 18 A. Roofing Witnesses

¶ 19 1. Michael Sullivan

¶ 20 Michael Sullivan, who was employed by Sullivan Roofing and was the brother of the

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company’s owner, was Sullivan Roofing’s safety director in September 2004. Sullivan testified

that Sullivan Roofing was in the business of installing commercial roofs, including “ballasted

roofing which has rock on top to hold [it] down”; Sullivan estimated that 30 to 40 roofers would

have been employed by Sullivan Roofing in 2004, and it was typical for Sullivan Roofing to have

multiple jobs at the same time. In 2004, defendant, the general contractor, hired Sullivan

Roofing as a subcontractor on a project called the “Wilton Industries Project” in Romeoville (the

Wilton project). The Wilton project was to be a big-box warehouse with a ballasted roof

“somewhere in the vicinity” of 450,000 square feet, which was “a large roof, but it wasn’t a huge

roof.” The roof on the Wilton project was pitched, or slightly inclined.

¶ 21 Sullivan testified that, prior to beginning work on the Wilton project, Sullivan Roofing

received a “welcome subcontractor type letter” from defendant, in which defendant indicated that

it was “committed” to Sullivan Roofing’s safety and wanted to provide a workplace “reasonably

free of recognized safety hazards,” which Sullivan testified was “very common” on a project of

the scope of the Wilton project. The letter further stated that “safety and safety awareness is a

two-way street,” which Sullivan agreed with, testifying that “[e]verybody on site is responsible

for safety,” including the general contractor, subcontractor, and employees. Sullivan also

testified that, on the Wilton project, defendant had certain “intolerable offenses,” which meant

that “generally the subcontractor has to behave in a certain fashion or they’re gone.”

¶ 22 Sullivan also explained the process of laying a ballasted roof such as that installed on the

Wilton project. First, panels of insulation were placed on top of metal decking; the panels were

four feet by eight feet and weighed approximately four pounds. The panels were wrapped in

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bundles of 23 and hoisted to the roof by a “boom truck,” essentially, a big truck with a crane.

The materials and tools, including insulation, rolls of rubber membrane, and ATVs, were placed

along the perimeter of the roof, at least six feet from the edge; it was Sullivan Roofing’s decision

where to place the materials and Sullivan testified that it would not be unusual to have delivery

of roofing materials staggered over several weeks. The insulation was placed, beginning at one

corner of the building, enough to cover an area of 50 feet by 200 feet. A sheet of rubber

membrane was then placed on top of the insulation; the entire deck was not laid with insulation

before beginning to place the rubber membrane because, otherwise, it would be blown away by

wind. After the rubber membrane was placed, stones would be spread on top of it; initially, rows

of stone would be placed to keep the insulation and rubber in place in case of wind, which would

be filled in later with more stones. The bundles of insulation could be pushed by two workers

over short distances.

¶ 23 Sullivan testified that “once in awhile [sic]” ATVs would assist in rolling out the rolls of

rubber membrane: “It wasn’t always. When the Hondas[2] were available or they came around,

sometimes they would help push the rolls over, yes.” Sullivan testified that the ATVs would also

be used after the rubber membrane was placed, to spread the gravel on top of the rubber

membrane. He could not recall the size of the rubber membrane rolls but, on a roof the size of

the Wilton project, “a lot of times we use 50 by 200s.” The rolls, when wrapped, were

approximately 2.5 feet high and 10 feet wide and would weigh between 1,500 to 2,000 pounds

depending on the size. When moving rolls of that size and weight at distances of over 30 feet,

2
Throughout the trial, witnesses used the terms “ATVs” and “Hondas” interchangeably.

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No. 1-12-3663

“[i]t all depends on how many guys were available. Sometimes we had eight guys pushing the

roll. Sometimes there would be less guys, and the Honda would come in between everybody and

help push it.” Sullivan testified that it would be “very rare” for workers to physically push the

rubber membrane more than 300 feet because “[t]hose [rolls] are positioned so that we don’t

have to move them that far when we load the job.”

¶ 24 Sullivan testified that, when roofing materials were hoisted onto the roof of the Wilton

project, the materials were “dimpling” or denting the deck, and a solution needed to be provided

by “the powers that be.” Sullivan could not recall who informed him of the issue, “but I was

called, and it was said we have an issue”; Sullivan later testified that “I believe John [Zelasco3]

called me” and informed him of the problem with the decking. Sullivan testified that ATVs were

used on the Wilton project and were only temporarily stopped: “That was a decision made at the

point in time all this happened, to stop everything, and we had to figure out a way that we could

use them again and get things rolling and be able to load -- so we wouldn’t damage the deck.” A

meeting was held to discuss the solution to the problem, at which Sullivan and Dave Majestic,

also a Sullivan Roofing employee, were present, but Sullivan could not recall whether John

Zelasco was present on behalf of defendant: “I don’t recall if John was there. John wouldn’t

have been in that discussion until we figured out what we wanted to do and then we would pose

that to him.”

¶ 25 Sullivan testified that Zelasco had the authority to stop work on the project if he observed

unsafe practices and further testified that “FCL is very strict on safety. So that’s more -- you

3
Zelasco was defendant’s superintendent on the Wilton project.

9
No. 1-12-3663

know, anything that happens, John has the right. He runs the job. He has the right to stop.” If

Zelasco observed someone performing his job in an unsafe manner, Zelasco would have the right

to stop that work and then would contact Sullivan. Zelasco would also coordinate the work and

monitor the work of the subcontractors. However, Sullivan testified that defendant was not

involved in the means and methods of Sullivan Roofing’s work on the Wilton project.

¶ 26 At the meeting, they “came up with a plywood runway solution,” which would use a

plywood runway system to distribute the weight of the heavy roofing materials and permit the

ATVs to be used. Sullivan testified that “[w]e made the decision to use the plywood runway and

posed that to John to help to protect the roof. That was our decision.” Sullivan further testified

that “after a conference between John and the powers that be at Sullivan, that was a solution that

was implemented,” and it worked to stop the dimpling.

¶ 27 Sullivan also testified to his work as safety director. Sullivan testified that, in his position

as safety director, he would visit the work site once every one to three days, for approximately an

hour; Sullivan was not on the roof on September 29, 2004. Sullivan testified that Sullivan

Roofing had a safety manual given to each of its employees and that safe material handling was

“the number one safety issue that roofers have” because “[t]here’s a lot of ergonomics to it again.

There’s a lot of bending. There’s a lot of lifting involved. There’s a lot of pushing rolls, if you

will. And everybody -- I harp constantly on lifting properly, don’t pull, you know, how to

properly lift. Constantly we go over that.”

¶ 28 Sullivan testified that he conducted “toolbox talks” once a week, which were “a topic for

the day basically. Sometimes it’s on safe lifting. Sometimes it’s on wind safety. Sometimes it’s

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on heat. We have all different kinds of topics that we use. And what I do is I go on the roofs, I

go through these topics. I gather everybody together. I read them, so everybody can’t just sign.

They have to know that -- you know, what we’re doing for the day. And they sign off on that

they’ve read this and they understand what I’ve given them for the day.” Sullivan testified that

the toolbox talks were conducted by Sullivan Roofing for its employees to keep its employees

working safely. Sullivan conducted a toolbox talk on September 29, 2004, which plaintiff and

his brother Sabeno both attended, as demonstrated by their signatures. That toolbox talk was “a

safety review. It was over fall protection, material handling, MSDS sheets, electrical safety, and

fire safety.”

¶ 29 Sullivan testified that, as safety director, he did not believe it was unsafe to have a

Sullivan Roofing crew move a roll manually. Sullivan further testified that, with enough

workers, using ATVs was not safer than manually pushing the rolls of membrane: “If you had a

number of guys on there, it really wasn’t -- we’ve done that for a number of years -- I don’t know

-- safer, I wouldn’t say it’s safer. It helped us move it along quicker. *** If you have four guys

and the Honda helps, absolutely. If you have eight guys on there, it moves pretty easily.” He

acknowledged that, during his deposition, he responded that using ATVs “would help, yes.” On

recross, Sullivan clarified his testimony concerning the use of ATVs: “When we were all talking

about moving these rolls and speaking about moving them 20, 30 feet, that’s when the rolls are in

position. We use the Hondas to put the rolls in position. From the position point, when they’re

spread out on the roof because -- he is correct in saying that we -- sometimes we move the roll 2,

300 feet because of the width of the building. We have to put them in position. The Hondas are

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used for that. When we have to move them in position to lay it over the insulation is when I’m

talking about pushing it 20, 30 feet. It’s not to get it off a load and then roll these things by hand

300, 400 feet. That does not -- that’s not what we do.” Sullivan further testified that it was “fair

to say” that it was “never appropriate” to move a roll of rubber membrane from one side of the

building to the other without the use of an ATV.

¶ 30 Sullivan testified that plaintiff was an employee of Sullivan Roofing and was a “great

worker” who, at one point, they were considering making a foreman. Sullivan characterized

plaintiff as reliable, dependable, honest, and very good at his job. Plaintiff was familiar with

rubber roofs and ballasted roofs, including installing thermal plastic membranes. Plaintiff was

part of Frank Pesek’s crew and worked closely with Pesek. Sullivan recalled plaintiff informing

him that he was planning to visit a doctor for his back, but denied discouraging the doctor visit or

threatening to fire plaintiff.

¶ 31 On cross-examination, defense counsel attempted to introduce an incident report

completed by Sullivan into evidence.4 Sullivan testified that plaintiff reported his back injury to

Sullivan, who filled out an incident report in his capacity as safety director; Sullivan testified that

keeping such reports was part of Sullivan Roofing’s normal course of business. Sullivan further

testified that the report was in his handwriting and bore his signature. Defense counsel then

sought to admit the report into evidence, and plaintiff’s counsel objected. The trial court

examined the document outside the presence of the jury, noting that it showed an incident date of

October 6 and the date of reporting as October 11. Further, the report indicated that the injury

4
The incident report is not included in the record on appeal.

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was due to pushing bundles of insulation, not rolling rubber membrane; defense counsel

explained that “[t]hat’s exactly why I want this before the jury. Mr. Ramirez told him exactly the

opposite of what he’s claiming in this lawsuit.” The trial court summed up the defense’s theory

concerning the incident report: “It appears to me that what counsel is saying is that any injury

that occurred didn’t occur on September 29. It occurred on October 6. It didn’t occur when he

was pushing a roll, it occurred when he was pushing a bundle of insulation. *** You’re saying

based on what Mr. Ramirez told Mr. Sullivan, September 29 didn’t happen.”

¶ 32 The trial court brought Sullivan back into the courtroom for further questioning

concerning the incident report. Sullivan testified that he had an independent memory of speaking

with plaintiff about the incident that was the subject of the report, and that he recalled being on

the roof with plaintiff and Frank Pesek, the foreman, when plaintiff informed him of the incident.

He further testified that plaintiff reported the incident to him on October 11 but told him that it

had occurred on October 6. Sullivan admitted that the payroll records went to October 10 but

that the last date plaintiff was on the payroll, according to the records, was October 7. Sullivan

further admitted that it was possible that he was standing on a different roof, and not the Wilton

roof, when plaintiff informed him of the incident and that “my dates could be wrong on the

document. And I don’t know. I can’t verify that. But I remember specifically standing there

talking to him.” After Sullivan’s examination, the court sustained the objection: “The objection

as to the record itself is sustained. Whatever you choose to have him testify to as to his memory

is still of evidentiary value. But because of the lack of reliability on the dates based on the voir

dire and the *** deposition, I’m going to sustain the objection. I don’t *** find it to be within

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the business records exception because of lack of reliability. The rest of the testimony is up to

you.” The court further noted: “It has to be created in an ordinary course of business and if it’s

on or about the time. That’s why they’re reliable. And what we have is that missing element. It

wasn’t created on or about the time because he says the date may be wrong and I don’t

remember.”

¶ 33 The jury was then brought back into the courtroom, and cross-examination of Sullivan

continued. Sullivan testified that, at one point during the two weeks of the Wilton project,

plaintiff approached him on the roof of the Wilton project and informed him of the accident;

Pesek was also present during the conversation. Plaintiff informed them that he was pushing a

bundle of insulation alone “and felt a twinge in his back.” Sullivan testified that pushing

insulation alone was contrary to Sullivan Roofing’s recommendations for material handling,

which required two people to push a bundle of insulation. Sullivan denied telling plaintiff not to

visit a doctor.

¶ 34 Sullivan testified that, based on the time sheets, plaintiff was working on a different

project on Monday, September 27. He was working on the Wilton project on September 28 and

29, and was working on a third project on September 30 and did not work on Friday, October 1.

¶ 35 2. David Majestic

¶ 36 David Majestic, vice president of field operations for Sullivan Roofing, testified that, at

some point during the Wilton project, he learned that there was a problem with damage to the

decking. Defendant’s superintendent, John Zelasco, placed a call to Sullivan Roofing informing

it of damage to the decking. Majestic later testified that he “received a call at some point in

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time” indicating that there were issues, but “[w]ho gave me that phone call, I don’t recall that.”

The problem required the work to stop until a solution was developed.

¶ 37 Majestic testified that the decision to use plywood to solve the problem was a

collaboration between Sullivan Roofing and defendant. Majestic further testified that he was

present while the plywood was in use, although he admitted that in his deposition, he testified

that he was not present.

¶ 38 Majestic testified that general contractors left it to Sullivan Roofing to determine the

means and methods of its work. On the Wilton project specifically, defendant never told him or

his crew how to perform their work on the roof or not to use ATVs on the roof, although

defendant had the right to stop the work if they were damaging the roof.

¶ 39 Majestic testified that ATVs were “workhorse[s]” used regularly in the roofing industry,

including moving insulation and pushing rolls of rubber membrane, which weighed 2,500 to

2,800 pounds. At times, ATVs were occupied with other work on the roof and were not

available to workers needing to move rolls of membrane. It was preferable to have several

people move a roll of membrane, and protocol required a worker who had issues with the size of

the roll to either inform the foreman of his concern or find additional workers to push the roll.

Majestic did observe men manually pushing membrane weighing 2,500 to 2,800 pounds up to

200 feet in the past.

¶ 40 Majestic testified that plaintiff was a very good worker who was responsible and

dependable and that the company had considered him for the position of foreman.

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¶ 41 3. Frank Pesek

¶ 42 Frank Pesek, the roofing foreman for Sullivan Roofing on the Wilton project, testified

that plaintiff worked under him and that he was a very good worker – hard working, dependable,

and honest. At one time, plaintiff was Pesek’s “leadman,” or right-hand man. Pesek testified

that plaintiff informed him that he was injured on the Wilton project. When someone reported an

injury, Pesek reported it to Sullivan.

¶ 43 Pesek testified that, on a job the size of the Wilton project, ATVs would be used to push

rolls of rubber membrane to various points on the roof; the ATVs had been used “since day one

when I was here.” Typically, two ATVs would be used to push a roll of rubber membrane, one

on the left and one on the right of the roll. Sullivan Roofing “always used the ATVs” to move

rolls of membrane significant distances “because it’s easier” on the workers’ bodies, but “[i]f we

had to” manually push them, “we would.”

¶ 44 Pesek testified that the type of rubber membrane used on the Wilton project would be

unrolled “kind of like a paper towel” and then unfolded “like a blanket.” When unfolded, the roll

would be approximately 200 by 50 feet. The materials for the roofing work were brought onto

the roof by Sullivan Roofing’s crane. From time to time, if soil conditions prevented a crane

from being placed at a particular location, the general contractor would direct the crane to be

placed in a better location with more favorable soil conditions.

¶ 45 Pesek testified that he was notified by “[s]omeone from [defendant] FCL” that there was

damage to the roof decking, and he “took a timeout to craft a solution to this deck damage issue.”

Pesek could not recall whether someone gave an order not to use ATVs, but “if we stopped using

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the Hondas, it’s because someone told me not to use them.” Pesek agreed that “it was more

likely than not that there was an order to not use the Hondas to push the rolls,” and testified that

“the order to not use the Hondas either came from Dave Majestic or the [defendant’s]

superintendent on this job.” Pesek further testified that Majestic would not call Pesek “out of the

blue” and order him to stop using the ATVs. Pesek testified that defendant had the power to halt

the work that Sullivan Roofing was performing. Pesek further testified that he took his orders

from Dave Majestic, his supervisor.

¶ 46 Pesek testified that once the ATVs were not allowed to push the rolls, the rolls of

membrane would have to be manually pushed by the crew. Pesek “would rather use Hondas,”

but did not view anything unsafe in manually rolling the rubber membrane, providing there were

enough workers doing so, and ordered his crew to manually move the rolls; Pesek testified that,

if he observed an unsafe act being performed by a member of his crew, he had the authority to

stop it. There was a potential for injury when manually pushing a roll of rubber membrane 300

feet because “they are heavy. They’re heavy. You are pushing rolls that weigh a lot. Anything

in roofing is strenuous.”

¶ 47 Pesek testified that there was a plywood runway system in place to permit the ATVs to

transport bundles of insulation, but that they were not in place to permit the ATVs to move the

rolls of rubber membrane.

¶ 48 4. John Zelasco

¶ 49 John Zelasco, defendant’s project superintendent on the Wilton project, testified that he

was the highest-ranking employee of defendant present on the site on a daily basis. Zelasco

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testified that it was “more likely than not” that defendant and the property owner agreed that

defendant would work in a safe manner. On the first day that roofing materials were loaded onto

the roof, he noticed that roofing activity was creasing the decking and notified Pesek, the

foreman for Sullivan Roofing, as well as Michael Sullivan. He also informed his two immediate

superiors: his project manager and his senior project manager.

¶ 50 Zelasco testified that defendant was the only general contractor on the Wilton project, and

that he was defendant’s only superintendent on the project. Zelasco, as a superintendent, “had

the power to stop work on this job generally.” After the decking was damaged, Zelasco notified

Pesek and Sullivan “and at that point I think it may have been their call to stop the activity to take

a look at what was going on, maybe to assess what activities were taking place.” However,

Zelasco also testified that it was a joint decision between defendant and Sullivan Roofing to

cease working for a day to assess the damage.

¶ 51 Zelasco testified that it was very common for roofers to use ATVs on a roof and that it

would be highly unusual not to use ATVs on a roof the size of the Wilton project. He denied

ordering Sullivan Roofing employees not to use ATVs to move rolls of rubber membrane or for

any other purpose; he testified that “[t]hey had the right to perform their activities,” including

using the ATVs to move the rolls of rubber membrane. He testified that, prior to beginning the

roofing work, he met with Majestic to discuss good access points for the cranes; Zelasco

estimated that Sullivan Roofing had access to 90% of the building’s perimeter, and then decided,

without Zelasco’s involvement, where along that perimeter it wanted to unload its materials.

Zelasco testified that Sullivan Roofing had unrestricted use of ATVs to move its materials and

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that “I never gave any restrictions on the means and methods of the contractor to do his job.”

¶ 52 Zelasco also testified about defendant’s list of “intolerable offenses” by subcontractors,

which were “certain job rules that are strictly enforced.” One such rule concerned violations of

the Occupational Safety and Health Act (29 U.S.C. § 651 et seq. (2006)). Zelasco testified that

violation of the rules could result in immediate and permanent removal of the subcontractor from

the project. Zelasco testified that “[e]veryone has to work as a team” to ensure a safe work site

and that “we’re committed to everyone’s safety on the job site.”

¶ 53 Zelasco held safety “in the highest priority,” and he was authorized to be an outreach

trainer for the Occupational Safety and Health Administration (OSHA) and was involved with

several other safety organizations. One of his duties for defendant on a given project was to

ensure that the work site was safe. He considered Sullivan Roofing to be “one of the best”

companies because “[t]hey have very high standards of safety. They *** have the right

equipment. It’s very, very rare that there’s ever an issue.”

¶ 54 Zelasco observed membrane used on a number of roofs and that, “[t]ypically, it’s moved

from the truck with a crane up onto the roof. And then very typically the roofers themselves,

usually five or more guys, will get behind it and push it into position, getting it either rolled up

onto a cart or onto some means of transporting it where it needs to go. But it’s always -- it’s

usually done manually when they’re stocking the job.” Once they were rolled onto the cart or

ATV, the rolls would be transported to their final destination on the roof.

¶ 55 If Zelasco observed any workers behaving in a way that was causing a problem, he would

speak to the foreman or the superintendent in order to address the issue. He denied ever telling

19
No. 1-12-3663

roofers to stop using ATVs on the Wilton project and did not know of anyone from defendant

doing so. He admitted that he and Majestic, from Sullivan Roofing, would have the authority to

tell Pesek to stop using the ATVs if they were damaging the deck.

¶ 56 Zelasco was not informed of plaintiff’s injury until defendant was sued in the instant

lawsuit.

¶ 57 After Zelasco’s testimony, outside the presence of the jury, the trial court found that

Zelasco had not provided a sufficient foundation to admit the contract between defendant and the

property owner into evidence. Plaintiff’s counsel indicated that they had relied on defendant’s

disclosure that Zelasco would lay a foundation for the contract, so they were “kind of in a bind

here,” since he was unable to do so. Plaintiff’s counsel requested that, “if the Court feels the

foundation, as it relates to the contract specifically, is inadequate, then I -- given the [Rule] 213

disclosure of defense, relative to Mr. Zelacso, I think I’m entitled to call a record keeper, a

signatory or somebody from FCL that can lay the foundation, notwithstanding the fact it’s the

day before I rest my case.” Over defendant’s objection, the court agreed and told defendant,

“you’re on notice that I would grant plaintiff’s motion. And that the request will come to you,

I’m assuming, within the next 12 hours. And that before this case is put to rest, I expect to see

some discussion and/or resolution one way or another.” The next day, plaintiff called

Christopher Linn, vice president of defendant, who provided the necessary foundation and the

contract was admitted into evidence.

¶ 58 5. Sabino Ramirez

¶ 59 Sabino Ramirez, plaintiff’s brother, who also worked as a roofer for Sullivan Roofing on

20
No. 1-12-3663

the Wilton project, testified that, on September 29, 2004, both he and plaintiff were working at

the Wilton project; Sabino as a “signal guy” for the crane and plaintiff “[p]ush[ing] the rolls and

other material.” Typically, when rolls of rubber membrane needed to be moved, they would be

moved by ATVs. However, the crew was ordered not to use ATVs to push the rolls by someone

wearing a white hard hat,5 so plaintiff was moving them manually. Approximately two hours

later, plaintiff informed Sabino that he had a great deal of back pain.

¶ 60 Sabino testified that he took all of his direction on the job from Pesek, the foreman, or

from other Sullivan Roofing employees, such as Majestic or Sullivan. Sabino had no

communication with defendant on the job.

¶ 61 6. Plaintiff

¶ 62 Plaintiff testified that he was born in Mexico and moved to the United States in 1986; he

began working as a roofer in 1989 and was a roofer until his injury in 2004. On September 29,

2004, he was working as a roofer and was not permitted to use ATVs to push the rolls of rubber

membrane “[b]ecause some guy told us don’t use the Hondas”; plaintiff testified that the man

who told the workers not to use the ATVs was John Zelasco, but plaintiff never spoke to him

directly. Pesek then ordered them to roll the membrane manually. The ATVs were only used to

move bundles of insulation. Plaintiff testified that it was unusual to manually move the rolls 300

feet and that “[a]ll the time we use the Hondas.”

¶ 63 Plaintiff testified that the roof was wet and slightly inclined. He testified that “I, myself,

5
Pesek, the foreman for Sullivan Roofing, testified that defendant’s employees wore
white hard hats.

21
No. 1-12-3663

and seven more guys, I was in the middle, we started to push the roll from the edge of the roof to

300 feet far, far away.” Plaintiff continued: “I hurt my back when we was pushing the roll into

the ridge. And the metal is very wet and slippery. So, the roll goes back and everybody is trying

to hold it, but that’s impossible to hold that kind of roll. So, everybody, they start to hold it and

they -- I was in the middle. So, I tried to hold it, the roll, and that’s when I feel my back like

crack when you crack your fingers and I feel very, very painful.” Plaintiff testified that they were

moving the roll up a slight incline, and it began rolling back four to five feet, until someone was

able to stop it by placing insulation under it.

¶ 64 Plaintiff testified that after he noticed the pain in his back, he informed Pesek, the

foreman; he did not inform Sullivan, who was not on the roof that day. Pesek instructed plaintiff

to “take it easy,” so plaintiff did light work for several hours, then took pain pills and rested for a

few hours. After returning home, plaintiff was walking slowly and had a great deal of pain in his

low back.

¶ 65 Plaintiff went to work the next day, a Thursday, but again only did light work. He did not

work Friday, Saturday, or Sunday, but rested at home. On Tuesday, his wife made an

appointment with Dr. Desmond Martello, a chiropractor she found through the yellow pages.

That week, plaintiff avoided heavy lifting at work and was permitted light duty. On October 8,

2004, he visited Dr. Martello, and visited him often during the next three months for physical

therapy; however, his back did not improve. Plaintiff also had injections ordered by Dr. Sean

Salehi, and Dr. Salehi performed surgery in 2005; the surgery helped for the first several months,

but the pain returned.

22
No. 1-12-3663

¶ 66 Plaintiff testified that Dr. Alberto,6 a pain doctor, again injected plaintiff and prescribed

pain medicine and, at some point, plaintiff visited Jaime Rojas for a functional capacity

evaluation. Eventually, plaintiff visited Dr. Edward Goldberg, who performed a second surgery.

Again, the surgery seemed to help at first, but the pain returned.

¶ 67 Plaintiff testified that he is unable to participate in activities that he had enjoyed, such as

boxing and soccer. Plaintiff further testified that he attempted to obtain work with his wife’s

employer, but was not hired.

¶ 68 Plaintiff testified that there was no plywood runway system in place to permit the ATVs

to be used at the time of the accident.

¶ 69 B. Medical and Lifestyle Witnesses

¶ 70 1. Juana Ramirez

¶ 71 Juana Ramirez, plaintiff’s wife, testified that plaintiff had been a roofer since he came to

the United States from Mexico in 1986 and loved his job. Until his accident in 2004, plaintiff

played soccer and basketball and enjoyed running and boxing. Juana testified that on September

24, 2004, plaintiff was working for Sullivan Roofing with his brother Sabino. When plaintiff

came home from work, Juana observed him holding his back with his left hand and having

trouble walking. Plaintiff informed Juana that he had injured his back at work, so Juana prepared

a hot bath for him. She also gave him painkillers and placed a cold pack on his back, but none of

it helped his back pain. Plaintiff went to work the next day, but Juana called the doctor, Dr.

Martello, the following week. That Friday, Juana accompanied plaintiff to visit Dr. Martello,

6
Dr. Alberto’s first name is not in the record on appeal.

23
No. 1-12-3663

who took X-rays and performed hot and cold therapy and electrical stimulation. Plaintiff visited

Dr. Martello for approximately three months, but his back had not improved and he was in

continuous pain.

¶ 72 In 2005, plaintiff and Juana visited Dr. Salehi, a surgeon, who gave plaintiff cortisone

injections and, when those did not work, performed surgery on plaintiff’s back in August 2005.

Plaintiff attended physical therapy and visited Dr. Elborno,7 a “pain management doctor” referred

by Dr. Salehi. Plaintiff then began treatment with Dr. Edward Goldberg, “an orthopedic,” and

had a second surgery on his low back in October 2007; plaintiff has not returned to his roofing

job or worked at all.

¶ 73 Juana testified that, as of the trial date in May 2012, plaintiff had not returned to work as

a roofer. He had attempted to find other work, such as in the maintenance department of Juana’s

employer, but was rejected because of his back problems. Juana characterized plaintiff as

“totally different” than prior to his accident, since he was unable to work or participate in the

activities he enjoyed, such as sports, or do work around the house, such as mowing the lawn or

shoveling snow.

¶ 74 2. Dr. Desmond Martello

¶ 75 Dr. Desmond Martello,8 a licensed chiropractor, testified that plaintiff’s treatment records

included a patient history that revealed that plaintiff was injured on September 29, 2004, when

7
Dr. Elborno’s first name is not in the record on appeal.
8
Martello’s testimony was presented by reading the transcript of a videotaped evidence
deposition in open court, but the video was not played before the jury.

24
No. 1-12-3663

pushing bundles of insulation at work and reported the injury to Frank Pesek.

¶ 76 3. Dr. Thomas Cronin

¶ 77 Dr. Thomas Cronin, a general surgeon practicing in occupational medicine, evaluated

plaintiff on January 22, 2005, and testified that the “triggering event” from plaintiff’s “history

and mechanism of injury” was “pushing this 2,000 pounds of rubber with eight other people.”

After evaluating plaintiff and examining his MRI, Cronin concluded that “number one, he had

chronic low back syndrome, which means low back pain, on a continuing basis. That was

number one. Number two, he had what’s known as spondylolisthesis, which is a slippage of the

vertebrae, one on the other, with radiculopathy, which is pain down the leg in his case at the L5-

S1 level. The third thing was he had a herniated disc at the lumbar three, lumbar four area, and

the lumbar four, lumbar five area with encroachment upon the left lateral recess at both levels,

which means, in common terms, a pinched nerve, but that can be extremely uncomfortable.”

Cronin opined that plaintiff needed further treatment by a specialist because he had a “long

measure of tenderness” down his spine and had “considerable limitation of motion” and

numbness and tingling on his legs; plaintiff was also “notably uncomfortable” while in Cronin’s

office and had difficulty during the examination during tests such as straight-leg-raising and heel-

to-toe tests. Cronin opined that plaintiff needed to visit a spine surgeon, “either an orthopedist or

a neurosurgeon that does that type of surgery.” In his report, Cronin opined that plaintiff “was

not able to do any heavy lifting, no repeated bending or twisting, only light work with a

restriction of five to ten pounds of lifting would be advisable.”

25
No. 1-12-3663

¶ 78 4. Dr. Sean Salehi

¶ 79 Dr. Sean Salehi,9 a physician board-certified in neurological surgery, testified that he

treated plaintiff from April 14, 2005, to February 27, 2007, and performed spinal surgery on him

on October 17, 2005. Salehi first examined plaintiff at the neurosurgery clinic at Northwestern

University Hospital on April 4, 2005. Plaintiff reported that “he was injured at work in

September by pulling a 2,000 pound object with the help of other coworkers. At the time he had

immediate low back pain and also left leg pain.” Salehi opined that plaintiff “was having

fracture of his L5 vertebrae on the backside. He also had degeneration of the discs in the low

back and also stenosis of his lower back causing his complaints of back and leg pain, and I

wanted to put him through [a] conservative course of care,” meaning nonsurgical care.

¶ 80 Plaintiff next visited Salehi on July 8, 2005, and was still experiencing back and leg pain;

the conservative course of care had not relieved his pain at all. Salehi recommended proceeding

with a lumbar fusion operation to stabilize the spine, and performed a transforaminal lumber

interbody fusion on October 17, 2005. As of January 17, 2006, three months after surgery,

plaintiff’s left leg pain was still present but significantly improved, and he complained of low

back stiffness when rolling in bed, which was not an unusual complaint.

¶ 81 Salehi testified that plaintiff visited him on April 11, 2006, six months after the operation,

and was complaining of moderate low back and left leg pain, as well as neck pain when turning

his head. Plaintiff underwent a functional capacity evaluation, and Salehi opined that he was

9
Salehi’s testimony was presented in the form of a videotaped evidence deposition, the
transcript of which is included in the report of proceedings.

26
No. 1-12-3663

capable of sedentary to light-duty work and was physically unable to return to his work as a

roofer. On June 19, 2006, plaintiff was complaining of low back pain and intermittent left leg

pain. A CT scan and MRI revealed that, while one level of the two-level fusion was a solid

fusion, the other level had not yet healed. Salehi referred plaintiff for pain management and also

made a recommendation for an epidural steroid injection.

¶ 82 The last time that Salehi examined plaintiff was on February 27, 2007, and plaintiff

complained of low back and leg pain. The low back pain was constant and aggravated by any

movement, and the leg pain traveled down the leg. Salehi opined that, if additional imaging

showed no evidence of healing, plaintiff needed a second lumbar fusion to alleviate the

symptoms and should receive further treatment from Dr. Edward Goldberg. Salehi opined that

the cause of plaintiff’s injury was “[t]he rolling of the 2,000 pound object” and that plaintiff was

not physically capable of returning to his work as a roofer as of February 2007.

¶ 83 5. Dr. Edward Goldberg

¶ 84 Dr. Edward Goldberg,10 a board-certified orthopedic spine surgeon who treated plaintiff

from August 2005 to April 2012, testified that he first met plaintiff on August 15, 2005, when

“[h]e reported that he was working for Sullivan Roofing, injured himself on or about October 6

of 2004 when he was pushing and lifting bundles of insulation. He developed low back and left

leg pain.” Goldberg performed a physical exam and reviewed plaintiff’s radiographic images;

Goldberg tentatively opined that plaintiff had “aggravated a spondylolisthesis at L5-S1.” At that

10
Goldberg’s testimony was presented in the form of a videotaped evidence deposition,
the transcript of which is included in the report of proceedings.

27
No. 1-12-3663

time, plaintiff’s treating physician, Dr. Salehi, was recommending surgery, and Goldberg

concurred with that recommendation; plaintiff visited Goldberg for a second opinion.

¶ 85 Plaintiff was then examined by Goldberg on October 30, 2006, postsurgery, in order to

assess his clinical condition. Plaintiff continued to complain of low back pain and an ongoing

left leg radicular pain. Goldberg reviewed plaintiff’s postoperative films on November 1, 2006,

and opined that plaintiff’s fusion had not healed at either L4-L5 or L5-S1. At that point, plaintiff

had two options: live with the symptoms or repeat the surgery to obtain a solid fusion.

¶ 86 On August 3, 2007, plaintiff was still symptomatic, complaining of low back pain and

some numbness in both lower extremities. On August 28, 2007, Goldberg performed the repeat

surgery. Postsurgery, plaintiff’s back pain improved, but he still had some persistent left leg

radiculitis that had been present even before Salehi’s initial surgery. Plaintiff underwent physical

therapy and had a work evaluation, and ultimately, his fusion healed. Plaintiff had a functional

capacity evaluation at a facility called ATI, which was performed by Jaime Rojas; the evaluation

indicated that plaintiff was working at a light physical demand level. At the time of his

evaluation, Goldberg classified plaintiff’s recovery as maximum medical improvement.

Goldberg opined that plaintiff was not capable of going back to work as a roofer, which was a

heavy-demand level job.

¶ 87 Plaintiff was last examined by Goldberg on April 23, 2012, approximately a week and a

half prior to his testimony, and plaintiff “complained of some dull low back pain, some pain into

the left buttock and proximal left hamstring, in other words, the backside of the upper thigh.”

Plaintiff was still at maximum medical improvement. During his last visit, Goldberg opined that

28
No. 1-12-3663

the fusion was healed at both L4-L5 and L5-S1, with very mild disc degeneration at L3-L4.

Goldberg opined that plaintiff could expect the residual effects of his injury to be of a permanent

nature; he opined that plaintiff “will intermittently have some dull low back pain, still some of

the pain, numbness in the left buttock into the hamstring.” Goldberg further opined that plaintiff

“was injured at work. He had aggravation of an asymptomatic spondylolisthesis of L5-S1 and

degenerative disc with spinal stenosis at L4-5.”

¶ 88 6. Jaime Rojas

¶ 89 Jaime Rojas,11 a certified licensed athletic trainer, testified that he was formerly the

clinical director of ATI Physical Therapy (ATI), where he performed a functional capacity

assessment of plaintiff on July 9, 2008. Rojas testified that he had performed a number of

functional capacity assessments for roofers, and he characterized roofing as a heavy physical

demand level job.

¶ 90 Rojas testified that plaintiff was referred to ATI by Dr. Goldberg, who requested that they

perform a functional capacity assessment. Rojas explained the process of performing the

assessment: first, the client filled out a 164-question questionnaire “to determine where they feel

that they’re at at that moment,” which took approximately an hour to complete. Rojas did not

have a copy of the questionnaire during his deposition, and no questionnaire was ever provided

to defendant by ATI. However, Rojas testified that the contents of the questionnaire were not

important to the assessment and “we don’t really go through that questionnaire.” Instead, while

11
Rojas’ testimony was presented in the form of a videotaped evidence deposition
conducted via telephone, the transcript of which is included in the report of proceedings.

29
No. 1-12-3663

the client was completing the questionnaire, Rojas would be watching him in order to observe

whether he was uncomfortable sitting or shifting, “just due to the fact they might have some pain,

discomfort, what have you. We don’t tell them that we’re looking at that, but that’s what we are

watching for within that hour.” In addition to assessing the client’s sitting tolerance, Rojas also

assessed the client’s standing and walking tolerance, as well as his endurance in terms of

bending, squatting, crawling, and kneeling. Rojas also assessed the client’s lifting tolerance at

three levels – desk to chair height, chair to floor height, and above shoulders – and assessed the

client’s ability to push, pull, and carry.

¶ 91 Rojas opined that plaintiff was demonstrating full effort during his evaluation, but was

only able to demonstrate the ability to perform work at a light physical demand level, lifting

approximately 32 pounds occasionally; the light physical demand level meant that he could

occasionally lift approximately 20 pounds. Rojas explained that the assessment did not make any

representations about plaintiff’s ability to return to work and that “[u]ltimately, it’s up to the

doctor’s discretion to do that. We’re just stating that this is what we saw on that particular day,

you know, we feel that he can do -- according to our functional capacity assessment, we feel like

he can do a light physical demand level job.” After the evaluation, plaintiff was returned to Dr.

Goldberg, and Rojas did not have any further contact with him.

¶ 92 C. Safety and Damages Witnesses

¶ 93 1. Dennis Puchalski

¶ 94 Dennis Puchalski, a construction safety expert, testified that he was a former safety

inspector with OSHA, as well as having jobs as a construction safety supervisor with the Illinois

30
No. 1-12-3663

Toll Highway Authority and other construction safety jobs. Puchalski was also a member of the

National Safety Council, Construction Section, and the American Society of Safety Engineers,

Construction Section, and was currently a construction safety litigation consultant.

¶ 95 Puchalski testified that “the general contractor has to enforce safety. They’re the ultimate

controlling contractor on the work site.” Puchalski further testified that defendant had the

obligation to ensure safe work procedures on the roof and had an obligation to supervise, inspect,

and coordinate the work involved, as well as proactively interceding if it observed unsafe work

practices. As an expert in construction safety, Puchalski opined that defendant “did violate

OSHA and customs and practices in that you’re allowing unsafe material handling.” Puchalski

pointed to the moving of heavy rubber membrane “[a]nd the custom and practice is when you

have heavy, heavy weights that you use mechanical means ***. *** But at the time of the

incident these weren’t being used and you’re doing manual material handling over decking,”

which could be slippery. Puchalski further opined that defendant violated the Association of

General Contractors manual on accident prevention in that, “when you’re not planning for proper

material handling and then you don’t control it to ensure i[t] then, yes, it’s violated.”

¶ 96 Puchalski testified that, pursuant to the contract between defendant and the property

owner, defendant was “solely responsible for the construction, means, methods, techniques,

sequences and procedures and to coordinate all portions of the work.”

¶ 97 On cross-examination, Puchalski admitted that neither defendant nor Sullivan Roofing

was cited for OSHA violations as a result of the accident. Puchalski opined that the number of

men pushing the roll of rubber membrane was irrelevant, because the fact that it was being

31
No. 1-12-3663

pushed manually violated OSHA.

¶ 98 2. Thomas Hutchinson

¶ 99 Thomas Hutchinson, an architect and licensed roof consultant, testified that he was an

expert in the design and installation of roofing systems such as the one involved in the Wilton

project. Hutchinson testified that when the rubber membrane used in the Wilton project first

came into use, the membrane was rolled manually across the roof; the circular nature of the roll

permitted momentum to unroll the membrane, once it had been started with a push. However,

with the advent of supersize projects and large warehouses, contractors began using mechanical

means of unrolling the membrane in order to be more efficient; ATVs began being used in

approximately 2000. Hutchinson testified that, “even today,” rubber membrane was often rolled

manually, because contractors did not have the means to put ATVs on the roof or the roof was

too small.

¶ 100 Hutchinson testified that “[t]here are several means and methods and customs and

practices in regards to moving just the membrane across the roof.” The first was the “traditional

way,” in which a group of crew members would stand behind the membrane and push the roll.

The other option was the “bump and roll,” using mechanical means. Hutchinson testified that,

even using mechanical means, worker would still need to manually move the roll somewhat,

since the roll needed to be in a position where the ATV could roll it.

¶ 101 3. David Gibson

¶ 102 David Gibson, senior analyst for Vocational Services, Inc., testified that his work

involved understanding the ways in which a disability interfered with a person’s ability to

32
No. 1-12-3663

perform work in the United States labor market, as well as projecting a person’s earnings before

and after a given event in order to determine in dollars what loss the person incurred as a result of

the event.

¶ 103 Gibson testified that, based on an interview with plaintiff and a review of plaintiff’s

medical and employment records, plaintiff had six years of formal education and been employed

as a roofer since 1989 and had planned on continuing in that line of work until retirement.

However, plaintiff had significant pain, which impacted him in his ability to walk, stand, sit, lift,

and bend, as well as his abilities to crouch, crawl, balance, and climb stairs or ladders. Plaintiff’s

overall strength limitation was approximately 20 pounds and his back limitations impacted his

ability to reach above his head.

¶ 104 Gibson testified that the functional capacity evaluation that plaintiff had undergone was

important to his analysis, since it measured plaintiff’s ability to lift. Gibson explained that lifting

was a key component of many manual labor jobs, and that “[t]he less education a person has, the

more likely they are to have to work in manual labor type jobs.”

¶ 105 Gibson testified that plaintiff’s restrictions “essentially limited him to sedentary

employment,” which painted a “very bleak picture,” since sedentary jobs were largely skilled in

nature. However, plaintiff “has no transferable skills. The skills that he had were all very

important skills and well paying skills, but they’re specific to a job that he did as a roofer that he

can no longer do due to the strength requirement.” Consequently, “the percentage of jobs that he

has available to him to apply against in the U.S. labor market is less than one percent.” Gibson

further noted that many sedentary jobs require fluency in English, which plaintiff did not have,

33
No. 1-12-3663

further diminishing his access to the labor market.

¶ 106 Gibson testified that plaintiff’s pre-injury average annual income was approximately

$57,848 in base salary using a calculation based on the three years prior to the accident, and was

approximately $55,419 using a five-year calculation. His work life expectancy from the date of

injury would have been 18.5 years. After his injury, plaintiff had no substantial likelihood of

having further gainful employment and had a work life expectancy of zero.

¶ 107 Gibson testified that, based on his annual income and including fringe benefits, plaintiff’s

lifetime loss from his injury would be $1,166,244 in present cash value using the five-year

average and $1,214,252 using the three-year average. Further, Gibson testified that plaintiff’s

pension was reduced by $118,423 in present cash value due to his injury. Including the pension

loss, the total present cash value of plaintiff’s losses was $1,284,667 using the five-year average

and $1,332,675 using the three-year average.

¶ 108 D. Jury Instructions and Verdict

¶ 109 The jury was given the following instruction concerning liability of a general contractor

over defendant’s objection:

“A contractor who entrusts work to a subcontractor can be

liable for injuries resulting from the work if the contractor retains

some control over the safety of the work and if the injuries were

proximately caused by the contractor’s failure to exercise that

control with ordinary care.”

¶ 110 On May 11, 2012, the jury completed “Verdict Form B,” finding in favor of plaintiff and

34
No. 1-12-3663

against defendant and that the amount of damages suffered by plaintiff was $1.985 million. The

jury further found:

“Assuming that 100% represents the total combined legal

responsibility of all persons or entities that proximately caused

Teodoro Ramirez’s injury, we find the percentage of legal

responsibility attributable to each as follows:

a) Teodoro Ramirez 20%

b) FCL Builders, Inc. 40%

c) Sullivan Roofing, Inc. 40%.”

Finally, reducing plaintiff’s total damages by the percentage of contributory negligence

attributable to plaintiff, the jury awarded plaintiff damages in the amount of $1.588 million. The

court entered judgment on the jury’s verdict.

¶ 111 On July 11, 2012, after obtaining an extension of time, defendant filed a posttrial motion

in which it renewed its morion for a directed verdict, moved the court to vacate the May 11,

2012, judgment, and requested judgment notwithstanding the verdict in defendant’s favor or, in

the alternative, a new trial. On November 6, 2012, the trial court denied defendant’s motion in a

written order. The court found that there was sufficient evidence for the jury to have concluded

that defendant exercised sufficient control over the aspect of Sullivan Roofing’s work that caused

plaintiff’s injury. The court further found that the verdict form was appropriate, and that the

other errors asserted by defendant were insufficient to require a new trial or judgment

notwithstanding the verdict.

35
No. 1-12-3663

¶ 112 ANALYSIS

¶ 113 On appeal, defendant argues that (1) the trial court erred in not granting a judgment

notwithstanding the verdict in favor of defendant, where defendant had no liability for plaintiff’s

injuries as a matter of law; and, alternatively, (2) the trial court should have granted defendant a

new trial where the trial court improperly instructed the jury, made errors in the admission of

evidence, and failed to sanction plaintiff for several discovery violations.

¶ 114 I. Judgment Notwithstanding the Verdict

¶ 115 Defendant first argues that the trial court erred in failing to enter a judgment

notwithstanding the verdict in defendant’s favor because defendant had no liability for plaintiff’s

injuries as a matter of law. Defendant argues both that it did not know of any unsafe work

practice on the part of Sullivan Roofing and that it did not exercise sufficient control over the

work site to expose it to liability for plaintiff’s injury.

¶ 116 Judgments notwithstanding the verdict are proper only where all the evidence viewed

most favorably to the opponent so overwhelmingly favors the movant that no contrary verdict

could ever stand. Maple v. Gustafson, 151 Ill. 2d 445, 453 (1992). It is the province of the jury

to resolve conflicts in the evidence, to pass upon the credibility of the witnesses and to decide

what weight should be given to the witnesses’ testimony. Maple, 151 Ill. 2d at 452. On review

of a trial court’s decision to deny a motion for a judgment notwithstanding the verdict, all of the

evidence must be reviewed in a light most favorable to the opponent of the motion. Thacker v.

UNR Industries, Inc., 151 Ill. 2d 343, 353-54 (1992). A court does not weigh the evidence, nor is

it concerned with the credibility of the witnesses; rather, it may only consider the evidence and

36
No. 1-12-3663

any inferences therefrom in the light most favorable to the party resisting the motion. Mizowek v.

De Franco, 64 Ill. 2d 303, 309-10 (1976). A judgment notwithstanding the verdict is not

appropriate if “reasonable minds might differ as to the inferences or conclusions to be drawn

from the facts presented.” Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351 (1995).

¶ 117 A. Section 414 of the Restatement (Second) of Torts

¶ 118 In the case at bar, plaintiff’s theory of recovery is grounded in common-law negligence.

“The essential elements of a cause of action based on common-law negligence are the existence

of a duty owed by the defendant to the plaintiff, the breach of that duty, and the injury

proximately caused by that breach.” Cochran v. George Sollitt Construction Co., 358 Ill. App.

3d 865, 873 (2005) (citing Ward v. K mart Corp., 136 Ill. 2d 132, 140 (1990)). Here, defendant’s

arguments focus on the duty element.

¶ 119 “Generally, one who employs an independent contractor is not liable for the latter’s acts

or omissions.” Joyce v. Mastri, 371 Ill. App. 3d 64, 73 (2007) (citing Downs v. Steel & Craft

Builders, Inc., 358 Ill. App. 3d 201, 204-05 (2005)). However, section 414 of the Restatement

(Second) of Torts (1965), “which has long been recognized as an expression of law in Illinois,”

provides an exception to the general rule, referred to as the “retained control” exception.

Cochran, 358 Ill. App. 3d at 873-74 (citing Larson v. Commonwealth Edison Co., 33 Ill. 2d 316,

325 (1965)); Calloway v. Bovis Lend Lease, Inc., 2013 IL App (1st) 112746, ¶ 47.

¶ 120 Section 414 provides:

“One who entrusts work to an independent contractor, but

who retains the control of any part of the work, is subject to

37
No. 1-12-3663

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 (1965).

¶ 121 “The Restatement describes a continuum of control, explaining [that] the employer is

subject to liability as master under the principles of agency where the employer retains control

over the operative detail of any part of the contractor’s work. [Citation.] If the employer retains

only supervisory control, i.e., power to direct the order in which work is done, or to forbid its

being done in a dangerous manner, then the employer is subject to liability under section 414

unless he exercised supervisory control with reasonable care.” Martens v. MCL Construction

Corp., 347 Ill. App. 3d 303, 314 (2004) (citing Restatement (Second) of Torts § 414, cmt. a

(1965)). Thus, “[a]s comment a to section 414 clarifies, 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.

¶ 122 However, the “retained control” concept is limited by comment c to section 414:

“In order for the rule stated in this Section to apply, the 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

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No. 1-12-3663

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

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, cmt. c (1965).

Thus, negligence and, specifically, the existence of a duty under section 414 “turn[] on whether

the defendant controls the work in such a manner that he should be held liable.” Martens, 347

Ill. App. 3d at 315; Calloway, 2013 IL App (1st) 112746, ¶ 50. “Whether a contractor retained

such control over a subcontractor’s work so as to give rise to liability is an issue reserved for a

trier of fact, unless the evidence presented is insufficient to create a factual question.” Joyce v.

Mastri, 371 Ill. App. 3d 64, 74 (2007) (citing Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill.

App. 3d 1051, 1059 (2000)). In the case at bar, defendant argues that plaintiff failed to prove

control sufficient for either direct or vicarious liability under section 414.

¶ 123 B. Vicarious Liability Under Section 414

¶ 124 As noted, “the general contractor, by retaining control over the operative details of its

subcontractor’s work, may become vicariously liable for the subcontractor’s negligence”

pursuant to section 414. Cochran, 358 Ill. App. 3d at 874. In the case at bar, defendant argues

that “[t]he evidence in the case at bar shows no hands-on involvement by [defendant] in the

39
No. 1-12-3663

incidental or operational aspects of Sullivan Roofing’s work,” emphasizing that, “at most, its

directive to Sullivan Roofing was, essentially, ‘Stop damaging the client’s roof decking.’ ”

Defendant further argues that it was never involved in the manner in which Sullivan Roofing did

its work and did not order Sullivan Roofing to stop using ATVs.

¶ 125 We note that, in considering the denial of a motion for judgment notwithstanding the

verdict, we do not weigh the evidence, nor are we concerned with the credibility of the witnesses;

rather, we may only consider the evidence and any inferences drawn therefrom in the light most

favorable to plaintiff. Mizowek, 64 Ill. 2d at 309-10. Additionally, a judgment notwithstanding

the verdict is proper only where all the evidence viewed most favorably to the opponent so

overwhelmingly favors the movant that no contrary verdict could ever stand. Maple, 151 Ill. 2d

at 453. Here, considering the evidence in the light most favorable to plaintiff, we cannot find

that the evidence so overwhelmingly favored defendant that no contrary verdict could ever stand.

¶ 126 There was evidence presented at trial that defendant had the right to control the safety of

the work at the Wilton project and exercised that right by controlling operative details of Sullivan

Roofing’s work when (1) defendant noticed the damage to the decking and ordered work to stop;

(2) defendant participated in finding a solution to the problem; and (3) defendant ordered the use

of ATVs to cease, resulting in the workers’ manually pushing the rolls of rubber membrane. The

jury could reasonably have found that this conduct was sufficient to demonstrate that defendant

retained a level of control over Sullivan Roofing’s work to give rise to liability. See Joyce, 371

Ill. App. 3d at 74 (“Whether a contractor retained such control over a subcontractor’s work so as

to give rise to liability is an issue reserved for a trier of fact, unless the evidence presented is

40
No. 1-12-3663

insufficient to create a factual question.” (citing Bokodi, 312 Ill. App. 3d at 1059)).

¶ 127 First, Michael Sullivan, Sullivan Roofing’s safety director at the time of plaintiff’s injury,

testified that, prior to beginning work on the Wilton project, Sullivan Roofing received a

“welcome subcontractor type letter” from defendant, in which defendant indicated that it was

“committed” to Sullivan Roofing’s safety and wanted to provide a workplace “reasonably free of

recognized safety hazards,” which Sullivan testified was “very common” on a project of the

scope of the Wilton project. The letter further stated that “safety and safety awareness is a two-

way street,” which Sullivan agreed with, testifying that “[e]verybody on site is responsible for

safety,” including the general contractor, subcontractor, and employees. Sullivan also testified

that, on the Wilton project, defendant had certain “intolerable offenses,” which meant that

“generally the subcontractor has to behave in a certain fashion or they’re gone.”

¶ 128 Sullivan testified that John Zelasco had the authority to stop work on the project if he

observed unsafe practices and further testified that “FCL is very strict on safety. So that’s more -

- you know, anything that happens, John has the right. He runs the job. He has the right to stop.”

If Zelasco observed someone performing his job in an unsafe manner, Zelasco would have the

right to stop that work and then would contact Sullivan. Zelasco would also coordinate the work

and monitor the work of the subcontractors.

¶ 129 Sullivan testified that when roofing materials were hoisted onto the roof of the Wilton

project, the materials were “dimpling” or denting the deck, and a solution needed to be provided

by “the powers that be.” Sullivan testified that “I believe John [Zelasco] called me” and

informed him of the problem with the decking. Sullivan testified that ATVs were used on the

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No. 1-12-3663

Wilton project and were only temporarily stopped: “That was a decision made at the point in

time all this happened, to stop everything, and we had to figure out a way that we could use them

again and get things rolling and be able to load -- so we wouldn’t damage the deck.”

¶ 130 At a meeting between Sullivan and David Majestic, they “came up with a plywood

runway solution,” which would use a plywood runway system to distribute the weight of the

heavy roofing materials and permit the ATVs to be used, and “posed that to John to help to

protect the roof.” Sullivan further testified that “after a conference between John and the powers

that be at Sullivan, that was a solution that was implemented.”

¶ 131 Thus, after hearing Sullivan’s testimony and making reasonable inferences therefrom, the

jury could have reasonably concluded that defendant had at least some control over the safety of

the work; ordered Sullivan Roofing’s work, including the use of ATVs, to stop when it was

damaging the roof; and approved Sullivan Roofing’s proposed solution of using a plywood

runway system.

¶ 132 Next, David Majestic, vice president of field operations for Sullivan Roofing, testified

that defendant’s superintendent, John Zelasco, placed a call to Sullivan Roofing informing it of

damage to the decking; defendant had the right to stop the work if Sullivan Roofing was

damaging the roof. The problem required the work to stop until a solution was developed, and

Majestic testified that the decision to use plywood to solve the problem was a collaboration

between Sullivan Roofing and defendant. Thus, after hearing Majestic’s testimony and making

reasonable inferences therefrom, the jury could have reasonably concluded that defendant had

some control over the work being performed on the roof, ordered the work to stop until a solution

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No. 1-12-3663

was developed, and participated in the decision to use plywood.

¶ 133 Additionally, Frank Pesek, the roofing foreman for Sullivan Roofing on the Wilton

project, testified that, on a job the size of the Wilton project, ATVs would be used to push rolls

of rubber membrane to various points on the roof; the ATVs had been used “since day one when

I was here” and Sullivan Roofing “always used the ATVs” to move rolls of membrane significant

distances “because it’s easier” on the workers’ bodies.

¶ 134 Pesek testified that he was notified by “[s]omeone from [defendant] FCL” that there was

damage to the roof decking, and he “took a timeout to craft a solution to this deck damage issue.”

Pesek could not recall whether someone gave an order not to use ATVs, but “if we stopped using

the Hondas, it’s because someone told me not to use them.” Pesek agreed that “it was more

likely than not that there was an order to not use the Hondas to push the rolls,” and he testified

that “the order to not use the Hondas either came from Dave Majestic or the [defendant’s]

superintendent on this job.” Pesek further testified that Majestic would not call Pesek “out of

the blue” and order him to stop using the ATVs and testified that defendant had the power to halt

the work that Sullivan Roofing was performing.

¶ 135 Pesek testified that once the ATVs were not allowed to push the rolls, the rolls of

membrane would have to be manually pushed by the crew. Pesek “would rather use Hondas,”

but he did not view anything unsafe in manually rolling the rubber membrane, providing there

were enough workers doing so, and ordered his crew to manually move the rolls. Finally, Pesek

testified that there was a plywood runway system in place to permit the ATVs to transport

bundles of insulation but they were not in place at that point in time to permit the ATVs to move

43
No. 1-12-3663

the rolls of rubber membrane.

¶ 136 Thus, after hearing Pesek’s testimony and making reasonable inferences therefrom, the

jury could have reasonably concluded that defendant had some control over Sullivan Roofing’s

work and ordered the work halted over the damage to the decking. Furthermore, the jury could

have reasonably concluded that defendant ordered the use of ATVs in pushing rolls of rubber

membrane to cease, meaning that the workers would need to manually move them, something

that Sullivan Roofing did not normally do of its own accord.

¶ 137 Next, John Zelasco, defendant’s project superintendent on the Wilton project, testified

that he was present on the site on a daily basis. Zelasco, as a superintendent, “had the power to

stop work on this job generally” and one of his duties for defendant on a given project was to

ensure that the work site was safe. Zelasco also testified about defendant’s list of “intolerable

offenses” by subcontractors, which were “certain job rules that are strictly enforced,” and

testified that violation of the rules could result in immediate and permanent removal of the

subcontractor from the project. Zelasco testified that “[e]veryone has to work as a team” to

ensure a safe work site and that “we’re committed to everyone’s safety on the job site.”

¶ 138 Zelasco testified that, on the first day that roofing materials were loaded onto the roof, he

noticed that roofing activity was creasing the decking and notified Pesek and Sullivan. Zelasco

also testified that it was a joint decision between defendant and Sullivan Roofing to cease

working for a day to assess the damage.

¶ 139 Zelasco testified that it was very common for roofers to use ATVs on a roof and that it

would be highly unusual not to use ATVs on a roof the size of the Wilton project. Zelasco

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No. 1-12-3663

testified that Sullivan Roofing had unrestricted use of ATVs to move its materials and that “I

never gave any restrictions on the means and methods of the contractor to do his job.” He

admitted that he and Majestic, from Sullivan Roofing, would have the authority to tell Pesek to

stop using the ATVs if they were damaging the deck.

¶ 140 Zelasco observed membrane used on a number of roofs and that, “[t]ypically, it’s moved

from the truck with a crane up onto the roof. And then very typically the roofers themselves,

usually five or more guys, will get behind it and push it into position, getting it either rolled up

onto a cart or onto some means of transporting it where it needs to go. But it’s always -- it’s

usually done manually when they’re stocking the job.” Once they were rolled onto the cart or

ATV, the rolls would be transported to their final destination on the roof.

¶ 141 Thus, after hearing Zelasco’s testimony and making reasonable inferences therefrom, the

jury could have reasonably concluded that defendant had control over the safety of the work site

and had the power to stop work, and that defendant in fact ordered the roofing work to stop.

Furthermore, the jury could have reasonably concluded that Zelasco knew that ATVs were

normally used to move rolls of rubber membrane and that the other alternative was moving the

rolls manually.

¶ 142 Finally, plaintiff’s brother testified that, on the day of plaintiff’s injury, the crew was

ordered not to use ATVs to push the rolls by someone wearing a white hard hat,12 so plaintiff was

moving them manually, and plaintiff testified that he was not permitted to use ATVs to push the

12
Pesek, the foreman for Sullivan Roofing, testified that defendant’s employees wore
white hard hats.

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No. 1-12-3663

rolls of rubber membrane “[b]ecause some guy told us don’t use the Hondas”; plaintiff testified

that the man who told the workers not to use the ATVs was John Zelasco. Pesek then ordered

them to roll the membrane manually, and the ATVs were only used to move bundles of

insulation. Plaintiff testified that it was unusual to manually move the rolls 300 feet and that

“[a]ll the time we use the Hondas.” Thus, after hearing testimony from plaintiff and his brother

and making reasonable inferences therefrom, the jury could have reasonably concluded that

defendant ordered the workers to stop using ATVs to move the rolls of rubber membrane,

resulting in the order to move the membrane manually.

¶ 143 In sum, taking all evidence in the light most favorable to plaintiff as the nonmovant, the

jury could have reasonably concluded that: defendant had a degree of control over work site

safety and had the power to stop the work; defendant did stop the work when damage to the

decking was discovered; defendant participated in finding a solution to the problem; and

defendant ordered the use of ATVs to stop, despite being aware that the alternative was to

manually push the rolls of rubber membrane, a decision that directly led to plaintiff’s injury. The

jury could have reasonably found that this conduct was sufficient to demonstrate that defendant

retained a level of control over Sullivan Roofing’s work so as to give rise to liability, especially

since the control exercised by defendant was control over the method and means of rolling

membrane, an operative detail of Sullivan Roofing’s work. See Joyce, 371 Ill. App. 3d at 74

(“Whether a contractor retained such control over a subcontractor’s work so as to give rise to

liability is an issue reserved for a trier of fact, unless the evidence presented is insufficient to

create a factual question.” (citing Bokodi, 312 Ill. App. 3d at 1059)). The jury hears the evidence

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No. 1-12-3663

and decides the credibility of the witnesses and the weight to be given to their testimony. Maple,

151 Ill. 2d at 452. In the case at bar, this jury believed the versions testified to by Pesek,

plaintiff, and his brother, and we cannot say that all of the evidence viewed most favorably to the

opponent so overwhelmingly favors the movant that no contrary verdict could ever stand. Maple,

151 Ill. 2d at 453.

¶ 144 We find the cases relied on by defendant to be factually distinguishable. For instance, in

Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 839-40 (1999), we affirmed the

grant of summary judgment in a general contractor’s favor, finding that the general contractor

owed no duty to the subcontractor’s employee. In that case, Rangel, the employee, was injured

after falling from scaffolding that had been constructed by Drywall, the subcontractor, two days

earlier. Rangel, 307 Ill. App. 3d at 837. Rangel brought suit against Brookhaven, the general

contractor, alleging that Brookhaven owed Rangel a duty of care, which it breached by failing to

inspect the scaffold or warning him of the dangerous condition the scaffold presented. Rangel,

307 Ill. App. 3d at 837.

¶ 145 We upheld the trial court’s grant of summary judgment in Brookhaven’s favor, finding

that “[t]here is no evidence to suggest that Drywall was not entirely free to perform the work in

its own way. The evidence showed Brookhaven never directed the ‘operative details’ of the

work performed by Drywall and Rangel. Drywall, not Brookhaven, supplied the scaffold on

which Rangel worked. A Drywall supervisor, not Brookhaven, directed Rangel to utilize the

braces when necessary for positioning the drywall. This unsafe method of performing the work,

which led to Rangel’s injury, was proposed by Rangel’s employer just hours before the accident.”

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No. 1-12-3663

Rangel, 307 Ill. App. 3d at 839. Thus, we concluded that, since “ ‘[the employer] controlled the

ends, [the independent contractor] was responsible for the means by which those ends were

achieved,’ ” there could be no liability imposed on Brookhaven. Rangel, 307 Ill. App. 3d at 839

(quoting Fris v. Personal Products Co., 255 Ill. App. 3d 916, 924 (1994)).

¶ 146 Similarly, in Joyce, we affirmed the trial court’s grant of summary judgment in a general

contractor’s favor where the employee of a subcontractor was injured while using a ladder that

malfunctioned. There, the ladder was provided by another subcontractor and the general

contractor did not provide any equipment or have any contact with the employee. Joyce, 371 Ill.

App. 3d at 68. We upheld the trial court’s grant of summary judgment, finding that “the facts

indicate that Madison Services did not control EGM’s work. There is no evidence that Madison

Services directed the ‘operative details’ of the work site or that EGM was not free to perform the

demolition work in its own way. The evidence showed that Madison Services did not participate

in or supervise any of the demolition work. Reinersman, on behalf of Madison Services, visited

the work site at the beginning of the project merely to inform EGM of the scope of work and any

subsequent visits were to monitor the progress of the work. Reinersman did not direct EGM

employees as to the operative details as to how to perform their work and did not give any job

assignments to EGM’s employees. The evidence showed that Olson, EGM’s superintendent, ran

the job and that EGM’s workers were supervised by its lead man, Jerry Johansen. Olsen himself

testified that Madison Services did not supervise EGM’s work and that EGM workers would go

to him if they had any type of problems.” Joyce, 371 Ill. App. 3d at 75-76.

¶ 147 Finally, in Cochran, we affirmed the trial court’s grant of summary judgment in the

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general contractor’s favor where a subcontractor’s employee was injured when falling off a

ladder set up in an unsafe manner; the equipment was provided by the subcontractor and the

employee received work instructions from the subcontractor. Cochran, 358 Ill. App. 3d at 867-

68. We found that there was no basis for vicarious liability “because no evidence was presented

that [the general contractor] so controlled the operative details of [the subcontractor’s] work that

[the subcontractor’s] employees were not entirely free to perform the work in their own way.”

Cochran, 358 Ill. App. 3d at 879.

¶ 148 In the case at bar, by contrast, there was evidence that defendant involved itself in the

operative details of the roofing work. Contrary to defendant’s assertion that, “at most, its

directive to Sullivan Roofing was, essentially, ‘Stop damaging the client’s roof decking,’ ” there

was evidence presented that defendant had a role in ordering the work to stop, in implementing a

solution to the damage issue, and in ordering the use of ATVs to stop, leading to the workers’

manually pushing the rolls of rubber membrane. Thus, we find defendant’s cases inapposite and

affirm the trial court’s denial of defendant’s motion for judgment notwithstanding the verdict.

¶ 149 C. Direct Liability Under Section 414

¶ 150 Defendant also argues that there was no evidence that it was directly liable for plaintiff’s

injuries under section 414. As noted, “the general contractor may be directly liable for not

exercising his supervisory control with reasonable care,” even in the absence of control sufficient

to subject the general contractor to vicarious liability. Cochran, 358 Ill. App. 3d at 874. Here,

defendant argues that plaintiff did not prove direct liability under section 414 because (1)

plaintiff did not prove an unsafe work method and (2) plaintiff did not prove that defendant was

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No. 1-12-3663

on notice of the alleged unsafe work method. “According to comment b to section 414, the

general contractor’s knowledge, actual or constructive, of the unsafe work methods or a

dangerous condition is a precondition to direct liability.” Cochran, 358 Ill. App. 3d at 879-80.

Thus, in Cochran, we found that the general contractor was not directly liable for a worker’s

injury in falling off an unsafe ladder where the unsafe condition was in existence for an hour at

most and the general contractor had no knowledge of the unsafe condition. Cochran, 358 Ill.

App. 3d at 880.

¶ 151 In the case at bar, there was sufficient evidence for the jury to conclude that defendant

was directly liable for plaintiff’s injury. First, there was evidence that manually moving the rolls

was an unsafe work method. Puchalski testified that manually moving rolls of rubber membrane

was unsafe, and all of the roofing witnesses testified that using an ATV was preferable to

manually moving the rolls. The jury could have found Puchalski credible and determined that

manually moving the rolls was an unsafe work method.

¶ 152 Additionally, there was testimony that defendant was aware of the unsafe work method

through its order to stop using the ATVs. Again, we note that, although there was contradictory

testimony over who ordered the workers to stop using the ATVs, our review must take the

evidence in the light most favorable to plaintiff. Pesek testified that, once the use of ATVs was

stopped, the membrane would need to be manually pushed by the crew. Plaintiff’s brother also

testified that plaintiff was moving rolls manually because the crew was ordered to stop the use of

ATVs by someone wearing a white hard hat, and the evidence established that defendant’s

employees wore white hard hats. Plaintiff also testified that Zelasco ordered the workers to stop

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No. 1-12-3663

using ATVs, resulting in them pushing the rolls manually. Furthermore, since Sullivan Roofing

was still required to work despite being ordered not to use the ATVs, a reasonable inference

would be that the workers would manually push the rolls.

¶ 153 Defendant argues that defendant did not know that the workers would push the rolls

manually, and that Sullivan Roofing could have used the ATVs on the plywood runway system.

However, there was evidence presented that cast doubt over whether the plywood runway system

was implemented and whether it was used for rolling membrane. For instance, plaintiff testified

that there was no plywood runway system in place and Pesek testified that the plywood runway

system permitted ATVs to move insulation but could not be used to roll membrane.

¶ 154 Additionally, Hutchinson, defendant’s expert, testified that the rolls could be moved in

one of two ways: manually or through mechanical means. The jury could have inferred that,

once the mechanical means were stopped, the manual method would need to be used. Finally,

Zelasco testified that he had observed membrane used on a number of roofs and had observed

workers both using ATVs and manually moving membrane. The jury could have inferred from

Zelasco’s testimony that Zelasco would have been aware that the result of stopping the use of

ATVs would be the manual rolling of the membrane. Thus, we do not find defendant’s argument

persuasive and affirm the trial court’s denial of defendant’s motion for judgment notwithstanding

the verdict.

¶ 155 II. New Trial

¶ 156 Defendant alternatively argues that the trial court should have granted defendant a new

trial where the trial court improperly instructed the jury, made errors in the admission of

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No. 1-12-3663

evidence, and failed to sanction plaintiff for several discovery violations. Defendant also argues

that the jury’s verdict was against the manifest weight of the evidence.

¶ 157 A. Jury Verdict Against Manifest Weight

¶ 158 First, defendant argues that the jury’s verdict was against the manifest weight of the

evidence, claiming that there was no evidence that defendant retained control of the roofing

work. “ ‘[O]n a motion for a new trial a [trial] court will weigh the evidence and set aside the

verdict and order a new trial if the verdict is contrary to the manifest weight of the evidence.’ ”

Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992) (quoting Mizowek v. De Franco, 64 Ill. 2d 303,

310 (1976)). “ ‘A verdict is against the manifest weight of the evidence where the opposite

conclusion is clearly evident or where the findings of the jury are unreasonable, arbitrary and not

based upon any of the evidence.’ ” Maple, 151 Ill. 2d at 454 (quoting Villa v. Crown Cork &

Seal Co., 202 Ill. App. 3d 1082, 1089 (1990)). A trial court’s ruling on a motion for a new trial

will not be reversed except in those instances where it is affirmatively shown that it clearly

abused its discretion. Maple, 151 Ill. 2d at 455 (citing Reidelberger v. Highland Body Shop, Inc.,

83 Ill. 2d 545, 548 (1981)); Duffek v. Vanderhei, 81 Ill. App. 3d 1078, 1087 (1980); Prange v.

Wallenburg, 27 Ill. App. 3d 618, 626 (1975); Yocco v. Barris, 16 Ill. App. 3d 113, 115 (1973). In

determining whether a trial court abused its discretion, the reviewing court should consider

whether the jury’s verdict was supported by evidence and whether the losing party was denied a

fair trial. Maple, 151 Ill. 2d at 455 (citing Reidelberger, 83 Ill. 2d at 549). Furthermore, it is

important to keep in mind that “ ‘ “[t]he presiding judge in passing upon the motion for new trial

has the benefit of his previous observation of the appearance of the witnesses, their manner in

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No. 1-12-3663

testifying, and of the circumstances aiding in the determination of credibility.” ’ ” Maple, 151 Ill.

2d at 456 (quoting Buer v. Hamilton, 48 Ill. App. 2d 171, 173-74 (1964), quoting Hulke v.

International Manufacturing Co., 14 Ill. App. 2d 5, 47 (1957)). If the trial judge, in the exercise

of his discretion, finds that the verdict is against the manifest weight of the evidence, he should

grant a new trial; on the other hand, where there is sufficient evidence to support the verdict of

the jury, it constitutes an abuse of discretion for the trial court to grant a motion for a new trial.

Maple, 151 Ill. 2d at 456 (citing Kitsch v. Goode, 48 Ill. App. 3d 260, 270-71 (1977)); Morella v.

Melrose Park Cab Co., 65 Ill. App. 2d 175, 181-83 (1965).

¶ 159 In the case at bar, as noted, plaintiff’s theory of recovery is grounded in common-law

negligence. “The essential elements of a cause of action based on common-law negligence are

the existence of a duty owed by the defendant to the plaintiff, the breach of that duty, and the

injury proximately caused by that breach.” Cochran, 358 Ill. App. 3d at 873 (citing Ward, 136

Ill. 2d at 140). However, defendant’s arguments concerning the jury’s verdict concern only the

duty element. Here, we cannot find that the jury’s verdict was against the manifest weight of the

evidence.

¶ 160 As explained in the previous section, the jury could properly have determined that

defendant owed a duty to plaintiff pursuant to section 414 of the Restatement (Second) of Torts,

based on the testimony of the witnesses at trial. Accordingly, we cannot find that the jury’s

verdict was against the manifest weight of the evidence and affirm the trial court’s denial of

defendant’s motion for a new trial.

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No. 1-12-3663

¶ 161 B. Jury Instructions

¶ 162 Defendant next argues that the trial court erred in issuing certain jury instructions based

on the Illinois Pattern Jury Instructions (IPI), claiming that they are not an accurate statement of

the law. “Although jury instructions are generally reviewed for an abuse of discretion, our

standard of review is de novo when the question is whether the applicable law was accurately

conveyed.” Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 170 (2008) (citing People

v. Pierce, 226 Ill. 2d 470, 475 (2007)); Studt v. Sherman Health Systems, 2011 IL 108182, ¶ 13.

De novo consideration means we perform the same analysis that a trial judge would perform.

Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 163 Illinois Supreme Court Rule 239(a) (eff. Jan. 1, 1999) states that a trial court “shall” use

an IPI instruction when it is “applicable in a civil case, giving due consideration to the facts and

the prevailing law, *** unless the court determines that it does not accurately state the law.” A

non-IPI instruction may be used if the IPI instruction does not accurately state the law. Studt,

2011 IL 108182, ¶ 14 (citing Ill. S. Ct. R. 239(b) (eff. Jan. 1, 1999)); Schultz v. Northeast Illinois

Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273 (2002).

¶ 164 However, even if the reviewing court determines that the trial court gave faulty

instructions to the jury, reversal is not warranted unless the error results in “ ‘serious prejudice’ ”

to the appellant’s right to a fair trial. Studt, 2011 IL 108182, ¶ 28 (quoting Heastie v. Roberts,

226 Ill. 2d 515, 543 (2007)); Schultz, 201 Ill. 2d at 274 (“A reviewing court ordinarily will not

reverse a trial court for giving faulty instructions unless they clearly misled the jury and resulted

in prejudice to the appellant.”).

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No. 1-12-3663

¶ 165 In the case at bar, the trial court gave the jury instructions based on the IPI. Specifically,

the trial court gave the following instruction, based on Illinois Pattern Jury Instructions, Civil,

No. 55.01 (2011) (hereinafter, IPI Civil (2011) No. 55.01):

“A contractor who entrusts work to a subcontractor can be

liable for injuries resulting from the work if the contractor retains

some control over the safety of the work and if the injuries were

proximately caused by the contractor’s failure to exercise that

control with ordinary care.”

Defendant argues that this instruction did not accurately state the law because a general right to

control safety is not sufficient to impose liability under section 414. We agree.

¶ 166 The committee comments to the 55.00 series indicate that, “[d]ue 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 (1965)], the concept of ‘control’ caused the committee

great difficulty.” IPI Civil (2011) No. 55.00, Introduction, at 261. Consequently, “[t]he

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 ‘control’ and demonstrates that the contractor is ‘not entirely free to do

the work in his own way.’ ” IPI Civil (2011) No. 55.00, Introduction, at 261.

¶ 167 The committee’s statement that “[i]t would appear that the ability to stop unsafe work and

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not permit it to be resumed until done to the satisfaction of the controlling entity” would bring

the contractor under the purview of section 414 is likely an accurate statement of the law

because, under that scenario, the contractor would have the power to affect the methods by which

the subcontractor alleviated the safety problem. See, e.g., Calloway, 2013 IL App (1st) 112746,

¶ 74 (general contractor’s authority included right “to stop any work that they saw being done in

an unsafe manner and to direct that the work be done in a different manner”); Bokodi v. Foster

Wheeler Robbins Inc., 312 Ill. App. 3d 1051, 1063 (2000) (general contractor’s authority

included right to “shut down the work of the subcontractors until a safety breach was alleviated

to defendants’ satisfaction”).

¶ 168 However, the language of IPI Civil (2011) No. 55.01 is broader than the scenario posed

by the committee comments, requiring only that the contractor “retain[] some control over the

safety of the work.” (Emphasis added.) “Some” is defined as “[b]eing an unspecified number or

quantity.” American Heritage Dictionary 1164 (2d coll. ed. 1985). In other words, the pattern

instruction requires the contractor to have retained an unspecified portion of the control over

safety in order to be liable. Section 414, however, applies to “[o]ne who entrusts work to an

independent contractor, but who retains the control of any part of the work.” (Emphasis added.)

Restatement (Second) of Torts § 414 (1965). “[A] principle of statutory construction is that ‘the

definite article “the” particularizes the subject which it precedes. It is a word of limitation as

opposed to the indefinite or generalizing force of “a” or “an.” ’ ” (Emphasis omitted.) Sibenaller

v. Milschewski, 379 Ill. App. 3d 717, 722 (2008) (quoting Brooks v. Zabka, 450 P.2d 653, 655

(Colo. 1969)). Section 414's use of the phrase “the control,” then, implies that there is only one

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person or entity exercising control over a part of the work, something that is not true of the

pattern instruction’s requirement of “some control.” Indeed, since the jury is not instructed as to

the amount of control required, a jury could easily find that minimal control over safety is

sufficient to hold a contractor liable. Thus, it is evident that IPI Civil (2011) No. 55.01

encompasses conduct that would not give rise to liability under section 414.

¶ 169 Furthermore, the IPI language does not include the explanation of “retained control”

found in the comments to section 414. Comment c to section 414 specifically provides that “[i]t

is not enough that [the contractor] 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 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, cmt. c (1965). However, under the language of IPI Civil

(2011) No. 55.01, a jury could consider such a general right to be a retention of “some control

over the safety of the work,” since the jury is not further instructed as to what conduct constitutes

control.

¶ 170 Additionally, as noted by defendant, our recent case law, not cited by the committee

comments, consistently finds no control where there is only a general right to control. Pekin

Insurance Co. v. Roszak/ADC, LLC, 402 Ill. App. 3d 1055, 1067 (2010) (“a general contractor

that retains the power to coordinate the order in which work is done and to stop work that is

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performed dangerously” does not retain sufficient control so as to be vicariously liable for the

subcontractor’s negligence); Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d

333, 346 (2008) (“ ‘the rights retained by [a general contractor] to schedule and stop work [and]

to order changes, *** are general rights of supervision and not a retention of control over the

incidental aspects of the work’ ” (quoting Downs v. Steel & Craft Builders, Inc., 358 Ill. App. 3d

201, 206 (2005))); Bieruta v. Klein Creek Corp., 331 Ill. App. 3d 269, 278 (2002) (“even where

the employer or general contractor retains the right to inspect the work done, orders changes to

the specifications and plans, and ensures that safety precautions are observed and the work is

done in a safe manner, no liability will be imposed on the employer or general contractor unless

the evidence shows that the employer or general contractor retained control over the ‘incidental

aspects’ of the independent contractor’s work”). Accordingly, in light of the development of

case law interpreting section 414, we find that the broad language of IPI Civil (2011) No. 50.01

is not an accurate statement of the law.

¶ 171 While plaintiff states, without citation, that “[t]he Illinois Pattern Jury instructions on

negligence have been among the most tested and approved instructions in Illinois,” our research

has only revealed the two cases cited by defendant in which the accuracy of IPI Civil (2011) No.

50.01 has been considered: Jones v. DHR Cambridge Homes, Inc., 381 Ill. App. 3d 18 (2008),

and Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13 (2009), which applied the holding in

Jones. In Jones, a different division of the appellate court rejected a general contractor’s

argument that IPI Civil (2005) 50.0113 no longer reflected an accurate statement of the law.

13
IPI Civil (2005) No. 50.01 and IPI Civil (2011) No. 50.01 are identical.

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No. 1-12-3663

Jones, 381 Ill. App. 3d at 37-38. The general contractor argued that the instruction was no longer

an accurate statement of the law in light of Martens, where the Martens court indicated: “ ‘The

central issue [in a section 414 analysis] 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.’ ” Jones, 381

Ill. App. 3d at 37 (quoting Martens, 347 Ill. App. 3d at 318). The Jones court disagreed with the

general contractor’s argument, noting that the Martens court referred to IPI Civil (2005) No.

55.02 without criticism, indicating that the Martens court did not intend its decision to mean that

the pattern instruction no longer reflected an accurate statement of the law. Jones, 381 Ill. App.

3d at 38. Additionally, the Jones court distinguished Martens on its facts, noting that the general

contractor in Jones could require compliance with its safety standards and stop the work if its

safety rules were violated, where the general contractor in Martens could not. Jones, 381 Ill.

App. 3d at 38.

¶ 172 We note that the parties and the court in Jones proceeded from an assumption that the

pattern instruction was an accurate statement of the law, and only considered whether Martens

changed the accuracy of the statement. Here, by contrast, defendant does not begin with such an

assumption but instead argues that the instruction is inaccurate because it is based on an incorrect

interpretation of section 414. Thus, the fact that the Jones court did not find that the pattern

instruction no longer reflected an accurate statement of the law does not preclude us from finding

that IPI Civil (2011) No. 50.01 is not an accurate statement of the law.

¶ 173 However, despite our conclusion that the trial court issued an improper instruction,

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reversal is not warranted unless the error results in “ ‘serious prejudice’ ” to the appellant’s right

to a fair trial. Studt, 2011 IL 108182, ¶ 28 (quoting Heastie, 226 Ill. 2d at 543). In the case at

bar, we cannot find that the erroneous instruction resulted in serious prejudice to defendant.

Although the pattern instruction permits a jury to find control in situations that would not satisfy

the requirements of section 414, there is no indication that this was the case here. Instead, the

record demonstrates that the crux of plaintiff’s theory was that defendant made the decision to

stop the use of ATVs, demonstrating control over an operative detail of Sullivan Roofing’s work.

Thus, throughout trial, the parties focused on the extent of defendant’s involvement in the

decision to manually move the rolls of rubber membrane. Indeed, during closing argument,

plaintiff’s counsel noted that “the main issue that you guys will have to decide is who gave that

no Honda order as it relates to the big rolls.”

¶ 174 As noted in previous sections, there was sufficient evidence for the jury to conclude that

defendant was liable under section 414, both vicariously and directly, as a result of testimony

concerning defendant’s participation in the process that led to manual rolling of the rubber

membrane. This is not, as defendant contends, a situation where the only evidence was that

defendant ordered plaintiff to stop damaging the roof. Instead, there was testimony that

defendant ordered the stoppage of work, participated in implementing a solution to the damage

issue, and ordered the use of ATVs to cease – an order that directly impacted the means by which

Sullivan Roofing completed its roofing work.

¶ 175 First, there was evidence at trial that defendant noticed the damage to the decking and

ordered the work stopped. Zelasco testified that on the first day that roofing materials were

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loaded onto the roof, he noticed that roofing activity was creasing the decking and notified Pesek

and Sullivan; Zelasco also testified that it was a joint decision between defendant and Sullivan

Roofing to cease working for a day to assess the damage. Sullivan and Majestic also testified

that Zelasco placed a call to Sullivan Roofing informing them of damage to the decking, and

Pesek testified that he was notified by “[s]omeone from [defendant] FCL” that there was damage

to the roof decking, and he “took a timeout to craft a solution to this deck damage issue.”

¶ 176 Additionally, there was testimony that defendant was involved in seeking a solution to the

problem with the decking. For instance, Majestic testified that the decision to use plywood to

solve the problem was a collaboration between Sullivan Roofing and defendant, and Sullivan

testified that “after a conference between John [Zelasco] and the powers that be at Sullivan, that

was a solution that was implemented.” Moreover, several of the witnesses testified that

defendant gave the order to stop using ATVs to push the rolls of rubber membrane. Sullivan

testified that use of ATVs was temporarily stopped: “That was a decision made at the point in

time [that] all this happened, to stop everything, and we had to figure out a way that we could use

them again and get things rolling and be able to load -- so we wouldn’t damage the deck.” Pesek

testified that “it was more likely than not that there was an order to not use the Hondas to push

the rolls,” and testified that “the order to not use the Hondas either came from Dave Majestic or

the [defendant’s] superintendent on this job.” Plaintiff’s brother also testified that the crew was

ordered not to use ATVs to push the rolls by someone wearing a white hard hat, and the evidence

established that defendant’s employees wore hard hats. Finally, plaintiff testified that Zelasco

ordered the workers to cease using ATVs to move the rolls of rubber membrane.

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¶ 177 Thus, the evidence at trial focused specifically on defendant’s involvement in the decision

to manually push the rolls of rubber membrane, and the testimony related to that issue was

sufficient for a jury to find control. Since, under the facts in the case at bar, the jury considered

the same evidence as would have been presented had an accurate instruction been given, we find

no prejudice and, consequently, no reversible error. See Studt, 2011 IL 108182, ¶¶ 28-29

(despite an inaccurate jury instruction indicating that evidence other than expert testimony would

suffice to establish the standard of care in a professional negligence action, finding no serious

prejudice because evidence of the standard of care was in fact introduced through expert

testimony).

¶ 178 As a final matter, in its petition for rehearing, defendant argues that our decision conflicts

with the recent decision of Powell v. Dean Foods, 2013 IL App (1st) 082513-B. However, the

issues present in the case at bar are not the same as those presented in Powell. There, the jury

was instructed: “ ‘If you find that Defendant Jaime Reeves was the agent of the Defendant Dean

Food Company at the time of the occurrence and if you find Jaime Reeves is liable, then all

Defendants are liable. If you find that Jaime Reeves is not liable, then no Defendant is liable.’ ”

Powell, 2013 IL App (1st) 082513-B, ¶ 133. The court noted that “[t]he instructions, as given to

the jury, did not state that it was plaintiffs’ burden to prove that Reeves was an agent of Dean

Foods” and concluded that “it was reversible error not to give an instruction on the burden of

proof on the issue of Dean Foods’ agency.” Powell, 2013 IL App (1st) 082513-B, ¶ 135. Thus,

the problem with the jury instruction in Powell was that it did not state who needed to prove the

issue of agency.

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¶ 179 In the case at bar, by contrast, the issue does not pertain to who needs to prove that

defendant controlled the work of Sullivan Roofing, but instead concerns what evidence is

necessary to demonstrate “control.” In other words, the issue is not about who needs to prove

something, but how it needs to be proved, i.e., through evidence demonstrating control over

operative details of the work. While we have determined that the pattern instruction is not an

accurate statement of the law because it could be read to encompass conduct broader than that

contemplated by section 414, in the case at bar, the evidence presented went to the issue of

“retained control,” as would have been the case had a correct instruction been given. Since the

evidence established this element, defendant did not suffer serious prejudice from the incorrect

instruction.

¶ 180 C. Improper Jury Verdict Form

¶ 181 Defendant next argues that he is entitled to a new trial due to the inclusion of Sullivan

Roofing, plaintiff’s employer, on verdict form B, which was based on IPI Civil (2011) No.

B45.03.A. On that form, the jury found:

“Assuming that 100% represents the total combined legal

responsibility of all persons or entities that proximately caused

Teodoro Ramirez’s injury, we find the percentage of legal

responsibility attributable to each as follows:

a) Teodoro Ramirez 20%

b) FCL Builders, Inc. 40%

c) Sullivan Roofing, Inc. 40%.”

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Defendant argues that Sullivan Roofing should not have been included on the verdict form. We

agree.

¶ 182 “An abuse of discretion standard applies when we review a trial court’s decisions relating

to verdict forms.” Werner v. Nebal, 377 Ill. App. 3d 447, 457 (2007) (citing People v. Roberts,

351 Ill. App. 3d 684, 690 (2004)); Gold v. Ziff Communications Co., 322 Ill. App. 3d 32, 45

(2001). “The standard for deciding whether a trial court abused its discretion and the propriety of

tendered [jury] instructions is ‘whether the jury was fairly, fully and comprehensively informed

on the relevant principles, considering the instructions in their entirety.’ ” Auten v. Franklin, 404

Ill. App. 3d 1130, 1137 (2010) (quoting Saunders v. Schultz, 20 Ill. 2d 301, 314 (1960)).

¶ 183 Analysis of the verdict form requires consideration of section 2-1117 of the Code of Civil

Procedure (the Code), which provides:

“Except as provided in Section 2-1118, in actions on account of

bodily injury or death or physical damage to property, based on

negligence, or product liability based on strict tort liability, all

defendants found liable are jointly and severally liable for

plaintiff’s past and future medical and medically related expenses.

Any defendant whose fault, as determined by the trier of fact, is

less than 25% of the total fault attributable to the plaintiff, the

defendants sued by the plaintiff, and any third party defendant

except the plaintiff’s employer, shall be severally liable for all

other damages. Any defendant whose fault, as determined by the

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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 except the plaintiff’s employer, shall be jointly and

severally liable for all other damages.” 735 ILCS 5/2-1117 (West

2008).

Under the express terms of section 2-1117, any fault of Sullivan Roofing, as plaintiff’s employer,

cannot be included in the apportionment of fault for the purposes of determining defendant’s

joint and several liability. Consequently, defendant argues that Sullivan Roofing likewise could

not have been included on the verdict form.

¶ 184 Based on our research, there have been no cases considering the issue of whether a

plaintiff’s employer can be included on the verdict form filed after our supreme court issued its

decision in Ready v. United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008), a decision that we

find controls the outcome of the issue. In Ready, our supreme court considered whether settling

tortfeasors were considered “ ‘defendants sued by the plaintiff’ ” within the meaning of section

2-1117. Ready, 232 Ill. 2d at 374 n.2 (quoting 735 ILCS 5/2-1117 (West 2004)). There, the

plaintiff’s husband was killed during a construction project and the plaintiff filed a wrongful-

death suit against the building owner, her husband’s employer; the general contractor; and a

subcontractor on the project. Ready, 232 Ill. 2d at 372. The building owner and the general

contractor settled prior to trial. Ready, 232 Ill. 2d at 372. During trial, the subcontractor was not

permitted to present any evidence as to the conduct of the settling defendants and the settling

defendants were not listed on the verdict form; the jury found the subcontractor liable for

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negligence and the trial court found the subcontractor jointly and severally liable for the amount

of the verdict remaining after offsets for the husband’s comparative negligence and the

settlement amounts paid by the settling defendants. Ready, 232 Ill. 2d at 373.

¶ 185 On appeal, the subcontractor argued that the trial court erred by failing to include the

settling defendants on the verdict form, claiming that if the jury had been able to consider their

share of fault, the subcontractor’s share may have been less than 25%, making the subcontractor

only severally liable. Ready, 232 Ill. 2d at 373. The appellate court agreed, concluding that,

under section 2-1117, a nonsettling defendant’s fault should be assessed relative to the fault of all

defendants, including settling defendants, and, thus, the settling defendants should have been

included on the verdict form for purposes of fault apportionment. Ready, 232 Ill. 2d at 373-74.

¶ 186 The supreme court, however, after considering the language and history of the statute,

found that nonsettling defendants are not “ ‘defendants sued by the plaintiff’ ” within the

meaning of section 2-1117, stating that “we disagree with the appellate court’s holding that,

under section 2-1117, a remaining defendant’s culpability must be assessed relative to the

culpability of all defendants, including settling defendants.” Ready, 232 Ill. 2d at 383.

Accordingly, the supreme court held that “section 2-1117 does not apply to good-faith settling

tortfeasors who have been dismissed from the lawsuit” and reversed the portion of the appellate

court’s judgment that reversed the trial court as to liability. Ready, 232 Ill. 2d at 385.

¶ 187 After the supreme court’s 2008 decision in Ready, appellate courts and parties have

uniformly interpreted Ready as preventing settling defendants from appearing on a verdict form.

See Miranda v. Walsh Group, Ltd., 2013 IL App (1st) 121674, ¶ 14 (noting that, in Ready, “our

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supreme court held that a settling defendant was not a ‘defendant sued by the plaintiff’ under

section 2-1117 of the Code and should not be named on the jury verdict form for the

appropriation of fault”); Cellini v. Village of Gurnee, 403 Ill. App. 3d 26, 37 (2010) (during a

hearing on a motion for a good-faith finding between settling parties, a nonsettling defendant

argued “that in light of our supreme court’s decision in Ready v. United/Goedecke Services, Inc.,

which held that a settling tortfeasor was not a ‘defendant’ considered in apportioning fault and

would not be listed on the verdict form, a nonsettling defendant *** would be ‘left holding the

bag’ ”); Jablonski v. Ford Motor Co., 398 Ill. App. 3d 222, 271 (2010) (finding that the trial

court did not abuse its discretion in refusing a defendant’s proposed verdict forms, which would

have required the jury to allocate fault between the defendant and a settling tortfeasor, due to the

supreme court’s decision in Ready).

¶ 188 Indeed, at least one court has found reversible error where a settling tortfeasor was

improperly listed on the jury verdict form. In Heupel v. Jenkins, 395 Ill. App. 3d 689, 690

(2009), the plaintiff was injured when the defendant’s vehicle collided with another vehicle,

driven by Murugeson. Prior to filing suit, the plaintiff settled with Murugeson and, after a jury

trial, the jury returned a verdict in favor of the defendant. Heupel, 395 Ill. App. 3d at 690. On

appeal, the plaintiff argued, inter alia, that the trial court erred by including Murugeson on one of

the jury verdict forms and the appellate court affirmed. Heupel, 395 Ill. App. 3d at 690.

¶ 189 In determining that inclusion of Murugeson on the jury verdict form was proper, the court

in the original opinion filed in 2008 addressed policy reasons:

“Presumably in the case at bar, plaintiff settled with the ‘indigent’

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tortfeasor with the intent of insulating Murugeson from the issue of

fault and proceeded against defendant, the ‘wealthy’ tortfeasor,

who the jury ultimately concluded was not liable. Moreover,

unlike the driving concern in Blake [v. Hy Ho Restaurant, Inc., 273

Ill. App. 3d 372, 374 (1995)], namely, that allowing the jury to

consider settled tortfeasors in the fault allocation would expose

them to the expense of discovery and ‘frustrate Illinois public

policy favoring peaceful and voluntary resolutions of claims

through settlement agreements’ [citation], plaintiff in the instant

case essentially brought Murugeson into the case as a party when

she called Murugeson as a witness to disprove defendant’s ‘empty

chair defense.’ Plaintiff’s attempt to use Murugeson and the prior

settlement as both a sword and a shield completely contradicts the

spirit and purpose of section 2-1117 of the Code. Consequently,

we conclude that naming Murugeson on the jury verdict form was

proper.” Heupel v. Jenkins, 379 Ill. App. 3d 893, 904 (2008)

(opinion prior to remand).

¶ 190 After the supreme court decided Ready, it vacated the judgment in Heupel and directed

the Heupel court to reconsider its decision in light of Ready. On reconsideration, the

Heupel court reversed and remanded the case for a new trial. Heupel, 395 Ill. App. 3d at 690.

The Heupel court determined that, based on Ready, Murugeson was not a “defendant sued by the

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plaintiff” within the meaning of section 2-1117 and, consequently, should not have been listed on

the jury verdict form. Heupel, 395 Ill. App. 3d at 693. Furthermore, the court determined that

the inclusion of Murugeson’s name on the verdict form constituted reversible error warranting a

new trial because “here, the jury heard a great deal of testimony regarding Murugeson’s role in

the collision” and “we cannot be certain that the jury did not consider the amount of fault

attributable to Murugeson.” Heupel, 395 Ill. App. 3d at 693.

¶ 191 In the case at bar, we are not asked to consider the presence of a settling tortfeasor on a

jury verdict form. Instead, we are asked to consider the presence of plaintiff’s employer, Sullivan

Roofing, on the form. However, we find that the same result must follow.

¶ 192 As defendant notes, there is no doubt that Sullivan Roofing is specifically excluded from

an apportionment of fault under section 2-1117 of the Code. Thus, the sole question is whether

that exclusion also means that Sullivan Roofing should have been excluded from the jury verdict

form. The trial court and plaintiff rely on the comments to the IPI jury verdict form to support

Sullivan Roofing’s presence on the verdict form. The comments attempted to reconcile Ready

with older cases finding that the fault of nonparty tortfeasors could be considered. Quoting

Bofman v. Material Service Corp., 125 Ill. App. 3d 1053 (1984), and Smith v. Central Illinois

Public Service Co., 176 Ill. App. 3d 482 (1988),14 the comments note:

“ [‘]Consideration of the negligence of both parties and non-parties

to an action is essential for determining liability commensurate

14
We note that neither Bofman nor Smith has been cited for this proposition since Ready
was decided.

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with degree of total fault.’ [Citation.] [‘]In cases where

contributory negligence is involved, it is permissible to introduce

evidence of the liability of a non-party. The liability of non-party

tortfeasors may be considered in order to determine the extent of

plaintiff’s responsibility for his injuries.’ [Citation.]” IPI Civil

(2011) No. B45.03.A, Comment, at 229.

The comments then continue:

“In Bofman, a plaintiff was able to obtain reversal of a

verdict because the jury was not properly instructed to account for

the negligence of a settled nonparty. While Ready v.

United/Goedecke Services, Inc., 232 Ill. 2d 369 (2008) held that the

percentage fault of a defendant who settled is not part of the

calculation under 735 ILCS 5/2-1117, that case did not reduce the

vitality of Bofman or Smith. If the jury hears evidence to suggest

fault on the part of settled parties and if contributory negligence is

claimed, the settled parties should be listed on the verdict form to

correctly determine the percentage contributory fault of the

plaintiff. The fault of the settling parties, however, should be

disregarded for purposes of the 2-1117 calculation.” IPI Civil

(2011) No. B45.03.A, Comment, at 230.

However, application of the rule proposed by the comments demonstrates that these comments

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are inconsistent with the holding in Ready.

¶ 193 In Ready, as noted, the supreme court reversed the appellate court’s determination that

settling tortfeasors should be listed on the jury verdict form, finding that “section 2-1117 does

not apply to good-faith settling tortfeasors who have been dismissed from the lawsuit.” Ready,

232 Ill. 2d at 385. Ready came before the supreme court again after its remand to the appellate

court, and the supreme court then determined that the trial court erred in excluding evidence of

the settling parties’ culpability, finding that it would have supported the defendant’s sole-

proximate-cause defense. Ready v. United/Goedecke Services, Inc., 238 Ill. 2d 582, 591-92

(2010). Thus, despite the settling defendants’ absence from the verdict form, evidence of their

culpability should have been presented to the jury. According to the IPI comments, then, since

(1) the jury should have heard evidence to suggest fault on the part of settled parties and (2) the

jury found the plaintiff’s comparative negligence to be 35% (Ready, 232 Ill. 2d at 373), meaning

that contributory negligence was claimed, it would follow that “the settled parties should be

listed on the verdict form to correctly determine the percentage contributory fault of the plaintiff”

(IPI Civil (2011) No. B45.03.A, Comment, at 230). However, the supreme court held that the

settled parties should not be listed on the verdict form, without any reference to the impact of the

settled parties’ absence on the plaintiff’s percentage of fault. Indeed, none of the cases citing

Ready and concluding that settled tortfeasors should not appear on the verdict form contain any

discussion of the determination of the plaintiff’s level of fault. Instead, the conclusion to be

drawn is that the section 2-1117 analysis determines whether the nonparty may appear on the

verdict form. See also Jones, 381 Ill. App. 3d at 31-32 (determining that, based on section 2-

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1117, “in order for [a nonparty] to be included on the verdict form, it must have been named as a

party” by the defendant). Here, since section 2-1117 expressly excludes Sullivan Roofing as

plaintiff’s employer, Sullivan Roofing should not have been named on the verdict form.

¶ 194 We do not find plaintiff’s argument that “defendant cannot have it both ways, legally or

equitably,” to be persuasive. As noted, the Heupel court identified policy reasons for including

Murugeson on the verdict form. Heupel, 379 Ill. App. 3d at 904 (opinion prior to remand).

Despite those reasons, in light of Ready, the court was compelled to find that Murugeson should

not have been listed on the jury verdict form. Heupel, 395 Ill. App. 3d at 693. Likewise, in the

case at bar, although plaintiff poses reasonable arguments for including Sullivan Roofing on the

verdict form, our supreme court’s decision in Ready is equally applicable here, where section 2-

1117 expressly excludes that entity from apportionment of fault.

¶ 195 However, despite our conclusion that Sullivan Roofing should not have been listed on the

verdict form, reversal on the basis of faulty jury instructions is not warranted unless the error

results in “ ‘serious prejudice’ ” to the appellant’s right to a fair trial. Studt, 2011 IL 108182,

¶ 28 (quoting Heastie, 226 Ill. 2d at 543); Schultz, 201 Ill. 2d at 274 (“A reviewing court

ordinarily will not reverse a trial court for giving faulty instructions unless they clearly misled the

jury and resulted in prejudice to the appellant.”). In the case at bar, defendant’s brief does not

specify any prejudice it suffered from the improper verdict form, and it is difficult to determine

where any prejudice would arise. This is not a situation where a party was excluded from a

verdict form erroneously, such that a proper jury form would likely lessen the defendant’s

percentage of fault. Instead, here, fault was apportioned among more parties, presumably

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resulting in defendant bearing a smaller share of fault than would otherwise be the case.

¶ 196 During oral argument, defendant’s counsel stated that defendant was prejudiced because

the 40% fault allocated to Sullivan Roofing would have instead been allocated to plaintiff had

Sullivan Roofing been excluded from the verdict form. We do not find this argument persuasive.

The evidence at trial established that either Sullivan Roofing (under defendant’s view) or

defendant (under plaintiff’s view) ordered the workers to stop using ATVs and push the

membrane rolls manually; there is absolutely no evidence that plaintiff made the choice to

manually roll the membrane independently. Any share of the fault apportioned to plaintiff

involved the question of whether more people should have assisted in moving the roll. Thus, we

find no merit in defendant’s contention that Sullivan Roofing was factually more aligned with

plaintiff than with defendant. Normally, the more parties listed on a jury verdict form will help a

defendant more than a plaintiff. Since we cannot find that defendant was seriously prejudiced by

the erroneous verdict form, we find no reversible error.

¶ 197 D. Admission of Evidence

¶ 198 Next, defendant claims that the trial court erred in refusing to permit the Sullivan Roofing

incident report into evidence and in permitting the contract between defendant and the property

owner to be admitted into evidence. The decision to admit or exclude evidence rests within the

sound discretion of the trial court and that decision will not be disturbed absent an abuse of

discretion. Snelson v. Kamm, 204 Ill. 2d 1, 24 (2003). A trial court abuses its discretion only

when “no reasonable person would take the view adopted by the trial court.” (Internal quotation

marks omitted.) Foley v. Fletcher, 361 Ill. App. 3d 39, 46 (2005). Moreover, a party is not

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entitled to reversal based upon the trial court’s evidentiary rulings unless the error substantially

prejudiced the aggrieved party and affected the outcome of the case. Bosco v. Janowitz, 388 Ill.

App. 3d 450, 462 (2009). The party seeking reversal bears the burden of establishing such

prejudice. Bosco, 388 Ill. App. 3d at 462.

¶ 199 1. Sullivan Roofing Incident Report

¶ 200 First, defendant argues that the trial court erred in refusing to permit the Sullivan Roofing

incident report into evidence. During Sullivan’s testimony, defense counsel attempted to

introduce an incident report completed by Sullivan into evidence. Sullivan testified that plaintiff

reported his back injury to Sullivan, who filled out an incident report in his capacity as safety

director; Sullivan testified that keeping such reports was part of Sullivan Roofing’s normal

course of business. Sullivan further testified that the report was in his handwriting and bore his

signature. Defense counsel then sought to admit the report into evidence, and plaintiff’s counsel

objected. After examining the document and further questioning of Sullivan outside the

presence of the jury, the court sustained the objection: “The objection as to the record itself is

sustained. Whatever you choose to have him testify to as to his memory is still of evidentiary

value. But because of the lack of reliability on the dates based on the voir dire and the ***

deposition, I’m going to sustain the objection. I don’t *** find it to be within the business

records exception because of lack of reliability. The rest of the testimony is up to you.” The

court further noted: “It has to be created in an ordinary course of business and if it’s on or about

the time. That’s why they’re reliable. And what we have is that missing element. It wasn’t

created on or about the time because he says the date may be wrong and I don’t remember.”

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¶ 201 On appeal, defendant argues that the trial court erred in concluding that the incident

report did not qualify as a business record and was, therefore, inadmissible hearsay. Admission

of business records into evidence is governed by Supreme Court Rule 236, which provides:

“Any writing or record, whether in the form of any entry in a book

or otherwise, made as a memorandum or record of any act,

transaction, occurrence, or event, shall be admissible as evidence

of the act, transaction, occurrence, or event, if made in the regular

course of any business, and if it was the regular course of the

business to make such a memorandum or record at the time of such

an act, transaction, occurrence, or event or within a reasonable time

thereafter. All other circumstances of the making of the writing or

record, including lack of personal knowledge by the entrant or

maker, may be shown to affect its weight, but shall not affect its

admissibility. The term ‘business,’ as used in this rule, includes

business, profession, occupation, and calling of every kind.” Ill. S.

Ct. R. 236(a) (eff. Aug. 1, 1992).

Thus, if it was the regular course of the business to make such a memorandum at the time of such

an act, “Rule 236 requires only that the party tendering the record satisfy the foundation

requirement of demonstrating that the record was made in the regular course of business and at or

near the time of the transaction.” In re Estate of Weiland, 338 Ill. App. 3d 585, 600 (2003)

(citing Progressive Printing Corp. v. Jane Byrne Political Committee, 235 Ill. App. 3d 292, 305

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(1992)); Kimble v. Earle M. Jorgenson Co., 358 Ill. App. 3d 400, 414 (2005).

¶ 202 In the case at bar, the trial court found that the incident report did not qualify as a

business record because Sullivan’s testimony was insufficient to demonstrate that the incident

report was made at or near the time of plaintiff’s injury. We cannot find that the trial court

abused its discretion in making that determination. Sullivan testified, and the incident report

stated, that plaintiff’s injury was reported to Sullivan on October 11; however, Sullivan admitted

that the payroll records indicated that plaintiff’s last day on the payroll was October 7. More

importantly, however, Sullivan further admitted that it was possible that he was standing on a

different roof, and not the Wilton roof, when plaintiff informed him of the incident and that “my

dates could be wrong on the document. And I don’t know. I can’t verify that. But I remember

specifically standing there talking to him.” Given this uncertainty by the report’s preparer over

the date the report was completed, we cannot find that the trial court abused its discretion in

determining that defendant had not satisfied the foundational requirements for admission of the

incident report as a business record.

¶ 203 Defendant argues that courts have repeatedly ruled that “ ‘a reasonable time thereafter’

can encompass a period of time far, far longer than the few days at issue in the case at bar.” For

support, defendant cites Taluzek v. Illinois Central Gulf R.R. Co., 255 Ill. App. 3d 72, 85 (1993),

in which a document prepared approximately two weeks after an injury was considered

reasonable, and Amos v. Norfolk & Western Ry. Co., 191 Ill. App. 3d 637, 646 (1989), in which a

one-month delay was reasonable. However, the trial court’s decision was not based on the fact

that the incident was reported on October 11 when the injury occurred on October 6. Instead, the

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trial court’s concern was that “[i]t wasn’t created on or about the time because he says the date

may be wrong and I don’t remember.” In other words, the date reported was not the issue; the

issue was that the preparer of the report did not know exactly when the document was prepared.

We cannot find that excluding the document on this basis was error.

¶ 204 Defendant also argues that the incident report should have been admitted because it was

the admission of a party opponent and, thus, not hearsay at all. “Any oral or written out-of-court

statement by a party to the action, or attributable to a party, which tends to establish or disprove

any material fact in a case is an admission and is competent evidence against that party in the

action.” Ficken v. Alton & Southern Ry. Co., 291 Ill. App. 3d 635, 647 (1996) (citing Werner v.

Botti, Marinaccio & DeSalvo, 205 Ill. App. 3d 673, 679 (1990)); CFC Investment, L.L.C. v.

McLean, 387 Ill. App. 3d 520, 529 (2008). “The admissibility of such statements of fact rests on

the presumption that courts can usually rely on statements made against the speaker’s interests.”

CFC Investment, 387 Ill. App. 3d at 529 (citing Felker v. Bartelme, 124 Ill. App. 2d 43, 50

(1970)). However, in the case at bar, the trial court expressly found that the incident report was

not reliable based on the discrepancy over when it was completed. Thus, we cannot find that it

should have been admitted as an admission of a party opponent. See Zaragoza v. Ebenroth, 331

Ill. App. 3d 139, 141-42 (2002) (in order for a codefendant’s testimony of a conversation

between the codefendant and the defendant to be admissible as a party admission, the defendant

“must have been a party opponent, he must have made an admission, and the [codefendant’s]

testimony must have been reliable”). The same reasoning applies to defendant’s claim that, since

it would not have been offered to prove the truth of the matter asserted, it was not hearsay at all.

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¶ 205 Moreover, even if the report should have been admitted, its exclusion does not constitute

reversible error because the same information was presented to the jury through Sullivan’s

testimony. Sullivan testified that, at one point during the two weeks of the Wilton project,

plaintiff approached him on the roof of the Wilton project and informed him and Pesek that he

had been pushing a bundle of insulation alone “and felt a twinge in his back.” Sullivan further

testified that, based on the time sheets, plaintiff was working on a different project on Monday,

September 27. He was working on the Wilton project on September 28 and 29, and was working

on a third project on September 30 and did not work on Friday, October 1. Thus, the jury heard

that plaintiff had initially given a different account of the injury and that plaintiff was working on

other Sullivan Roofing projects during the same time frame. Accordingly, we affirm the trial

court’s decision not to admit the incident report into evidence.

¶ 206 2. General Contract

¶ 207 Defendant also argues that the trial court erred in admitting the contract between

defendant and the property owner into evidence because it was not relevant. Defendant

emphasizes that the issue central to the case is the determination of who had control as between

Sullivan Roofing, the subcontractor, and defendant, the general contractor – not the question of

who had control as between the general contractor and the property owner, which was the only

purpose of the contract between defendant and the property owner.

¶ 208 “The rule is stark and absolute: ‘Irrelevant evidence is not admissible.’ ” Downey v.

Dunnington, 384 Ill. App. 3d 350, 387 (2008) (quoting Maffett v. Bliss, 329 Ill. App. 3d 562, 574

(2002)). “ ‘[E]vidence is relevant if it has any tendency to make the existence of a fact that is of

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consequence to the determination of the action either more or less probable [than] it would be

without the evidence.’ ” In re Estate of Bitoy, 395 Ill. App. 3d 262, 277 (2009) (quoting Downey,

384 Ill. App. 3d at 387). In the case at bar, we cannot find that the contract was irrelevant and,

therefore, inadmissible.

¶ 209 The contract between defendant and the property owner indicated that, as between

defendant and the property owner, defendant was “solely responsible for the construction, means,

methods, techniques, sequences and procedures and to coordinate all portions of the work,” as

Puchalski testified. Additionally, under the contract, defendant undertook the responsibility of

safety for the work site. Finally, although not mentioned by either party, the contract included a

provision in which defendant could require each subcontractor “to assume toward the Contractor

all the obligations and responsibilities, including the responsibility for safety of the

Subcontractor’s Work, which the Contractor, by these Documents, assumed toward the Owner

and Architect.” Thus, the contact was relevant in assisting the jury to determine the issue of

control.

¶ 210 Defendant argues that we have repeatedly held that contract between a general contractor

and a property owner “simply has no bearing on the Section 414 analysis.” However,

defendant’s cited cases do not support that argument. While the contract between the general

contractor and the property owner certainly is substantially less relevant for the section 414

analysis than the contract between the general contractor and the subcontractor, none of

defendant’s cited cases has determined that the contract should not be admissible at all because it

is irrelevant; indeed, all of the cases involve motions for summary judgment and do not consider

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evidentiary issues. Accordingly, we cannot find that the trial court abused its discretion in

finding the contract admissible.

¶ 211 Defendant further argues that, even if the contract was relevant, plaintiff failed to lay a

proper foundation for its admission and the trial court “grossly overstepped its bounds in

assisting Plaintiff by forcing Defendant FCL in mid-trial to produce a foundation witness for

Plaintiff.” We find defendant’s argument unpersuasive.

¶ 212 After the trial court found that Zelasco had not laid a proper foundation for the admission

of the contact, plaintiff’s counsel indicated that they had relied on defendant’s disclosure that

Zelasco would lay a foundation for the contract, so they were “kind of in a bind here,” since he

was unable to do so. Plaintiff’s counsel requested that, “if the Court feels the foundation, as it

relates to the contract specifically, is inadequate, then I -- given the [Rule] 213 disclosure of

defense, relative to Mr. Zelacso, I think I’m entitled to call a record keeper, a signatory or

somebody from FCL that can lay the foundation, notwithstanding the fact it’s the day before I

rest my case.” Over defendant’s objection, the court agreed and told defendant, “you’re on notice

that I would grant plaintiff’s motion. And that the request will come to you, I’m assuming,

within the next 12 hours. And that before this case is put to rest, I expect to see some discussion

and/or resolution one way or another.” The next day, plaintiff called Christopher Linn, vice

president of defendant, who provided the necessary foundation and the contract was admitted

into evidence.

¶ 213 An examination of the record reveals that plaintiff relied on Zelasco, defendant’s

employee, to provide a foundation for the contract, as disclosed in defendant’s discovery

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responses. When Zelasco was unable to do so, the trial court ordered defendant to provide

another employee that could provide the sufficient foundation. Defendant argues that its

discovery disclosures said only that Zelasco would testify as to the subcontracts on the Wilton

project. However, these disclosures are not included in the record on appeal, so we cannot make

any comment as to their contents. Accordingly, we cannot find any error in the trial court’s

conduct and affirm its decision as to the admission of the contact between defendant and the

property owner.

¶ 214 E. Discovery Violations

¶ 215 Defendant also argues that the trial court erred in permitting the testimony of Jaime Rojas

and David Gibson to be presented due to the improper disclosure of these witnesses under Rule

213. “The admission of evidence pursuant to Rule 213 is within the sound discretion of the trial

court, and the court’s ruling will not be disturbed absent an abuse of that discretion.” Sullivan v.

Edward Hospital, 209 Ill. 2d 100, 109 (2004). As noted, trial court abuses its discretion only

when “no reasonable person would take the view adopted by the trial court” (internal quotation

marks omitted) (Foley, 361 Ill. App. 3d at 46) and a party is not entitled to reversal based upon

the trial court’s evidentiary rulings unless the error substantially prejudiced the aggrieved party

and affected the outcome of the case. (Bosco, 388 Ill. App. 3d at 462).

¶ 216 The Rule 213 disclosure requirements are mandatory and subject to strict compliance by

the parties. Sullivan v. Edward Hospital, 209 Ill. 2d at 109; Warrender v. Millsop, 304 Ill. App.

3d 260, 265 (1999). In Sullivan, the Illinois Supreme Court stated that its rules were its best

efforts to manage the complex and important process of discovery. Sullivan, 209 Ill. 2d at 109.

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“To allow either side to ignore Rule 213's plain language defeats its purpose and encourages

tactical gamesmanship.” Sullivan, 209 Ill. 2d at 109-10 (citing Department of Transportation v.

Crull, 294 Ill. App. 3d 531, 537 (1998)). In the case at bar, even if disclosure of plaintiff’s

witnesses violated Rule 213, we cannot find that the trial court abused its discretion in permitting

the witnesses to testify.

¶ 217 Our Illinois Supreme Court has set forth six factors that must be considered in

determining whether the exclusion of testimony is an appropriate sanction for nondisclosure: (1)

the surprise to the adverse party; (2) the prejudicial effect of the testimony; (3) the nature of the

testimony; (4) the diligence of the adverse party; (5) the timely objection to the testimony; and

(6) the good faith of the party calling the witness. Sullivan, 209 Ill. 2d at 110.

¶ 218 1. Jaime Rojas

¶ 219 With regard to Jaime Rojas, plaintiff purportedly disclosed Rojas as a Rule 213(f)(2)

witness in a January 4, 2012, letter to defense counsel; however, defense counsel claimed not to

have received the letter and only learned of Rojas when plaintiff’s counsel faxed a notice of

evidence deposition. We have no way of knowing whether the letter was sent or received;

however, the trial court heard defendant’s argument that counsel never received the letter and

nevertheless permitted the evidence deposition to take place and permitted the evidence

deposition to be presented to the jury.15

¶ 220 Considering the factors set forth in Sullivan, we cannot find that the trial court abused its

15
We note that different judges decided the motion to quash the evidence deposition and
the motion in limine seeking to bar Rojas’ testimony.

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discretion in refusing to bar Rojas’ testimony. Rojas testified that he performed a functional

capacity assessment of plaintiff and opined that plaintiff could only work at a light physical

demand level. If defendant did not know of Rojas’ existence until two days before his

deposition, it was certainly surprised and timely objected, and there is no issue of defendant’s

diligence in other discovery matters. However, as noted, it is unclear whether defendant had

prior notice of Rojas’ status as a Rule 213(f)(2) witness. Additionally, the nature of his

testimony and its prejudicial effect are small; plaintiff had several witnesses testify as to

plaintiff’s limitations, and Rojas’ testimony concerned a single evaluation and an opinion limited

to plaintiff’s condition on that day. Finally, there is no indication that plaintiff was not acting in

good faith: plaintiff had retained new counsel in October 2011, and counsel explained the

reasons for the evidence deposition to the trial court, stating that it had only been recently

discovered that Rojas was now living in Colorado and he would only be available for a few days.

¶ 221 We find defendant’s citation of Nedzvekas v. Fung, 374 Ill. App. 3d 618 (2007), and Boyd

v. City of Chicago, 378 Ill. App. 3d 57 (2007), to be unpersuasive. In both cases, the reviewing

court was determining whether the trial court had abused its discretion in barring witnesses due

to Rule 213 violations and determined that it had not. However, in the case at bar, we are

considering whether the trial court abused its discretion in not barring Rojas. Consequently,

defendant’s cases are of limited use and we cannot find that the trial court abused its discretion in

permitting Rojas to testify.

¶ 222 2. David Gibson

¶ 223 Defendant’s only arguments concerning Gibson involve prejudice. While defendant

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acknowledges that Gibson was disclosed with sufficient time to be deposed, defendant also

argues that Gibson’s testimony was much more prejudicial, since Gibson attached a dollar figure

to plaintiff’s losses. However, considering the other factors, we cannot find that the trial court

abused its discretion in permitting Gibson to testify. There was no indication that plaintiff acted

in bad faith, and defendant’s surprise was limited, as plaintiff’s new counsel immediately made

an oral motion to disclose a damages witness upon taking over the case. Additionally, defendant

had sufficient time to retain its own damages expert, as defendant stated during the hearing on

the motion in limine to bar Gibson, so defendant could have mitigated the damaging nature of

Gibson’s testimony.16 Accordingly, we cannot find that the trial court abused its discretion in

permitting Gibson to testify.

¶ 224 F. Cumulative Error

¶ 225 Finally, defendant argues that the cumulative errors during the trial require a new trial.

“A new trial is necessary when the cumulative effect of trial errors so deprives a party of a fair

trial that the verdict might have been affected.” Netto v. Goldenberg, 266 Ill. App. 3d 174, 184

(1994). However, in the case at bar, we cannot find that defendant was deprived of a fair trial

such that the verdict might have been affected.

¶ 226 CONCLUSION

¶ 227 The trial court did not err in denying defendant’s motion for judgment notwithstanding

the verdict, nor did it err in denying defendant’s motion for a new trial.

¶ 228 Affirmed.

16
Gibson was the only damages witness to testify at trial.

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