Jones v. DHR Cambridge Homes

SECOND DIVISION
Date Filed: March 4, 2008

No. 1-05-3526

ANDREW JONES, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
DHR CAMBRIDGE HOMES, INC., )
) No. 00 L 06717
Defendant-Appellant and )
Third-Party Plaintiff- )
Appellant )
)
) Honorable
) Ralph Reyna,
(Residential Carpentry, Inc., ) Judge Presiding.
)
Third-Party Defendant- )
Appellee). )

JUSTICE HALL delivered the opinion of the court:

The plaintiff, Andrew Jones, filed a complaint against the

defendant, DHR Cambridge Homes, Inc. (Cambridge), seeking damages

for personal injuries he sustained while working on a

construction site. Cambridge filed a third-party complaint

against the plaintiff's employer, Residential Carpentry, Inc.

(RCI), seeking contribution pursuant to the Joint Tortfeasor

Contribution Act (740 ILCS 100/1 et seq. (2000)). Prior to

sending the case to the jury, the trial court granted RCI's

motion for a directed verdict on Cambridge's contribution claim.

The jury returned a verdict in favor of the plaintiff.

Cambridge appeals raising the following issues: (1) whether

the trial court erred in granting RCI's motion for a directed

verdict; (2) whether the trial court erred in failing to include
No. 1-05-3526

RCI on the verdict form apportioning damages; (3) whether the

trial court erred in failing to include a nonparty on the jury

verdict form; (4) whether the trial court erred in barring the

use of a surveillance videotape of the plaintiff; (5) whether the

trial court erred in barring any testimony that OSHA had failed

to issue any citations for walking on sill plates; (6) whether

the plaintiff's counsel's remarks during closing argument

required a new trial; and (7) whether the trial court erred in

refusing to give Cambridge's nonpattern jury instructions. The

pertinent evidence is summarized below.

For the Plaintiff

The plaintiff was employed as a carpenter by RCI.

Cambridge, the owner and general contractor, subcontracted with

RCI to perform the carpentry work on the Cambridge Walk

subdivision it was constructing. The plaintiff described the

process of erecting first floor joists. The sill plates were

affixed to the steel beams set in place and braced by the

ironworkers. Sometimes the carpenters have to move the steel

slightly and rebrace it. There were several houses in the

subdivision on which the plaintiff had to restraighten the

bracing before the sill plates could be placed. The plaintiff

reported the problem to Mr. Zembruzski, the RCI foreman, but the

problem did not get resolved.

On November 4, 1999, the plaintiff walked out on a wooden

sill plate that was mounted on a structural steel beam to take

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No. 1-05-3526

measurements for the layout of the floor joists. The sill plate

was approximately eight to nine feet off the ground and was wider

than the steel beam. The "brace," which the plaintiff had

secured the day before, ran perpendicular to the sill plate on

which the plaintiff stood and spanned the distance between that

sill plate and an adjacent sill plate and beam. In performing

his measurement, the plaintiff placed his left foot upon the

brace and leaned forward to obtain a measurement. The brace

flipped up causing the plaintiff to fall forward into the

basement area.

According to the plaintiff, he was never told he could not

walk out on a sill plate on a steel beam. While he was trained

not to walk on a brace, he was never told he could not place the

weight of his foot on the brace. It was not unusual to put a

foot on a brace.

The subcontract agreement between Cambridge and RCI provided

in pertinent part as follows:

"Safety Precautions and Procedures - The Subcontractor

shall take all reasonable safety precautions with respect to

the Work and shall comply with all safety measures required

by Contractor and by all applicable laws, ordinances, rules,

regulations and orders of any public authority for the

safety of persons or property, including but not limited to

the provisions of the Occupational Safety and Health Act,1

1
Hereinafter referred to as "OSHA."

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No. 1-05-3526

as amended from time to time and all regulations relating

thereto."

And

"Temporary Facilities and Services - Subcontractor

shall furnish all temporary offices, sheds and tool houses,

equipment, power, water, temporary lights, hoistings,

scaffolding, ladders, deckings, stagings, runways, and all

other facilities required in connection with the Work."

The subcontract agreement also provided that "the latest edition

of the General Conditions of the Contract for Construction, AIA

Document A-201" was also made part of the subcontract agreement.

Mark Tuma was the construction superintendent for Cambridge

on the project. Cambridge scheduled and sequenced the work of

the various trades on the project. It would also inspect the

work of the trades for compliance with the subcontracts, which

included compliance with Cambridge's safety manual. It was part

of Mr. Tuma's job to make sure that the trades adhered to the

safety manual. Cambridge held weekly meetings to discuss the

progress of the work and to address problems, including safety

issues. He would inform a trade to fix a problem. Each trade

had to provide a safety manual.

Mr. Tuma acknowledged that the subcontract agreement

identified Cambridge as the "contractor," that RCI was a

subcontractor and that the AIA Document A-120 general conditions

were made part of the subcontractor agreement. Mr. Tuma was then

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No. 1-05-3526

questioned by the plaintiff's counsel about specific provisions

of the general conditions as follows:

"Q. Section 3.3 of these general conditions are

entitled 'supervision and construction procedures;' do you

see that?

A. Yes.

Q. And 3.3.1 reads as follows - - tell me if I've

read correctly.

'The contractor shall supervise and direct the

work using the contractor's best skill and attention. The

contractor shall be' keyword here 'solely' - - do you see

that?

A. Yes.

Q. 'Solely responsible for and have control over

construction means, methods, techniques, sequences and

procedures and for having coordination - - and for

coordinating all portions of the work under the contract

unless the contract documents give other specific

instructions concerning these matters.' Do you see that?

So far I am reading it right?

A. Yes.

Q. It goes on to read, 'if the contract documents

give specific instructions concerning construction means,

methods, techniques, sequences or procedures, the contractor

shall evaluate the job site safety thereof and as except

5
No. 1-05-3526

stated below, shall be fully and solely responsible for the

job site safety of such means, methods, techniques,

sequences or procedures."

Mr. Tuma agreed that was what the general conditions provided.

Mr. Tuma was then questioned about article 10 of the general

conditions as follows:

"I'm referring you to specifically to article ten which

is entitled 'protection of persons and property;' do you see

that?

A. Yes.

Q. 10.1, 'safety precaution and programs;' do you see

that?

A. Yes.

Q. 10.1.1, reads as follows - - tell me if I'm not

reading it correctly, please.

'The contractor shall be responsible for

initiating, maintaining and supervising all safety

precautions and programs in connection with the performance

of the contract.' Do you see that?

A. Yes.

Q. And if you go down to 10.2.1, safety of persons

and property, it reads:

'The contractor shall take reasonable precautions

for the safety of and shall provide reasonable protection to

prevent damage, injury, or loss to .1, employees on the

6
No. 1-05-3526

work,' correct?

A. Yes."2

According to Mr. Tuma, if he observed an OSHA violation or

an unsafe practice on a construction site, he could stop it.

OSHA required that residential construction workers have some

type of fall protection if they were exposed to a six-foot or

greater fall. A "controlled access zone" (CAZ) was used to

control the environment for particular work. Other than

"awareness," no other fall protection was in place, even though

Mr. Tuma was aware that the RCI carpenters were working nine feet

in the air on the sill plates. Mr. Tuma did not think this was

dangerous; it was a common practice and utilizing a CAZ complied

with OSHA. While there were safer alternatives to walking the

sills, he chose not to instruct the trades on how to perform

their jobs. He did recall that someone from RCI brought the

problems with the steel to his attention. Mr. Tuma had no

problems with RCI on the project.

At the time of the plaintiff's accident, Randall Jensen was

employed by RCI and was the safety coordinator for the project.

He described the plaintiff as a very qualified carpenter and not

known to take any unnecessary risks. While working on the

project, he observed Cambridge supervisors, Mr. Tuma and Mark

2
The AIA Document A-201 general conditions were contained in

the plaintiff's trial exhibit No. 2. However, the exhibit was

not made a part of the record on appeal.

7
No. 1-05-3526

Gagliano inspecting the work on the site. If the supervisors

requested that a trade correct a problem, the trade would do so.

Only Cambridge had authority to change specifications. No safety

issue was ever raised about working off the sill plates. If

Cambridge had directed RCI to stop the practice, it would have

done so. While it was safer to use a ladder, the job then took

longer. Neither Cambridge nor RCI told the carpenters they could

not use ladders. Cambridge's weekly safety meetings were

attended by RCI's foremen, who would then meet with RCI

employees, because it was RCI's job to educate its employees, not

Cambridge's.

Richard Lamb was a regional director for Cambridge. At the

time of the plaintiff's accident, he was overseeing 14 projects

including the Cambridge Walk project. Mark Tuma and Mark

Gagliano worked under him as superintendents. Part of the

superintendents' job was to enforce Cambridge's safety manual.

Cambridge's safety regulations applied to all the subcontractors

on the site. If a superintendent observed a safety violation, it

was his responsibility to see that it was corrected. At the time

of the plaintiff's accident, the superintendents were trained to

enforce the OHSA six-foot fall protection rule. While there were

no exceptions to the fall protection rule, there were alternative

fall protection means, such as creating a CAZ. Mr. Lamb

acknowledged that a CAZ did not protect against injuries

sustained in falls.

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No. 1-05-3526

Mr. Lamb acknowledged that Cambridge did not tell its

subcontractors how to do their jobs. Safety barriers, railings

and the like were the responsibility of the carpentry contractor.

Cambridge's duties were to coordinate the project and make sure

that the job was done according to the specifications and that

the contractors were in the right place. He never told a

carpentry contractor that the employees should not walk on a sill

plate. He understood that activity was permitted by OSHA.

At the time of the plaintiff's accident, Jerome Coleman was

employed by RCI as a superintendent at the Cambridge Walk

project. He was the highest-ranking RCI employee on the site.

By entering into a subcontract with Cambridge, RCI was required

to conform to Cambridge's safety program and to follow its rules

with regard to safety. Cambridge could and did dictate safety

rules with regard to RCI's work. Mr. Tuma could stop RCI's work

if he thought the employee was doing something unsafe. If

Cambridge thought that RCI was not doing its work safely, it

could remove RCI from the job. Mr. Coleman reviewed the accident

report, which noted that the plaintiff had one foot on the brace

and which was considered okay. Mr. Coleman did not have a

criticism of the plaintiff's actions. Mr. Coleman had taken OSHA

classes and attended safety meetings where the OSHA regulations

were reviewed. To his knowledge, OSHA did not prohibit walking

on sill plates.

According to Mr. Coleman, RCI supplied all of its own

9
No. 1-05-3526

equipment in connection with its work for Cambridge. RCI

required all its employees to attend its weekly safety meetings.

He was unaware of anyone from Cambridge instructing the plaintiff

to walk on the sill plates. All of the means and methods of

doing the work were the responsibility of RCI, not Cambridge.

RCI did not permit new carpenters on heights or dangerous areas

initially. If the plaintiff had stepped on a brace that was

unsecured or possibly unsecured, he was not following the safety

rules.

Phillip Colleran was a self-employed safety and health

consultant, specializing in construction safety. He had worked

for OSHA for 17 years and rose to become a senior compliance

officer. While working for OSHA, he received training and took

courses and seminars on workplace safety. He provides teaching

for OHSA and does work for the agency on small projects. He has

also written articles on residential construction site safety,

including one on fall protection.

Mr. Colleran explained that, as of 1995, OSHA required that

residential construction employers provide fall protection for

any operation requiring work six feet or higher above the ground.

There was a presumption that it was feasible and would not create

a greater hazzard to implement fall protection systems, such as

guardrails, personal fall arrest systems, nets or other types of

systems that provide a measure of protection against falls, such

as ladders or scaffolds. The employer had the burden of

10
No. 1-05-3526

establishing that it was appropriate to implement a fall

protection plan which complied with OSHA's regulations in lieu of

implementing one of those systems. Both Cambridge and RCI were

subject to OSHA.

According to Mr. Colleran, under OSHA's regulation, the

plaintiff should have been provided fall protection, suited to

the job at hand, which, in this case, would have been ladders or

sawhorses with planks. The regulations also required

inspections. In terms of who was to carry out the inspections,

Mr. Colleran stated as follows:

"I'm talking about RCI, obviously, but I'm also talk

[sic] about Cambridge who knew full well that this activity

was going on and said it's a matter of money as to why it

wasn't abated or that it was basically something that was

commonplace and accepted at that. And they were in a

position certainly with their pursestrings authority to have

intervened and said, RCI, you're imperiling people up here

by allowing them to walk these beams. You've got to

basically stop this, just as they have in their contract.

You have to abide by OSHA."

Mr. Colleran agreed that after the plaintiff, the best line of

protection for the plaintiff was his employer.

Michael Zembruzski was a foreman for RCI at the time of the

plaintiff's accident. At the time of trial, he was employed by

Cambridge as a superintendent and had the same duties as Mr. Tuma

11
No. 1-05-3526

at the time of the plaintiff's accident. These duties included

stopping a subcontractor's work if it was not working in

accordance with Cambridge's safety program. Prior to sending RCI

to work on a lot, Mr. Tuma would have been expected to make sure

that the lot was ready and safe for RCI, i.e., that the steel was

properly erected. After the plaintiff complained to Mr.

Zembruzski about the setting of the steel, Mr. Zembruzski took

the matter up with Mr. Tuma and understood that the problems were

going to be fixed.

Mr. Zembruzski explained that the carpenters laying out the

sill plates had no fall protection, other than the CAZ, which

only warned of a fall hazzard. Neither RCI nor Cambridge

provided the plaintiff with training regarding walking on the

sill plates. Walking on a sill plate would not have been a

violation of RCI's policies at the time of the accident. The

work could have been done from a ladder, but would have been a

bit slower. If Mr. Tuma had considered walking on the sill plate

to be unsafe, he had the authority to stop the work. Cambridge

did not tell RCI how to do its work.

For Cambridge

Mark Gagliano was employed by Cambridge and was responsible

for the preparation of the contract between Cambridge and RCI.

Although the contract specified such things as the quality of

wood to be used in construction, it did not provide instructions

to the subcontractors as to how to do their work. The contract

12
No. 1-05-3526

required RCI to perform its work in compliance with federal,

state and local laws and the minimum statutory health and safety

requirements. Each trade was responsible for providing its own

safety equipment. Cambridge did not supply any scaffolding or

ladders or equipment of any sort. If needed, they would be

supplied by RCI in this case.

Mr. Gagliano explained that the AIA Document A-201 was not

physically included in the contract. It was designed to provide

general conditions between the owner and the general contractor.

In this case, Cambridge was both the owner and the general

contractor. An ambiguity was created because RCI was referred to

as the subcontractor. However, the intention was to bind RCI and

Cambridge to these general conditions. While he maintained that

Cambridge did not really dictate the means and methods of doing

the subcontractors' work, Mr. Gagliano agreed sections 3.3.1 and

10.1.1 of the general conditions provided that Cambridge, as the

contractor, was solely responsible for and had control over the

means and methods of the work and was responsible for safety in

connection with the work. If Cambridge had not wished to

undertake these obligations, it could have chosen not to

incorporate them into the contract with RCI.

Eugene Holland was Cambridge's expert witness on

construction safety. His work in construction safety predated

OSHA. He had taken the 10-hour OSHA course, belonged to the

American Society of Safety Engineers and taught courses at the

13
No. 1-05-3526

University of Illinois, at Chicago, having to do with materials

used in construction. OSHA rules were included in those courses.

He had provided consulting services to OSHA on a nonpaid basis.

He was familiar with the OSHA regulations pertaining to fall

protection.

According to Mr. Holland, it was a custom and practice in

the construction industry for workers to walk on sill plates

while laying out or measuring the floor joists. Based on his 45-

years of experience, he believed that it was a safe practice.

While OSHA's six-foot rule required fall protection, the methods

required were not reasonable when applied to walking on sill

plates. OSHA regulations recognized that construction involved

certain hazzards for which there was no complete fall protection.

The use of the CAZ allowed for work to be done without the

standard fall protection requirements in residential

construction.

Mr. Holland explained that OSHA rules required an employee

to be responsible for his actions and conduct and required the

employer to furnish a working environment free from hazards

likely to cause death or serious harm to the employees. In this

case, RCI was the plaintiff's employer and had the obligation to

provide a safe workplace. The direct employer is responsible for

supplying safety equipment. There was no OSHA regulation that

would require Cambridge to provide such equipment to someone it

is not employing.

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No. 1-05-3526

According to Mr. Holland, RCI was in direct, operative

control over its employees and was responsible for defining the

means and methods of performing the work, including the

procedures and the safe way of doing them. Whether the

measurement was done from a ladder or walking on the sill plate,

it was a means or method of performing the work. There was no

evidence that Cambridge had the same authority to control the

means and methods. Mr. Holland opined that no action on the part

of Cambridge had anything to do with the plaintiff's accident.

However, he acknowledged that at his deposition he had stated

that, had the steel been erected correctly, the accident could

have been avoided and that Cambridge should have inspected the

lot prior to allowing RCI to work on it.

At the close of the evidence, RCI moved for a directed

verdict. RCI pointed out that none of the witnesses testified

that RCI had done anything wrong. The trial court granted the

motion. Following deliberations, the jury returned a verdict in

favor of the plaintiff and against Cambridge. Following the

denial of its posttrial motion, Cambridge filed a timely notice

of appeal.

ANALYSIS

I. Directed Verdict for RCI

A. Standard of Review

"The grant or denial of a motion for [a] directed verdict is

reviewed de novo." Kim v. Mercedes-Benz, U.S.A., Inc., 353 Ill.

15
No. 1-05-3526

App. 3d 444, 460, 818 N.E.2d 713 (2004). The Kim court

recognized that there was contrary authority as to the

appropriate standard of review but concluded that de novo review

was appropriate "because the evidence presented at trial must be

considered '"'[a]new; afresh; a second time.'"'" (Emphasis in

original.) Kim, 353 Ill. App. 3d at 460, quoting Susnis v.

Radfar, 317 Ill. App. 3d 817, 826, 739 N.E.2d 960 (2000), quoting

City of Mattoon v. Mentzer, 282 Ill. App. 3d 628, 633, 668 N.E.2d

601 (1996), quoting Black's Law Dictionary 435 (6th ed. 1990).

"A directed verdict is appropriate where the plaintiff has

failed to establish a prima facie case." Kim, 353 Ill. App. 3d

at 460. "A directed verdict is granted improperly where 'there

is any evidence, together with reasonable inferences to be drawn

therefrom, demonstrating a substantial factual dispute, or where

the assessment of credibility of the witnesses or the

determination regarding conflicting evidence is decisive to the

outcome.'" Kim, 353 Ill. App. 3d at 460, quoting Maple v.

Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508 (1992).

B. Discussion

In its third-party complaint, Cambridge alleged that RCI had

a duty to exercise reasonable and ordinary care for the safety of

the plaintiff and breached its duty to the plaintiff in the

following respects:

"(a) negligently and carelessly failed to properly

train and supervise the Plaintiff;

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No. 1-05-3526

(b) negligently and carelessly failed to warn the

Plaintiff of the dangers of the job site;

(c) negligently and carelessly created an unsafe work

environment by the means and methods used in its work;

(d) negligently and carelessly caused and required the

Plaintiff to perform his work from the structural steel

support beams of the subject building under conditions which

were dangerous and unsafe;

(e) negligently and carelessly caused and required

carpenters to utilize five inch wide steel beams as a

temporary support while laying out floor joists;

(f) negligently and carelessly failed to provide

adequate safeguards to prevent Plaintiff from injury while

lawfully upon said premises;

(g) failed to make a reasonable inspection of the

premises and the work being done thereon, when it knew, or

in the exercise of ordinary care should have known, that

said inspection was necessary to prevent injury to the

Plaintiff;

(h) carelessly and negligently coordinated the work in

an unsafe and improper manner; and

(i) required the Plaintiff to work in an unsafe area."

"In any negligence action, plaintiff bears the burden of

proving not only a duty and breach of duty but also that the

breach of that duty was the proximate cause of plaintiff's

17
No. 1-05-3526

injury." Taake v. WHGK, Inc., 228 Ill. App. 3d 692, 711, 592

N.E.2d 1159 (1992). "The plaintiff must present at least some

evidence on every element essential to his cause of action

[citations], and a directed verdict in favor of the defendant is

appropriate where the plaintiff has not established a prima facie

case [citation]." Saxton v. Toole, 240 Ill. App. 3d 204, 210,

608 N.E.2d 233 (1992). The above rule applies to a third-party

action for contribution. See Victory Memorial Hospital Ass'n v.

Schmidt, Garden & Erickson, 158 Ill. App. 3d 931, 934, 511 N.E.2d

953 (1987).

RCI maintains that Cambridge itself did not present any

evidence that RCI was negligent and argues that Cambridge may not

rely on the evidence introduced by the plaintiff. A similar

argument was rejected in Frisch v. International Harvester Co.,

33 Ill. App. 3d 507, 338 N.E.2d 90 (1975). In that case, the

plaintiff sued the manufacturer and the seller of a product. The

reviewing court held that the elements of strict liability had

been shown by competent evidence and that it would be a waste of

judicial resources to require the seller, who counterclaimed

against the manufacturer, to separately prove the elements of

strict liability. Frisch, 33 Ill. App. 3d at 521.

Byrne v. SCM Corp., 182 Ill. App. 3d 523, 538 N.E.2d 796

(1989) is also instructive. In that case, the plaintiffs filed a

products liability case against the manufacturer of paint the

husband used as part of his job. The manufacturer filed a third-

18
No. 1-05-3526

party complaint for contribution against the husband's employer.

At the close of all the evidence, the trial court directed

verdict for the employer on the issue of ventilation. The jury

returned a verdict for the plaintiffs and against the

manufacturer.

On appeal, the reviewing court upheld the granting of the

directed verdict for the employer. The court noted that

"defendant trial counsel was placed in an awkward position, on

[t]he one side arguing the ventilation was adequate to combat

plaintiffs' claims and on the other side arguing the issue of

adequate ventilation should nevertheless be submitted to the jury

in order to keep the contribution action in the case." Byrne,

182 Ill. App. 3d at 562-63. The court concluded that the

manufacturer's problem was "not the argument, it [was] the

evidence. The product was inherently dangerous. The defect was

the inadequacy of the warning. Experts testified that even if

the painting was done outdoors, a proper mask must be used.

Therefore, although the ventilation was a condition, it was not a

contributing cause." Byrne, 182 Ill. App. 3d at 563. In

reaching its conclusion, the reviewing court did not appear to

limit itself to the manufacturer's evidence as opposed to the

evidence as a whole.

Similarly, in the present case, on one hand, Cambridge

argued that walking on the sill plates was not dangerous. On the

other hand, it argued that if walking on the sills was dangerous,

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No. 1-05-3526

RCI was responsible or at least partly responsible for the

plaintiff's safety. Cambridge introduced evidence establishing

RCI's duty, but relied on the plaintiff's evidence to establish

that RCI breached its duty to the plaintiff by allowing him to

walk on the sills and that this breach resulted in the

plaintiff's injury.

"[I]n ruling on a motion for a directed verdict, courts must

evaluate the relative strength of the nonmovant's evidence in the

context of the entire record at the time the motion is

presented." Williams v. Chicago Osteopathic Health Systems, 274

Ill. App. 3d 1039, 1047, 654 N.E.2d 613 (1995). Since RCI moved

for a directed verdict at the close of all the evidence, all the

evidence, including that introduced by the plaintiff, must be

considered. "In determining whether the court erred in directing

a verdict, it is immaterial upon which side the evidence is

introduced. If evidence introduced by either side, with its

legitimate and natural inferences tends to establish the claim of

the party opposing the motion, the motion should not be allowed."

Bay Island Drainage & Levee District No. 1 v. Nussbaum, 388 Ill.

131, 134, 56 N.E.2d 615 (1944).

Viewing all the evidence in the light most favorable to

Cambridge, the nonmoving party, we disagree that a verdict could

never stand against RCI. The plaintiff was injured as the result

of walking on a sill plate without fall protection. The

responsibility for providing the fall protection was disputed at

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No. 1-05-3526

trial. The plaintiff presented evidence that Cambridge was

responsible for all of the safety issues. However, Cambridge

presented the testimony of Mr. Holland who opined that RCI was

responsible for the means and methods of performing the work on

the project and for providing a safe work place for the

plaintiff.

We conclude that the trial court erred in directing a

verdict in favor of RCI and therefore, this case must be remanded

for a new trial. We will address those issues which may arise on

retrial of this case.

II. Verdict Form

A. Standard of Review

A trial court's determination of jury instructions will not

be disturbed absent a clear abuse of discretion. Hiscott v.

Peters, 324 Ill. App. 3d 114, 125, 754 N.E.2d 839 (2001). "An

abuse of discretion occurs when the ruling is arbitrary,

fanciful, or unreasonable, or when no reasonable person would

take the same view." Check v. Clifford Chrysler-Plymouth of

Buffalo Grove, Inc., 342 Ill. App. 3d 150, 157, 794 N.E.2d 829

(2003).

B. Discussion

Cambridge contends that the trial court abused its

discretion when it refused Cambridge's verdict form, which

included Residential Steel, the steel contractor on the project.

Residential Steel was never a party in this case. Nonetheless,

21
No. 1-05-3526

Cambridge points out that in the comment to Illinois Pattern Jury

Instructions, Civil, No. B45.03A (2000) (hereinafter IPI Civil

(2000) No. B45.03A, the committee recognized that the

"[i]nclusion of 'nonparties' within the calculation of fault may

be necessary for correct consideration of comparative fault,

joint and several liability and contribution." IPI Civil (2000)

No. B45.03A, Comment. However, Cambridge misinterprets the term

"nonparties."

In the version applicable to this case, section 2-1117 of

the Code of Civil Procedure (735 ILCS 5/2-1117 (West 1994))

provided in pertinent part that "[a]ny defendant whose fault, as

determined by the trier of fact, is 25% or greater of the total

fault attributable to the plaintiff, the defendants sued by the

plaintiff, and any third party defendants who could have been

sued by the plaintiff, shall be jointly and severally liable for

all other damages." As explained by our supreme court in

Unzicker v. Kraft Food Ingredients Corp., 203 Ill. 2d 64, 783

N.E.2d 1024 (2002):

"Section 2-1117 does not include in the division of fault

'anyone who could have been sued by the plaintiff.' Rather,

it includes 'any third-party defendant who could have been

sued by the plaintiff.' In other words, the party must

already have been brought into the case by a defendant for

that party to be included in the division of fault."

(Emphasis in original.) Unzicker, 203 Ill. 2d at 78.

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No. 1-05-3526

Likewise, in the present case, in order for Residential

Steel to be included on the verdict form, it must have been named

as a party by Cambridge. Therefore, the trial court did not

abuse its discretion in refusing Cambridge's jury verdict form.

III. Video Tape

A. Standard of Review

"The admission of a film into evidence is within the sound

discretion of the trial court [citation], and an abuse of

discretion occurs only where no reasonable person would agree

with the trial court's conclusion." Velarde v. Illinois Central

R.R. Co., 354 Ill. App. 3d 523, 529, 820 N.E.2d 37 (2004).

B. Discussion

Cambridge contends that the trial court abused its

discretion when it refused to admit into evidence a surveillance

videotape of the plaintiff. Prior to trial, the court barred the

admission of the videotape because it had been disclosed after

the discovery cutoff. During the trial, Cambridge requested

reconsideration of the trial court's ruling. After viewing the

videotape, the trial court again denied the admission of the

video tape.

"When evidence is excluded, the offer of proof is the key to

preserving [the] error." Kankakee County Board of Review v.

Property Tax Appeal Board, 316 Ill. App. 3d 148, 155, 735 N.E.2d

1011 (2000). "The purpose of the offer of proof is to disclose

the nature of the evidence offered to the trial judge and

23
No. 1-05-3526

opposing counsel and to the reviewing court in order that it may

determine whether the exclusion of evidence was erroneous."

Kankakee County Board of Review, 316 Ill. App. 3d at 155.

The plaintiff maintains that in order to be sufficient, the

offer of proof in this case should have included the videotape.

Compare Kankakee County Board of Review, 316 Ill. App. 3d at 153

(if the offer of proof pertains to a document, the party should

be allowed to place the document into the record); People v.

Phillips, 186 Ill. App. 3d 668, 679, 542 N.E.2d 814 (1989) (where

the document was not made part of the record on appeal, counsel's

statement about the content of the document was insufficient to

show that the defendant was prejudiced by the court's refusal to

allow cross-examination of a witness based on the document). The

plaintiff concludes that in the absence of the videotape,

Cambridge has waived any error with regard to its admissibility.

See Schmitz v. Binette, 368 Ill. App. 3d 447, 453, 857 N.E.2d 846

(2006) (failure to make offer of proof will waive a claim that

evidence was improperly excluded).

"'[A]n offer of proof is not required if it is apparent that

the trial judge understood the nature of the objection and the

character of the evidence sought to be introduced or if the

questions themselves and the circumstances surrounding them show

the purpose and materiality of the evidence.'" Schmitz, 368 Ill.

App. 3d at 454, quoting Carter v. Azaran, 332 Ill. App. 3d 948,

956, 774 N.E.2d 400 (2002), citing Bafia v. City International

24
No. 1-05-3526

Trucks, Inc., 258 Ill. App. 3d 4, 7-8, 629 N.E.2d 666 (1994). An

offer of proof is sufficiently specific "if it adequately shows

the court what the evidence would be, allowing a court of review

to assess the prejudice allegedly inuring from the exclusion."

People v. Wallace, 331 Ill. App. 3d 822, 831, 772 N.E.2d 785

(2002).

In the present case, the offer of proof consisted of

Cambridge's counsel's statement as to the identities of the

videographers, the type of equipment they used and their work

experience in recording and editing videotapes. Counsel further

stated that if called as witnesses, the two videographers would

have testified that the videotape was a recording of the

plaintiff and his activities on February 10, 2005, and that the

videotape accurately portrayed their observations of the

plaintiff's activities on that date.3

In this case, since the trial court actually viewed the

videotape, the court was made aware of what the evidence would

be. However, "'[t]he offer serves no purpose if it does not

demonstrate, both to the [circuit] court and to reviewing courts,

the admissibility of the testimony which was foreclosed by the

sustained objection.'" Kim, 353 Ill. App. 3d at 451, quoting

People v. Andrews, 146 Ill. 2d 413, 421, 588 N.E.2d 1126 (1992).

3
The record does contain a surveillance report describing

the videographers' observations of the plaintiff's activities,

but that was not included in offer of proof.

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No. 1-05-3526

Since the videotape is not available to this court and the offer

of proof does not describe what activities the plaintiff was

engaged in and under what circumstances these activities were

undertaken, we are unable to determine whether its exclusion was

proper.

A new trial should be ordered "'only when evidence

improperly admitted appears to have affected the outcome of the

trial.'" Schmidt v. Ameritech Illinois, 329 Ill. App. 3d 1020,

1040-41, 768 N.E.2d 303 (2002), quoting Tzystuck v. Chicago

Transit Authority, 124 Ill. 2d 226, 243, 529 N.E.2d 525 (1988).

"In other words, a new trial is necessary where the exclusion of

evidence was the result of 'serious and prejudicial errors made

at trial.'" Schmidt, 329 Ill. App. 3d at 1041, quoting Lagestee

v. Days Inn Management Co., 303 Ill. App. 3d 935, 942, 709 N.E.2d

270 (1999).

According to the videographers' surveillance report in the

record, the plaintiff was observed doing carpentry work for

another employer. However, the plaintiff testified he was able

to do carpentry work, even though he was slower now, and

hammering, for example, caused him pain. Moreover, Cambridge

candidly concedes that it cannot prove the videotape would have

altered the outcome of the trial. Therefore, even if the

exclusion of the videotape was an abuse of discretion, the

exclusion of the videotape would not have required that Cambridge

receive a new trial.

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No. 1-05-3526

IV. Absence of OSHA Violations

A. Standard of Review

"An abuse of discretion standard applies when this court

reviews a trial court's evidentiary rulings." Chapman v. Hubbard

Woods Motors, Inc., 351 Ill. App. 3d 99, 105, 812 N.E.2d 389

(2004).

B. Discussion

Cambridge agreed with the trial court's ruling barring any

evidence of OSHA violations. However, Cambridge contends that

the trial court abused its discretion when it barred any evidence

that OSHA had never issued citations for walking on sill plates.

Cambridge maintains that such evidence supported Cambridge's

argument that its conduct was reasonable.

A party may introduce evidence of a lack of prior accidents

or incidents when that party establishes a proper foundation.

McKenzie v. SK Hand Tool Corp., 272 Ill. App. 3d 1, 11, 650

N.E.2d 612 (1995). A proper foundation would require evidence

"establishing that such absence took place under conditions

substantially similar to those surrounding the accident sued

upon." Parson v. City of Chicago, 117 Ill. App. 3d 383, 388, 453

N.E.2d 770 (1983). In Parson, the court recognized that

"'evidence of absence of accidents has less probative value than

evidence of previous accidents, and thus is more easily

outweighed by the factor that the collateral issue will result in

jury confusion *** Evidence of absence of accidents usually

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No. 1-05-3526

involves generally unreliable negative evidence *** and does not

tend directly to prove absence of negligence.'" Parson, 117 Ill.

App. 3d at 388-89, quoting Grubaugh v. City of St. Johns, 82

Mich. App. 282, 288, 289, 266 N.W.2d 791 (1978).

Cambridge argues that the testimony of Mr. Colleran and Mr.

Holland laid a sufficient foundation for the admission of the

evidence that OSHA had not issued violations for allowing a

worker to walk on a sill plate. However, Mr. Colleran's

testimony was that he was unaware that OSHA had ever issued a

violation in such circumstances. Mr. Holland's testimony that

OSHA had never cited anyone for walking on a sill plate was

limited to his own knowledge. This testimony failed to establish

that, under the conditions substantially similar to those

surrounding the plaintiff's accident, OSHA would not have issued

a citation. Therefore, the trial court did not abuse its

discretion in barring evidence as to the lack of OSHA citations.

V. Non-IPI Instructions

A. Standard of Review

We review a trial court's determination whether or not to

provide a particular jury instruction under the abuse of

discretion standard. Webber v. Wight & Co., 368 Ill. App. 3d

1007, 1020, 858 N.E.2d 579 (2006). A reviewing court will not

disturb the trial court's determination absent a clear abuse of

discretion. Webber, 368 Ill. App. 3d at 1020.

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No. 1-05-3526

B. Discussion

At trial, Cambridge maintained that the IPI instructions

pertaining to construction negligence set forth an inaccurate

statement of the law and tendered non-IPI instructions on that

issue. The plaintiff objected, and the trial court gave the jury

the IPI construction negligence instructions.

Accordingly, the jury was instructed as follows:

"A contractor who entrusts work to a subcontractor can

be liable for injuries resulting from the work if the

contractor retained some control over the safety of the work

and the injuries were proximately caused by the contractor's

failure to exercise that control with ordinary care." IPI

Civil (2005) No. 55.01.

Cambridge's proposed instruction read as follows:

"A contractor who entrusts work to a subcontractor can

be liable for injuries resulting from the work if the

contractor retained some control over the means and methods

or operative detail of the subcontractor's work and the

injuries were proximately caused by the contractor's failure

to exercise that control with ordinary care."

The jury was also given IPI Civil (2005) No. 55.02 as follows:

"A party who retained some control over the safety of

the work has a duty to exercise that control with ordinary

care."

Cambridge's proposed instruction read as follows:

29
No. 1-05-3526

"A party who retained some control over the means and

methods or operative detail of the subcontractor's work has

a duty to exercise that control with ordinary care."

The jury was also given IPI Civil (2005) No. 55.03, which is in

pertinent part as follows:

"Plaintiff, Andrew Jones, seeks to recover damages from

defendant Cambridge Homes, Inc. In order to recover

damages, the plaintiff has the burden of proving:

1. The defendant retained some control over the

safety of the work."

Cambridge's proposed instruction read in pertinent part as

follows:

"Plaintiff, Andrew Jones seeks to recover damages from

defendant DRH Cambridge Homes, Inc. The Plaintiff claims

and in order to recover damages, the plaintiff has the

burden of proving:

1. The defendant, DRH Cambridge Homes, Inc.,

retained some control over the means and methods or

operative detail of the work."

Finally, the jury was given IPI Civil (2005) No. 55.04 as

follows:

"One or more persons may have some control over the

safety of the work. Which person or persons had some

control over the work under the particular facts of this

case is for you to decide."

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No. 1-05-3526

"[T]he trial court has the discretion to determine if a

particular jury instruction is applicable, supported by evidence

in the record, and an accurate statement of the law." Luye v.

Schopper, 348 Ill. App. 3d 767, 773, 809 N.E.2d 156 (2004).

"Once a trial court determines an instruction is to be given,

then Supreme Court Rule 239(a) (177 Ill. 2d R. 239(a)) creates a

presumption that the Illinois Pattern Instructions (IPI) are to

be used." Luye, 348 Ill. App. 3d at 773. Whether an instruction

is an accurate statement of the law is reviewed de novo. Luye,

348 Ill. App. 3d at 773.

In its introduction to the construction negligence series of

the IPI instructions, the committee reviewed a number of cases on

the issue of control of the work and concluded as follows:

"Due to the lack of consensus among the appellate

courts and no Supreme Court cases on this subject since

[Larson v. Commonwealth Edison Co., 33 Ill. 2d 316, 211

N.E.2d 247 (1965)], the concept of 'control' caused the

committee great difficulty. The committee chose to

concentrate on the area of 'safety' in these instructions.

The committee believed that the overriding consideration

throughout all of these cases is the ability of the

controlling entity to affect overall job safety. It would

appear that the ability to stop unsafe work and not permit

it to be resumed until done to the satisfaction of the

controlling entity satisfies both the requirement of

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No. 1-05-3526

'control' and demonstrates that the contractor is 'not

entirely free to do the work in his own way.'" IPI Civil

(2005) No. 55.00, Committee Comment b.

The committee further observed that the Larson court chose not to

define "'having charge of the work,'" stating it was a "'generic

term of broad import.' [Citation.] Whether the term 'control'

will be treated similarly will depend on further judicial

interpretation to help guide the committee." IPI Civil (2005)

No. 55.00, Committee Comment b.

"The Illinois Supreme Court has held that pattern

instructions are not exempt from challenge." Luye, 348 Ill. App.

3d at 776. "Pattern instructions do not receive advance approval

by the Illinois Supreme Court and are only approved or rejected

through judicial questioning and consideration." Luye, 348 Ill.

App. 3d at 776.

Cambridge's argument that the IPI instructions on

construction negligence do not accurately state the law is based

on this court's decision in Martens v. MCL Construction Corp.,

347 Ill. App. 3d 303, 807 N.E.2d 480 (2004). In that case, we

upheld a summary judgment in favor of the general contractor

finding that the plaintiff had failed to raise a question of fact

as to whether the general contractor had retained control or

exercised supervisory or operational control over the

subcontractor to be held liable. Martens, 347 Ill. App. 3d at

315.

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No. 1-05-3526

In Martens, the plaintiff, relying on the analysis in Moss

v. Rowe Construction Co., 344 Ill. App. 3d 772, 801 N.E.2d 612

(2003), asserted that the central issue was the general

contractor's ability to affect worker safety. Martens, 347 Ill.

App. 3d at 318; see Moss, 344 Ill. App. 3d at 777 ("The issue is

not control of the 'means and methods' of performing the task,

but rather who contractually and/or physically has the duty to

control safety of the project"). We disagreed with Moss stating

as follows:

"The central issue is retained control of the independent

contractor's work, whether contractual, supervisory,

operational, or some mix thereof. The party who retains

control is the logical party upon whom to impose the duty to

ensure worker safety." Martens, 347 Ill. App. 3d at 318.

See also Doe v. Big Brothers Big Sisters of America, 359 Ill.

App. 3d 684, 695-96, 834 N.E.2d 913 (2005) (reiterating that

Martens rejected Moss's view that the right to control safety

alone sufficient to subject a general contractor to liability).

Cambridge maintains that the decision in Martens means that

the construction negligence IPI instructions no longer reflect

the common law on construction negligence. Therefore, its

proposed jury instructions, which incorporated the holding from

Martens, should have been given to the jury. We disagree, noting

that the Martens court referred to IPI Civil (2005) No. 55.02

without criticism, stating as follows:

33
No. 1-05-3526

"Penalizing a general contractor's efforts to promote safety

and coordinate a general safety program among various

independent contractors at a large jobsite hardly serves to

advance the goal of work site safety. A party who retains

some control over the safety of the work has a duty to

exercise that control with ordinary care. [IPI Civil (supp.

2003) No. 55.02]. Nevertheless, the existence of a safety

program, safety manual or safety director does not

constitute retained control per se; the court must still

conduct an analysis pursuant to the section 414 retained

control exception. [Citation.] We recognize, of course,

that if a defendant's safety program sufficiently affected a

contractor's means and methods of doing its work, then such

program could bring the defendant within the ambit of the

retained control exception. [Citation.]" Martens, 347 Ill.

App. 3d at 318-19.

In Martens, the general contractor could make safety

recommendations but could not demand that the subcontractor's

employees comply with a safety standard that exceeded the OSHA

requirement. In contrast, Cambridge could require compliance with

its safety standards and stop the work if RCI's employees were

violating its safety rules. We note that "our courts take a dim

view of 'culling passages from opinions and incorporating them

into instructions. Costa v. Dresser Industries, Inc., 268 Ill.

App. 3d 1, 12, 642 N.E.2d 898 (1994), quoting People v. Bush, 157

34
No. 1-05-3526

Ill. 2d 248, 256, 623 N.E.2d 1361 (1993). Moreover, the Martens

court's cite to the pattern instructions on construction

negligence does not suggest that the court intended its decision

to mean that the pattern instruction no longer reflected an

accurate statement of the law.

We conclude that the trial court did not abuse its

discretion in refusing Cambridge's non-IPI instructions.

VI. Special Interrogatory

A. Standard of Review

A trial court's denial of a request for a special

interrogatory presents a question of law and is reviewed de novo.

Hooper v. County of Cook, 366 Ill. App. 3d 1, 6, 851 N.E.2d 663

(2006); 735 ILCS 5/2-1108 (West 2004).

B. Discussion

The giving of special interrogatories is governed by section

2-1108 of the Code of Civil Procedure, which provides in

pertinent part as follows:

"Unless the nature of the case requires otherwise, the

jury shall render a general verdict. The jury may be

required by the court, and must be required on request of

any party, to find specially upon any material question or

questions of fact submitted to the jury in writing. Special

interrogatories shall be tendered, objected to, ruled upon

and submitted to the jury as in the case of instructions.

*** When the special finding of fact is inconsistent with

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No. 1-05-3526

the general verdict, the former controls the latter and the

court may enter judgment accordingly." 735 ILCS 5/2-1108

(West 2004).

A trial court has no discretion but to submit to the jury a

special interrogatory, requested by a party, as long as it is in

the proper form. Northern Trust Co. v. University of Chicago

Hospitals & Clinics, 355 Ill. App. 3d 230, 251, 821 N.E.2d 757

(2004). "A special interrogatory is in [the] proper form if (1)

it relates to an ultimate issue of fact upon which the rights of

the parties depend, and (2) an answer responsive thereto is

inconsistent with some general verdict that might be returned."

Northern Trust Co., 355 Ill. App. 3d at 251. "The required

inconsistency arises when the special interrogatory is '"clearly

and absolutely irreconcilable with the general verdict."'"

Northern Trust Co., 355 Ill. App. 3d at 251, quoting Simmons v.

Garces, 198 Ill. 2d 541, 556, 612 N.E.2d 85 (2002), quoting

Powell v. State Farm Fire & Casualty Co., 243 Ill. App. 3d 577,

581, 612 N.E.2d 85 (1993). "If a special interrogatory does not

cover the issues upon which the jury is called to render a

decision and a '"reasonable hypothesis"' is left unaddressed that

would allow the special interrogatory to be construed

consistently with the general verdict, the special interrogatory

is not 'absolutely irreconcilable' with the general verdict, is

improper in form, and thus, may not be submitted to the jury."

Northern Trust Co., 355 Ill. App. 3d at 251, citing Simmons, 198

36
No. 1-05-3526

Ill. 2d at 556, citing Powell, 243 Ill. App. 3d at 581. Finally,

a special interrogatory that is repetitive, misleading,

confusing, or ambiguous is not in proper form. Blakey v. Gilbane

Building Corp., 303 Ill. App. 3d 872, 882, 708 N.E.2d 1187

(1999).

Cambridge tendered the following special interrogatory:

"Did DRH Cambridge Homes, Inc. retain control over the

means and methods or the operative detail of Residential

Carpentry, Inc. and/or the plaintiff?"

In determining whether a special interrogatory meets the

criteria of being in the proper form, the court should consider

the language of the special interrogatory within the context of

all of the jury instructions. Johnson v. Owens-Corning Fiberglas

Corp., 313 Ill. App. 3d 230, 236, 729 N.E.2d 883 (2000). In this

case, the instructions to the jury referred to control over

safety while the special interrogatory referred only to control

over the work. We agree with the plaintiff that the special

interrogatory was confusing and ambiguous when considered in

connection with the other instructions given to the jury.

More significantly, even if it had answered Cambridge's

special interrogatory negatively, the jury still could have

concluded that Cambridge, by virtue of its ability to stop the

work if RCI violated Cambridge's safety rules, retained control

of the safety issues, rendering it liable to the plaintiff.

Therefore, the special interrogatory was not absolutely

37
No. 1-05-3526

irreconcilable with the general verdict. Therefore, the trial

court was correct in refusing to submit the special interrogatory

to the jury.

Following the issuance of the original disposition in this

case, the plaintiff filed a petition for rehearing requesting

that this court affirm the damages award in this case and limit

the retrial of this case to the issue of liability. The

plaintiff argued that the retrial in this case should be limited

to liability only since Cambridge did not raise any issue as to

damages in its appeal.

Pursuant to Supreme Court Rule 367(d) (210 Ill. 2d R.

367(d)), this court ordered RCI and Cambridge to answer the

petition for rehearing. In their responses, both Cambridge and

RCI argued that because the trial court granted RCI's motion for

a directed verdict, RCI never had the opportunity to offer jury

instructions and to argue the question of damages to the jury.

The plaintiff argues that RCI never challenged the damages

evidence at trial.

This court has held that "[a]n appellate court should limit

the issues to be resolved on retrial only where it is plain that

any error that has crept into one element of the verdict did not

affect the determination of any other issue." Phillips v.

Gannotti, 327 Ill. App. 3d 512, 521, 763 N.E.2d 820 (2002). "A

limited retrial should not be granted if it might be prejudicial

to either party." Phillips, 327 Ill. App. 3d at 521; see

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No. 1-05-3526

Glassman v. St. Joseph Hospital, 259 Ill. App. 3d 730, 769, 631

N.E.2d 1186 (1994) (a retrial limited to damages is appropriate

only if the questions of liability and damages are so separate

and distinct that a retrial only as to damages is not unfair).

In Ready v. United/Goedecke Services, Inc., 367 Ill. App. 3d

272, 854 N.E.2d 758 (2006), appeal allowed, 222 Ill. 2d 600, 861

N.E,2d 664 (2006), this court limited the retrial of the case to

the issue of liability where the defendant-appellant failed to

raise an issue on appeal as to the amount of damages awarded.

Likewise, in the present case, Cambridge never argued on appeal

that the damages were excessive. However, unlike Ready, this

case involves another defendant, RCI, which was an appellee in

this appeal.

After considering the parties' arguments and the authorities

cited in support thereof, we conclude that the effect of the

reversal of the directed verdict in its favor and a remand for a

new trial, if limited to liability, would be to deny RCI its

right to argue the damages issue. Therefore, in the interests of

fairness and a just result, we direct that the retrial of this

case include both liability and damages issues.

The directed verdict in favor of RCI is reversed. The cause

is remanded for a new trial on both liability and damages,

consistent with the views expressed in this opinion.

Reversed and remanded with directions.

SOUTH and KARNEZIS, JJ., concur.

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