Oldenstedt v. Marshall Erdman and Associates, Inc.

FIRST DIVISION
March 3, 2008

No. 1-05-1700

WILLIAM OLDENSTEDT, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
MARSHALL ERDMAN AND ASSOCIATES, INC. )
) No. 00 l 1933
Defendant-Appellant, )
)
)
) The Honorable
(Brongiel Plumbing, ) James Varga,
) Judge Presiding.
Third-Party Defendant-Appellee). )

JUSTICE GARCIA delivered the opinion of the court.

The plaintiff, William Oldenstedt, sued the defendant,

Marshall Erdman & Associates, Inc. (Erdman), after he injured his

back at a construction site. At the time of the injury,

Oldenstedt was employed by third-party defendant Brongiel

Plumbing (Brongiel), with which Erdman had subcontracted. The

trial court granted Brongiel's motion for a directed verdict and

the jury subsequently returned a verdict in Oldenstedt's favor.

On appeal, Erdman contends it is entitled to a new trial because

Oldenstedt's rebuttal closing argument was "slanderous and

grossly prejudicial," the trial court erroneously instructed the

jury, and the trial court erroneously refused Erdman's special
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interrogatories. Erdman also contends the trial court erred in

granting Brongiel's motion for a direct verdict.

BACKGROUND

Erdman is a construction company specializing in the

designing and building of medical facilities. In 1996, Erdman

was hired as the general contractor in a small construction

project underway at Little Company of Mary Affiliated Services,

Inc. (Little Company), in Evergreen Park. The design/build

contract drafted by Erdman and entered into by Erdman and Little

Company (the Erdman-Little Company contract) contained the

following provisions.

"ARTICLE 20

Subcontractors

*** [Erdman] shall be responsible to

[Little Company] for all acts and omissions

of subcontractors of all tiers and their

employees. [Erdman] shall also be responsible

for the construction of [Erdman's] work and

the work of all subcontractors including, but

not limited to, all suppliers and

materialmen.

ARTICLE 21

Covenants of Designer/Builder

21.1 [Erdman] shall supervise and direct

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the Work, using his best skill and attention.

[Erdman] shall be solely responsible for all

construction means, methods, techniques,

sequences and procedures and for coordinating

all portions of the Work under the Contract

Documents. ***

* * *

21.7 [Erdman] shall be responsible for

initiating, maintaining and supervising all

safety precautions and programs in connection

with the Project.

* * *

21.9 [Erdman] shall erect and maintain,

as required by existing conditions and

performance of the Contract Documents, all

reasonable safeguards for safety and

protection, including posting danger signs

and other warnings against hazards,

promulgating, safety regulations and

notifying owners and users of adjacent

utilities."

Erdman subcontracted with Brongiel to provide plumbing

services on the Little Company project. The subcontract between

Erdman and Brongiel provided as follows.

"1. [Brongiel] agrees to furnish and

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provide all work, labor, materials,

supervision and whatsoever else may be

required to fully do, perform and complete,

and will complete without any exceptions

(unless specifically noted in this

Subcontract), in a neat, first-class, good

and workmanlike manner, the following

described work:

Furnish and install a complete plumbing

system ***.

* * *

18. Safety: [Brongiel] agrees to

observe and comply with all provisions and

requirements of the Occupational Safety and

Health Act of 1970 in performance of the work

under this Subcontract, to assume all

responsibilities of [Erdman] with respect to

the work under this Subcontract and to

indemnify and hold harmless [Erdman] from all

penalties, damages or other loss resulting

from failure of [Brongiel] in performance of

this Subcontract to comply with the

Occupational Safety and Health Act of 1970

and the responsibilities with respect to such

performance."

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William Oldenstedt was a plumbing foreman for Brongiel at

the Little Company project. On July 22, 1996, Oldenstedt injured

his back unloading a toilet from a rolling Dumpster. Oldenstedt,

a smoker who was overweight and suffered from other health

conditions, was eventually referred to a neurosurgeon.

Oldenstedt presented with preexisting degenerative disc

disease and was diagnosed with L4-L5 disc herniation with

intractable right L5 radiculopathy. On March 17, 1997,

Oldenstedt underwent surgery at the L4-L5 site. The surgery,

however, only temporarily relieved his pain.

On June 24, 1999, Oldenstedt and his wife filed case number

99 L 4642, a 12-count complaint against Erdman and Little Company

alleging negligence and loss of consortium. That suit was

dismissed, and, on February 17, 2000, Oldenstedt and his wife

filed case number 00 L 1933 against Erdman and Little Company.

Mrs. Oldenstedt later dropped her loss of consortium claims, and

Oldenstedt and Little Company settled. Erdman filed a third-

party complaint for contribution against Brongiel.

On November 22, 2004, Oldenstedt filed a two-count second-

amended complaint. He subsequently filed a one-count third-

amended complaint alleging construction negligence against

Erdman.

A jury trial commenced on December 1, 2004. William

Oldenstedt testified that shortly after he arrived at the Little

Company project on July 22, 1996, a Brongiel truck arrived with

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plumbing fixtures, including sinks and toilets. The driver of

the truck helped Oldenstedt unload the fixtures onto the parking

lot.

Edward "Butch" Colbert, Erdman's superintendent at the

project, told Oldenstedt to move the fixtures to a second-floor

storage room. Oldenstedt asked the Brongiel driver whether he

had a platform or device Oldenstedt could use to transport the

fixtures. The driver did not. Oldenstedt then asked Colbert

whether he had an appropriate device. Colbert told Oldenstedt to

use one of the rolling Dumpsters at the site that belonged to

Little Company. Unbeknownst to Oldenstedt, there were at least

two dollies at the site.

Oldenstedt did as Colbert instructed. While he was

unloading a 50-pound handicap-accessible toilet from the

Dumpster, he felt his feet slipping. Oldenstedt fell head first

into the Dumpster and felt pain in his back and leg. When he was

able to pull himself out of the Dumpster, Oldenstedt noticed a

substance on the floor that looked like sand or grit.

It was the job of Steven Bunge, an Erdman project manager,

to ensure quality and safety at the jobsite. Bunge was

questioned about the Erdman-Little Company contract, including

those portions stated above. Erdman also had its own safety

rules in effect in 1996, and each subcontractor was required to

have in place its own safety policies and procedures. Bunge also

testified that in his education, training, and experience, each

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subcontractor was primarily responsible for the safety of its

employees. Erdman, however, had a responsibility to keep the

jobsite clean and free of debris.

According to Bunge, Butch Colbert, as superintendent, was

responsible for supervising, directing, and otherwise controlling

the subcontractors' work. Colbert did not dictate the "means or

methods" of that work, but had the right to stop the work if an

unsafe practice was occurring. Colbert was also required to

conduct daily safety inspections at the site and document the

inspection by filling out a form.

John Hetland, an Erdman senior project manager, also

testified. According to Hetland, a subcontractor foreman was

responsible for ensuring his or her own safety, as well as the

safety of his or her crew, and was responsible for providing safe

tools. Hetland was familiar with the Erdman safety rules and was

aware that Erdman, through its superintendent, was to conduct

regular safety meetings with subcontractors on its jobsites.

Hetland additionally testified it was Colbert's duty as project

superintendent to keep a record of all safety meetings and to

document all safety inspections. Hetland, however, did not know

whether any such meetings or inspections took place at the Little

Company project and did not know where any such documentation was

or why it was not tendered to Oldenstedt's attorney. According

to Hetland, it would be contrary to Erdman's policies to discard

documents that might be relevant to a lawsuit.

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Oldenstedt's attorney also questioned Ronald Wanke, Erdman's

safety director, about the missing safety documentation. Wanke

testified he did not know when any forms related to the Little

Company project were disposed of, including whether they were

disposed of before or after Oldenstedt filed suit. Wanke also

explained Erdman adhered to a three-year document retention

policy. Although Wanke did not know when Oldenstedt's suit was

filed, he did not dispute the representation made by Erdman's

attorney that suit was filed in 2000.

Butch Colbert testified that two dollies were on site at the

Little Company project and that it was common practice in the

construction industry for the employee of a subcontractor to use

tools belonging to the general contractor. Colbert also

testified he had no recollection of telling a Brongiel employee

to use a Dumpster to move a toilet.

Peter Cucuz, a liability expert retained by Oldenstedt,

testified that in his opinion, to a reasonable degree of

certainty within the field of construction, the Erdman-Little

Company contract indicated Erdman was in control of the project.

Timothy Galarnyk, a liability expert retained by the defendant,

opined it was Oldenstedt's responsibility as Brongiel's foreman

to provide the devices to transport the plumbing fixtures and

that Oldenstedt and Oldenstedt alone was responsible for his

injuries.

Regarding Brongiel's liability on Erdman's counterclaim,

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Ronald Wanke testified he did not see any documentation

indicating Brongiel did anything wrong. Peter Cucuz additionally

opined that, based on all the documents he reviewed in the case,

Brongiel "did absolutely nothing wrong." Timothy Galarnyk, like

Cucuz, testified Brongiel "did absolutely nothing wrong."

After the completion of the evidence, the trial court

addressed Brongiel's motion for a directed verdict on Erdman's

counterclaim. The court asked any party to "point to some

evidence, because [it did not] see any [supporting the

counterclaim]." While counsel for Erdman objected to the

granting of a directed verdict for Brongiel, she did not argue

that sufficient evidence had been presented. Rather, she argued

that, "if there's no negligence on behalf of Brongiel Plumbing

***, we also would have no negligence in this matter." The trial

court granted the motion.

The jury instruction conference next took place, and the

parties gave their closing arguments. After deliberating, the

jury returned a verdict in favor of Oldenstedt in the amount of

$1,202,093.60, but reduced the award by 35% to $781,360.84 due to

Oldenstedt's negligence. The trial court entered judgment on the

verdict, but subsequently reduced the award by $10,000, the

amount of the settlement between Oldenstedt and Little Company.

Erdman's motion for a new trial was denied, and this timely

appeal followed.

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ANALYSIS

I. Rebuttal Closing Argument

Erdman contends Oldenstedt's rebuttal closing argument

amounted to a "diatribe" that denied it a fair trial.

In his opening closing argument, counsel for Oldenstedt

argued that Oldenstedt was a hard-working man who was asking for

a "fair shake." Counsel argued the evidence demonstrated Erdman

had contractual control of the work and that Butch Colbert

instructed Oldenstedt to move the plumbing fixtures with the

Dumpster. Counsel also argued that Oldenstedt was credible and

Erdman's evidence was not.

In her closing argument, counsel for Erdman went beyond

merely arguing that Oldenstedt was not credible; she repeatedly

urged that Oldenstedt "lied," including about how the accident

occurred. Counsel also argued that Oldenstedt was more than 50%

at fault. Counsel also sought to explain Erdman's lack of safety

documentation for the date of claimed accident:

"Now, why don't they have the document?

Because this happened in 1996. And, first of

all, they were never notified of the

incident. Second of all, there was no

lawsuit filed until 1999, which was more than

three years after they would have been

notified; and it was their policy to get rid

of documents."

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In rebuttal, Oldenstedt's attorney turned the claim of

"liar" on Erdman.

"Who's lying? Let me tell you who's

lying. Remember she just told you that this

lawsuit was filed more than three years after

this happened? That's a lie. Here it is:

June 24th, 1999, less than three years. And

why does that matter? Because they were

supposed to keep their records three years.

So you know what happened? They got

sued. Picture this: Marshall Erdman &

Associates, Incorporated. Picture the

boardroom at this corporation, the CEO, the

CFO, the CPO, the CEA, whatever the heck they

are. And somebody says, 'What's on the

agenda?'

'I've got something on the agenda.

'What is it?

'We got sued by this [man] in Chicago.

'What happened?

'Well, back in '96, this guy got hurt

and we were hoping it would go away and it

didn't. He sued us.

'Well, what do we do? What do we know

about it?

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'Well, we've got the incident report

that Butch filled out at the time. But you

know what we don't have? We don't have any

of the forms, the safety forms we're supposed

to have. What are we going to do?

'Well, we've got two choices. One, we

can step up and do the right thing. Or two,

we can try to crush this guy.'

So what does the corporation decide to

do? Crush him. Step one, throw out all the

documents. Throw them out because then they

wouldn't be able to show--And then we'll

attack him and say, We don't have any record

it happened.

Number two, let's hire--you know, the

law firm this guy hired is just this one guy,

Wadington. Let's hire a firm in Chicago with

about nine names and destroy this guy because

that's what corporations try to do. And

that's what happened here. Okay? Let's hire

a 10,000-dollar expert, God know how many

other thousand-dollar experts. And you know

what they forgot? Here's what they forgot:

They underestimated the intelligence of a

Cook County jury. Okay?

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I'm not attacking Ms. Goggin-Ward

[Erdman's counsel] personally. She's just

the messenger. But the message is insidious:

A corporation trying to crush that guy, and

it only happens if you let them. Okay. If

they didn't know it happened, do you think

they would have spent 10,000 bucks on Kanter

and God knows how may thousand bucks on Zelby

because if it didn't happen, you never get to

damages. Make sense?

* * *

Somebody is lying here. Here's the

document that shows who's lying. They got

sued within the time they're supposed to have

the documents: June 24th, 1999. Not what she

told you but less than three years. And so

what do corporations do? They attack him.

They try to crush him. They try to make him

a liar. It didn't work. He didn't lie once.

* * *

Who's lying? You want to call my guy a

liar, I'm coming after you. You,

Corporation, in Cook County want to call a

working man a liar, I'm coming after them

because Chicago is a working man's town. And

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corporations can't be allowed to get by with

this. And only, only if your verdict is

fully just will corporations like this learn

that you can't do that in Chicago. You can't

do that to guys like this. They live their

whole life, they ask nothing of the system.

And the one time they do, the corporate

boardroom decides to smash them.

Please hear the truth and don't let them

do that. Here's the truth. Here's the lie

(indicating).

Thank you."

Because Erdman's claim of error regarding the rebuttal

argument is based on the absence of supporting record evidence

and the prejudicial nature of the argument itself, we address its

claim of error in two parts.

A. No Evidentiary Support

First, Erdman argues that Oldenstedt's counsel improperly

argued in rebuttal that the lawsuit had been filed on June 24,

1999, thus placing Erdman on notice within its three-year

document retention period for safety forms based on the date of

the claimed accident of July 22, 1996. In its main brief, Erdman

states, "However, it is the date of service *** that establishes

Erdman's knowledge of this lawsuit, and there is no record

evidence regarding *** when [] Erdman was served." (Emphasis in

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original.)

To preserve its claim of error that there is no record

evidence to establish the date Erdman became aware of the lawsuit

to trigger the retention of its safety documents, trial counsel

for Erdman should have objected. See Bulleri v. Chicago Transit

Authority, 41 Ill. App. 2d 95, 104, 190 N.E.2d 476 (1963)

(finding it improper for counsel to argue to the jury facts in

his own knowledge, not testified to by any witness). Because no

objection was made, the claim is waived. Simmons v. University

of Chicago Hospitals & Clinics, 162 Ill. 2d 1, 12, 642 N.E.2d 107

(1994).

However, our resolution of this claim of error is not based

solely on waiver. We note that it was Erdman's trial counsel

that first mentioned the date of 1999 during its closing

argument: "[T]here was no lawsuit filed until 1999, which was

more than three years after they would have been notified; and it

was [Erdman's] policy to get rid of documents." To rebut

Erdman's claim that the filing of the lawsuit was more than three

years after Oldenstedt's injury, Oldenstedt's counsel argued that

the accident happened on July 22, 1996, and that the a complaint

was filed against Erdman on June 24, 1999. (The only one in the

record that was filed in 1999.)

Even in the absence of waiver, we would find no reversible

error. To the extent Erdman argued that the filing of the 1999

lawsuit was more than three years after the accident, we reject

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any claim of error based on an Oldenstedt's argument in rebuttal

that directly challenged the argument advanced by Erdman. "Our

decisions have repeatedly held that a defense attorney cannot

provoke a reply to his own improper argument and then claim

error." Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226,

246, 529 N.E.2d 525 (1988).

B. Prejudicial Nature

The second part of Erdman's claim of error is based on the

prejudicial nature of the rebuttal argument. We find this more

substantial.

Erdman complains that Oldenstedt's counsel "explicitly

accus[ed] Erdman of deliberately discarding the safety

documentation in order to 'crush' and 'smash' plaintiff.

Plaintiff did this by describing an illusory 'meeting' of

Erdman's directors where they chose to throw out the safety

documentation and attack plaintiff for even filing suit." Erdman

further contends that Oldenstedt's argument, that a Cook County

jury would not be so easily swayed by the destruction of

documents that would have supported Oldenstedt's claim that he

was injured on the job, amounted to an effort "to whip the jury

into a frenzy, to incite the jury into a blind rage, all so that

the jury, in an act of vengeance, would convict Erdman."

According to Erdman, the incitement to a frenzy also was the

product of Oldenstedt's argument that Erdman "underestimated the

intelligence of a Cook County jury," that "Chicago is a working

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man's town," that "corporations can't be allowed to get by with

this. And only, only if your verdict is fully just will

corporations like this learn that you can't do that in Chicago,"

and "[y]ou can't do that to guys like this."

Because Erdman's trial counsel did not object, Erdman

asserts the plain error exception to the waiver rule.

Oldenstedt, in addition to waiver, contends his rebuttal

argument "merely responded to Erdman's counsel's slanderous

attack, making fair comment upon the actual evidence and

testimony to make it clear that the only party that was not being

forthcoming with the jury was Erdman." Oldenstedt contends in

his brief that on "no less than nine separate occasions" Erdman

either directly or indirectly called Oldenstedt a liar. Some

examples include:

"[T]he plaintiff, William Oldenst[e]dt, has

not told the truth about what he did or did

not do on July 22 of 1996 at Little Company

of Mary Hospital. Nor has be told the truth

about any back condition or conditions he may

or may not have sustained on, before, during,

or after that date."

"[T]he plaintiff, William Oldenst[e]dt, is

not to be believed."

"[W]e know the plaintiff lied about how he

testified this accident happened. We just

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know that."

"[T]he accident plaintiff describes was

physically and scientifically impossible to

have happened that way."

"[P]laintiff lied. Pure and simple, he faked

it."

A counsel's failure to object to claimed prejudicial

comments during closing argument will generally waive the issue

for review. Simmons, 162 Ill. 2d at 12. However, in some cases,

a reviewing court may find plain error sufficient to overcome the

waiver bar. In the context of closing arguments, our supreme

court has explained:

"If prejudicial arguments are made without

objection of counsel or interference of the

trial court to the extent that the parties

litigant cannot receive a fair trial and the

judicial process stand without deterioration,

then upon review this court may consider such

assignments of error, even though no

objection was made and no ruling made or

preserved thereon." Belfield v. Coop, 8 Ill.

2d 293, 313, 134 N.E.2d 249 (1956).

The supreme court has instructed reviewing courts, when

applying the Belfield test, to "strictly apply the waiver

doctrine unless the prejudicial error involves flagrant

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misconduct or behavior so inflammatory that the jury verdict is a

product of biased passion, rather than an impartial consideration

of the evidence." Gillespie v. Chrysler Motors Corp., 135 Ill.

2d 363, 375-76, 553 N.E.2d 291 (1990).

On the record before us, we need not decide whether

Oldenstedt's rebuttal argument was within the proper bounds of a

response to the closing argument made by Erdman. It is clear on

the record that this was a contentious trial, with each party

challenging the veracity of the other. Such matters, where

neither party is blameless for the escalating nature of the

attacks, are best left to the trial judge to address. See Torrez

v. Raag, 43 Ill. App. 3d 779, 357 N.E.2d 632 (1976) (no abuse of

discretion found in trial court granting new trial because trial

court is in a better position to determine the prejudicial effect

of defense counsel's remarks on the jury).

Of course, the trial judge, except in the most rare of

cases, must be presented with an objection in order to intercede.

As Erdman did not object, we need only decide whether

Oldenstedt's rebuttal argument involved such flagrant misconduct

or inflammatory behavior that the waiver bar is overcome. In

order to so find, we must conclude that the complained-of

portions of Oldenstedt's rebuttal argument resulted in such

prejudice to Erdman that it was denied "a fair trial and

substantially impaired the integrity of the judicial process

itself." (Emphasis in original.) Gillespie, 135 Ill. 2d at 377.

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Thus, to invoke plain error, it is not enough for Erdman to

claim that Oldenstedt's story of an Erdman board meeting where

Erdman executives opted to "crush" Oldenstedt by "throw[ing] out

all the documents" was not based on the evidence at trial, or

that the rebuttal argument "created evidence out of whole cloth."

Rather, we must determine whether the rebuttal argument

undermined the judicial process itself. We must examine the

rebuttal argument in context, keeping in mind the nature of the

argument put forth by Erdman. See People v. Wheeler, 226 Ill. 2d

92, 122, 871 N.E.2d 728 (2007).

The record suggests that Oldenstedt's reference to a mock

board meeting at Erdman was made in response to Erdman's own

contentions that Oldenstedt was a liar and Erdman's

representation that it had no knowledge of the accident until

after the safety documents were disposed of. While Erdman

maintains that the jury might have been misled by the rebuttal

argument into believing that such a board meeting actually took

place, we do not agree. As Erdman rightly contends, the record

is barren of any evidence that such a corporate meeting took

place; the absence of any such evidence persuades us that the

jury was not so easily swayed to believe that Oldenstedt's

rebuttal argument was meant to suggest that such a meeting

actually occurred. See Pomrenke v. Betzelberger, 41 Ill. App. 2d

307, 316, 190 N.E.2d 522 (1963) ("we do not believe that our

juries should be regarded as a class of persons easily deceived

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or misled").

In addition, Oldenstedt's argument regarding the mock

meeting was prefaced with "Picture this," making clear that what

followed was a response to Erdman's contention that no accident

took place, that Oldenstedt's claim of injury was false, that he

lied. It was Oldenstedt's contention that the safety records, no

longer in existence, would have supported his claim. It is

apparent that Oldenstedt's argument regarding the mock Erdman

meeting where the destruction of the safety records was discussed

was the flip side of Erdman's argument that Oldenstedt lied about

the accident itself. See Lewis v. Cotton Belt Route-Saint Louis

Southwestern Ry. Co., 217 Ill. App. 3d 94, 122, 576 N.E.2d 918

(1991) (argument "that the jury should 'stand up and be counted'

and 'not to let the [defendant and its expert] get away with

things that have been happening' [was found] to be fair response

on rebuttal to defendant's argument in support of its defense of

physical impossibility and of plaintiff's credibility with regard

to his alleged injury. Therefore, these comments were also based

on the evidence ***").

We are aware of no authority that compels Oldenstedt, before

responding to Erdman's claim that Oldenstedt was a liar, to limit

himself to the record of "supporting evidence [of such] a

'meeting' of Erdman's board of directors in which plaintiff's

lawsuit was discussed" (emphasis omitted) before he is permitted

to respond in kind. While two improper arguments may not make a

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right result, we cannot say that Oldenstedt's argument would have

been made had Erdman not challenged Oldenstedt's testimony in the

manner in which it did. See Moore v. Centreville Township

Hospital, 246 Ill. App. 3d 579, 590, 616 N.E.2d 1321 (1993),

rev'd on other grounds, 158 Ill. 2d 543, 634 N.E.2d 1102 (1994)

("Although two improper arguments do not a make a right result

[citation], a party may not claim error based on invited

remarks").

We do not suggest, however, that had Oldenstedt's rebuttal

argument been challenged by a timely objection, such an objection

should have been overruled. See, e.g., Simmons, 162 Ill. 2d at

12-13. The trial judge was in a better position to determine

that question. See Torrez v. Raag, 43 Ill. App. 3d 779, 783, 357

N.E.2d 632 (1976) (trial court in a superior position to gauge

prejudicial effect of an improper closing argument); Moore, 246

Ill. App. 3d at 590 (new trial motion claiming plain error is

within trial court's discretion, as it is in the best position to

assess prejudice).

We only decide that, on the record before us, Erdman's claim

of error based on Oldenstedt's rebuttal argument does not rise to

plain error. See Holder v. Caselton, 275 Ill. App. 3d 950, 657

N.E.2d 680 (1995) ("hometown" doctor theme in opening,

examination of witness, and closing argument did not meet

stringent standard of plain error to warrant reversal); Bruske v.

Arnold, 44 Ill. 2d 132, 137, 254 N.E.2d 453 (1969) (statements

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made in closing were improper, but did not rise to level of

prejudice contemplated in Belfield). As our supreme court made

clear in Gillespie, the cases in which it applied the Belfield

standard and granted a new trial "involved blatant

mischaracterizations of fact, character assassination or base

appeals to emotion and prejudice," resulting in a deterioration

of the judicial process. Gillespie, 135 Ill. 2d at 377. This is

not such a case.1

II. Jury Instructions/Special Interrogatories

Erdman next contends the trial court improperly instructed

the jury and improperly refused two special interrogatories.

A. Jury Instructions

Whether to give or deny a particular jury instruction is

within the discretion of the trial court. Dillon v. Evanston

Hospital, 199 Ill. 2d 483, 505, 771 N.E.2d 357 (2002). We review

the trial court's exercise of discretion to determine "whether,

taken as a whole, the instructions are sufficiently clear so as

not to mislead and whether they fairly and correctly state the

1
We also note that the jury found Oldenstedt 35% negligent

for his injuries, supporting that the jury decided this case on

the evidence, contrary to Erdman's claim that the jury was

incited into a "blind rage" to seek "vengeance" by Oldenstedt's

rebuttal argument.

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law." Dillon, 199 Ill. 2d at 505.

At the jury instruction conference, the parties disputed the

applicability of the so-called "construction negligence

instructions" (Illinois Pattern Jury Instructions, Civil, Nos.

55.01, 55.02, 55.03 (2006) (hereinafter IPI Civil (2006)).

Oldenstedt's attorney advocated their use, while Erdman's counsel

argued the general premises liability instruction (IPI Civil

(2006) No. 120.09) was applicable. Erdman's attorney

eventually informed the court that she was objecting "to any of

the 55 instructions being used," but because the trial court had

ruled against her, the parties had "reached [an] agreement *** to

[the] language," which slightly modified the IPI language.

Accordingly, the court instructed the jury as follows:

"A contractor who entrusts work to a

subcontractor can be liable for injuries

resulting from the work if the contractor

retained control over the methods and/or

means of the work and the injuries were

proximately caused by the contractor's

failure to exercise that control with

ordinary care to ensure workers' safety."

See IPI Civil (2006) No. 55.01.

"A party who has retained control over

the methods and/or means of the work has a

duty to exercise that control with ordinary

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care to ensure workers' safety."

See IPI Civil (2006) No. 55.02.

"Plaintiff William Oldenstedt seeks to

recover damages from defendant Marshall

Erdman & Associates. In order to recover

damages, the plaintiff has the burden of

proving (1), the defendant retained control

over the methods and/or means of the work;

(2), the defendant acted or failed to act in

one or more of the following ways: [(A)]

Failed to provide Bill Oldenst[e]dt with a

two-wheeled cart/dolly to move the plumbing

fixtures. (B), provided Bill Oldenst[e]dt

with a [D]umpster to move the plumbing

fixtures. (C), failed to inspect the storage

room before directing Bill Oldenst[e]dt to

place the fixtures there. (D), failed to

inform Bill Oldenst[e]dt [that] there were

two-wheeled cart/dollies on the job site.

(E), failed to remove the waste or debris

from the storage room floor. (F), failed to

provide the proper lighting in the storage

room. (G), failed to provide an Erdman

carpenter or laborer to assist Bill

Oldenst[e]dt in moving the fixtures and, in

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so acting or failing to act, was negligent in

the manner which it exercised or failed to

exercise its control to ensure workers'

safety. (3), plaintiff Bill Oldenst[e]dt was

injured. (4), the defendant's negligence was

a proximate cause of plaintiff's injuries."

See IPI Civil (2006) No. 55.03.

Erdman argues the language of the Erdman-Little Company

contract was insufficient as a matter of law to support a finding

that Erdman retained control over the method and means of the

work of the project. Erdman argues the jury should have been

instructed about the contract's insufficiency.

This contention fails. First, Erdman, by failing to tender

alternative instructions, has waived this issue for review.

Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 549, 475 N.E.2d

817 (1984).

Second, any error that may have occurred was invited by

Erdman. After the trial court determined the IPI, Civil, 55

series (IPI Civil (2006) No. 55.00 et seq.) were applicable in

this case, Erdman's attorney informed the court she "reached

agreement" with Oldenstedt's attorney regarding the language to

be used. Because Erdman's attorney acquiesced to the language of

the instructions, Erdman cannot complain of it on appeal.

"Simply stated," the doctrine of invited error prohibits a party

from complaining of an error on appeal "which that party induced

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the court to make or to which that party consented." In re

Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283 (2004).

Finally, it bears noting that one of the complained-of

instructions, IPI Civil (2006) No. 55.03, was submitted to the

jury in a manner that undoubtably favored Erdman's defense. The

instruction given omitted the word "or" between the allegations

contained in subparagraphs (A) through (G). Thus, the jury was

instructed that it was required to find that Oldenstedt met his

burden of proof as to all of the allegations contained in those

subparagraphs, rather than to only one of them.

In sum, we find no reversible error occurred where trial

counsel not only failed to proffer alternative instructions at

trial, but where a given instruction, presumably in accordance

with the agreement reached by counsel, substantially favored the

defense.

B. Special Interrogatories

Erdman next contends the trial court erred in rejecting two

of its special interrogatories regarding Erdman's retention of

control. The interrogatories, initially offered, stated:

"[1.] Do you find that Marshall Erdman &

Associates retained control over the means,

methods, and safety of Brongiel Plumbing's

work?

[2.] Do you find that William

Oldenstedt's injuries were proximately caused

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by Marshall Erdman & Associates' failure to

exercise control over the means, methods[,]

and safety of Brongiel Plumbing's work with

ordinary care?"

The trial court refused the interrogatories because it found

the wording of the interrogatories created confusion because the

interrogatories used the word "safety" while the IPI, Civil, 55

series instructions to be given omitted that word and where the

interrogatories referred to Brongiel rather than Oldenstedt. The

following morning, Erdman's attorney again submitted special

interrogatories.2 Oldenstedt's attorney objected to the

interrogatories again because of their wording. Counsel for

Erdman stated, "I understand the concern from the plaintiff's

counsel. I think this could, in fact, be reworded, however."

The court explained:

"You know, I need a case on this. I

warned you about special interrogatories. ***

And, you know, if you're going to ask to

reamend, I don't know how many times I can

keep reamending. You just reamended last

night. You gave them to me late. Go ahead

and make your record. I mean, there's some

2
It is unclear how the special interrogatories read when

resubmitted.

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point where I've got to say, 'You've had a

couple bites out of the apple; you're done.

You're late.' But go ahead. I may let you

do it, okay?"

The revised special interrogatories were submitted and were

again rejected by the court.

As Erdman points out, "a trial court has no discretion to
reject a special interrogatory that is proper in form." Thomas

v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1033, 801

N.E.2d 90 (2003), citing 735 ILCS 5/2-1108 (West 2002). The

trial court does, however, retain a traditional right of

discretionary control over its own docket. See, e.g., People ex

rel. Devine v. Sharkey, 221 Ill. 2d 613, 622, 852 N.E.2d 804

(2006). Despite being given numerous opportunities to do so,

counsel admittedly failed, on numerous occasions, to present

interrogatories that were, according to the trial court, in

proper form. Furthermore, absent a showing on the record before
us that the interrogatories were in proper form, we can find no

reversible error occurred.

III. Directed Verdict for Brongiel

Erdman's final contention is that the trial court erred by

directing a verdict in Brongiel's favor on its counterclaim.

A directed verdict should be granted only where all of the

evidence, when viewed in the light most favorable to the

nonmoving party, so overwhelmingly favors the moving party that

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no contrary verdict can stand. Mulloy v. American Eagle

Airlines, Inc., 358 Ill. App. 3d 706, 712, 832 N.E.2d 205 (2005),

citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510,

229 N.E.2d 504 (1967). A directed verdict should not be granted

where " 'reasonable minds might differ as to inferences or

conclusions to be drawn from the facts presented.' " York v.

Rush-Presbyterian-St. Luke's Medical Center, 222 Ill. 2d 147,
178, 854 N.E.2d 635 (2006), quoting Pasquale v. Speed Products

Engineering, 166 Ill. 2d 337, 351, 654 N.E.2d 1365 (1995).

Our standard of review is de novo. Bermudez v. Martinez

Trucking, 343 Ill. App. 3d 25, 29, 796 N.E.2d 1074 (2003).

In support of its counterclaim, Erdman points to

Oldenstedt's testimony indicating the Brongiel truck driver

delivered the plumbing fixtures, but did not supply any kind of

device to transport them. Erdman contends this testimony

combined with Brongiel's contractual duty to furnish and provide

all work, labor, materials, and supervision "constitutes
sufficient evidence of Brongiel's negligence to have survived a

motion for a directed verdict." Erdman, however, did not raise

this argument at trial when the court specifically asked Erdman's

attorney to "point to some evidence" to support its contribution

claim.

More to the point, while this argument addresses duty and

breach, to avoid a directed verdict, the element of proximate

cause must also be established in a prima facie case. Bermudez,

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343 Ill. App. 3d at 29. "While proximate cause is generally a

question of fact, it becomes a question of law when the facts

alleged indicate that a party would never be entitled to recover.

[Citations.] Accordingly, if the plaintiff fails to establish

the element of proximate cause, he has not sustained his burden

of making a prima facie case and a directed verdict is proper."

Bermudez, 343 Ill. App. 3d at 29-30.
While Erdman does not specifically address the issue of

proximate cause in its brief, Erdman's claim of "sufficient

evidence" is founded on Oldenstedt's testimony that Brongiel did

not provide a moving device when it dropped off the plumbing

fixtures. That testimony is, at best, circumstantial evidence

from which negligence may be inferred. "[C]ircumstantial

evidence is sufficient to establish proximate cause *** as long

as the inference in question may reasonably be drawn from the

evidence." Nowak v. Coghill, 296 Ill. App. 3d 886, 896, 695

N.E.2d 532 (1998).
Erdman's contention, that the failure to provide a "dolly

for [Oldenstedt] to use to move the toilets from the parking lot

into the building" supports an inference of negligence that the

jury may draw to hold Brongiel liable on the counterclaim, fails

to consider that before a trier of fact may be allowed to draw an

inference of negligence based upon circumstantial evidence, "the

circumstances [must be] of a nature and so related to each other

that it is the only conclusion that can be drawn therefrom, and

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mere conjecture, guess, or suspicion is insufficient." Coulson

v. Discerns, 329 Ill. App. 28, 32, 66 N.E.2d 728 (1946).

We do not find an inference of negligence to be the only

conclusion that can be drawn from Oldenstedt's testimony

regarding Brongiel's failure to leave a dolly to allow the jury

to render a verdict on Erdman's counterclaim. Erdman does not

persuade us that it was more probable that Brongiel's failure to
leave a dolly was a proximate cause of Oldenstedt's injuries than

that it was not a proximate cause. See McInturff v. Chicago

Title & Trust Co., 102 Ill. App. 2d 39, 53, 243 N.E.2d 657

(1968), quoting Vance v. Picken, 93 Ill. App. 2d 294, 298, 235

N.E.2d 266 (1968), quoting Celner v. Prather, 301 Ill. App. 244,

227, 22 N.E.2d 347 (1939) (" ' "It cannot be said one fact can be

inferred, when the existence of another inconsistent fact can be

drawn with equal certainty" ' "). We do not agree that an

inference of negligence may reasonably be drawn from Oldenstedt's

testimony, even in the face of Brongiel's contractual duty. We
do not agree that Oldenstedt's testimony is the sort of

affirmative and positive evidence that would justify a jury to

conclude that Brongiel was negligent in that regard. See

McInturff, 102 Ill. App. 2d at 48 (plaintiff's burden to show

"affirmatively and positively" that claimed negligence was

proximate cause of injury).

In fact, the evidence established that a dolly was present

at the shipping area when the plumbing fixtures were delivered.

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Uncontradicted testimony, however, was presented that Erdman's

project superintendent, Colbert, directed Oldenstedt to use the

Dumpster to transport the fixtures. In the face of this

evidence, no reasonable certainty exists that Brongiel's failure

to provide a dolly was a legal cause of Oldenstedt's injury. See

Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416 N.E.2d 328

(1981) ("No liability can exist unless the defendant's alleged
negligence is the legal cause of the plaintiff's injury");

McInturff, 102 Ill. App. 2d at 48 (negligence involved in the

violation of a duty imposed by an ordinance does not impose

liability unless it proximately causes the injury). In fact, the

only affirmative and positive evidence on the issue presented by

the counterclaim came from Ronald Wanke, Peter Cucuz, and Timothy

Galarnyk and that evidence was that Brongiel did nothing wrong.

The circuit court did not err in entering a directed verdict

in favor of Brongiel on Erdman's counterclaim.

CONCLUSION
The judgment of the circuit court of Cook County is

affirmed.

Affirmed.

WOLFSON and R. GORDON, JJ., concur.

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REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
________________________________________________________________
WILLIAM OLDENSTEDT,
Plaintiff-Appellee,
v.
MARSHALL ERDMAN AND ASSOCIATES, INC.
Defendant-Appellant,
and
BRONGIEL PLUMBING,
Third-Party Defendant-Appellee.
________________________________________________________________
No. 1-05-1700

Appellate Court of Illinois
First District, First Division

Filed: March 3, 2008
_________________________________________________________________
JUSTICE GARCIA delivered the opinion of the court.

Wolfson and R. Gordon, JJ., concur.
_________________________________________________________________
Appeal from the Circuit Court of Cook County
Honorable James Varga, Judge Presiding
_________________________________________________________________

For DEFENDANT - Brian A. Schroeder
APPELLANT CASSIDAY SCHADE LLP
20 N. Wacker Drive, Suite 1040
Chicago, Illinois 60606

For PLAINTIFF - Robert N. Wadington
APPELLEE ROBERT N. WADINGTON & ASSOCIATES
111 W. Washington Street, Suite 1460
Chicago, Illinois 60602

For THIRD PARTY J. Michael West
DEFENDANT- MAISEL & ASSOCIATES
APPELLEE 200 N. LaSalle Street, Suite 2000
Chicago, Illinois 60601

34