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

FIRST DIVISION
Date Filed: December 14, 2009

Nos. 1-08-3622 & 1-08-3635 Cons.

JOSE DIAZ and MARIA DIAZ, ) Appeal from the
) Circuit Court of
Plaintiffs-Appellees and ) Cook County.
Cross-Appellants, )
)
v. )
) No. 04 L 2874
LEGAT ARCHITECTS, INC., a )
Corporation, and THE DURANT )
COMPANY, a Corporation, )
)
Defendants )
)
(Boller Construction Company, ) Honorable Clare Elizabeth
Inc., a Corporation, ) McWilliams,
) Judge Presiding.
Defendant-Appellant and )
Cross-Appellee and )
Third-Party Plaintiff- )
Appellant; )
)
Larmco Construction Company, )
)
Third-Party Defendant- )
Appellee and Cross- )
Appellant). )

PRESIDING JUSTICE HALL delivered the opinion of the court:

The plaintiffs, Jose Diaz, and his wife, Maria Diaz, filed

a complaint against defendant Boller Construction Company, Inc.

(Boller), for personal injuries he sustained while working on a

construction site. Boller filed a third-party complaint against

Mr. Diaz's employer, Larmco Construction Company (Larmco),

seeking contribution pursuant to the Joint Tortfeasor

Contribution Act (740 ILCS 100/1 et seq. (West 2004)). The jury
Nos. 1-08-3622 & 3635 Cons.

returned a verdict for the plaintiffs and against Boller. The

jury also returned a verdict for Boller and against Larmco in the

third-party suit. After reducing the award by the percentage of

Mr. Diaz's negligence, the jury awarded Mr. Diaz $1,246,875 and

awarded Mrs. Diaz $50,000 for loss of consortium.

Following the filing of posttrial motions, the trial court

ordered a remittitur of the jury award based on the improper

admission at trial of future medical costs. The trial court

denied the plaintiffs' request to adjudicate Larmco's workers'

compensation lien and granted Larmco's motion to dismiss Boller's

third-party complaint for contribution. After allowing other

setoffs and credits, not at issue in this case, Mr. Diaz's award

was reduced to $1,029,270.06, and Mrs. Diaz's award was reduced

to $47,500, resulting in a total award of $1,076,770.06.

Both Boller and the plaintiffs have appealed from the

judgment in this case. The plaintiffs and Larmco have also filed

cross-appeals. This court ordered the consolidation of the

plaintiffs' and Boller's appeals and the cross-appeals for

purposes of review and decision.1

1
In its cross-appeal, Larmco requested that the plaintiffs'

appeal and cross-appeal and Boller's appeal be denied. In the

alternative, Larmco requested a judgment n.o.v. be entered in its

favor on Boller's third-party complaint or that it be granted a

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Nos. 1-08-3622 & 3635 Cons.

Boller raises the following issues on appeal: (1) whether

Boller's motion for a directed verdict should have been granted

or a judgment n.o.v. entered; (2) whether the trial court erred

in instructing the jury with the pattern construction negligence

instructions; (3) whether trial court errors require a new trial,

either individually or cumulatively; and (4) whether the trial

court erred in granting Larmco's motion to dismiss Boller's

third-party complaint. In their appeal, the plaintiffs contend

that the trial court erred in denying their motion to adjudicate

Larmco's workers' compensation lien. In their cross-appeal, the

plaintiffs contend that the trial court erred in granting the

remittitur. Due to the length of the record in this case, we

will limit our recitation of the facts to the trial testimony

pertinent to the issues raised on appeal.

BACKGROUND

Boller performs general construction and concrete work. It

was one of 17 "prime" contractors hired to perform work on the

Highland Park High School project (the project). Thereafter,

Boller entered into a contract with Larmco to perform the masonry

work on the project.

I. Trial Court Proceedings

A. Liability Testimony

new trial.

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Nos. 1-08-3622 & 3635 Cons.

In March 2002, Mr. Diaz was 53 years of age, and he was

working on the project for Larmco as a laborer. As part of his

duties he would assist in the building of scaffolds. Larmco used

two kinds of scaffolds, either Non-Stops or Morgans.

On March 19, 2002, Mr. Diaz and the other laborers were

working on a Non-Stop scaffold. A laborer named "Al"2 put an

extension on the scaffold. Mr. Diaz explained that, when an

extension was added to a scaffold, it was necessary to put up two

cross braces. A second extension required two more cross braces

and a straight brace at the top. Al told Mr. Diaz that he was

only using one cross brace because there was not a lot of

material.

In the afternoon, Mr. Diaz was working on the scaffolding

with other laborers. There were two types of planks on the

scaffold; one for materials, such as bricks and mortar, and one

used for walking. While he was walking across the scaffold, a

pile of bricks on the material plank broke open and fell on the

bricklayers' plank. Mr. Diaz went back to remove the bricks so

that the bricklayers would not trip over them. When he stepped

on the material plank, it gave way, and he fell. He briefly

2
"Al" was never identified, although it was suggested that

Mr. Diaz was referring to Mr. Allen. However, Mr. Allen was the

foreman, not a laborer.

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Nos. 1-08-3622 & 3635 Cons.

lost consciousness. After he regained consciousness, he was

transported to the hospital. He remained in the hospital over

night and was released the next day.

On cross-examination, Mr. Diaz denied complaining to Al that

there was a problem with the scaffold. However, he acknowledged

that he felt there was something wrong when Al was putting up the

extensions and told him he was going to put up only a single

brace. Mr. Diaz considered the scaffold safe. Mr. Diaz took all

of his instructions from Ed Allen from Larmco. He did not take

any instructions from anyone from Boller. He did not hear any

warning not to step on the plank. He never complained to Mr.

Allen about the scaffold. He did not know whether the lack of

the braces caused his accident.

Miguel Diaz (Miguel)3 testified that he was employed by

Larmco as a laborer and was working with Mr. Diaz on March 19,

2002. One of the material planks holding bricks fell. "Maris,"

one of the bricklayers, told them to be careful. Mr. Diaz

grabbed on to the tower portion of the scaffolding and stepped on

the plank. The plank fell with Mr. Diaz on top of it.

According to Miguel, the laborers took their instructions

for extending the scaffold and as to safety issues from Mr.

Allen. Miguel did not notice anything unusual about the scaffold

3
No relation to the plaintiffs.

5
Nos. 1-08-3622 & 3635 Cons.

prior to the accident. He did not pay any attention to the

position of the planks. Miguel and Mr. Diaz cranked the scaffold

up to about 15 or 20 feet.

Miroslaw Kundzicz testified that he was employed as a

laborer by Larmco. On March 19, 2002, just prior to Mr. Diaz's

fall, Mr. Kundzicz was standing on one of the walking planks and

noticed that one of the material planks was not completely on the

angle iron where it normally rested. About an inch of the plank

was resting on the angle iron. Mr. Kundzicz told the laborers

nearby that the plank was not positioned correctly and warned

them to be careful; he thought Miguel was behind him and would

have heard the warning. After turning back to his work, he heard

the bricks fall to the walking platform. He noticed that the

Boller superintendent was always walking around the project.

On cross-examination by Boller, Mr. Kundzicz testified that

he took all of his orders from Mr. Allen. He took no orders or

directions from Boller. The planks that fell were material

planks. Material planks are not intended for walking. He was

not sure what Mr. Diaz was walking on when he fell. The only

planks that moved prior to the fall were material planks. He

told the laborers that there was something wrong with the planks

because it was their job to fix it.

Francisco Gutierrez testified that he was employed as a

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Nos. 1-08-3622 & 3635 Cons.

machine operator by Larmco. Prior to that, he had been a laborer

and had assisted in assembling Non-Stop scaffolds and adding

extensions to them. On March 19, 2002, he was operating a crane,

lifting up bricks to the scaffolding. After he saw Mr. Diaz

fall, he stopped the crane and went over to where Mr. Diaz was on

the ground. He observed a plank on the ground. When he looked

up at the scaffold, two planks were missing. Based on his

experience, a straight brace would be placed at the top of the

scaffold.

On cross-examination by Boller, Mr. Gutierrez testified that

Mr. Allen directed how the scaffold was to be built. Mr.

Gutierrez had not been trained to assemble that type of scaffold,

but he had assembled them. He had also done pipe scaffolding but

that was different from a Non-Stop scaffold. Mr. Allen would be

the appropriate person to decide where and when straight braces

should be put on the scaffold. Mr. Allen was his foreman; all

the directions and orders came from him. Mr. Gutierrez had no

dealings with Boller. Larmco employees were the only ones to

erect and maintain the scaffold. He did not know what caused the

planks to fall or why Mr. Diaz fell. After Mr. Diaz fell, Mr.

Gutierrez looked up and saw the straight brace was missing. On

redirect examination, Mr. Gutierrez testified that, at the height

of the scaffold in this case, when no cross braces are used, a

7
Nos. 1-08-3622 & 3635 Cons.

straight brace is placed at the bottom and the top of the

scaffold.

Edward Allen, field superintendent for Larmco, testified as

an adverse witness. As a field superintendent, he was in charge

of projects for Larmco. He had taken an OSHA4 course in

scaffolding. At the time of Mr. Diaz's accident, he was a

foreman but was still in charge of supervising the Larmco workers

on the project. OSHA required scaffolds to be built under the

direction and supervision of a competent person. According to

Mr. Allen, he was considered a competent scaffold person. There

were scaffold builders but, as the foreman, he was responsible

for making sure that the scaffolds were erected correctly.

The day following Mr. Diaz's fall, Mr. Allen inspected the

site of the accident in compliance with Larmco's safety manual.

In his report of the accident, he noted that two material planks

had fallen off the scaffold, one of which fell when Mr. Diaz

stepped on it. Mr. Allen acknowledged that there was no straight

arm brace at the top of the scaffold but explained that the Non-

Stop scaffold used here did not require it. He acknowledged

that, at his deposition, he stated that the straight arm brace

was to be placed between the two cross braces. During his

inspection of the scaffold, he observed that five other straight

4
Occupational Safety and Health Act (29 U.S.C. §651 (2000)).

8
Nos. 1-08-3622 & 3635 Cons.

braces were missing. While Mr. Allen stated that the height of

the scaffold in this case did not require a straight brace at

every interval where there was no cross brace, he acknowledged

that, at his deposition, he had stated that the straight braces

were required.

Mr. Allen explained that, as part of his duties, he walked

the jobsite every morning and checked the scaffolds to make sure

they were safe. They had to be checked every day due to changing

conditions, such as the weather. He had checked the scaffolding

the morning of Mr. Diaz's accident. Had he noticed the missing

braces then, he would have ordered that they be installed.

However, he explained that scaffold changes also took place

during the day. Mr. Allen was familiar with the tagging system;

a scaffold would be tagged to indicate it was okay to use or had

problems. Boller did not require Larmco to use the tagging

system. It was his understanding that the straight arm braces

were taken off when the extensions were added to the scaffold

prior to the accident but were not put back on the scaffold.

Mr. Allen identified Ben Chambers as Boller's job

superintendent for the project. While Larmco was responsible for

the scaffolding, if Mr. Chambers noticed a problem, he would

inform Mr. Allen, and the problem would have to be fixed. Mr.

Chambers was in charge of where and when Larmco did its work.

9
Nos. 1-08-3622 & 3635 Cons.

Mr. Chambers had the right to stop work for safety reasons. Mr.

Chambers had the right to instruct Larmco personnel to implement

safety procedures for scaffolding, but only if he knew what they

were.

On cross-examination by Boller's attorney, Mr. Allen

explained that at the time of his deposition, he had confused the

Non-Stop scaffold with the Morgan scaffold and had testified

about the Morgan scaffold rather than the Non-Stop scaffold that

Larmco used in the project. The Non-Stop scaffold required

bracing at a higher level, 36 feet, than did the Morgan scaffold.

The scaffold in this case was not required to go to 36 feet.

As part of his job, Mr. Allen oversaw the safety aspect of

Larmco's work. Larmco had safety training for its workers and

laborers, including weekly safety meetings. The bracing of the

scaffold was Larmco's job. There had been no complaints about

the scaffolding. Boller would not have any reason to believe

that there was a problem with Larmco's scaffold.

On redirect examination, Mr. Allen acknowledged, based on

his investigation, it was possible Mr. Diaz's fall was due to the

missing straight brace, which caused the scaffold to separate.

On re-cross-examination by Boller, Mr. Allen stated that the

measurements he took during his investigation indicated that the

scaffold was in the same position it was in prior to the

10
Nos. 1-08-3622 & 3635 Cons.

accident.

Benjamin Chambers testified as an adverse witness. Mr.

Chambers worked for Boller as a construction superintendent and,

as such, was the Boller person responsible for preventing

accidents on the project. Mr. Chambers would arrive on the

project site at 6:30 a.m. and would spend 30 minutes inspecting

the site. He would look at the scaffolding every morning to make

sure there were no safety deficiencies. He also walked around

the site at other times during the day looking for safety

problems. As the Boller construction superintendent, Mr.

Chambers had the authority to stop the work if a subcontractor

was using unsafe equipment or doing work in an unsafe manner. On

two occasions, he had stopped excavation work on the site. While

he had experience in excavation work, he had no experience in

scaffolding. He did not know when straight braces were required

or the number of bricks that could be placed safely on the

material planks.

All of the subcontractors were required to give Mr. Chambers

a copy of their safety manuals. According to Larmco's safety

manual, there was a checklist for tower scaffolding. However,

Mr. Chambers never collected the checklists to determine if

Larmco was using and following them in its work on the project.

He was not familiar with the tagging system. He did not know

11
Nos. 1-08-3622 & 3635 Cons.

what the qualifications were for someone like Mr. Allen to

oversee the construction of the scaffold.

On March 19, 2002, Mr. Chambers did not see anything wrong

with the scaffold at 6:30 am. Shortly after lunch on that day,

he looked at the scaffold again but did not observe any problem

with it.

On cross-examination by Boller, Mr. Chambers described his

safety responsibilities on the project: establishing entrances

and exits, signage for the construction area, providing fire

extinguishers, telephone access and emergency plans. Boller had

a safety program dealing with safety hazards that could arise on

the project site. Boller was the general contractor on the

science building wing. While there were 17 other prime

contractors, eventually, Boller began to coordinate those

contractors as well.

Mr. Chambers acknowledged that he had no training in

scaffolding, but for many years, he had watched them be

constructed and knew "what is supposed to happen." He relied on

Mr. Allen to use the scaffold correctly. There were no

complaints about the scaffold, and Mr. Chambers observed nothing

to indicate that Larmco was not competent in its use of its own

scaffold. He saw nothing on the morning of the accident to

indicate that the scaffold was unsafe. Mr. Chambers relied on

12
Nos. 1-08-3622 & 3635 Cons.

Mr. Allen to make that decision whether a brace was required.

William Hickey testified that he had been a part owner of

Larmco and had been employed as a general superintendent. He had

been a bricklayer and had worked on a variety of scaffolds. He

had taken 10-hour and 40-hour OSHA courses. At the time of Mr.

Diaz's accident, Mr. Hickey was Larmco's general superintendent.

He would spend at least one day a week on the project site. He

attended the job meetings and discussed scheduling, safety issues

and problems with Mr. Allen. He was not informed of any safety

issues with the Non-Stop scaffolding. Weekly safety meetings

were held to discuss safety issues. Larmco had its own safety

manual, which covered scaffolding.

Mr. Hickey testified further that he inspected the scaffold

the day after the accident and found nothing wrong with it. The

scaffold appeared to be braced properly. There were no straight

braces missing from the top of the scaffold. Straight bracing

was used on a Non-Stop scaffold once it reached 36 feet in

height.

Mr. Hickey further testified that the general contractor did

not tell Larmco laborers how to build the scaffolding. He would

not expect the general contractor to tell Larmco's foreman or

laborers to put in a straight brace at 36 feet. The contract

between Larmco and Boller required Larmco to furnish a competent

13
Nos. 1-08-3622 & 3635 Cons.

person as its representative on the site. In this case, that

person was Mr. Allen. The laborers received on-the-job training

with regard to the scaffold building and maintenance. Mr. Diaz

would have received such training.

On cross-examination by the plaintiffs, Mr. Hickey

acknowledged that he did not see the scaffolding prior to the

accident. He denied that when a scaffold is constructed, a

straight brace was placed at the top. He further denied that a

straight brace was required on the scaffold for stability

purposes. He did not recall his deposition testimony in which he

stated that there should be a straight brace at the top of the

scaffold for stability and because "[i]t's the way the scaffold's

built."

On redirect examination, Mr. Hickey testified that the

straight braces were not necessary because each tower worked

individually. He believed that the scaffold had been adequately

braced.

Frank L. Burg, the plaintiff's expert, testified that he was

a certified safety professional. He had worked for OSHA as a

compliance officer and then as a training director. He became

head of the voluntary protection program, which required him to

look at companies and determine the adequacy of their safety

programs. Mr. Burg participated in writing the standards at the

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Nos. 1-08-3622 & 3635 Cons.

American National Standards Institute (ANSI), especially for

cranes, scaffolding and safety programs.

Mr. Burg testified that he was familiar with the Non-Stop

scaffold used in this case. He stated that a straight brace was

required at the bottom and at the top between the scaffolding

towers to keep the towers from separating. If the scaffolding

was properly constructed, the material planks would not fall out.

Mr. Burg opined that Boller had control and responsibility

for the proper construction of the scaffolding based on its

control of the safety of the project site. Based on his

experience, as part of its control of the project site, Boller

would be expected to make sure that its subcontractors were

competent, qualified and properly trained. Mr. Burg opined that

Boller did not meet its responsibilities regarding scaffold

safety, explaining as follows:

"They didn't make sure that the people that were doing the

scaffolding were properly trained, that they were competent,

that they were qualified, that they had a system of

accountability for the scaffolding."

Mr. Burg further opined that Mr. Allen was not a competent

or qualified person under OSHA standards because he allowed an

untrained worker to erect the scaffold and acknowledged in his

deposition that he was unsure who had training and who did not.

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Nos. 1-08-3622 & 3635 Cons.

The tagging system was not used, an important factor given

workers' lack of fluency in English. Boller's duty was to make

sure the masonry company it hired used trained personnel who

followed procedures and that there was a system of

accountability, i.e., records of the inspections. In this case,

Boller's written safety program consisted of one page. It

contained no specific safety rules for the erection of a Non-Stop

scaffold. In Mr. Burg's opinion, Boller's safety manual was not

adequate to ensure safety at the project site.

Mr. Burg testified further that, as project superintendent,

Ben Chambers had responsibility for safety, both under the terms

of the contract between Boller and the school district and his

job description. Mr. Burg noted that, in his deposition, Mr.

Chambers acknowledged that he did not know anything about Non-

Stop scaffolds. Mr. Burg explained that, while the general

contractor does not have to have complete knowledge of its

subcontractors' work, Boller needed sufficient knowledge to

assess whether its subcontractor is qualified and competent.

When the scaffold was altered by adding the extension, OSHA

standards required that it be supervised by a competent person

and then reinspected to ensure its safety. In this case, no such

inspection was performed.

On cross-examination by Boller, Mr. Burg acknowledged, that

16
Nos. 1-08-3622 & 3635 Cons.

with respect to the bracing, Boller or Larmco personnel would

have thought that the scaffold conformed to the requirements of

the Non-Stop manual. While he understood that the wall the

bricklayers were working on would not reach 36 feet and the

manual did not call for bracing below 36 feet, Mr. Burg explained

that the ground conditions could change or the scaffold might be

affected by the weather, causing it to be unbalanced. He did not

know if the scaffold was in fact unbalanced. He did acknowledge

that the planks might have been cracked or might have been

knocked out of place by the bricks.

Mr. Burg testified further that OSHA standards provide the

minimum requirements. Following OSHA or ANSI standards would not

ensure safety. According to Mr. Burg, Mr. Allen was not

competent, even though he was trained in scaffold use. Mr. Burg

opined that Boller did not do what was reasonable and normal for

a general contractor to do as far as implementing a safety

program; had they done so, Mr. Diaz's accident would not have

occurred. While the scaffold looked in perfect condition when

Mr. Chambers viewed it, it should have been reinspected after the

addition of the extension. Had the planks been checked, the

accident would not have happened. Mr. Burg agreed that the Non-

Stop manual stated that braces were not needed until the scaffold

reached 36 feet.

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Nos. 1-08-3622 & 3635 Cons.

On redirect examination, Mr. Burg testified that a 2006 Non-

Stop publication showed scaffolds at the same height as or

shorter than the one from which Mr. Diaz fell; there were

straight braces at the top of the scaffolds. In his deposition

testimony, Mr. Allen agreed with Mr. Burg that straight braces

should have been provided on the scaffold in this case. Mr. Burg

opined that the Larmco safety manual was not implemented on this

project. Boller was required to make sure that its

subcontractors had a safety program and that they were competent

and qualified. Had the straight brace been at the top, the plank

would not have fallen out.

Wendell Rust, Boller's expert, testified that he was

employed as a safety professional. Previously, he worked for

OSHA as an inspector and a consultant. While working for OSHA,

he inspected many construction projects, including scaffolding.

He was an authorized OSHA trainer and had taken training for

scaffold construction and use.

Mr. Rust testified that, under OSHA rules, Boller was the

"controlling" employer and was not normally required to inspect

for hazards or have the same level of knowledge of the applicable

standards for the trades. It was Larmco's responsibility to

train its workers who utilized the scaffolds. Mr. Rust opined

that Boller did nothing to cause the accident in this case. He

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Nos. 1-08-3622 & 3635 Cons.

found no evidence that would have indicated to Boller that Mr.

Allen was not competent to oversee the scaffold.

According to Mr. Rust, Boller met its responsibilities on

the construction site by providing training for their management

personnel, by using a safety consultant to do additional safety

management and by having a safety director/superintendent (Mr.

Chambers) who had the authority to stop the work if he saw

something wrong. Mr. Chambers had taken a 30-hour training

course and checked the jobsite for unsafe conditions. Had there

been anything obviously wrong with the scaffolding, Mr. Chambers

could order the work stopped and require the subcontractor and

his employees to fix it.

Mr. Rust testified that, based on OSHA regulations, the Non-

Stop assembly instructions and the Larmco safety manual, there

was no need to place a straight brace at the top of the scaffold.

If one of the towers was not secure because of swaying, there

would have been an obvious problem with the scaffold.

On cross-examination by the plaintiffs, Mr. Rust

acknowledged that the contract between Boller and the school

district required Boller to be responsible for safety in

performance of the contract and required it to provide a

competent superintendent. He agreed that the superintendent

should be able to identify hazards or unsafe conditions in the

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Nos. 1-08-3622 & 3635 Cons.

scaffolding. He was familiar with Mr. Chambers's statements in

his deposition that he had no specific training in scaffolding

and that he was not certified by OSHA to build scaffolding.

B. Damages Testimony

Dr. Ernest John Saliba, Jr., an emergency room physician at

Evanston Hospital, examined Mr. Diaz following his fall from the

scaffold. The plaintiff had fallen from a height of 20 to 30

feet; 50% of the people experiencing such a fall do not survive.

Mr. Diaz exhibited swelling in his right forearm and a scalp

laceration. He had abrasions on his lower back and complained of

pain in that area. A CT scan of his head revealed no injury. On

cross-examination, Dr. Saliba testified that the CT scan of Mr.

Diaz's neck was negative but did show degenerative changes. The

CT scan of his abdomen showed that there were no fractures or

dislocations to his spine.

Mr. Diaz testified that, for the first few days following

his fall, he remained in bed; he felt very bruised and could not

move. He saw either Dr. Marcus or Dr. Vanderbilt and complained

of pain throughout his body. He was given pills and prescribed

physical therapy. Dr. Marcus performed surgery on his right knee

after which he returned for more physical therapy. In November

2002, Mr. Diaz was examined by Dr. Shenker. Mr. Diaz complained

of pain in his neck, back and his eyes.

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Nos. 1-08-3622 & 3635 Cons.

Mr. Diaz was next examined by Dr. Skaletsky. Mr. Diaz

complained of constant headaches, dizziness and neck and shoulder

pain. He also complained of pain in his lower back radiating

into his leg.5 Recently, Dr. Skaletsky referred him to Dr. Jain

at PainNet. Dr. Jain treated him with injections. He still has

pain in his neck and back. He takes medication for the pain and

wears a back brace. He also has pain in his jaw; when he opens

his mouth a lot, it cracks.

Mr. Diaz explained that he felt very stressed from not being

able to move or to work. He has been unsuccessful at obtaining

work in other industries and was not working at the time of

trial.

Ronald Agrigento, a physical therapist, testified that he

examined Mr. Diaz on April 9, 2002. The examination revealed

that Mr. Diaz had a diminished range of motion and strength in

his shoulder and his right knee; the knee was swollen, and he had

a large bruise on his lower extremity. Mr. Diaz rated his pain

as very high. He had three sessions of therapy after which he

had surgery on his knee. On June 4, 2002, he returned for more

therapy, primarily on his knee. He then began the work-hardening

therapy program. Mr. Diaz worked hard at his therapy. An

evaluation showed that he did not meet the requirements for heavy

5
Mr. Diaz did not specify which leg.

21
Nos. 1-08-3622 & 3635 Cons.

work but was able to perform medium work.

Mr. Agrigento testified further that, in March 2005, Mr.

Diaz returned for an evaluation and treatment of his lower back

pain. Testing revealed that he had diminished range of motion in

his lumbosacral spine and a diminished curve indicating some form

of tightness or spasm in the spine. By the end of April 2005, he

showed improvement; his pain levels were reduced and his range of

motion nearly doubled. Mr. Diaz was still having problems and

complained of experiencing a slight headache every morning.

On cross-examination by Boller, Mr. Agrigento testified

that, in May 2002, Mr. Diaz had undergone surgery to repair a

meniscus tear in his right knee. At the time of the first

evaluation in June 2002, there was no mention of lower back pain.

At the time of the second evaluation in July 2002, Mr. Diaz

complained of headaches and that his right knee gave out

occasionally. He also experienced a sensation of "pins and

needles" in his right knee except when walking. There was no

complaint of lower back pain at that time.

Dr. Gary S. Skaletsky, a board-certified neurosurgeon,

testified that he first examined Mr. Diaz on March 25, 2003. Mr.

Diaz complained of pain in his head and neck, and pain, as well

as numbness and weakness, in his right arm. His examination

revealed a muscle spasm in the right trapezius muscle. Given Mr.

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Nos. 1-08-3622 & 3635 Cons.

Diaz's history and his examination, Dr. Skaletsky concluded that

Mr. Diaz's complaints were related to his fall. The doctor

ordered X-rays of Mr. Diaz's neck and an MRI of his spine. The

X-ray showed degenerative changes but no instability. The MRI

showed the degenerative changes expected in a man of Mr. Diaz's

age but not a slipped disc. The doctor explained that

degenerative changes do not typically result in pain, but a

traumatic event can cause the changes to produce pain.

When Mr. Diaz returned to see Dr. Skaletsky in May 2003, his

symptoms had not changed. Dr. Skaletsky opined that Mr. Diaz's

fall irritated the nerve root and resulted in loss of sensation

and pain in his right arm. The doctor further opined that Mr.

Diaz should not return to his work as a laborer; his pain and

limited motion and the difficulty in using his right arm put him

and people working with him at risk. Dr. Skaletsky recommended

physical therapy. However, Mr. Diaz could not afford physical

therapy at that time.

On September 15, 2003, Dr. Skaletsky examined Mr. Diaz who,

for the first time, complained of low back pain radiating into

his right leg all the way to his ankle; the pain was worse with

activity. Mr. Diaz had a limited range of motion, and straight

leg tests indicated he had an irritation of the sciatic nerve,

the nerve stemming from the L5-S1 level. The doctor recommended

23
Nos. 1-08-3622 & 3635 Cons.

epidural steroid injections and that Mr. Diaz undergo a course of

physical therapy to build and strengthen his muscles. In the

spring of 2005, Dr. Skaletsky referred Mr. Diaz for physical

therapy, but he continued to complain of pain in his lower back.

Dr. Skaletsky referred Mr. Diaz to Dr. Jain at PainNet. On

March 20, 2008, Dr. Jain performed a nucleoplasty to reduce the

irritation on the disc. It was necessary to wait 6 to 12 weeks

to determine the success of the procedure. If the nucleoplasty

were unsuccessful, the next step would be for Mr. Diaz to undergo

an MRI to determine the general state of the nerves. If the MRI

showed nerve root compression, decompression surgery at the L5-S1

level would be an option. Dr. Skaletsky estimated the attendant

costs to be $100,000 for the surgery and $75,000 for

hospitalization. Postoperative physical therapy would take about

6 months, at three times a week for $1,000 per week.

Prior to trial in this case, on April 4, 2008, Dr. Skaletsky

examined Mr. Diaz, who still complained of pain in his lower

back. He also complained of neck pain, greater on the left side;

the pain extended into his right shoulder and forearm. The pain

was worse with repetitive movements and prolonged positioning.

He also had pain in the back of his head radiating from his neck.

The doctor noted that these were the same symptoms Mr. Diaz had

complained of in 2003. The doctor further noted that Mr. Diaz

24
Nos. 1-08-3622 & 3635 Cons.

had a limited range of motion in turning his neck to the left; he

had tenderness at the back of the neck and the trapezius muscle.

He had diminished strength and sensation in his upper right arm.

Dr. Skaletsky reviewed the multiple MRIs of Mr. Diaz's low

back. Using the 2006 MRI, the doctor explained that Mr. Diaz had

a condition known as spondylolisthesis at the L5-S1 level. Such

a condition made him more susceptible to a nerve injury due to

trauma.

Dr. Skaletsky opined that Mr. Diaz's lower back pain was

related to his fall from the scaffold. Prior to the fall, he had

no symptoms of lower back pain or dysfunction. Following the

fall, he experienced a rapid onset of symptoms, initially noted

in his knee but also in his lower back. Dr. Skaletsky opined that

Mr. Diaz's fall aggravated his preexisting condition of

spondylolisthesis.

Dr. Skaletsky then testified that, in late 2007 or the

beginning of 2008, he received information that Mr. Diaz was

having difficulties with his memory and attention span and that

he was very irritable. At his April 4, 2008, visit, Mr. Diaz

acknowledged those symptoms to the doctor. Because Mr. Diaz

reported a loss of consciousness at the time of the accident, the

doctor ordered a CT scan, but the results were normal. Dr.

Skaletsky explained that some damaged connections were too small

25
Nos. 1-08-3622 & 3635 Cons.

to be seen on a CT scan. The fact that there was a delay in

reporting the symptoms could be attributed to Mr. Diaz's failure

to recognize the symptoms as a medical problem. Dr. Skaletsky

opined that Mr. Diaz's symptoms of irritability, memory loss and

confusion were causally connected to his fall. He further opined

that Mr. Diaz's conditions are permanent.

On cross-examination by Boller, Dr. Skaletsky acknowledged

that Mr. Diaz did not complain of lower back pain until September

2005, and that prior to September 2005, none of the other doctors

had treated Mr. Diaz for back pain. He further acknowledged that

at the time of his deposition in January 2005, he testified that,

in his opinion, Mr. Diaz's back pain was not related to his fall.

However, at his deposition, he had qualified that opinion by

stating that it was based on the information he had at the time.

At his deposition in January 2007, he was shown the Evanston

Hospital emergency room records; these records formed the basis

of his opinion of causality: Mr. Diaz's fall aggravated existing

conditions in his neck and back.

Dr. Skaletsky testified that, except for a complaint at his

initial examination in 2003, Mr. Diaz made no complaints relative

to his head until his April 4, 2008, examination. The doctor

acknowledged that the emergency room records showed that Mr. Diaz

did not lose consciousness. Dr. Skaletsky acknowledged that it

26
Nos. 1-08-3622 & 3635 Cons.

was impossible to say within a reasonable degree of medical

certainty whether or not Mr. Diaz would require surgery in the

future.

Dr. Daniel Fortuna, a chiropractic physician, testified that

he examined Mr. Diaz on January 3, 2004. Mr. Diaz complained of

experiencing headaches, dizziness and lower back and neck pain

since he had fallen off a scaffold in 2002. The doctor's

examination revealed tenderness in his neck, the trapezius muscle

and the right-side muscles from his mid to lower back. Tests

showed an irritation of the nerve. Dr. Fortuna opined that these

symptoms were related Mr. Diaz's fall because he had no

complaints prior to the fall. He ordered an MRI; the results

indicated spondylolisthesis. The doctor ordered muscle relaxing

treatments, stabilization and strengthening exercises.

Dr. Fortuna further testified that, in March 2004, he

reassessed Mr. Diaz's condition. While Mr. Diaz had made

progress in muscle strength, he still had tension and pain in the

nerves. Since Mr. Diaz was not recovering as the doctor had

expected, the doctor referred him to an orthopedic surgeon. In

April 2004, Dr. Fortuna examined Mr. Diaz. While he was feeling

better, Mr. Diaz complained of headaches, three or four times a

week. He had constant lower back pain but of a milder intensity.

The pain increased with sitting.

27
Nos. 1-08-3622 & 3635 Cons.

Dr. Fortuna testified further that he examined Mr. Diaz in

October 2006. Mr. Diaz filled out a questionnaire to provide

information as to his pain level and the effect it was having on

his life. Mr. Diaz indicated that his pain level was very

intense and did not vary. The pain affected his sleeping, his

ability to sit and even his ability to wash and dress himself.

He could lift only very light weights. The pain restricted his

social life and his ability to walk and to travel. Mr. Diaz

indicated that the pain extended from his low back up to his neck

and the back of his head; the sides of his head hurt. He had

continuous jaw pain; it was hard to chew and to swallow. He had

numbness and a tingling sensation from his right knee down. The

right knee felt like it had no strength, and he felt as if he

would fall. Mr. Diaz felt angry and depressed and believed that

his personality had changed. His mood change began about two

years after the accident. He experienced right shoulder pain

intermittently. Dr. Fortuna opined that, given his condition,

Mr. Diaz could not work.

Testimony from family members and a friend confirmed Mr.

Diaz's personality change and memory problems. There was expert

testimony from Charles Linke, an economist, establishing that the

average life expectancy for Mr. Diaz was 21 years.

ANALYSIS

28
Nos. 1-08-3622 & 3635 Cons.

I. Boller's Appeal

A. Directed Verdict/Judgment N.O.V.

Boller contends that it was entitled to a directed verdict

or a judgment n.o.v. because there was no evidence of its

liability pursuant to section 414 of the Restatement (Second) of

Torts (Restatement (Second) of Torts §414 (1965)). Section 414

recognizes two theories of liability under which an injured

worker may seek to hold a general contractor liable: vicarious

and direct liability. In its opening brief, Boller argued that

the plaintiffs failed to present evidence to establish its

vicarious liability for the plaintiff's injury. However, the

plaintiffs maintain that their suit was premised on Boller's

direct liability. Therefore, we will confine our discussion to

whether the evidence established Boller's direct liability under

section 414 for Mr. Diaz's accident.

1. Directed Verdict

a. Standard of Review

The court applies the de novo standard of review to the

denial of a motion for a directed verdict. Jones v. DHR

Cambridge Homes, Inc., 381 Ill. App. 3d 18, 28, 885 N.E.2d 330

(2008). "'A directed verdict is appropriate where the plaintiff

has failed to establish a prima facie case.'" Jones, 381 Ill.

App. 3d at 28, quoting Kim v. Mercedes-Benz, U.S.A., Inc., 353

29
Nos. 1-08-3622 & 3635 Cons.

Ill. App. 3d 444, 460, 818 N.E.2d 713 (2004). "'A directed

verdict is granted improperly where "there is any evidence,

together with reasonable inferences to be drawn therefrom,

demonstrating a substantial factual dispute, or where the

assessment of credibility of the witnesses or the determination

regarding conflicting evidence is decisive to the outcome."'"

Jones, 381 Ill. App. 3d at 28, quoting Kim, 381 Ill. App. 3d at

460, quoting Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d

508 (1992).

b. Discussion

A cause of action for common law negligence under section

414 requires that the plaintiff allege a duty on the part of the

defendant, a breach of that duty and a compensable injury

resulting from the breach. Bokodi v. Foster Wheeler Robbins,

Inc., 312 Ill. App. 3d 1051, 1059, 728 N.E.2d 726 (2000).

Boller contends that it did not owe a duty to the plaintiff

because it did not retain any contractual control over Larmco's

work on the project.

i. Existence of Duty

"As a general rule, one who entrusts work to an independent

contractor will not be liable for the acts or omissions of that

independent contractor." Calderon v. Residential Homes of

America, Inc., 381 Ill. App. 3d 333, 340, 885 N.E.2d 1138 (2008).

30
Nos. 1-08-3622 & 3635 Cons.

The "retained control exception" to this rule is set forth in

section 414 of the Restatement (Second) of Torts (Restatement

(Second) of Torts §414 (1965)). Section 414 provides as follows:

"One who entrusts work to an independent contractor,

but who retains the control of any part of the work, is

subject to liability for physical harm to others for whose

safety the employer owes a duty to exercise reasonable care,

which is caused by his failure to exercise his control with

reasonable care." Restatement (Second) of Torts §414, at

387 (1965).

Comment a to section 414 explains the distinction between

"vicarious" liability and "direct" liability, which is at issue

in this case, as follows:

"If the employer of an independent contractor retains

control over the operative detail of doing any part of the

work, he is subject to liability for the negligence of the

employees of the contractor engaged therein, under the rules

of that part of the law of Agency which deals with the

relation of master and servant. The employer may, however,

retain a control less than that which is necessary to

subject him to liability as master. He may retain only the

power to direct the order in which the work shall be done,

or to forbid its being done in a manner likely to be

31
Nos. 1-08-3622 & 3635 Cons.

dangerous to himself or others. Such a supervisory control

may not subject him to liability under the principles of

Agency, but he may be liable under the rule stated in this

Section unless he exercises his supervisory control with

reasonable care so as to prevent the work which he has

ordered to be done from causing injury to others."

Restatement (Second) of Torts §414, Comment a, at 387

(1965).

As this court noted in Cochran v. George Sollitt Construction

Co., 358 Ill. App. 3d 865, 832 N.E.2d 355 (2005), comment a

clarifies that "the general contractor, by retaining control over

the operative details of its subcontractor's work, may become

vicariously liable for the subcontractor's negligence;

alternatively, even in the absence of such control, the general

contractor may be directly liable for not exercising his

supervisory control with reasonable care." Cochran, 358 Ill.

App. 3d at 874.

Comment b to section 414 explains the theory of direct

liability described in comment a of section 414. Comment b

provides:

"The rule stated in this Section is usually, though not

exclusively, applicable when a principal contractor entrusts

a part of the work to subcontractors, but himself or through

32
Nos. 1-08-3622 & 3635 Cons.

a foreman superintends the entire job. In such a situation,

the principal contractor is subject to liability if he fails

to prevent the subcontractors from doing even the details of

the work in a way unreasonably dangerous to others, if he

knows or by the exercise of reasonable care should know that

the subcontractors' work is being so done, and has the

opportunity to prevent it by exercising the power of control

which he has retained in himself. So too, he is subject to

liability if he knows or should know that the subcontractors

have carelessly done their work in such a way as to create a

dangerous condition, and fails to exercise reasonable care

either to remedy it himself or by the exercise of his

control cause the subcontractor to do so." Restatement

(Second) of Torts §414, Comment b, at 387-88 (1965).

Comment c to Section 414 explains that for the "retained"

control exception to apply:

"[T]he employer must have retained at least some degree

of control over the manner in which the work is done. It is

not enough that he has merely a general right to order the

work stopped or resumed, to inspect its progress or to

receive reports, to make suggestions or recommendations

which need not necessarily be followed, or to prescribe

alterations and deviations. Such a general right is usually

33
Nos. 1-08-3622 & 3635 Cons.

reserved to employers, but it does not mean that the

contractor is controlled as to his methods of work, or as to

operative detail. There must be such a retention of a right

of supervision that the contractor is not entirely free to

do the work in his own way." Restatement (Second) of Torts

§414, Comment c, at 388 (1965).

The determination of whether Boller owed a duty of care to

the plaintiff depends on whether Boller controlled the work in

such a manner that it should be held liable. Bokodi, 312 Ill.

App. 3d at 1059. The following portions of the contract between

Boller, the school district and the architect were entered into

evidence at trial:

"The contractor shall take reasonable precautions for

the safety of and shall provide reasonable protection to

prevent damage, injury or loss to: One, employees who work

or other persons who may be affected thereby.

* * *

The contractor shall designate a responsible member of

contractor's organization at the site whose duty shall be

the prevention of accidents.

* * *

The contractor shall be responsible for initiating,

maintaining and supervising all safety precautions and

34
Nos. 1-08-3622 & 3635 Cons.

programs in connection with the performance of the contract.

* * *

The contractor shall employ a competent superintendent

and necessary assistants who shall be in attendance at the

project site during the performance of the work.

* * *

The contractor shall supervise and direct the

performance of the work using his best skill and attention.

The contractor shall be solely responsible for all

construction means, methods, techniques, sequences and

procedures and for coordinating all portions of the work

under the contract."

An employer need only retain control over any part of the

work in order to be subject to liability for a failure to

exercise his control with reasonable care. Brooks v. Midwest

Grain Products of Illinois, Inc., 311 Ill. App. 3d 871, 726

N.E.2d 153 (2000). "[A] general right to ensure that safety

precautions are observed and that work is done in a safe manner

will not impose liability on the general contractor unless the

evidence shows that the general contractor retained control over

the means and methods of the independent contractor's work."

Ross v. Dae Julie, Inc., 341 Ill. App. 3d 1065, 1071, 793 N.E.2d

68 (2003). "In determining whether that level of control has

35
Nos. 1-08-3622 & 3635 Cons.

been retained, Illinois courts ask whether the principal merely

retained general oversight of work progress and safety or

actually engaged in detailed supervision and/or control of the

subcontractors' methods and means of performing work." Aguirre

v. Turner Construction Co., 501 F.3d 825, 830 (7th Cir. 2007).

Whether a contractor has retained sufficient control to trigger

liability under section 414 is generally a question of fact.

Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 884

N.E.2d 208 (2008)

Boller argues that it did not retain any contractual control

over Larmco because the language giving it control over

construction means, methods and techniques was stricken from the

contract. However, controlling the operative details of the

subcontractors' work is necessary for vicarious liability; direct

liability stems from the failure to exercise general supervisory

control. Pestka v. Town of Fort Sheridan Co., 371 Ill. App. 3d

286, 300, 862 N.E.2d 1044 (2007).

In the present case, the plaintiffs presented sufficient

evidence to establish a prima facie case that Boller retained

sufficient control over the safety of the project to trigger its

liability for the plaintiff's injuries. The provisions of the

contract between Boller, the school district and the architect

placed the responsibility for the safety of the project site with

36
Nos. 1-08-3622 & 3635 Cons.

Boller. Under the contract, Boller was responsible for

preventing injuries on the project site. It was required to

initiate, maintain and supervise all of the safety precautions

and programs in the performance of its contract. It also was

required to designate a person responsible for the prevention of

accidents and to employ a "competent" superintendent. Boller was

solely responsible for "all construction means, methods,

techniques, sequences and procedures and for coordinating all

portions of the work under the contract." Under the contract

between Boller and Larmco, Larmco was responsible for the safety

and training of its employees. However, that contract also

required Larmco to follow all of Boller's safety directions and,

in emergency situations, Boller could implement the safety

measures and require Larmco to pay for them.

The testimony at trial confirmed the extent of Boller's

control of safety of the project site. Mr. Rust, Boller's expert

witness, testified that the contract between Boller and the

school district required Boller to be responsible for safety in

the performance of the contract. In meeting those

responsibilities, Mr. Rust pointed out that Boller provided

training for its management personnel, provided a safety

consultant to do additional safety management and gave its

superintendent the authority to stop work if he observed a

37
Nos. 1-08-3622 & 3635 Cons.

problem. Mr. Hickey testified that weekly safety meetings were

held to discuss safety issues. Mr. Chamberlain, Boller's

superintendent, testified that it was his job to prevent

accidents. He had the authority to stop the work of a

subcontractor if the contractor was using unsafe equipment or

doing the work in an unsafe manner. On two occasions, he had

stopped an excavation on the project site. See Wilkerson, 379

Ill. App. 3d at 497 (the assertion of the general contractor's

discretionary authority was the best evidence of the retention of

more than a general right of supervision). The subcontractors

were required to give Mr. Chambers a copy of their safety

manuals. He walked the project site to check for safety

deficiencies. Mr. Allen testified that, if Mr. Chambers observed

a problem with Lamarco's work, Mr. Chambers had the authority to

stop the work and order the problem fixed. According to Mr.

Allen, provided he knew what safety measures were required, Mr.

Chambers had the right to instruct Larmco personnel to implement

those safety procedures for the scaffolding,

Boller also argues that the responsibility for the

prevention of accidents was passed on to Larmco under the terms

of its contract with Larmco. Under the Boller/Larmco contract,

Larmco assumed the same duties toward Boller which Boller assumed

toward the school district. However, given the evidence in this

38
Nos. 1-08-3622 & 3635 Cons.

case, whether Boller actually passed on the ultimate

responsibility for the safety of the project site to Larmco was a

question for the jury to resolve.

ii. Notice

The general contractor's knowledge, actual or constructive,

of unsafe work methods or a dangerous condition is a precondition

to direct liability. Cochran, 358 Ill. App. 3d at 879-80. In

Cochran, the court upheld summary judgment for the general

contractor where the evidence showed that the unsafe ladder setup

was in existence for only an hour prior to the plaintiff's

injury. The court noted that none of the contractor's

"'competent persons'" had observed the unsafe setup during that

short period of time. Cochran, 358 Ill. App. 3d at 880.

Boller maintains that, because Mr. Chambers acknowledged he

was unfamiliar with the Non-Stop scaffold and would not have

known that the failure to place a straight brace at the top was a

potential safety hazard, it cannot be held to have had actual or

constructive knowledge of any safety hazard. We disagree.

Under the contract, Boller was required to furnish a

"competent superintendent." According to the plaintiff's expert,

Mr. Burg, Mr. Chambers was not competent because he admitted that

he was unfamiliar with the Non-Stop scaffold used by Larmco. Mr.

Burg explained that, while the general contractor was not

39
Nos. 1-08-3622 & 3635 Cons.

expected to have substantive knowledge about every

subcontractor's trade, to be competent, its superintendent needed

to be able to ask the right questions to make sure the

subcontractor was qualified and competent. Mr. Rust, Boller's

expert, agreed that the superintendent should be able to identify

hazards or unsafe conditions in the scaffolding.

On the morning of the accident, Mr. Chambers checked the

scaffold around 6:30 a.m. and observed nothing wrong with it.

Although he was in charge of safety and preventing accidents at

the project site, Mr. Chambers lacked the training and experience

to recognize a problem with the scaffold. Sometime thereafter,

the scaffold was extended without placing the straight brace at

the top. Around 1 p.m., Mr. Chambers again looked at the

scaffolding, but he failed to observe that the scaffold had been

extended and did not check to see if a reinspection of the

scaffold had been made after the extension had been added. The

plaintiff's accident happened about an hour later. Thus, there

was evidence that Boller should have known that the scaffold

presented a safety hazard.

We conclude that the plaintiffs presented sufficient

evidence to establish a prima facie case as to Boller's notice of

a dangerous condition. Therefore, the trial court did not err in

denying Boller's motion for a directed verdict.

40
Nos. 1-08-3622 & 3635 Cons.

2. Judgment n.o.v.

a. Standard of Review

"A trial court should enter a judgment non obstante

veredicto (judgment n.o.v.) only if all the evidence, viewed in

the light most favorable to the nonmoving party, so

overwhelmingly favors the moving party that no contrary verdict

could ever stand." Check v. Clifford Chrysler-Plymouth of

Buffalo Grove, Inc., 342 Ill. App. 3d 150, 156, 794 N.E.2d 829

(2003). This court reviews whether the trial court met that

standard de novo. Check, 342 Ill. App. 3d at 156.

b. Discussion

Our supreme court has held that "a judgment n.o.v. may not

be granted merely because a verdict is against the manifest

weight of the evidence." Maple, 151 Ill. 2d at 453. In ruling

on a motion for a judgment n.o.v., the trial court "does not

weigh the evidence, nor is it concerned with the credibility of

the witnesses; rather it may only consider the evidence, and any

inferences therefrom, in the light most favorable to the party

resisting the motion." Maple, 151 Ill. 2d at 453. "[I]f there

is any evidence, together with reasonable inferences to be drawn

therefrom, demonstrating a substantial factual dispute, or where

the assessment of credibility of the witnesses or the

determination regarding conflicting evidence is decisive to the

41
Nos. 1-08-3622 & 3635 Cons.

outcome," the trial court has no right to enter a judgment n.o.v.

Maple, 151 Ill. 2d at 454.

In this case, the jury heard conflicting testimony relating

to the necessity of straight braces at the top of the scaffold.

The expert witnesses for the plaintiffs and Boller presented

conflicting testimony as to the control exercised by Boller over

the project and as to the competency of Mr. Chambers and Mr.

Allen. The verdict as to liability in this case was based on the

jury's resolution of these conflicts in the evidence. Therefore,

the trial court did not err in denying Boller's motion for a

judgment n.o.v.

3. Section 343 Liability

Because we have determined that Boller was liable under

section 414 of the Restatement (Second) of Torts, we need not

address its liability under section 343 of the Restatement

(Second) of Torts.

B. Jury Instructions

Boller contends that it is entitled to a new trial because

the IPI construction negligence instructions given to the jury

did not set forth an accurate statement of the law. It argues

that the trial court erred by rejecting the non-IPI instructions

it tendered.

1. Standard of Review

42
Nos. 1-08-3622 & 3635 Cons.

In Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163,

886 N.E.2d 976 (2008), our supreme court held that when the issue

is whether jury instructions accurately reflect the applicable

law, the court's review is de novo. Barth, 228 Ill. 2d at 170.

2. Discussion

Boller proposed to modify Illinois Pattern Jury

Instructions, Civil, No. 55.01 (2006) (hereafter IPI Civil (2006)

No. 55.01) as follows:

"One who entrusts work to an independent contractor but

who retained some control over the manner in which the work

is done owes a duty to exercise reasonable care with respect

to its retained control.

One who retained some control over the manner in which

the work is done can be liable for injuries resulting from

the work if the injuries were proximately caused by the

failure to exercise that control with ordinary care."

The trial court rejected the modified instruction, and the jury

was instructed as follows:

"A contractor who entrusts work to a subcontractor can

be liable for injuries resulting from the work if the

contractor retained some control over the safety of the work

and the injuries were proximately caused by the contractor's

failure to exercise that control with ordinary care." IPI

43
Nos. 1-08-3622 & 3635 Cons.

Civil (2006) No. 55.01.

Boller tendered a modified IPI Civil (2006) No. 55.02, which

read as follows:

"A party who retained some control over the manner in

which the work is done, has a duty to exercise that control

with ordinary care.

When I use the words, 'retained control' the party

must have retained at least some degree of control over the

manner in which the work is done. To be liable, a party

must have more than a general right to order the work

stopped or resumed, to inspect its progress or to receive

reports, to make suggestions or recommendations which need

not necessarily be followed, or to prescribe alterations and

deviations. There must be such a retention of a right of

supervision that the contractor is not entirely free to do

the work his own way."

The trial court refused Boller's modified IPI Civil (2006)

No. 55.02 instruction. The court did modify the first sentence

of the IPI instruction. The instruction the jury received read

as follows:

"A party who retained some control over the safety

and/or the manner in which the work is done has a duty to

exercise that control with ordinary care."

44
Nos. 1-08-3622 & 3635 Cons.

The trial court rejected Boller's proposed issues

instruction. Over its objection, the jury received IPI Civil

(2006) No. 55.03, which in pertinent part stated as follows:

"Plaintiffs Jose and Maria Diaz seek to recover damages

from the Defendant Boller Construction Co. In order for

Jose and Maria Diaz to recover, they have the burden of

proving:

1. Defendant Boller Construction Co., retained some

control over the safety of the work ***."

Finally, over Boller's objection, the jury received IPI

Civil (2006) No. 55.04, which read as follows:

"One or more persons may have some control over the

safety of the work. Which person or persons had some

control over the work under the particular facts of this

case is for you to decide."

Boller maintains that the IPI construction negligence

instructions did not accurately state the law because they failed

to qualify the term "some control over the work." This court

rejected the same argument in Jones.

In Jones, the contractor tendered modified IPI construction

negligence instructions similar to the ones tendered by Boller in

this case. The trial court refused to instruct the jury with the

modified instructions. On appeal, the contractor argued that the

45
Nos. 1-08-3622 & 3635 Cons.

patterned instructions did not accurately reflect the law based

on the decision in Martens v. MCL Construction Corp., 347 Ill.

App. 3d 303, 807 N.E.2d 480 (2004). In Martens, this court

rejected the holding in Moss v. Rowe Construction Co., 344 Ill.

App. 3d 772, 801 N.E.2d 612 (2003), that the central issue was

the contractor's ability to control the safety of the project.

Instead, the court in Martens held that "'[t]he central issue is

retained control of the independent contractors's work, whether

contractual, supervisory, operational, or some mix thereof. The

party who retains control is the logical party upon whom to

impose the duty to ensure worker safety.'" Jones, 381 Ill. App.

3d at 37, quoting Martens, 347 Ill. App. 3d at 318.

In Jones, this court pointed out that, despite its holding,

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

without criticism. In Martens, there was no evidence that the

mere existence of the safety program affected the contractor's

means and methods of doing his work. However, in Jones, the

general contractor could require compliance with its safety

standards and stop the work if the subcontractor's employees were

violating its safety rules. Jones, 381 Ill. App. 3d at 38.

While maintaining a general right to safety would not be

sufficient under Martens, in this case, as in Jones, Boller had

the right to stop the work if Larmco was doing work in an unsafe

46
Nos. 1-08-3622 & 3635 Cons.

manner.

We conclude that the IPI construction negligence

instructions continue to reflect an accurate statement of the

law. Moreover, Boller's proposed instructions were premised on

vicarious liability. The jury found Boller directly liable. As

the jury was properly instructed, Boller is not entitled to a new

trial.

C. Trial Court Errors

Boller contends that trial court errors, either individually

or cumulatively, require that it receive a new trial.

1. Standard of Review

The trial court's evidentiary rulings are reviewed under the

abuse of discretion standard. Jones, 381 Ill. App. 3d at 34.

2. Discussion

a. Failure to Allow Cross-examination as an Adverse Witness

Boller contends that the trial court erred when it refused

to allow it to cross-examine as adverse witnesses, William

Hickey, Edward Allen, Miroslaw Kundzicz, Francesco Gutierrez and

Miguel Diaz.

With the exception of Mr. Hickey's testimony, Boller failed

to provide citations to the record where it was denied the

opportunity to cross-examine the above witnesses and failed to

provide argument on the issue. Boller merely states that it was

47
Nos. 1-08-3622 & 3635 Cons.

prejudiced. Supreme Court Rule 341(h)(7) requires citation to

the pages of the record where the denial took place, as well as

argument in support of the issue. 210 Ill. 2d R. 341(h)(7).

Failure to comply with our supreme court rules is grounds for

disregarding the argument on appeal. Burmac Metal Finishing Co.

v. West Bend Mutual Insurance Co., 356 Ill. App. 3d 471, 825

N.E.2d 1246 (2005).

Boller does argue that it should have been permitted to

cross-examine Mr. Hickey as an adverse witness pursuant to

section 2-1102 of the Code of Civil Procedure. 735 ILCS 5/2-1102

(West 2008) (allowing officers, directors, managing agents or

foreman of any party to the action to be cross-examined). While

Mr. Hickey had been an employee and part owner of Larmco, at the

time of trial, he had been retired for three years. See Bassett

v. Burlington Northern R.R. Co., 131 Ill. App. 3d 807, 476 N.E.2d

31 (1985) (section 2-1101 requires that the witness be in a

supervisory position with the opposing party at the time the

witness is called to testify).

Fornoff v. Parke Davis & Co., 105 Ill. App. 3d 681, 434

N.E.2d 793 (1982), relied on by Boller, is distinguishable. In

that case, the reviewing court held that no showing of adversity

was required before a codefendant could examine another

codefendant as an adverse witness. The fact that it was to each

48
Nos. 1-08-3622 & 3635 Cons.

codefendant's advantage to shift the liability was considered

sufficient adversity by the court to allow one codefendant to

call and cross-examine another codefendant. Fornoff, 105 Ill.

App. 3d at 690. In this case, Mr. Hickey was not a codefendant.

We conclude that the trial court did not abuse its

discretion when it denied Boller's request to examine Mr. Hickey

as an adverse witness. We further conclude that the issue is

waived as to the remaining witnesses specified by Boller.

b. Mention of Workers' Compensation/Insurance

During direct examination, Mr. Diaz was questioned as follows:

"When you were going to the clinic, did Larmco have a

nurse who was following - -"

Larmco's attorney objected based on a motion in limine barring

reference to Mr. Diaz's workers' compensation case. The objection

was sustained. The trial court advised the plaintiffs' attorney to

instruct Mr. Diaz not to refer to workers' compensation.

Later during direct examination, Mr. Diaz was questioned about

his November 2002, examination by Dr. Shenker. When asked if the

doctor prescribed any treatment, the plaintiff testified:

"No. The only thing he said at that time was that he

didn't know that he would give a report to the company or the

insurance. I don't know. But that's all he told me."

The trial court denied Larmco's attorney's request to be heard but

49
Nos. 1-08-3622 & 3635 Cons.

instructed the jury to disregard the last portion of Mr. Diaz's

response and ordered the questioning to continue.

During a break in Mr. Diaz's testimony, Larmco moved for a

mistrial based on Mr. Diaz's references to insurance and workers'

compensation. The trial court found that the reference was

unintentional and denied the motion.

Not every mention of insurance in a personal injury trial

requires the court to declare a mistrial. Neyzelman v. Treitman,

273 Ill. App. 3d 511, 515, 652 N.E.2d 1300 (1995). "A reference to

insurance is only prejudicial if it directly indicates that the

defendant is insured [citation] or if it is the product of conduct

by counsel intended to influence or prejudice the jury [citation]."

Neyzelman, 273 Ill. App. 3d at 515. Neither of those instances is

present in this case. Moreover, the trial court instructed the

jury to disregard the reference to insurance. In general, the

prejudicial impact of a remark may be cured if the trial court

sustains the objection and instructs the jury to disregard the

objectionable testimony. See Nickon v. City of Princeton, 376

Ill. App. 3d 1095, 877 N.E.2d 776 (2007).

We conclude that Boller was not prejudiced by the reference to

workers' compensation and insurance.

c. Closing Argument

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Nos. 1-08-3622 & 3635 Cons.

Boller contends that the following remark by the plaintiffs'

attorney during closing argument required that the trial court

declare a mistrial.

During closing argument, the plaintiff's attorney stated as

follows:

"I would also like to suggest to you in using your common

sense and ordinary experience in the affairs of life that when

Mr. Daley [Boller's attorney] cross-examined Mr. Allen and

then Mr. Gutierrez, I think your common sense should tell you

and probably does tell you that this is a team effort."

The trial court sustained Boller's objection.

At the conclusion of the plaintiffs' closing argument, Boller

made a motion for a mistrial; Larmco joined in the motion. While

the trial court agreed the remark was improper, it found no

prejudice and denied the motion.

In his rebuttal argument, the plaintiffs' attorney stated:

"It's Boller who brought Larmco into this case, not the Diaz'.

But you could never tell that from what's happened in this

courtroom over the last two weeks because there's a love fest

between those two."

The trial court sustained Larmco's objection.

Improper comments at closing do not constitute reversible

error unless they result in substantial prejudice to the party.

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Nos. 1-08-3622 & 3635 Cons.

Tierney v. Community Memorial General Hospital, 268 Ill. App. 3d

1050, 1061, 645 N.E.2d 284 (1994). Counsel is allowed broad

latitude in drawing reasonable inferences and conclusions from the

evidence. Tierney, 268 Ill. App. 3d at 1061. The trial court's

ruling on whether counsel has stayed within the bounds of proper

argument will not be reversed absent a clear abuse of discretion.

Tierney, 268 Ill. App. 3d at 1061; but see People v. Wheeler, 226

Ill. 2d 92, 871 N.E.2d 728 (2007) (court now applies de novo review

to whether remarks in closing argument require a new trial for a

criminal defendant).

While discussing Mr. Allen's testimony with the parties'

attorneys, the trial court expressed concern that the jury might be

confused. The court stated to Boller's and Larmco's attorneys that

"it really looks like you're bootstrapping each other's cases and

it's two on one in there." Therefore, the plaintiffs' attorney's

argument could be construed as reasonable comments on how Boller

and Larmco were conducting their respective defenses in this case.

Even if the remarks were error, a new trial will not be

granted unless the remarks are clearly improper, prejudicial and

denied the party a fair trial when the trial is viewed in its

entirety. Tierney, 268 Ill. App. 3d at 1061. While Boller claims

it was prejudiced, there is no indication that the jury's verdict

against Boller was in any way influenced by the two comments by the

52
Nos. 1-08-3622 & 3635 Cons.

plaintiffs' attorney. The trial court did sustain the objection,

and the jury was properly instructed as to the purpose of closing

arguments. We conclude that the denial of Boller's motion for a

mistrial was not an abuse of discretion.

Finally, Boller maintains that the cumulative effect of these

errors require that it receive a new trial. Boller's reliance on

Christou v. Arlington Park-Washington Park Race Tracks Corp., 104

Ill. App. 3d 257, 432 N.E.2d 920 (1982) is misplaced. In that

case, the reviewing court held that cumulative effect of trial

court errors and the introduction of improper evidence of damages

amounted to prejudicial error requiring a new trial. Christou, 104

Ill. App. 3d at 260-61. In the present case, there was no error

with regard to the denial of cross-examination. As to the other

alleged errors, Boller suffered no prejudice from the mention of

workers' compensation, insurance or from the plaintiffs' closing

argument. Therefore, whether these errors are considered singly or

cumulatively, Boller was not denied a fair trial.

D. Dismissal of Third Party Complaint

1. Standard of Review

The court reviews the granting of a section 2-619 motion to

dismiss de novo. Westmeyer v. Flynn, 382 Ill. App. 3d 952, 889

N.E.2d 671 (2008).

2. Discussion

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Nos. 1-08-3622 & 3635 Cons.

Boller contends that the trial court erred in dismissing its

third-party complaint for contribution against Larmco. Boller

points out that the dismissal of its complaint against Larmco for

contribution renders it responsible for the entire judgment amount

of $1,076,270.06. That amount exceeds the $1 million amount of

insurance coverage Larmco was required to provide Boller under the

terms of their contract. Larmco responds that by agreeing that

Larmco would provide insurance for Boller, the parties intended

that they would look only to the insurance and not impose

liability on each other. Larmco relies on the rule stated in

Briseno v. Chicago Union Station Co., 197 Ill. App. 3d 902, 557

N.E.2d 196 (1990), that where the parties agree that insurance will

be provided as part of their contract, the contract must be

interpreted as providing mutual exculpation to the bargaining

parties. Briseno, 197 Ill. App. 3d at 905.

Briseno is distinguishable from the present case. There,

the reviewing court ruled that the third-party contribution action

was properly dismissed where the parties' liability had been

determined and satisfied from the proceeds of the insurance policy.

Briseno, 197 Ill. App. 3d at 906. The dispositive issue in cases

involving the purchase of insurance in the context of contractor

indemnification is the status of the underlying suit: "whether a

settlement or judgment within the policy's limits was reached

54
Nos. 1-08-3622 & 3635 Cons.

and fully funded by the insurer." Kehoe v. Commonwealth Edison

Co., 296 Ill. App. 3d 584, 588, 694 N.E.2d 1119 (1998).

In Kirincich v. Jimi Construction Co., 267 Ill. App. 3d 51,

640 N.E.2d 958 (1994), the reviewing court held that the contractor

could pursue its contribution action against the subcontractor for

the amount that was not covered by insurance. Kirincich, 267 Ill.

App. 3d at 55. The court noted that the cases holding that

contribution was barred by the rule of mutual exculpation arose in

a factual context where the parties' joint insurance had absorbed

the entire liability of the party seeking contribution. "Where the

joint insurance policy has not fully protected one of the parties

against liability, contribution should be allowed to the extent of

the party's actual loss." Kirincich, 267 Ill. App. 3d at 55.

Under the Boller/Larmco contract, Lamarco was required to

"indemnify and hold harmless [Boller] from and against all claims,

damages, loss, and expenses" in connection with the performance

of Larmco's work. Larmco provided $1 million in initial coverage

to Boller. Following the granting of the remittitur and other

credits, the verdict for the plaintiffs totaled $1,076,770.06.

Since the insurance funds did not completely indemnify Boller,

the trial court erred in granting the dismissal of the contribution

action.

II. Plaintiffs' Appeal and Cross-Appeal

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Nos. 1-08-3622 & 3635 Cons.

The plaintiffs originally appealed from the denial of their

motion to adjudicate Larmco's workers' compensation lien. After

Boller filed its appeal, the plaintiffs filed a cross-appeal from

the grant of the remittitur. If the trial court erred in granting

the remittitur, we need not address the issue of the adjudication

of the workers' compensation lien. Therefore, we will address

first the cross-appeal issue of the granting of the remittitur.

A. Grant of the Remittitur

The plaintiffs contend that the trial court erred in granting

the remittitur. The trial court granted Boller's motion for a

remittitur, stating as follows:

"After reviewing the testimony of Dr. Skeletsky, it is

the court's position that this testimony was based on

speculation, relative to the potential future surgery, and

further, that the court erred in allowing sanctity [sic]

presented to the jury.

The calculations of $100,000 for future surgery,

[illegible] for potential future hospitalization, and $26,000

for potential physical therapy costs were inappropriately

allowed to present it to the jury. This total is $201,000."

After allowing other setoffs and credits, the court offered the

plaintiffs the choice of a new trial or a reduction in the judgment

by $217,604.94. The plaintiffs accepted the remittitur.

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Nos. 1-08-3622 & 3635 Cons.

1. Procedural Bar to the Plaintiffs' Appeal

Supreme Court Rule 366 provides in pertinent part that

"[c]onsenting to a remittitur as a condition to the denial of a new

trial does not preclude the consenting party from asserting on

appeal that the amount of the verdict was proper. No cross-appeal

is required." 155 Ill. 2d R. 366(b)(2)(ii). However, "a party who

consents to a remittitur is bound thereby and is precluded from

appealing the entry of the remittitur unless the opposing party

appeals from the judgment." Haid v. Tingle, 219 Ill. App. 3d 406,

415, 579 N.E.2d 913 (1991), citing Anderson v. Greyhound Lines,

Inc., 34 Ill. App. 3d 643, 339 N.E.2d 465 (1975).

Boller maintains that the plaintiffs are procedurally barred

from raising the remittitur issue because they filed a notice of

appeal from the judgment. The plaintiffs' appeal raised only the

adjudication of Larmco's workers' compensation lien. It was

only after Boller filed its notice of appeal from the judgment that

the plaintiffs' filed a cross-appeal raising the issue of the

remittitur. Therefore, the plaintiffs are not procedurally barred

from raising the issue of granting of the remittitur on appeal.

2. Standard of Review

A ruling on a motion for a remittitur is reviewed for an abuse

of discretion. See Kindernay v. Hillsboro Area Hospital, 366 Ill.

App. 3d 559, 572, 851 N.E.2d 866 (2006).

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Nos. 1-08-3622 & 3635 Cons.

3. Discussion

The trial court granted the remittitur after it ruled that Dr.

Skaletsky's testimony as to future medical costs had been

improperly admitted into evidence. We first address whether the

trial court abused its discretion when it ruled Dr. Skaletsky's

testimony was inadmissible. Jones, 381 Ill. App. 3d at 34

(evidentiary rulings are reviewed for an abuse of discretion).

a. Striking of Dr. Skaletsky's Testimony

The plaintiffs contend that the trial court erred in striking

Dr. Skaletsky's testimony as to the costs of Mr. Diaz's future

treatment. Boller responds that striking of this testimony was

proper because Dr. Skaletsky could not testify within a reasonable

degree of certainty that Mr. Diaz would require surgery and

physical therapy in the future.

Possible future damages are not recoverable by the plaintiff

unless they are reasonably certain to follow. Terracina v.

Castelli, 80 Ill. App. 3d 475, 480, 400 N.E.2d 27 (1979). Evidence

as to damages which is speculative, remote or based upon mere

probability is improper. Terracina, 80 Ill. App. 3d at 480.

"'Expert testimony is admissible or required as evidence of the

certainty of the need and as to the reasonable value of the

services to be rendered.'" Biehler v. White Metal Rolling &

Stamping Corp., 30 Ill. App. 3d 435, 445, 333 N.E.2d 716 (1975),

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Nos. 1-08-3622 & 3635 Cons.

quoting 22 Am. Jur. 2d Damages §312 (1965).

In Terracina, the reviewing court upheld the striking of a

doctor's testimony that further surgery for the plaintiff was

possible. Noting that future consequences must be reasonably

certain to follow, the court stated as follows:

"Here, the question did not call for an opinion based upon a

reasonable degree of medical certainty nor did the answer

indicate that future surgery was reasonably certain to follow.

Rather, in response to the question, '[I]n your opinion based

on the hypothetical question previously asked of you, do you

believe that Mr. Terracina is a candidate for future surgery?'

Dr. Moody replied, 'It's possible.' Accordingly, we believe

that the court properly struck this testimony as being

speculative." Terracina, 80 Ill. App. 3d at 480.

The plaintiffs rely on Jeffers v. Weinger, 132 Ill. App. 3d

877, 477 N.E.2d 1270 (1985). In Jeffers, the doctor testified

that it was possible the plaintiff might lose her foot as a

result of the defendant's malpractice. On cross-examination,

the doctor testified that the possibility that the plaintiff

might lose her foot was less than 1%. The reviewing court found

that the doctor's testimony should be considered by the jury

because, regardless of the percentage number, the possibility

remained that the plaintiff would suffer the loss of her foot.

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Nos. 1-08-3622 & 3635 Cons.

Jeffers, 132 Ill. App. 3d at 884.

In the present case, Dr. Skaletsky was not testifying as to a

possible consequence flowing from the negligence in this case based

on his expertise. Instead, he was asked to predict what treatment

course Mr. Diaz would follow, which was dependant on future test

results and Mr. Diaz's own decisions as to the treatment. Dr.

Skaletsky's testimony did not rise to the "strong possibility" for

the need of future treatment testified to by the doctor in Zitzmann

v. Miller, 194 Ill. App. 3d 477, 484, 551 N.E.2d 707 (1990).

The plaintiff also relies on Kamp v. Preis, 332 Ill. App. 3d

1115, 774 N.E.2d 865 (2002). In that case, the court held that as

long as the increased risk of future injury is proven within a

reasonable degree of medical certainty, evidence of future

damages is not speculative. Kamp, 332 Ill. App. 3d at 1121.

While Dr. Skaletsky did testify that Mr. Diaz was subject to the

risk of future injury, his testimony as to the costs of future

surgery and physical therapy was not related to the risk of

future injury.

We conclude that Dr. Skaletsky's testimony as to the costs

for surgery, hospitalization and physical therapy Mr. Diaz might

undergo in future was properly stricken as speculative.

b. Evidence of Mr. Diaz's Need for Future Medical Care

Even without Dr. Skaletsky's testimony, the plaintiffs

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Nos. 1-08-3622 & 3635 Cons.

maintain that other evidence supported the jury's award of future

medical expenses. Our supreme court has observed that "[w]hen

reviewing an award of compensatory damages for a nonfatal injury,

a court may consider, among other things, the permanency of the

plaintiff's condition, the possibility of future deterioration,

the extent of the plaintiff's medical expenses, and the

restrictions imposed on the plaintiff by the injuries."

Richardson v. Chapman, 175 Ill. 2d 98, 113-14, 676 N.E.2d 621

(1997).

Even without the evidence as to the costs of future

treatments, the medical evidence established that Mr. Diaz's

condition was permanent and that he was at risk for further injury.

While the evidence showed that none of the treatments he had

undergone so far had been successful, the evidence did not indicate

that there was nothing further the doctors could do for him. Apart

from the stricken portion regarding costs, Dr. Skaletsky's

testimony indicated that there was an ongoing treatment plan for

Mr. Diaz.

As our supreme court observed in Richardson, "[t]he

determination of damages is a question reserved to the trier of

fact, and a reviewing court will not lightly substitute its

opinion for the judgment rendered in the trial court."

Richardson, 175 Ill. 2d at 113. "A verdict will not be set aside

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Nos. 1-08-3622 & 3635 Cons.

by a court unless it is so excessive that it indicates that the

jury was moved by passion or prejudice or unless it exceeds the

necessarily flexible limits of fair and reasonable compensation or

is so large that it shocks the judicial conscience." Kindernay,

366 Ill. App. 3d at 572. A remittitur should not be granted if

the jury's award falls within the flexible range of conclusions

reasonably supported by the evidence. Kindernay, 366 Ill. App.

3d at 572.

We conclude that the trial court abused its discretion in

granting a remittitur in the amount of costs for future treatment

testified to by Dr. Skaletsky. The evidence established that Mr.

Diaz's condition was permanent and that he remained at risk for

future injury. The evidence further established that he continued

to experience pain and loss of strength and that there were further

treatments available to give him some relief. It was, therefore,

reasonable inference from the evidence that Mr. Diaz will

continue to incur medical and medically-related expenses for pain

relief and to help him cope with the restrictions imposed on him

as a result of his injuries. Given that his past medical bills

were $132,000 for the 6 years between his accident and the trial

in this case and that his life expectancy was 21 years, an award

of $201,000 for future medical expenses was supported by the

evidence.

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Nos. 1-08-3622 & 3635 Cons.

B. Adjudication of Workers' Compensation Lien

In their appeal, the plaintiffs contend that the trial court

erred when it denied their motion to reduce Larmco's workers'

compensation lien rights to zero based on granting of the

remittitur. As we have determined that the granting of the

remittitur was error, we need not address this issue.

III. Conclusion

The jury's verdict as to liability is affirmed. The

dismissal of Boller's third-party complaint is reversed, and the

cause is remanded for further proceedings. On remand, the trial

court is directed to vacate $201,000 of the remittitur and enter

judgment in favor of the plaintiffs in the amount awarded by the

jury, minus the reductions not contested in this appeal.

Affirmed in part and reversed in part; cause remanded with

directions.

GARCIA and LAMPKIN, JJ., concur.

63