ILLINOIS OFFICIAL REPORTS
Appellate Court
Maggi v. RAS Development, Inc., 2011 IL App (1st) 091955
Appellate Court JOHN MAGGI, Individually and as Independent Administrator of the
Caption Estate of Gerald Maggi, Deceased, Plaintiff-Appellee and Cross-
Appellant, v. RAS Development, Inc., Defendant-Appellant and Cross-
Appellee (State Farm Fire and Casualty Company, Cross-Appellee).
District & No. First District, Fourth Division
Docket No. 1–09–1955
Filed May 26, 2011
Held Trial court's judgment for plaintiff in an action arising from a fatal fall at
(Note: This syllabus a construction site was affirmed, over defendant's contentions, inter alia,
constitutes no part of that plaintiff's addition of the proper defendant did not relate back to the
the opinion of the court filing of the original complaint for the purposes of the statute of
but has been prepared limitations, that the verdict was against the manifest weight of the
by the Reporter of evidence where defendant did not retain control over the work, and that
Decisions for the the trial court erred in allowing plaintiff to elicit testimony about the
convenience of the contract provisions discussing defendant's responsibility for safety and in
reader.)
refusing to bar evidence of the postremedial measures defendant was
asked to take.
Decision Under Appeal from the Circuit Court of Cook County, No. 02–L–010922; the
Review Hon. Bill Taylor, Judge, presiding.
Judgment Affirmed.
Counsel on Robert K. Scott and Matthew R. Bloom, both of Scott, Halsted &
Appeal Babetch, PC, of Chicago, for appellant RAS Development, Inc.
Michael Resis and Glen E. Amundsen, both of SmithAmundsen LLC, of
Chicago, for appellant State Farm Fire & Casualty Company.
Michael W. Rathsack, of Chicago, for appellee.
Panel PRESIDING JUSTICE LAVIN delivered the judgment of the court,
with opinion.
Justices Salone and Sterba concurred in the judgment and opinion.
OPINION
¶1 Jerry Maggi, a 46-year-old veteran laborer on a bricklaying crew, died several days
after an August 28, 2000 fall through an unprotected window opening at a new construction
project on the near north side of Chicago, after a strap binding a bundle of bricks broke as
he maneuvered it in a tight workspace under a patent scaffold on an exposed third floor,
causing him to lose his balance. His estate brought a construction negligence lawsuit against
several entities involved in the project, which consisted of the construction of several
multistory condominium buildings on Wolfram Street. The case proceeded to a jury trial,
with the jury returning a $3,286,382 verdict after finding decedent 1% contributorily
negligent. The sole defendant at trial, RAS Development, appeals from the judgment entered
on the verdict and the trial court’s denial of its posttrial motion. Plaintiff also filed a cross-
appeal, alleging that the trial court improperly declined to sanction defendant for understating
the amount of available insurance coverage in discovery. For reasons that will be delineated
at some length below, we affirm the judgment entered on the jury verdict and also affirm the
trial court’s refusal to sanction defendant.
¶2 BACKGROUND
¶3 The project on Wolfram Street was spearheaded by three men, Robert Levin, Arnold
Boris and Saul Waimberk, whose first names’ initials formed the RAS prefix. These three
men were the sole shareholders in RAS Development, as well as RAS Wolfram, which then
formed a partnership called Wolfram Towers. They hired RAS Development as the general
contractor, meaning that they, as owners, essentially hired themselves to run the project.
During the course of construction, various permits were issued by the City of Chicago which
interchangeably referred to one or more of the entities as the owner or general contractor of
the development.
¶4 Plaintiff’s first complaint, filed on August 26, 2002, included as defendants various
-2-
entities that had some connection to the development, including, inter alia, plaintiff’s
employer, Rockford Construction, and RAS Wolfram, which initially volunteered in its
answer that it was the general contractor. The parties engaged in lengthy written and oral
discovery, some of which was designed to divine the interplay between the various RAS
entities on the Wolfram Street project. In May 2003, before the limitations period had
expired, RAS Wolfram, in an interrogatory answer, changed course and stated that it had
hired RAS Development as the general contractor and that RAS Development had entered
into separate contracts with subcontractors on its behalf, while also indicating that it could
not locate the contract between RAS Wolfram and RAS Development. This turn was largely
confirmed in a deposition of RAS Development’s project manager, Lance Shalzi. During this
period of time, plaintiff was seeking the contract that would unequivocally establish the
proper entity to sue as the general contractor, with Wolfram Towers assuring plaintiff’s
counsel that “all” construction contracts had been produced. Neither RAS Wolfram nor
Wolfram Towers moved for dismissal on the basis that it was not the general contractor.
¶5 Some 18 months passed without any further discovery on this subject. Then, after the
four-year limitations period passed, plaintiff’s attorney received a letter from defendant’s in-
house insurance counsel that indicated that it had located the contract that RAS Development
entered into with Wolfram Towers, entitled “Standard Form of Agreement Between Owner
and Contractor” (the Prime Contract), to perform general contracting services for the
construction of the four-story residential buildings and that it would be changing its answer
to confirm that RAS Development was the general contractor. This led plaintiff to voluntarily
dismiss RAS Wolfram and amend his complaint, adding RAS Development as the general
contractor. RAS Development then moved to dismiss the complaint against it, on the basis
that it was outside the limitations period, while plaintiff endeavored to persuade the trial
court that the amended complaint should relate back to the filing of the initial complaint
because RAS Development knew all along that it should have been sued, while plaintiff was
mistaken in his belief that RAS Wolfram was the general contractor. Initially, the trial court
agreed with defendant and dismissed the complaint, but changed its mind and granted
plaintiff’s motion to reconsider.
¶6 The case then proceeded to trial, where plaintiff presented a case of the general
contractor’s failure to provide a safe place to work and for inadequately supervising the work
of the subcontractors, while the defendant denied liability and claimed it would assert that
the fall was not related to the breaking of the brick band but, rather, that Mr. Maggi suffered
a coincidental heart attack, causing him to slip and fall from his elevated workspace. RAS
Development planned to call John T. Barron, M.D., at trial to support this theory, but the trial
court barred Dr. Barron from testifying that Maggi’s fall was caused by a heart attack
occurring immediately prior to his fall. The trial court initially ruled that Dr. Barron’s
opinion was not based on a reasonable degree of medical certainty but clarified upon
defendant’s motion to reconsider that it was not barring Dr. Barron’s entire testimony, only
the specific opinion about the timing of the attack. At trial, RAS Development did not
mention this theory to the jury, did not make an offer of proof concerning Dr. Barron’s
testimony, and gave all appearances of having abandoned the theory until its resurrection at
defendant’s posttrial motion.
-3-
¶7 TESTIMONY AT TRIAL
¶8 There was but one eyewitness to Maggi’s fall. The veteran bricklayer to whom he was
assigned, Charles Winchester, testified on direct examination that the fall was precipitated
by the breaking of a metal band that was meant to keep a large bundle of bricks in a stable
condition which his laborer maneuvered into a convenient location for Winchester’s use.
Winchester explained that they were working on the front of the third floor of the condo
building. A scaffold had been erected on that floor. The bundle of bricks that Maggi was
bringing to Winchester weighed 150 pounds and needed to be maneuvered around the front
of the scaffold, which had a set of cross-braces in the back. The front of the scaffold was
unprotected by any bracing, but it was done so purposefully, to allow the mason access to the
block, brick and mortar that he would need in order to build the brick wall. There existed a
narrow space in between the scaffold and the outer wall. It was in this space that the mason
plied his trade. While he was so engaged, there was no functional fall protection, but this was
expected by the mason, because they were employing the so-called overhand bricklaying
method, which involves the mason (or “brickie” in construction worker argot) kneeling or
standing while leaning over the ledge and applying the bricks in “courses” to build the wall.
¶9 The fall itself, Winchester testified, happened as Maggi was attempting to “inch” the
bricks under the scaffold close to Winchester’s narrow workspace, which was hard by the
edge of the building’s under-construction wall. Winchester explained that Maggi had to
“stationary” the bricks with his hands. It was at this point that the metal band popped and he
went over the edge, through the bottom part of a work-in-progress window opening, right in
the area where Winchester would have soon started to lay the next course of bricks. There
was no safety rail in the area of that window opening or any other window opening on the
jobsite. On the subject of the general contractor, Winchester testified that he did not have any
contact with its representative and never attended any safety meetings with Lance Shalzi, the
project manager for RAS Development, who was purportedly in charge of safety.
¶ 10 On cross-examination, defense counsel pressed a somewhat reluctant Winchester to
testify that Maggi was standing in a prohibited area at the time of his fall. Winchester did
admit that it would have been safer for Maggi to be under the scaffold, rather than between
the scaffold and the edge of the floor. Winchester was also impeached with his deposition
testimony that indicated that Maggi had “slipped and backed out the window” while trying
to break a bundle of bricks down. Winchester admitted that Maggi was between the bricks
(which were under the scaffold) and the floor edge when he “slipped out.”
¶ 11 The jury also heard testimony from Patrick Brunory, the owner of Rockford
Construction, the bricklaying contractor and the employer of Maggi and Winchester. He
testified that the work area was first prepared by his brother, Sean Brunory, who would set
up the scaffold, mortar table and other necessaries before the brickie and his laborer would
begin their work. He explained that there was no fall protection because there was nothing
for the protection to adhere to, since the building was still going up. He also explained that
one could not guard or place any railings across an area that was involved in overhand
bricklaying because it would interfere with the necessary access for the bricklayer.
-4-
¶ 12 Robert Levin, one of the owners of RAS Development, testified at some length about
the project. He was asked to identify the Prime Contract and the contract with Rockford
Construction. He explained that he had hired Rockford on other projects in the past. He
agreed that it was the responsibility of RAS to employ a competent superintendent who
would be responsible for jobsite safety. Lance Shalzi was employed for that purpose on this
job. Shalzi was a licensed architect, but Levin was singularly unaware of whether he had any
specialized safety background, OSHA training or the like. He said that Shalzi did have the
authority to stop the work if he saw anything unsafe. He acknowledged that RAS was
responsible for initiating, maintaining and supervising all safety programs on the jobsite and
to designate a person to prevent accidents, while steadfastly maintaining that his company
and its employees were “never, never” supposed to enter Rockford’s work zone because it
was “too dangerous.”
¶ 13 The RAS project manager, Mr. Shalzi, testified that he was a licensed architect who
worked as a project manager for the Wolfram project. He had been in a similar position for
RAS on at least seven other sites. He admitted that he had never been trained in construction
site safety. He had no training for fall hazards with buildings of height and this project was
the highest building that he had worked on with RAS. He denied being the “responsible”
person for safety for RAS Development. He said that the project did not have a
superintendent and called himself a “manager.” He never went to the area where Rockford
was laying bricks because he would have been “removed” by Rockford. He did testify that
there were metal safety rails across the window openings, but was not “100 %” sure that they
were there before Maggi’s accident. He said that he hired someone to put up boards on other
floors after the accident and saw Rockford’s men take them down when they did work on the
individual floors.
¶ 14 Plaintiff’s workplace safety expert, Philip Colleran, had more than three decades of
construction safety experience, including 17 years as an OSHA compliance officer. He had
published articles with respect to masonry, including the Mason Contractors Association of
America’s Safety Manual, and also wrote an article about overhand bricklaying. Colleran was
critical of the actual presence of the scaffold near the building’s edge because it was
unnecessary and presented a physical impediment to the laborer getting the brick bundles to
the brickie. He was of the opinion that the window opening through which Maggi fell should
have been protected at all times just short of the actual overhand bricklaying by the mason,
because the mason is trained specifically to deal with the danger and cannot carry out his job
of coursing the bricks if there are bars or guardrails in his way. He explained that a guardrail
should be placed until the bricklaying proceeds, when it would be replaced by blocks to form
a temporary guardrail of sorts. The scaffold was set up prematurely, in his judgment,
compromising the safety of the workspace. The configuration basically required Maggi to
get into the brickie’s area, because the back of the scaffold had cross braces and the only way
for the laborer to get the bundle of bricks close to the bricklayer was to enter that treacherous
area between the scaffold and the building’s edge.
¶ 15 Colleran also found fault with the safety supervision on the site and opined that the
failure of RAS Development to initiate a safety program with a competent superintendent
was a proximate cause of Maggi’s fall. Colleran acknowledged that the testimony established
-5-
that Maggi’s position in between the scaffold and the floor edge constituted a fall hazard. He
also affirmatively stated that Maggi should not have put himself in that position because of
its danger, but allowed that he still could have fallen the same way were he physically located
under the scaffold, as he was supposed to have been, since it was the edge of the scaffold that
formed one border of the brickie area. In his opinion, whether Maggi was under or outside
the confines of the scaffold and near the floor edge was of no moment, because the setup
offered no protection for workers who might fall from either area. He opined that it was
incumbent on RAS, through Shalzi, to intervene and require Rockford to correct the hazard
presented by the presence of the scaffold near the edge and the absent fall protection. He also
admitted that Rockford, plaintiff’s decedent’s employer, violated various safety rules and that
it was primarily responsible for the safety of its own worksite.
¶ 16 Plaintiff’s case-in-chief also included testimony from Robert Erickson, M.D., a
neurosurgeon who was called in as a consultant to evaluate Maggi when he was brought to
Illinois Masonic Hospital immediately after the fall. He explained that Maggi was
resuscitated three times due to his heart stopping or due to a severe rhythm disturbance of
the heart from the fall. He also testified that Maggi did have a myocardial infarction, as a
result of the finding of an arrhythmia, but was of the opinion that he died as a result of the
fall, due to brain and spine trauma, and severe chest trauma which caused a
hemopneumothorax, which is the presence of blood and excessive air in the chest cavity
causing compression of the lungs. He noted that the patient was unconscious and
unresponsive in the “field” and remained so until he was pronounced dead on September 4,
2000.
¶ 17 In terms of damages, the jury also heard substantial testimony about the decedent, a
lifelong bachelor who lived with siblings at the time of his death. Maggi was described as
being very close to his family and was a “go-to guy” if anybody needed anything done.
Defendant does not complain on appeal about the measure of damages awarded by the jury.
¶ 18 Defendant countered plaintiff’s case solely with the testimony of Gregory Wisnewski,
a licensed architect for some 32 years. He was of the opinion that the brick masons could not
install fall protection such as guardrails while they were laying bricks for the wall. He felt
that the area was safe because it was a controlled access zone that was restricted to
bricklayers and laborers who were erecting the building from the inside. He, too, was critical
of Maggi’s positioning of himself between the scaffold and the building’s edge because he
put himself in a hazardous position in the mason’s area. He opined that Rockford, not RAS,
had overall safety responsibility and could have stopped the work if it saw a hazardous
condition. He felt that the masonry work to erect the wall was consistent with the custom and
practice of the industry.
¶ 19 ANALYSIS
¶ 20 Relation-Back Doctrine
¶ 21 RAS Development’s overarching contention on appeal is that the trial court erred in
denying its motion to dismiss plaintiff’s action pursuant to section 2–619(a)(5) of the Code
of Civil Procedure (the Code) (735 ILCS 5/2–619(a)(5) (West 2006)) based on the applicable
-6-
statute of limitations. We review the trial court’s denial of a section 2–619 motion to dismiss
under the de novo standard of review. Polites v. U.S. Bank National Ass’n, 361 Ill. App. 3d
76, 80 (2005).
¶ 22 The four-year construction statute of limitations applied and it expired on August 28,
2004, prior to the date plaintiff added RAS Development as a defendant. See 735 ILCS
5/13–214 (West 2000). The issue thus is whether plaintiff’s action against RAS Development
should “relate back” to the original complaint, which was filed well within the statute of
limitations, pursuant to section 2–616(d) of the Code (735 ILCS 5/2–616(d) (West 2002)).
RAS Development contends that plaintiff knew of its involvement in the construction project
more than 18 months before the limitations period expired but made no attempt to add it as
a defendant until more than 2 years after the expiration of the statute of limitations.
Contrarily, plaintiff contends that he satisfied the three prerequisites under the relation-back
doctrine: (1) he filed suit on time; (2) RAS Development had notice of both the suit and that
it was the intended target prior to the expiration of the limitations period; and (3) plaintiff’s
amended complaint grew out of the same transaction.
¶ 23 The first issue for us to resolve is whether section 2–616(d) applies to the present
case, a question which turns on whether the facts suggest a case of misnomer or mistaken
identity. Pruitt v. Pervan, 356 Ill. App. 3d 32, 36 (2005); Fassero v. Turigliatto, 349 Ill. App.
3d 368, 370 (2004). In a case of misnomer, the relation-back doctrine would automatically
apply, and the amended complaint naming the proper defendant would be considered filed
upon the filing date of the original complaint. Fassero, 349 Ill. App. 3d at 370. If this is a
case of mistaken identity, we would need to analyze the three factors provided in section
2–616(d) to determine whether plaintiff’s amended complaint relates back to the date of
filing of his original complaint. Id. Thus, our initial inquiry is whether plaintiff would have
named RAS Development as the defendant in his original complaint but for a mistake
concerning the identity of the proper party. See Polites, 361 Ill. App. 3d at 82.
¶ 24 Whether a case involves mistaken identity or misnomer depends on the intent of the
plaintiff as established by the plaintiff’s objective manifestations of that intent as contained
in the record. Fassero, 349 Ill. App. 3d at 371-72. “The most probative evidence of whom
the plaintiff intended to sue is the party named in the complaint.” Id. at 372 “ ‘If the named
party in fact exists but is not a real party in interest, a court can conclude that the plaintiff has
mistakenly sued the wrong party.’ ” Id. (quoting Zito v. Gonzalez, 291 Ill. App. 3d 389, 393
(1997)).
¶ 25 The Fassero court was the first appellate court to interpret the amended version of
section 2–616(d). In Fassero, the plaintiff motorist brought a personal injury action, naming
the owner of the car, instead of the driver, as the defendant. After discovering that she sued
the wrong defendant, plaintiff brought a motion to amend the complaint after the statute of
limitations had run. The trial court denied the motion, and the plaintiff appealed. This court
reversed, holding that the case was of mistaken identity, not misnomer, explaining that the
real party in interest was not originally sued or served, which indicated that the plaintiff was
mistaken as to the correct party’s identity. Fassero, 349 Ill. App. 3d at 373-74. The court
noted that the plaintiff’s complaint was directed at the driver of the vehicle, but the complaint
named someone else as the defendant. Id. at 374. The court concluded that the plaintiff
-7-
simply sued the wrong person, meaning it was a case of mistaken identity and the misnomer
rule did not apply. Id.
¶ 26 Following Fassero, the Pruitt court found that the relation-back doctrine did not
apply in a premises liability action where the plaintiff’s failure to name the proper defendants
was due to a lack of information about the other parties’ responsibility for the premises.
There, the plaintiff assumed the management company was liable for her injury, rather than
the property’s owner. The plaintiff later attempted to amend her complaint to name the
owners. This court found that the plaintiff was not misled in any way causing her to file her
initial suit against only the management company. The Pruitt court concluded that it was not
a case of mistaken identity because the plaintiff deliberately named the party she intended
to hold responsible for her injuries. Pruitt, 356 Ill. App. 3d at 37.
¶ 27 Shortly after Pruitt, the Polites court considered section 2–616(d) where a bank
customer sustained injuries while at a U.S. Bank branch office. Plaintiff’s counsel sent a
claim letter to the branch office where the injury occurred and received a response from an
insurance claims service representing U.S. Bancorp, a separate entity described as U.S.
Bank’s parent corporation, indicating that the owner of the bank was U.S. Bancorp, not U.S.
Bank. Unable to reach a settlement, the plaintiff filed a premises liability action against U.S.
Bancorp. When U.S. Bancorp was subsequently dismissed from the case, the plaintiff
amended his complaint to substitute U.S. Bank as the defendant after the statute of
limitations had run. The trial court granted U.S. Bank’s motion to dismiss, finding that the
amended complaint did not relate back to the plaintiff’s first complaint. This court reversed,
holding that the plaintiff’s amended complaint did indeed relate back to the first complaint,
since plaintiff had originally intended to bring his claim against the owner and operator of
the branch office and had acted reasonably in relying on the insurance claims service’s
statement that U.S. Bancorp was the proper defendant. Polites, 361 Ill. App. 3d at 84.
¶ 28 The current iteration of the relation back doctrine is patterned after Federal Rule of
Civil Procedure 15(c). See Polites, 361 Ill. App. 3d at 88. Until very recently, there had been
a split in the federal circuits on the very issue presented in the matter sub judice. This conflict
in the federal case law has been unequivocally resolved by the United States Supreme
Court’s opinion in Krupski v. Costa Crociere S.p.A., 560 U.S. ___, 130 S. Ct. 2485 (2010).
There, a cruise ship passenger brought an action in the District Court for the Southern
District of Florida against the carrier to recover for injuries she sustained while aboard the
ship. On February 1, 2008–three weeks before the one-year limitations period expired–the
passenger filed a negligence action against Costa Cruise. The complaint alleged that Costa
Cruise “owned, operated, managed, supervised and controlled” the ship on which the
passenger had injured herself. The passenger served Costa Cruise shortly thereafter.
¶ 29 Over the next several months–after the limitations period had expired–Costa Cruise
thrice brought Costa Crociere’s existence to the passenger’s attention. First, in its answer to
the complaint, Costa Cruise asserted that it was not the proper defendant, as it was merely
the North American sales and marketing agent for Costa Crociere, which was the actual
carrier and vessel operator. Second, in its corporate disclosure statement, Costa Cruise listed
Costa Crociere as an interested party. Finally, Costa Cruise moved for summary judgment
and again stated that Costa Crociere was the proper defendant. In June 2008, the passenger
-8-
responded to the motion for summary judgment and simultaneously moved to amend her
complaint to add Costa Crociere as a defendant.
¶ 30 On July 2, 2008, the district court denied Costa Cruise’s motion for summary
judgment and granted the passenger leave to amend. Nine days later, the passenger filed an
amended complaint and served Costa Crociere on August 21, 2008. On that same date, the
district court issued an order dismissing Costa Cruise from the case pursuant to the parties’
joint stipulation. Shortly thereafter, Costa Crociere moved to dismiss the complaint,
contending that the amended complaint did not relate back under Rule 15(c) and was
therefore untimely. The district court agreed and granted Costa Crociere’s motion to dismiss,
and the Eleventh Circuit Court of Appeals affirmed.
¶ 31 The Supreme Court reversed, holding that “relation back under Rule 15(c)(1)(C)
depends on what the party to be added knew or should have known, not on the amending
party’s knowledge or its timeliness in seeking to amend the pleading.” Krupski, 560 U.S. at
__, 130 S. Ct. at 2490. This precise juxtaposition is presented in this appeal, with defendant
arguing that plaintiff should be subject to dismissal because he was not diligent in naming
the right party and plaintiff arguing that defendant knew all along that it was the entity that
acted as the general contractor, while he was clearly mistaken in his belief that a related
corporate entity was the general contractor.
¶ 32 The Supreme Court directly addressed the meaning of the term “mistake” in the
context of a party attempting to name an entity responsible for causing injury. It defined
mistake as “ ‘[a]n error, misconception, or misunderstanding; an erroneous belief.’ ”
(Emphasis added) Krupski, 560 U.S. at ___, 130 S. Ct. at 2494 (quoting Black's Law
Dictionary 1092 (9th ed. 2009)). “That a plaintiff knows of a party's existence does not
preclude her from making a mistake with respect to that party's identity.” Krupski, 560 U.S.
at ___, 130 S. Ct. at 2494. The Supreme Court reasoned, “[b]ecause the complaint made
clear that [the passenger] meant to sue the company that ‘owned, operated, managed,
supervised and controlled’ the ship on which she was injured, [citation], and also indicated
(mistakenly) that Costa Cruise performed those roles, [citation], Costa Crociere should have
known, within the Rule 4(m) period, that it was not named as a defendant in that complaint
only because of [the passenger’s] misunderstanding about which ‘Costa’ entity was in charge
of the ship–clearly a ‘mistake concerning the proper party’s identity.’ ” Krupski, 560 U.S.
at ___, 130 S. Ct. at 2497. The Supreme Court also noted that Costa Cruise and Costa
Crociere are “related corporate entities with very similar names,” which should have
“heighten[ed] the expectation that Costa Crociere should suspect a mistake has been made
when Costa Cruise is named in a complaint that actually describes Costa Crociere’s
activities.” Krupski, 560 U.S. at ___, 130 S. Ct. at 2498. The Supreme Court lastly noted that
“Costa Crociere’s own actions contributed to passenger confusion over ‘the proper party’ for
a lawsuit.” Krupski, 560 U.S. at ___, 130 S. Ct. at 2498. Likewise, in the case sub judice, we
are confronted with related corporate entities with similar names, one of whom surely
contributed to confusion over the proper defendant’s identity.
¶ 33 Therefore, we conclude that this is indubitably a case of the plaintiff being mistaken
about the correct identity of the general contractor on the project in question. The language
in plaintiff’s original complaint supports the conclusion that plaintiff intended to sue the
-9-
entities that “owned and or were in charge of the erection, construction, repairs, alteration,
removal and/or brick-laying” for the project site and also mistakenly alleged that Wolfram
Towers performed those roles. RAS Development should have known that it was not named
as a defendant in that complaint only because of plaintiff’s misunderstanding about which
of the related “RAS” corporate entities was the general contractor–clearly a mistake
concerning the proper party’s identity.
¶ 34 The mistake in identifying the general contractor in this case was not exclusive to the
plaintiff, since an originally named, related defendant specifically admitted that it was the
“general contractor” in response to the allegation about who “owned” or was “in charge of”
the “erection” and “construction” of the Wolfram Street project. On November 26, 2002,
Wolfram Towers, Marianne P., and RAS Wolfram jointly answered plaintiff’s complaint,
in which Wolfram Towers admitted that it was the general contractor for this project.
Intending to sue the general contractor, and having been informed that Wolfram Towers was
the general contractor, it is easy to see why plaintiff believed Wolfram Towers was the
proper party. Our careful review of the record indicates that Wolfram Towers never filed a
timely amended answer to inform plaintiff that both it and plaintiff were mistaken about the
true identity of the general contractor. Just as the plaintiffs in both Fassero and Polites were
led to believe they had sued the proper party, plaintiff in this case was led to believe through
Wolfram Towers’ own admission that he had sued the general contractor in charge of the
construction site. For these reasons, we find this case is one of mistaken identity and section
2–616(d) applies.
¶ 35 Because we have determined this is a case of mistaken identity, we now return to a
discrete analysis of section 2–616(d) of the Code to determine whether plaintiff’s amended
complaint against RAS Development relates back to the date of filing of his original
complaint for purposes of the statute of limitations. Section 2–616(d), as amended in 2002,
provides:
“A cause of action against a person not originally named a defendant is not barred by
lapse of time under any statute or contract prescribing or limiting the time within
which an action may be brought or right asserted, if all the following terms and
conditions are met: (1) the time prescribed or limited had not expired when the
original action was commenced; (2) the person, within the time that the action might
have been brought or the right asserted against him or her plus the time for service
permitted under Supreme Court Rule 103(b), received such notice of the
commencement of the action that the person will not be prejudiced in maintaining a
defense on the merits and knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would have been brought
against him or her; and (3) it appears from the original and amended pleadings that
the cause of action asserted in the amended pleading grew out of the same transaction
or occurrence set up in the original pleading, even though the original pleading was
defective in that it failed to allege the performance of some act or the existence of
some fact or some other matter which is a necessary condition precedent to the right
of recovery when the condition precedent has in fact been performed, and even
though the person was not named originally as a defendant. For the purpose of
-10-
preserving the cause of action under those conditions, an amendment adding the
person as a defendant relates back to the date of the filing of the original pleading so
amended.” 735 ILCS 5/2–616 (West 2002).
The first and third requirements of section 2–616(d) are easily resolved here. First, the statute
of limitations had not expired when the original action commenced. The accident occurred
on August 28, 2000. The original complaint was filed on August 26, 2002, more than two
years prior to the expiration of the applicable construction statute of limitations. See 735
ILCS 5/13–214 (West 2000) (four-year time period for filing a construction personal injury
action). Next, plaintiff has satisfied the third requirement because the amended pleading sets
forth a cause of action that grew out of the same occurrence as that set forth in the original
pleading. Plaintiff’s amended complaints set forth the same set of facts as his original
complaint. In fact, the amended complaint contains the precise language of the original
complaint, except for the substitution of RAS Development as the only defendant.
¶ 36 Under the second requirement of section 2–616(d), the timely notice requirement, we
must determine if RAS Development received notice of the commencement of the action
within the applicable time period so that it was not prejudiced in maintaining a defense on
the merits and knew or should have known that, but for a mistake concerning the identity of
the proper party, the action would have been brought against it. On appeal, RAS
Development contends that plaintiff cannot satisfy this requirement, because he had specific
knowledge of its existence and role as the general contractor at least 18 months prior to the
expiration of the limitations period and did not add RAS Development until more than 2
years after the expiration of the limitations period.
¶ 37 Defendant’s focus on what plaintiff actually knew or should have known is misplaced
based on the specific language of this statute. In Krupski, the Supreme Court clarified that
for purposes of relation back, the question is not whether a plaintiff knew or should have
known of the identity of the proper defendant, but whether the proper defendant knew or
should have known that it would have been named as a defendant but for an error. Krupski,
560 U.S. at __, 130 S. Ct. at 2493. This focus on the defendant’s knowledge, rather than the
plaintiff’s knowledge, finds support in the purpose of the relation back-doctrine, which is:
“to balance the interests of the defendant protected by the statute of limitations with
the preference expressed in the Federal Rules of Civil Procedure in general, and Rule
15 in particular, for resolving disputes on their merits. [Citation.] A prospective
defendant who legitimately believed that the limitations period had passed without
any attempt to sue him has a strong interest in repose. But repose would be a windfall
for a prospective defendant who understood, or who should have understood, that he
escaped suit during the limitations period only because the plaintiff misunderstood
a crucial fact about his identity. Because a plaintiff's knowledge of the existence of
a party does not foreclose the possibility that she has made a mistake of identity
about which that party should have been aware, such knowledge does not support
that party's interest in repose.” Krupski, 560 U.S. at __, 130 S. Ct. at 2494.
¶ 38 In the case sub judice, as previously discussed, it is evident that the RAS entities
knew that RAS Development was the proper party and thus was not prejudiced in having to
-11-
defend this suit on the merits. More to the point, defendant was possessed of the very same
information that it somewhat confusingly communicated to the plaintiff, so it was more than
aware that it was the true target of the litigation. In accord with the purpose of the statute–to
resolve disputes on the merits–we cannot say that RAS Development was prejudiced in
having to defend this suit when it was aware that plaintiff intended to sue the general
contractor at least 15 months prior to the expiration of the limitations period. To find
otherwise would be to grant RAS Development an inequitable procedural windfall by
escaping liability only because plaintiff had misunderstood a crucial fact about its identity.
¶ 39 Lastly, while defendant urges this court to find that plaintiff did not act diligently
once he received the information that RAS Development was the general contractor, the
Supreme Court made it clear in Krupski that a plaintiff’s diligence is not a factor enumerated
in section 2–616(d) and the speed at which a plaintiff moves to amend a complaint has no
bearing on the relation-back doctrine. See Krupski, 560 U.S. at __, 130 S. Ct. at 2496 (“The
Rule plainly sets forth an exclusive list of requirements for relation back, and the amending
party’s diligence is not among them. *** [T]he speed with which a plaintiff moves to amend
her complaint or files an amended complaint after obtaining leave to do so has no bearing
on whether the amended complaint relates back.”).
¶ 40 Accordingly, we conclude that RAS Development had knowledge of the
commencement of the action well before the expiration of the limitations period. RAS
Development clearly knew or should have known that, but for plaintiff’s misidentification,
it should have been sued. Pursuant to section 2–616(d), the trial court did not err in finding
plaintiff’s amended complaint related back to its timely filed original complaint.
¶ 41 Control of the Project
¶ 42 RAS Development next contends that it was entitled to judgment n.o.v. because the
jury’s verdict was clearly against the manifest weight of the evidence where it did not retain
control over the operative details of Rockford’s work, nor did it supervise Maggi’s work.
RAS Development also contends that the verdict finding Maggi only 1% comparatively
negligent was against the manifest weight of the evidence. Plaintiff asserts that RAS
Development’s motion was properly denied because defendant retained general control over
site safety and the jury’s verdict was not against the manifest weight of the evidence.
¶ 43 We apply the de novo standard in reviewing the circuit court’s denial of a directed
verdict and its denial of a motion for judgment n.o.v. Buckholtz v. MacNeal Hospital, 337
Ill. App. 3d 163, 167 (2003); Diaz v. Legat Architects, Inc., 397 Ill. App. 3d 13, 31 (2009).
“ ‘[V]erdicts ought to be directed and judgments n.o.v. entered only in those cases in which
all of the evidence, when viewed in its aspect most favorable to the opponent, so
overwhelmingly favors movant that no contrary verdict based on that evidence could ever
stand.’ ” Buckholtz, 337 Ill. App. 3d at 167 (quoting Pedrick v. Peoria & Eastern R.R. Co.,
37 Ill. 2d 494, 510 (1967)). We hold that RAS Development’s motion for judgment n.o.v.
was properly denied because the evidence does not so overwhelmingly favor RAS
Development that no contrary verdict based on that evidence could ever stand.
¶ 44 RAS Development correctly states that one who entrusts the work to an independent
-12-
contractor is generally not liable for that independent contractor’s acts or omissions.
Calderon v. Residential Homes of America, Inc., 381 Ill. App. 3d 333, 340 (2008). However,
the retained control exception in section 414 of the Restatement (Second) of Torts states:
“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 (1965).
The comments following the section differentiate between vicarious liability and direct
liability. Comment a to section 414 explains the requirements to find vicarious liability. That
is, 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. Restatement (Second) of Torts § 414 cmt. a (1965). Comment
b, in pertinent part, explains the theory of direct liability:
“[T]he 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 cmt. b (1965).
Comment c further explains that, “There must be such a retention of a right of supervision
that the contractor is not entirely free to do the work in his own way.” Restatement (Second)
of Torts § 414 cmt. c (1965).
¶ 45 In this case, we believe the jury had sufficient evidence to find the defendant
vicariously liable because it retained general control over the safety of the site or directly
liable in that it failed to prevent a hazard that it was aware of.
¶ 46 First, in regard to RAS Development’s vicarious liability, “The best indicator of
whether a contractor has retained control over the subcontractor’s work is the parties’
contract, if one exists.” Downs v. Steel & Craft Builders, Inc., 358 Ill. App. 3d 201, 205
(2005). “When interpreting a contract, we must consider the entire document [citation] to
give effect to the parties’ intent [citation], as determined by the plain and ordinary meaning
of the language of the contract [citation].” Id. Further, “ ‘ “The power to forbid work from
being done in a manner likely to be dangerous to himself or others is given as an illustration
of the type of power retained by an employer which could subject him to liability.” ’ ” Bokodi
v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051, 1063-64 (2000) (quoting Ryan v.
Mobil Oil Corp., 157 Ill. App. 3d 1069, 1078 (1987), quoting Pasko v. Commonwealth
Edison Co., 14 Ill. App. 3d 481, 488 (1973)).
¶ 47 In this case, a plain reading of the applicable contract provisions indicates that RAS
Development was responsible for jobsite safety. AIA Document A201, entitled, “General
-13-
Conditions of the Contract for Construction” (the General Conditions), was expressly
incorporated into the subcontract agreement between RAS Development and Rockford,
entitled “Standard Form of Agreement Between Contractor and Subcontractor” (the
Subcontract). Section 3.3.1 of the General Conditions provides in pertinent part:
“The Contractor shall supervise and direct the Work, using the Contractor’s
best skill and attention. The Contractor shall be solely responsible for and have
control over construction means, methods, techniques, sequences and procedures and
for coordinating all portions of the Work under the Contract, unless the Contract
documents give other specific instructions concerning these matters.”
Article 3.3.2 of the General Conditions states that RAS Development is responsible to the
owner for acts and omissions of its employees, subcontractors and their agents and
employees. Article 10.1.1 of the General Conditions states, “The Contractor shall be
responsible for initiating, maintaining and supervising all safety precautions and programs
in connection with the performance of the Contract.” Article 10.2.1 of the General
Conditions elaborates, “The Contractor shall take reasonable precautions for safety of, and
shall provide reasonable protection to prevent damage, injury or loss to: (1) employees on
the Work and other persons who may be affected thereby.” Article 10.2.3 of the General
Conditions charges RAS Development with an affirmative duty to erect and maintain
reasonable safeguards for safety and protection, and article 10.2.6 of the General Conditions
requires it to designate a responsible member to prevent accidents.
¶ 48 According to these provisions, it is clear that the parties intended RAS Development
to be responsible for supervising, directing, and controlling the construction project. This
control included initiating, maintaining and supervising all safety precautions and programs
to prevent damage or injury to employees. While Rockford may have been primarily
responsible for safety, RAS Development retained a general right of control and was
responsible to the owner for acts and omissions of its subcontractors.
¶ 49 That RAS Development was responsible for site safety and should have known that
a fall hazard existed is further supported by the testimony adduced at trial. Robert Levin
testified that the contract stated that the contractor would evaluate, and was fully and solely
responsible for, jobsite safety. Levin further testified that RAS Development was required
to employ a competent superintendent, Lance Shalzi, who was the day-to-day project
manager, who had the authority and responsibility to stop activities if they were dangerous
and had a duty to investigate if he saw a hazard. Levin agreed that RAS Development was
responsible for initiating, maintaining, and supervising all safety precautions and programs,
including erecting and maintaining reasonable safeguards to prevent accidents. Levin stated
that RAS Development put up warning signs, employed a security guard for the site, put a
fence around the project, and put up boards on the windows after the accident.
¶ 50 Furthermore, Lance Shalzi, the putative safety manager at the Wolfram Towers site,
testified that he was not trained in construction site safety or for fall hazards. He conducted
“walk-throughs” and had the ability to stop the work. Shalzi further substantiated Levin’s
testimony that RAS Development directed rails to be put around the building after the fall
and that it posted signs for hard hats and no trespassing. Shalzi testified that he could order
-14-
subcontractors to correct any hazards he saw and that he was never refused entry to the floor;
however, he did not make an effort to inspect the floor for safety. Also, Patrick Brunory, the
owner of Rockford Construction, testified that Lance Shalzi had direct access to the floor and
that he had safety discussions with Shalzi over basic safety procedures and fall prevention.
He walked Shalzi through the site once a week, and while Rockford had its own safety
meetings, his meetings with Shalzi each week sometimes discussed safety.
¶ 51 The bricklayer, Charles Winchester, testified that RAS Development did nothing to
protect from falling and provided no verbal, written, or cautionary warnings. Dominick
Novak, a laborer for Rockford, testified that while the floor was a restricted area, RAS
Development and Shalzi were not restricted.
¶ 52 Philip Colleran, the workplace safety expert, testified that RAS Development was
required to appoint a competent supervisor to inspect safety. Colleran testified that defendant
had duties to initiate, maintain, and supervise all safety precautions and programs, to take
reasonable safety precautions for the safety of employees, and to designate a responsible
member to prevent accidents. It was necessary for the superintendent to be able to recognize
hazards, and in this case, Shalzi did not have the proper safety training. Colleran further
testified that RAS Development had constructive notice of the hazard because the scaffold
posed an obvious fall hazard to a competent superintendent and Shalzi had the opportunity
to see this hazard without even going up to the floor. While Rockford had the primary
responsibility for safety, the general contractor must step in when the subcontractor fails to
initiate safety. Under the prime contract, RAS Development was still responsible to the
owners for acts and omissions of the subcontractor and had the authority to intervene.
Colleran testified that, “It is not reasonable for a general to overlook obvious hazards that are
universal to the construction industry.”
¶ 53 We agree with plaintiff that it was unreasonable for RAS Development to overlook
this obvious hazard. RAS Development was contractually obligated to oversee site safety and
correct any known hazardous and dangerous conditions. The contracts demonstrate that
defendant did have control over the project and was responsible for overseeing site safety.
Levin, RAS Development’s owner, even agreed that RAS Development was responsible for
safety. While Rockford was required to take safety precautions on its own, it was also
required to comply with any safety measures initiated by RAS Development. RAS
Development posted warning signs, hired a security guard to watch the site, and put up
boards in the windows. Further, defendant was contractually responsible for the acts and
omissions of the subcontractors it hired. As a result, when Rockford failed to address the fall
hazard, it was incumbent upon RAS Development to address the danger.
¶ 54 In addition, RAS Development was required to hire a competent superintendent, who
was responsible for the prevention of accidents. See Diaz v. Legat Architects, Inc., 397 Ill.
App. 3d 13, 36 (2009) (finding the general contractor’s superintendent was not competent
because he was unable to ask the right questions, lacked the necessary training, and failed
to observe the hazard). Shalzi was not trained in construction site safety and personally stated
that he was unable to recognize hazards. Colleran testified that Shalzi had the opportunity
to view the hazard and that it was incumbent upon RAS Development to address safety
concerns where Rockford failed to do so. Rockford had already performed the same work
-15-
on three buildings; therefore, defendant and its project manager, Shalzi, were put on
constructive or actual notice of the hazardous means employed and the fall hazards that
existed.
¶ 55 In sum, RAS Development’s responsibility for site safety is evidenced in the
contracts and also through its actions as demonstrated by the testimony at trial. The jury was
able to properly weigh the evidence and make an informed decision based on this evidence.
Accordingly, RAS Development’s motion for judgment n.o.v. was properly denied because
the evidence does not so overwhelmingly favor RAS Development that no contrary verdict
based on that evidence could ever stand.
¶ 56 Similarly, the jury heard considerable but conflicting evidence about Maggi’s
contributory negligence. While there was testimony that he was in an area that was
purportedly the exclusive domain of the bricklayer to whom he was partnered, plaintiff’s
expert Colleran testified that the fall was attributable, at least in part, to a failure to properly
guard the window opening through which Maggi fell. In Colleran’s opinion, the same fall
could have occurred were Maggi under the scaffold and thus technically in his proper
location, because the edge of the scaffold itself formed the boundary of the mason’s area.
Maggi’s presence just under the scaffold or just outside its edge would have resulted in the
same fall under these circumstances, according to Colleran, because there is no meaningful
difference between those two locations as they relate to the window opening. According to
plaintiff’s theory of liability, the main vice of the scaffold setup was that it compelled the
laborer to enter the brickie’s area in order to deliver the bundles of bricks and other materials
that he was required to supply to Mr. Winchester. Once delivered, these bundles of bricks
needed to be “inched” into position and stabilized before removing the strapping, actions that
foreseeably could place the laborer in an area of danger, especially with the unprotected
nature of the nearly adjacent window opening. Given these facts, we will not second-guess
the jury’s assignment of 1% of contributory fault to the laborer who found himself in this
perilous situation. Therefore, the jury’s finding was appropriate and the evidence does not
so overwhelmingly favor RAS Development that this verdict could never stand.
¶ 57 Evidentiary Rulings
¶ 58 RAS Development next contends that it is entitled to a new trial because three
different evidentiary rulings made by the trial court, either individually or cumulatively,
constituted reversible error, each of which will be addressed in turn below.
¶ 59 First, RAS Development contends that the trial court erred when, following a motion
in limine, it barred Dr. Barron from testifying that Maggi’s fall was caused by a massive and
fatal acute myocardial infarction occurring immediately prior to his fall. Initially, we note
plaintiff’s contention that we are precluded from reviewing this issue because RAS
Development ultimately did not call Dr. Barron as a witness at trial and did not make an offer
of proof with respect to Dr. Barron’s opinions. Our supreme court explained in Dillon v.
Evanston Hospital, 199 Ill. 2d 483, 495 (2002):
“When a trial court excludes evidence, no appealable issue remains unless a formal
offer of proof is made. The failure to do so results in a waiver of the issue on appeal.
-16-
The purpose of an offer of proof is to inform the trial court, opposing counsel, and
a reviewing court of the nature and substance of the evidence sought to be
introduced. However, an offer of proof is not required where it is apparent that the
trial court clearly understood the nature and character of the evidence sought to be
introduced.”
¶ 60 In this case, an offer of proof was not required because the trial court understood that
Dr. Barron would testify that Maggi’s death was due to a massive and fatal acute myocardial
infarction prior to his fall rather than as a result of the fall. See Dillon, 199 Ill. 2d at 495
(offer of proof not necessary where trial court understood that doctor would testify as to the
medical standard of care).
¶ 61 Turning to the merits, we review a trial court's decision on motions in limine and
motions for a new trial for an abuse of discretion. Alm v. Loyola University Medical Center,
373 Ill. App. 3d 1, 4 (2007); Schmitz v. Binette, 368 Ill. App. 3d 447, 452 (2006). “A trial
court abuses its discretion only if it ‘act[s] arbitrarily without the employment of
conscientious judgment, exceed[s] the bounds of reason and ignore[s] recognized principles
of law [citation] or if no reasonable person would take the position adopted by the court.’
[Citation.]” Schmitz, 368 Ill. App. 3d at 452. “In determining whether there has been an
abuse of discretion, this court does not substitute its judgment for that of the trial court, or
even determine whether the trial court exercised its discretion wisely.” Alm, 373 Ill. App. 3d
at 4.
¶ 62 RAS Development contends that Dr. Barron’s opinions were based on a reasonable
degree of medical certainty, evidenced by his report and deposition testimony and supported
by a solid foundation of medical findings and anatomical facts. Plaintiff contends that the
trial court’s ruling was proper because Dr. Barron’s hypothetical opinion about why Maggi
fell lacked foundation where the unrebutted testimony established that he was acting
purposefully right up to the moment he fell and that he was alive after he fell.
¶ 63 “ ‘The trial court is not required to blindly accept the expert's assertion that his
testimony has an adequate foundation. Rather, the trial court must look behind the expert's
conclusion and analyze the adequacy of the foundation.’ ” Hudson v. City of Chicago, 378
Ill. App. 3d 373, 401 (2007) (quoting Soto v. Gaytan, 313 Ill. App. 3d 137, 146 (2000)). “ ‘If
the basis of an expert's opinion includes so many varying or uncertain factors that he is
required to guess or surmise to reach an opinion, the expert's opinion is too speculative to be
reliable.’ ” Modelski v. Navistar International Transportation Corp., 302 Ill. App. 3d 879,
885 (1999) (quoting First Midwest Trust Co. v. Rogers, 296 Ill. App. 3d 416, 427-28 (1998)).
Further, “expert opinions based upon the witness's guess, speculation, or conjecture as to
what he believed might have happened are inadmissible.” Modelski, 302 Ill. App. 3d at 886.
¶ 64 In ruling on plaintiff’s motion in limine, the trial court explained that it was not
barring Dr. Barron’s entire testimony, only his specific opinion as to the precise timing of
the attack:
“THE COURT: It’s just his conclusions that he can look at a postmortem
heart and determine that down to almost the precise second on when a person was
having a cardiac arrest, which he alleged happened before the decedent fell, not
-17-
during the decedent falling, not after the decedent fell. So within three seconds, he
can determine when a person was having a cardiac arrest. Unfortunately, for this
Court, that doesn’t pass my smell test. It doesn’t smell right. It stinks. And therefore,
his testimony will be barred. I’m sure the appellate Court will have more eloquent
words to use in terms of supporting my decision.
MR. SCOTT [defense attorney]: Judge, it’s not the entire testimony, unless
I misheard you. It’s his specific opinion.
THE COURT: Specific opinions, that’s why I wasn’t challenging his
credentials or his qualifications. It’s just his conclusion that he can tell to the second
when a person is having a heart attack because if he can, I would ask him to please
come to this Court today and watch me so that he could prevent my heart attack,
since I have to go through this.”
¶ 65 We conclude that the trial court did not abuse its discretion in barring Dr. Barron’s
testimony regarding the precise timing of the heart attack. While RAS Development chose
not to call Dr. Barron at trial, presumably the trial court would have allowed him to testify
as to his postmortem medical findings regarding Maggi’s heart. The trial court explained that
it did not find Dr. Barron unqualified and did not bar Dr. Barron’s testimony entirely, only
his specific opinion as to the precise timing of Maggi’s heart attack prior to his fall. This
finding does not exceed the bounds of reason considering Dr. Barron’s opinion as to the
precise timing of the heart attack was not supported by any other facts in evidence. There was
no testimony presented that Maggi was disoriented or stuporous before he fell, the symptoms
of cardiac arrest. Rather, eyewitness testimony revealed that Maggi fell when he pulled on
the bundle’s strap and it broke.
¶ 66 Moreover, Dr. Barron’s conclusion that Maggi was dead when he hit the ground
contradicts with Novak’s testimony that he saw Maggi immediately after the fall and
witnessed Maggi trying to get up. Finally, Dr. Barron stated in his deposition that he could
not state to a reasonable degree of medical certainty what, if any, triggering event caused the
heart attack to occur moments before Maggi fell. Dr. Barron also agreed that trauma from
the fall could have been the triggering event. In light of these inconsistencies and uncertain
factors, the trial court did not abuse its discretion in barring Dr. Barron from testifying that
Maggi’s fall was caused by a heart attack he suffered immediately prior to his fall.
¶ 67 Second, defendant contends that the trial court erred when it denied its motion in
limine seeking to bar plaintiff from eliciting opinion testimony and legal conclusions relating
to contract provisions discussing RAS Development’s retained control and responsibility for
safety. Defendant argues that plaintiff’s adverse examination of Robert Levin and the direct
examination of plaintiff’s expert witness, Phillip Colleran, regarding the interpretation of
contract provisions discussing RAS Development’s responsibility for safety was improper.
Plaintiff, meanwhile, disputes that either witness actually interpreted any provisions and
further argues that RAS Development was not prejudiced by either examination. We review
a trial court’s decision on motions in limine and the admissibility of expert testimony under
an abuse of discretion standard. See Alm, 373 Ill. App. 3d at 4; Compton v. Ubilluz, 353 Ill.
App. 3d 863, 866 (2004).
-18-
¶ 68 After carefully reviewing Robert Levin’s examination, we find that the trial court did
not abuse its discretion in permitting him to respond to questions regarding the text of the
General Conditions. The complained-of line of questioning consisted of plaintiff’s counsel
reading the text of articles 3.3.1, 3.3.2, and 10.1 of the General Conditions to Robert Levin
and asking him if the literal recitation of those provisions was correct. Robert Levin was not
asked to “interpret” the contract and did not offer his opinion as to what the contract
provisions meant. Instead, Robert Levin merely offered bland responses to these questions,
like: “Whatever you said, that’s what it says in the contract,” and “That’s what it says in the
contract. I agree.” During this line of questioning, the trial court also admonished plaintiff’s
counsel to read the language of the contract exactly. As such, this line of questioning did not
call for legal conclusions or contract interpretation.
¶ 69 RAS Development also contends that Phillip Colleran, plaintiff’s expert in
construction safety, gave improper testimony regarding contract interpretation. During direct
examination, Colleran was asked, “Did those safety responsibilities that we know about in
the subcontract with Rockford relieve or exclude any responsibilities from the general
contractor with respect to these type[s] of safety issues and accident prevention?” Over
defense counsel’s objection, Colleran responded:
“The plaintiff’s simple story is that the individual contractors have the
primary responsibility to provide safety for their own individual workers.
***
What’s at issue here is that we have a contractor that wasn’t safe. And as
such, the question is, to what extent some other entity that has the ability to intervene
should intervene.
And in this particular case, there was plain evidence before the accident, plain
notice before the accident that there were hazards associated with falls and nothing
was done about them.
***
So the point being is that the primary responsibility does rest with the
individual employer, but it’s in the face of that individual employer’s failure to
initiate safety that it’s incumbent on the general to step in, to intervene and correct
the matter, and they’re entirely in a position to do that.”
¶ 70 Colleran also testified during redirect examination that article 10 of the General
Conditions would be pointless if all liability was placed on subcontractors instead of the
general contractor.
¶ 71 Defendant does not contest that Colleran was qualified to give an opinion on
workplace safety but rather contests that Colleran should not have been permitted to interpret
the contract. Having worked as an OSHA safety officer for 17 years and having been in
private practice since 1990, Colleran was well qualified in the field of construction safety and
was permitted to draw on this extensive experience to formulate his opinion. In response to
the complained-of question, Colleran did not reference the contract provisions. Instead,
Colleran gave testimony that there was evidence of a noticeable fall hazard that existed prior
to the accident and that nothing was done about those hazards. He testified that the primary
-19-
responsibility for those hazards rested with Rockford, but that in the event that Rockford had
not taken corrective measures, defendant was obligated to intervene. This testimony does not
amount to the interpretation of a statute or provide a legal conclusion. See LID Associates
v. Dolan, 324 Ill. App. 3d 1047 (2001) (expert witness may not give testimony amounting
to statutory interpretation or testify with respect to legal conclusions). Furthermore, even if
Colleran was relying strictly on the contract to formulate his opinion, defendant questioned
its own witness, Gregory Wisnewski, on the meaning of various contract provisions. Because
its own witness testified as to his interpretation of these provisions, we cannot conclude that
defendant was prejudiced in any meaningful way by Colleran’s testimony. Accordingly, the
trial court did not abuse its discretion in permitting Colleran’s testimony in a manner which
prejudiced defendant so as to warrant a new trial.
¶ 72 Finally, defendant contends that the trial court erred in denying its motion in limine
seeking to bar plaintiff from presenting evidence that after the accident, the City of Chicago
asked RAS Development to guard the opening where Maggi had fallen. Illinois law permits
evidence of postremedial measures to show control, but not to prove negligence. Herzog v.
Lexington Township, 167 Ill. 2d 288, 300-01 (1995). In ruling on the motion in limine, the
trial court ordered, “The Plaintiff may introduce evidence relating to the Defendant’s
subsequent remedial measures for the purpose of demonstrating the Defendant’s control.”
We find nothing improper in this ruling. The issue of control was a contested issue at trial
where defendant ardently argued that it maintained no control over the third floor where
Maggi was working. Plaintiff introduced evidence of the postremedial measure to
demonstrate that defendant was in control of the third floor. Accordingly, the trial court did
not abuse its discretion in permitting plaintiff to introduce evidence of this postremedial
measure.
¶ 73 Cross-Appeal
¶ 74 The issue raised in plaintiff’s cross-appeal is whether the trial court, after it had ruled
on RAS Development’s posttrial motion, retained subject matter jurisdiction pursuant to
Illinois Supreme Court Rule 219(c) (eff. July 1, 2002), to consider discovery sanctions
related to RAS Development’s alleged misrepresentation of its insurance coverage.
¶ 75 On June 5, 2009, the trial court entered judgment on the jury’s verdict in favor of
plaintiff in the amount of $3,286,382. Subsequent to the verdict, plaintiff learned that RAS
Development had $3 million in liability coverage consisting of a $1 million contractor’s
policy and a $2 million umbrella policy with State Farm Fire & Casualty Company. On July
8, 2009, the trial court heard and denied RAS Development’s posttrial motion. At that same
hearing, plaintiff’s counsel orally requested leave to issue deposition subpoenas for State
Farm personnel and Robert Levin and represented that the depositions were necessary for
two reasons: (1) to confirm the extent of the coverage; and (2) to pursue possible discovery
sanctions for alleged misrepresentations concerning the extent of coverage. The trial court
granted plaintiff “leave to issue subpoenas for depositions” for the president and chief
executive officer of State Farm, a second State Farm employee, and Robert Levin. At no
point did plaintiff file a motion for sanctions pursuant to Rule 219(c).
¶ 76 On July 22, 2009, the trial court denied RAS Development’s emergency motion to
-20-
quash the subpoenas. On August 19, 2009, State Farm filed an emergency motion to
reconsider the July 22 order denying the motion to quash the deposition subpoenas, which
was also denied. At the hearing, the trial court stated that it had “ancillary” or “auxiliary”
jurisdiction over the discovery sanctions. The trial court made clear the basis for its ruling:
Illinois Supreme Court Rule 219(c). On September 8, 2009, State Farm filed an emergency
motion to reconsider the August 19 order, asserting that the court lacked subject matter
jurisdiction to entertain discovery sanctions under Rule 219(c). On September 9, 2009, the
trial court granted the motion to reconsider and vacated the order of August 19, finding that
it lacked jurisdiction “to rule upon any motion for discovery sanctions that might or could
be filed in the future.”
¶ 77 Plaintiff contends that the ruling on RAS Development’s posttrial motion did not
divest the trial court of jurisdiction over his discovery requests aimed at determining who
misrepresented the available insurance coverage. RAS Development and State Farm contend
that the trial court properly found that it did not have subject matter jurisdiction to proceed
on plaintiff’s request to pursue Rule 219(c) sanctions after judgment had been entered. The
construction of a supreme court rule is a question of law, which we review de novo. Badea
v. Phillips, 389 Ill. App. 3d 292, 296 (2009) (citing In re Marriage of Zuberbier, 309 Ill.
App. 3d 386, 388 (1999)).
¶ 78 Rule 219(c) extends a circuit court’s jurisdiction to address sanctions after a final
judgment is entered; however, the motion for sanctions must have been “ ‘pending *** prior
to the filing of a notice or motion seeking a judgment or order of dismissal.’ ” Badea v.
Phillips, 389 Ill. App. 3d 292, 297 (2009) (finding no basis to conclude that the circuit court
retained residual jurisdiction under Rule 219(c) where motion for sanctions was not filed
until after the trial court had dismissed the underlying suit with prejudice) (quoting Ill. S. Ct.
R. 219(c)). In this case, plaintiff never filed a motion for sanctions. Plaintiff merely requested
leave to issue deposition subpoenas in an effort to determine if a later motion for sanctions
would be appropriate. Rule 219(c) does not contemplate this scenario. Rather, by the express
language of Rule 219(c), and consistent with this court’s holding in Badea, the trial court
would only retain residual jurisdiction if plaintiff had filed a motion for sanctions prior to the
entry of judgment. Because plaintiff did not do so in this case, we conclude that the trial
court properly found that it did not have residual jurisdiction to address this matter pursuant
to Rule 219(c).
¶ 79 CONCLUSION
¶ 80 For the aforementioned reasons, we affirm the judgment entered on the jury verdict
and also affirm the trial court’s refusal to hear the motion for sanctions.
¶ 81 Affirmed.
-21-
Maggi v. RAS Development, Inc.
Court: Appellate Court of Illinois
Date filed: 2011-05-26
Citations: 2011 IL App (1st) 91955
Copy CitationsCombined Opinion