2014 I LApp (1st) 123663 FI FTH DIVI SI ON Modified Opinion filed January 31, 2014 No. 1-12-3663 ) TEODORO RAMI REZ , ) Appea l from the ) Circuit Court of Plaintiff-Appellee , ) Cook County
. ) v. ) No. 08 L 6482 ) FCL BU I L DERS, I

NC., an I llinois Corporation, ) Honora ble ) Susan Z wick, Def endant- Appellant. ) J udg e Presiding
. ) PRES I DI NG JUS TI CE GORDON de livered the judgme nt of the cour t, with opinion. J ustices McB ride a

nd Palmer conc urre d in the judgme nt and opinion.

OP INION ¶ 1 Plaintiff Teodoro Ramire z was injured while employed as a roofe r for

Sulli van Roofing , a nonparty to this l itigation. At the time of pla intiff’s injury , Sulli van Roofingwas ope ratingas a subcontrac tor for de fenda nt FCLBuilder s, Inc., the g ener al contra ctor for a wa rehouse projec t. Plaintiff filed suit ag ainst defe ndant, alleg ing that defe ndant was ne g lige nt and, af ter a jury trial, the jury found def

endant liable, a

war ding pla intiff damag es in the amount of $1.588 million. Def endant a ppeals, a rguing tha

t (1) the tria l court er

red in not g rantingjudgme nt notwithst anding the ver dict in favor of

defe ndant, wher e def

endant ha d no liability

for plaintiff’ s injuries as a matter of la

w; and, alter

natively , (2) the tr ial court should have g rante d defe ndant a ne w trial wher e the tria l court improper ly instructed the jury , made e rror s in the admission of evidence , and fa iled to sanction plaintiff for sever al discover

y violations. For the r easons that f ollow, we aff irm.No. 1-12-3663

¶ 2 BA CKGROUND ¶ 3 I . Complaint ¶ 4 On J une 13, 2008, plaintiff f iled a complaint ag ainst defe ndant; the complaint was amende d twice a

nd it was the sec ond amende d complaint on which the pa rties went to trial. 1 The second a mended c omplaint alleg es that, on or be fore September 29, 2004, de fenda nt was a g ener al contra ctor re sponsible for the de sign, c onstruction, and maintena nce of a wa rehouse fac ility in Romeovill e, I llinois . Plaintiff was workingon the roof of the war ehouse on Septe mber 29, 2004, when plaintiff a nd his coworke rs from Sullivan Roofing w ere manually pushing a “lar g e, bulky

and hea vy roll of roofingmembrane materia l” on the roof of the wa rehouse , causingplaintiff’s injuries. Althoug h plaintiff was w orkingon the roof of the war ehouse a s an employ ee of

Sulli van Roofing , defe ndant “wa s prese nt duringthe cour se of the c onstruction projec t, supervised a

nd coordinated the wor

k beingdone, designated va rious work methods, maintained and c hecke d work progress, a nd participated in schedulingthe work a nd the inspection there of.” A dditionally , defe ndant “ha d the authority to stop the work, re fuse the w ork, tools and materials, a

nd to order c hang es in the work in the e vent that the wor k was be ing perf ormed in a da

ng erous manne r or f

or any other re ason.” ¶ 5 The sec ond amende d complaint alleg es that, at the time of the injury , defe ndant, throug h its ag ent, knew or

should have known of

the manner

in which plaintiff’s wor

k was be ing perf ormed a nd defe ndant had a

duty to exercise re asonable car e under the circ umstances to

1 Plaintiff also filed suit ag ainst the proper ty owner , but that claim was settled pr ior to trial and is not part of the instant appea l. 2No. 1-12-3663

protec t the safe ty

of plaintiff. Notwithstandingthat duty , defe ndant was ne g lige nt in one or more of the followingway s: “a. F ailed to per mit Honda [all-terrain ve hicles (AT Vs)] to be used by

the roofingcre w to move heavy roofing materia ls; or b. Allowed an imprope r work pr actice to occur as it relate s to material ha

ndling in violation of OSHA Standar d 2236; or c. F ailed to place ply

wood plankingat var ious locations on the metal dec k there by

allowingHonda AT V’s to be use d to move heavy roofingmateria ls; or d. Fa iled to instruct the Sulli van Roofingcre w in the
rec og nition and avoidance of an unsa fe c ondition as it relates to materia l handling in violation of CFR 1926.21(b) (2); or e. F ailed to follow the saf e customs and pr actice s of the construction industry

in the manner

in which the wor

kers, suc h as the plaintiff, we re r equire d to perfor m their duties; or f. F ailed to ensure handlingof hea vy roofingmateria ls
wer e done in a

rea sonably

car eful manne r.” The sec ond amende d complaint alleg es that, as a result of one or more of

defe ndant’s ac ts or omissions , plaintiff suffe red injuries “ of a pe rsonal and pe cuniar y nature .” ¶ 6 As an a ffirmative defe nse, def endant a lleg es that plaintiff ha d the duty to exercise
rea sonable c are and ca

ution for his own safe ty

and fa iled to do so in one or more of the following
3No. 1-12-3663

way s: “a. F ailed to prope rly move and/or push r oofingmateria ls; b. Fa iled to make a r easona ble inspection of the pr emises to ensure that he was f

amiliar with the pre mises; c. F ailed to use a

ppropriate methods in the moving a nd/or pushing of

roofingmateria ls; d. Perfor med his work in a manne r in which the Plaintiff knew, or in the exercise of

ordinary car e, should have known was harmful or

dang erous; e. Was otherwise car eless and ne g lige nt.” ¶ 7 I I . Discover y ¶ 8 Since def

endant r aises seve ral a

rguments conce rningdiscovery , we r elate the rele vant fac ts. ¶ 9 On August 12, 2010, plaintiff filed answe rs to defe ndant’s Rule 213 interr og atories, disclosing his anticipated witnesses, includingfive Rule 213(f )(2) independe nt expert witnesses and no Rule 213(f

)(3) controlled e x pert witnesse s. I ll. S. C t. R. 213 (eff. Jan. 1, 2007). On J anuar y 11, 2011, the trial cour

t ordere d plaintiff to answe r def endant’ s Rule 213(f)( 3) interrog atories by

April 1, 2011. On Mar ch 13, 2011, the c ourt enter ed an or der that discovery was to close on Ma

y 4, 2011. On April 5, 2011, the trial c ourt order ed plaintiff to disclose a ny Rule 213(f)( 3) witnesses by April 4, 2011, with the witnesses to be de posed by May 5, 2011; the court a g ain orde red discove ry closed on May

4, 2011.
4No. 1-12-3663

¶ 10 On April 20, 2011, plaintiff filed supple mental Rule 213 disclosures, includingan additional Rule 213(f)( 1) lay witness and one Rule 213( f)( 3) controlled e x pert witness, De nnis Puchalski, a construc tion safety consultant. ¶ 11 On September

16, 2011, plaintiff’s cur

rent attorney s filed an a

ppear ance as additional attorney s of re cord a

nd, in October

2011, plaintiff’s cur

rent a ttorney s replac ed the f

ormer attorney s as plaintiff’s c ounsel. ¶ 12 On Fe bruar

y 21, 2012, the attorne y s for the pa rties ce rtified that all fa ct, medica l, and opinion discovery

was c omplete; that all deposition of Rule 213(f)( 1), (2) , and (3) witnesses had been ta ken or w aived in wr iting or in a court orde r; that all nec essar y evidenc e depositions had been ta ken; and that no dispositive motions were pe nding or would be filed by

any party prior to trial. On Mar ch 8, 2012, the c ase w as set for trial on May

3, 2012. ¶ 13 On April 24, 2012, plaintiff filed a notice of vide otaped e vidence deposition for Jaime Rojas, which would take pla ce via telephone on A

pril 26, 2012, since Rojas was loc ated in Colorado. On Apr il 26, 2012, defenda nt filed an e merg ency

motion to quash the videotaped telephone e vidence deposition. I n the motion, defenda nt argued that two day s’ notice f or a videotaped e vidence deposition was insufficie nt and would not allow def ense c ounsel the opportunity

to attend the deposition in person a nd to cross-e x amine the de ponent in person. Fur ther, de fenda

nt claimed that the de ponent, J amie Rojas, had not bee n listed by plaintiff as a Rule 213(f)( 1), (2) , or (3) witness. On the same day , the trial cour t denied def

endant’ s motion t o quash the de position and further or dere d the May 3, 2012, trial date to stand. ¶ 14 On May

8, 2012, duringtrial, defe ndant filed a motion in limine seeking to bar plaintiff
5No. 1-12-3663

from ca lling David Gibson as a trial witness. The motion claimed that, on October 28, 2011, plaintiff made a

n oral motion seekingto disclose an additional Rule 213(f )(3) damag es witness, which the tria l court g rante d over de fenda nt’s objection. Plaintiff’s disclosure of Gibson as an additional witness “re sulted in defense counsel be ing c ompelled to reta in its own defense expert on the issue of damag es,” c ausingprejudice . On the same day , the trial cour t denied def

endant’ s motion. ¶ 15 Def

endant a lso filed a motion in limine seekingto bar plaintiff f rom ca lling Jaime Rojas
as a w itness for thre e re asons: “insuffic ient notice of a n evidenc e deposition, violation of the Supreme Court 213(f

)(2) , and subseque ntly

afte r takingthe deposition learningof additional documentation that wa s releva nt to the functional ca

pacity evaluation that Mr. Rojas was testifying a

bout on that give n day .” De fenda nt argued that, despite pla intiff’s claim that a le tter was sent in January

2012 disclosing Rojas as a witness, defe nse counse l never rec eived suc h a letter. The trial court de nied def endant’ s motion. ¶ 16 I I I . Trial ¶ 17 Trial beg an on May 7, 2012. Evidence was pre sented c oncer ning the installation of the roof in the c ase at bar, a s well as plaintiff’ s medical history followingthe injury . Severa l witnesses also testified a

bout the safe ty

of the proc edure s used on the roof , as we ll as plaintiff’s damag es. ¶ 18 A. RoofingWit nesses ¶ 19 1. Michae l Sull ivan ¶ 20 Michae l Sull ivan, who wa s employ ed by Sulli van Roofingand wa s the brother of the
6No. 1-12-3663

company ’s owner , was Sullivan Roofing’ s safe ty direc tor in September 2004. Sullivan testified that Sulli van Roofingwas in the business of installingcommerc ial roofs, including“ballaste d roofingwhich has r ock on top to hold [ it] down”; Sullivan estimated that 30 to 40 roofe rs would have be en employed by

Sulli van Roofingin 2004, and it was ty pical for Sulli van Roofingto have multipl e jobs at the same time. In 2004, defe ndant, the g ener al contra ctor, hire d Sulli van Roofing a s a subcontra ctor on a projec t called the “ Wil ton Industries Project” in Romeoville (the Wil ton project). T he Wilton project was to be a big- box war ehouse w ith a ballasted roof “somewhe re in the vic inity ” of 450,000 squa re f eet, whic h was “ a lar g e roof , but it wasn’t a hug e roof.” The roof

on the Wilt on projec t was pitched, or slightly inclined. ¶ 21 Sulli van testified that, prior to beg inning wor k on the Wilt on projec t, Sull ivan Roofing
rec eived a

“we lcome subcontra ctor ty pe letter ” fr om defe ndant, in which def endant indicated that it was “c ommitt ed” to Sullivan Roofing’ s safe ty and wa nted to provide a

workplac e “r easona

bly fre e of r ecognized safety

hazards,” which Sullivan testified was “ve ry common” on a pr oject of the scope of the Wilton project. The letter further stated that “sa fety

and saf ety awa rene ss is a two-wa y street,” which Sullivan ag ree d with, testifying that “[e]very body on site is responsible for sa fety ,” includingthe g ener al contra ctor, subcontr actor , and employ ees. Sullivan also testified that, on the Wilton project, defe ndant had c erta in “intolerable offe nses,” whic h meant that “g ener ally

the subcontra ctor ha s to behave in a ce rtain fa shion or they ’re g one.” ¶ 22 Sulli van also e x plained the pr ocess of laying a ballasted roof

such as that installed on the Wil ton project. F irst, panels of insulation wer e plac ed on top of meta l decking ; the panels we re four f eet by eig ht fee t and weighed appr ox imately four pounds. The panels we re wrappe d in
7No. 1-12-3663

bundles of 23 and hoisted to the r oof by a “boom truc k,” esse ntially , a bigtruck with a c rane . The mate rials and tools, includinginsulation, rolls of rubber membr ane, a nd ATVs, we re pla ced alongthe per imeter of the roof, at least six fee t from the edg e; it was Sullivan Roofing’s de cision wher e to place the mater ials and Sullivan testified that it would not be unusual to have deliver y of roof ing materials stag g ere d over se vera l weeks. The insulation was place d, beg inning a t one
corne r of the building , enoug h to cover an ar ea of

50 fee t by

200 fee t. A sheet of r

ubber membrane was then pla ced on top of the insulation; the entire dec k was not laid with insulation befor e beg inning to plac e the r ubber me mbrane beca

use, otherw ise, it would be blown awa y by wind. After

the rubbe r membra

ne wa s place d, stones would be spre ad on top of it; initi ally , rows of stone would be pla ced to ke ep the insulation and rubbe r in place in case of wind, which w ould be filled in later

with more stones. The bundle s of insulation could be pushed by two worke rs over shor t distances. ¶ 23 Sulli van testified that “ once in a while [ sic ]” ATVs would assist in rolling out the rolls of rubber membrane : “It wasn’t alwa y s. When the Hondas [ 2 ] wer e ava ilable or they came around, sometimes they

would help push the rolls over, yes.” Sullivan testified that the ATV s would also be used a fter the rubber

membrane was plac ed, to sprea d the g rave l on top of the rubber membrane . He c ould not reca ll the siz e of the rubber membrane rolls but, on a roof the size of the Wilt on projec t, “a lot of times we use 50 by 200s.” The r olls, when wra pped, we re approximately

2.5 fee t high a

nd 10 fee t wide and would we igh be tween 1,500 to 2,000 pounds dependingon the size. W hen movingrolls of that size and weig ht at distances of over 30 f eet,

2 Throug hout the trial, witnesses used the terms “AT Vs” a nd “Honda s” interc hang eably
. 8No. 1-12-3663

“[i] t all depends on how ma ny guy s were available . Sometimes we had e ight guy s pushing the roll. Sometim es there would be less guy s, and the Honda would come in betwe en eve ry body and help push it.” Sulli van testified that it would be “ very rar e” f or worke rs to phy sically

push the rubber membrane more than 300 f eet be cause “[t] hose [rolls] are positioned so that we don’t have to move the m that far when we load the job.” ¶ 24 Sulli van testified that, whe n roofingmateria ls were hoisted onto the roof of the Wil ton projec t, the materia ls were “dimpling” or dentingthe dec k, and a solution nee ded to be pr ovided by “the powe rs that be.” Sulli van could not re call who infor med him of the issue, “but I was called, a nd it was said we ha

ve an issue” ; Sull ivan later testified that “I

believe John [ Z elasc o 3 ] called me ” and inf

ormed him of the pr oblem with the decking . Sulli van testified that AT Vs wer e used on the Wilton project and we re only temporar ily

stopped: “That wa s a dec ision made at the point in ti me all this happene d, to stop every thing, a nd we ha d to fig ure out a

way that we c ould use them ag ain and g et things r olling and be able to load - - so we w ouldn’t damag e the de ck.” A meetingwas he ld to discuss the soluti on to the problem, at whic h Sulli van and D ave Ma jestic, also a Sullivan Roofing e mploy ee, w ere prese nt, but Sul livan could not rec all whether J ohn Z elasc o was pre sent on beha lf of def endant: “I don’t rec all if J ohn was ther e. John wouldn’t have be en in that discussion until we fig ured out wha t we wa nted to do and then we would pose that to him.” ¶ 25 Sulli van testified that Z elasc o had the a uthority to stop work on the projec t if he obser ved unsafe prac tices and f

urther te stified that “F CLis very strict on safe ty . So that’s more -- y ou

3 Z elasc o was de fenda

nt’s superintende nt on the Wil ton project.

9No. 1-12-3663

know, any

thing that ha

ppens, John has the right. He runs the job. He ha s the rig ht to stop.” I f Z elasc o observe d someone pe rfor ming his job in an unsaf

e manne r, Z elasc o would have the rig ht to stop that work and then would c ontact Sullivan. Z elasc o would also coordinate the wor k and monitor the work of the subcontrac tors. Howeve r, Sullivan testified that defe ndant was not involved in the means a

nd methods of Sullivan Roofing’s wor k on the Wilt on projec t. ¶ 26 At the meeting , they “ca me up with a ply

wood runwa

y solution,” which would use a ply wood runwa

y sy stem to distribut e the we ight of the heavy

roofingmateria ls and permit the ATVs to be use d. Sulli van testified that “ [w] e made the dec ision to use the ply wood runwa

y and posed that to J ohn to help to protect the r oof. That wa s our dec ision.” Sull ivan furthe r testified that “af ter a confe renc e betwe en John and the powers tha t be at Sullivan, that was a solution that was implemented,” and it worke d to stop the dimpl ing. ¶ 27 Sulli van also testified to his work a s safe ty direc tor. Sulli van testified that, in his position as saf ety direc tor, he would visit the work site once ever y one to three day s, for a

pproxi mately

an hour; Sulli van wa s not on the roof on Septembe r 29, 2004. Sullivan testified that Sull ivan Roofing ha d a saf

ety manual g iven to eac h of its employ ees a nd that safe materia l handling w as “the number

one saf ety issue that roofe rs have ” bec ause “ [t ]here’s a lot of erg onomics to it aga in. There ’s a lot of be nding. T here ’s a lot of liftinginvolved. There ’s a lot of pushingrolls, if y ou will. And ever

y body -- I harp c onstantly

on lifting prope rly , don’t pull, y ou know, how to proper ly lift. Const antly

we g o over that.” ¶ 28 Sulli van testified that he conducte d “toolbox talks” once a we ek, which w ere “a topic f or the day basica lly . Sometimes it ’s on safe lifting. Sometimes it’s on wind safety . Sometimes it ’s
10No. 1-12-3663

on heat. We have all differ ent kinds of topics that we use . And what I do is Ig o on the roofs, I g o throug h these topics. I g ather ever y body toge ther. I

rea d them, so ever

y body can’ t just si g n. They have to know that -- you know, what we ’re doing f or the da y . And they

sign of f on that they ’ve r ead this and the y understand what I ’ve g iven them for the day .” Sullivan testified that the toolbox talks were conducte d by Sulli van Roofingfor its employ ees to ke ep its employ ees workingsafe ly . Sulli van conduc ted a toolbox t alk on September 29, 2004, which plaintiff a nd his brother Sabe no both attended, a s demonstrated by their sig nature s. That toolbox talk was “ a safe ty revie w. It was over

fall protec tion, material handling , MSDS sheets, electric al safe ty , and fire sa fety .” ¶ 29 Sulli van testified that, a s safe ty direc tor, he did not believe it was unsafe to have a Sulli van Roofingcre w move a r oll manually . Sulli van fur ther testified that, with enoug h worke rs, usingATVs wa s not safer than manually

pushing the rolls of membrane : “I f you had a number of guy s on there, it re ally wasn’t - - we ’ve done that for a number of year s -- I

don’t know
-- sa fer , Iwouldn’t say

it’s safer . I t helped us move it alongquicker . *** I f you have f our guy s and the Honda

helps, absolutely . I f you have e ight guy s on there, it moves pre tty easily .” He acknow ledg ed that, duringhis deposition, he responded that using ATV s “would help, yes.” O n
rec ross, Sulli van cla

rified his testimony

conce rningthe use of A TVs: “When we w ere all talking about moving the se rolls and spea king a bout moving them 20, 30 fe et, that’s whe n the rolls are in position. W e use the Hondas to put the rolls in position. From the position point , when they ’re sprea d out on the roof be cause -- he is corre ct in saying that we -- sometimes we move the r oll 2, 300 fee t beca

use of the w idth of the building. We have to put them in posi tion. The Hondas a re
11No. 1-12-3663

used for that. When we have to move them in positi on to lay it over the insulation is when I ’m talking a bout pushing it 20, 30 fee t. I t’s not to ge t it off a load a nd then roll these thing s by hand 300, 400 fee t. That does not -- tha t’s not what we do.” Sulli van fur ther testified that it was “fa ir to say” that it was “ never appropr iate” to move a

roll of rubbe r membra

ne fr om one side of the building to the other

without the use of an A TV. ¶ 30 Sulli van testified that plaintiff w as an e mploy ee of Sulli van Roofingand wa s a “great worke r” who, at one point, they wer e conside ringmakinga for eman. Sullivan char acte rized plaintiff as re liable, depe ndable, hone st, and very g ood at his job. Pl aintiff wa s familiar with rubber roofs a nd ballasted roof

s, including installingthermal plastic membr anes. Plaintiff wa s part of F rank Pese k’s cr ew a nd worke d closely

with Pesek. Sulli van re called pla intiff informing him that he was planningto visita doctor for his bac k, but denied discoura g ing the doctor visit or threateningto fire plaintiff. ¶ 31 On cr oss-examination, defense counsel attempted to introduce a n incident re port completed by

Sulli van into evidenc e. 4 Sulli van testified that plaintiff r eporte d his back injury to Sulli van, who f

illed out an incident re port in his capac ity as saf ety direc tor; Sull ivan testified that keepingsuch re ports was pa rt of Sullivan Roofing’ s normal cour se of business. Sullivan further testified that the re port was in his handwriting and bor e his signa ture. De fense counsel then soug ht to admit the report into evidenc e, and pla intiff’s counse l objected. The trial court examined the document outside the pre sence of the jury , noting that it showed a n incident date of October 6 and the date of re portingas Oc tober 11. F urther, the repor t indicated that the injury

4 The incide nt report is not included in the re cord on a ppeal. 12No. 1-12-3663

was due to pushing bundles of insulation, not rolli ngrubber membrane ; defe nse counse l explained that “[t] hat’s exactly why I want this befor e the jury . Mr. Ramirez told him ex actly the opposite of what he ’s claimingin this l awsuit.” The trial court summed up the de fense ’s theory
conce rningthe incident re port: “It appea rs to me that what c ounsel is saying is that a ny injury that occur red didn’t oc cur on Septe mber 29. It occur red on O ctober

6. I t didn’t occur when he was pushinga roll, it occur red when he w as pushinga bundle of insulation. *** You’re sa ying based on what Mr. Ramirez told Mr. Sulli van, September 29 didn’t happen.” ¶ 32 The trial c ourt broug ht Sull ivan bac k into the courtroom for further questioning
conce rningthe incident re port. Sulli van testified that he had an inde pendent memor y of spea king with plaintiff about the incident that wa s the subject of the repor t, and that he r eca lled beingon the roof w ith plaintiff and Fr ank Pesek, the fore man, when pla intiff informed him of the inc ident. He f urther te stified that plaintiff re ported the inc ident to him on October 11 but told him that it had occ urre d on October

6. Sulli van admitted that the pa y roll rec ords went to Oc tober 10 but that the last date pla intiff was on the pa y roll, acc ordingto the rec ords, was O ctober 7. Sulli van further admitted that it was possible that he wa s standing on a differ ent roof, a

nd not the Wil ton roof, whe n plaintiff informed him of the incident and that “ my dates c ould be wrongon the document. And I

don’t know. I

can’ t verify

that. But I

reme mber spec ifically

standingthere talking to him.” Af

ter Sullivan’s examination, the court sustained the objec tion: “The objec tion as to the re cord itself is sustained. Whateve r you choose to have him testify to as to his memory is stil l of evidentiar

y value. B ut beca

use of the la ck of r eliability on the dates ba sed on the voir dire a nd the *** deposition, I ’m g oing to sustain the objec tion. Idon’t *** find it to be within
13No. 1-12-3663

the business rec ords exception beca use of lac k of re liability . The re st of the testimony is up to y ou.” The court fur

ther noted: “ I t has to be cr eate d in an ordinar y course of business and if it’s on or about the time. That’s why they ’re reliable . And what we have is that missing e lement. It wasn’t c reated on or a

bout the time beca

use he sa y s the date ma

y be wr ongand I

don’t
reme mber.” ¶ 33 The jury

was then br oug ht back into the cour troom, and cr oss-examination of Sull ivan continued. Sullivan testified that, at one point duringthe two wee ks of the Wilton project, plaintiff appr oache d him on the roof of the Wil ton project a nd informed him of the a ccide nt; Pesek wa s also prese nt duringthe conve rsation. Plaintiff informed them that he was pushinga bundle of insulation alone “ and fe lt a twinge in his back.” Sullivan testified that pushing insulation alone was c ontrary to Sull ivan Roofing ’s re commendations for materia l handling, which re quired two pe ople to push a bundle of insulation. Sullivan denied telling plaintiff not to visit a doctor. ¶ 34 Sulli van testified that, ba sed on the time shee ts, plaintiff was wor king on a differ ent projec t on Monday , September 27. H e wa s workingon the Wilt on projec t on September 28 a nd 29, and wa s workingon a third projec t on September 30 a nd did not work on Fr iday , October 1. ¶ 35 2. David Maje stic ¶ 36 David Maje stic, vice pre sident of field ope rations for Sullivan Roofing , testified that, at some point during the Wil ton project, he lear ned that ther e wa s a problem with dama g e to the decking . Def

endant’ s superintende nt, J ohn Z elasc o, place d a ca ll to S ullivan Roofing infor ming it of damag e to the dec king. Ma jestic later te stified that he “r ece ived a c all at some point in

14No. 1-12-3663

time” indicatingthat there wer e issues, but “[w]ho gave me that phone c all, Idon’t rec all that.” The proble m require d the work to stop until a solution was developed. ¶ 37 Majestic testified that the de cision to use ply wood to solve the problem wa s a collaboration between Sullivan Roofingand def endant. Ma

jestic furthe r testified that he was prese nt while the ply

wood was in use, a lthough he admitted that in his deposition, he testified that he wa s not present. ¶ 38 Majestic testified that g ener al contra ctors lef t it to S ullivan Roofing to dete rmine the
means a nd methods of its work. On the Wilton project specif ically , defe ndant neve r told him or his crew how to perf

orm their wor

k on the roof or

not to use ATVs on the roof , althoug h defe ndant had the r ight to stop the work if they wer e dama g ing the roof. ¶ 39 Majestic testified that AT Vs wer e “w orkhorse [s] ” used r egularly in the roofingindustry , including movinginsulation and pushing r olls of rubber me mbrane , which we ighe d 2,500 to 2,800 pounds. At times, ATVs wer e occ upied with other wor k on the roof a

nd wer e not available to worker s needingto move rolls of membrane . It was pre fer able to have sever al people move a

roll of membra

ne, and pr otocol require d a wor ker who had issues with the size of the roll to either infor

m the fore man of his conc ern or find additional worke rs to push the roll. Majestic did observe men manually pushing me mbrane weig hing 2,500 to 2,800 pounds up to 200 fee t in the past. ¶ 40 Majestic testified that plaintiff w as a ve ry g ood worke r who wa s responsible and dependa ble and that the c ompany had conside red him for

the position of forema

n.

15No. 1-12-3663

¶ 41 3. Fr ank Pesek ¶ 42 Fr ank Pesek, the roofingfore man for Sullivan Roofingon the Wilt on projec t, testified that plaintiff worke d under him and that he was a very g ood worke r – har d working , dependa ble, and honest. At one time, plaintiff was Pesek’ s “lea dman,” or right-hand man. Pese k testified that plaintiff informed him that he w as injured on the Wilton project. When someone r eporte d an injury , Pesek re ported it to Sull ivan. ¶ 43 Pesek testified that, on a job the siz e of the Wil ton project, ATV s would be used to push rolls of rubber

membrane to various points on the roof; the ATV s had bee n used “since day one when I was he re.” Ty

pically , two ATVs would be use d to push a roll of rubbe r membra ne, one on the left a

nd one on the r ight of

the roll. Sulli van Roofing“alwa y s used the ATV s” to move rolls of membrane signific ant distance s “bec ause it’s e asier” on the worke rs’ bodies, but “[i]f we had to” manua lly

push them, “we would.” ¶ 44 Pesek testified that the ty pe of r ubber me mbrane used on the Wilton project would be unrolled “kind of like a

paper towel” a nd then unfolded “ like a blanke t.” When unfolded, the r oll would be appr ox imately

200 by 50 fee t. The mater ials for the r oofingwork we re br oug ht onto the roof by

Sulli van Roofing ’s cr ane. F rom time to tim e, if soil conditions prevente d a cr ane from beingplace d at a pa rticular loc ation, the g ener al contra ctor would dire ct the cr ane to be place d in a better

location with more fa

vorable soil conditions. ¶ 45 Pesek testified that he was notified by “[s] omeone f

rom [defenda

nt] FCL ” that ther e wa s damag e to the roof

decking , and he “ took a timeout to craf t a solution to t his deck damag e issue.” Pesek could not re call whe ther someone g ave a n order not to use ATVs, but “if we stopped using
16No. 1-12-3663

the Hondas, it’s be cause someone told me not to use them.” Pese k ag ree d that “it was more likely than not that there was a

n order to not use the Hondas to push the rolls,” a nd testified that “the or der to not use the H ondas either came from Dave Maje stic or the [defenda nt’s] superintende nt on this j ob.” Pesek f urther te stified that Majestic would not ca ll Pesek “out of the blue” a nd order him to st op using the ATVs. Pesek te stified that defe ndant had the pow er to ha lt the work that Sull ivan Roofingwas pe rfor ming. Pese k further

testified that he took his order s from Da ve Maje stic, his supervisor. ¶ 46 Pesek testified that onc e the AT Vs wer e not allowed to push the r olls, the rolls of membrane would have to be manually pushed by

the cr ew. Pese k “would rather use H ondas,” but did not view any

thing unsa fe in manua lly

rolling the rubber

membrane , providingthere wer e enoug h worke rs doingso, and orde red his cr ew to manua lly move the rolls; Pesek testified that, if he obser

ved an unsa fe a ct beingperf ormed by a member

of his cre w, he ha d the authority to stop it. There wa s a potential for injury when manua lly

pushing a

roll of rubbe r membra

ne 300 fee t beca use “the y are heavy . They ’re heavy . You ar e pushingrolls that weigh a lot. Any thing in roofingis strenuous.” ¶ 47 Pesek testified that ther e wa s a ply wood runwa

y sy stem in place to pe rmit the ATVs to transport bundles of

insulation, but t hat they

wer e not in place to permit the ATVs to move the rolls of rubber

membrane
. ¶ 48 4. J ohn Z elasc o ¶ 49 J ohn Z elasc o, defe ndant’s proje ct superintende nt on the Wil ton project, testified tha t he was the highest-ra

nking e mploy ee of

defe ndant pre sent on the site on a da ily basis. Z elasc o
17No. 1-12-3663

testified that it was “more likely than not” that def

endant a nd the prope rty

owner ag ree d that defe ndant would work in a safe manner . On the first da y that roofingmateria ls were loaded onto the roof, he noticed that roof ing a ctivity

was c rea sing the deckingand notified Pesek, the fore man for Sullivan Roofing , as we ll as Michael Sullivan. He a lso informed his two immediate superiors: his projec t manag er a nd his senior projec t manag er. ¶ 50 Z elasc o testified that def endant wa s the only

g ener al contra ctor on the Wilton project, and that he wa s defe ndant’s only superintende nt on the projec t. Z elasc o, as a supe rintendent, “ had the power to stop work on this job gene rally .” Af ter the de ckingwas damag ed, Z elasc o notified Pesek and Sullivan “a

nd at that point Ithink it m ay have be en their c all to stop the activity to take a look at what was g oing on, ma y be to assess what activities were takingplace .” Howe ver, Z elasc o also testified that it was a joint dec ision between de fenda nt and Sullivan Roofing to
cea se workingfor a

day to assess the dama g e. ¶ 51 Z elasc o testified that it was ver y common for r oofer s to use ATVs on a r oof and that it would be hig hly

unusual not to use ATVs on a r oof the size of the Wilton project. He de nied order ing Sullivan Roofingemploy ees not to use AT Vs to move rolls of rubbe r membra ne or f or any other purpose ; he testified that “[t]hey had the r ight to per form their a ctivities,” including using the ATVs to move the r olls of rubber me mbrane . He testified that, prior to beg inning the roofingwork, he met with Majestic to discuss g ood acc ess points for the c rane s; Ze lasco estimated that Sullivan Roofing ha d acc ess to 90% of the building ’s perimeter, a nd then dec ided, without Ze lasco’s involveme nt, where alongthat perimete r it wanted to unload its mater ials. Z elasc o testified that Sullivan Roofing had unr estricted use of ATVs to move its mater ials and
18No. 1-12-3663

that “I never g ave a ny restric tions on the means and methods of the contra ctor to do his job.” ¶ 52 Z elasc o also testified about de fenda nt’s list of “intolerable of fense s” by

subcontrac tors, which we re “ cer

tain job rules that ar e strictly enfor ced.” One suc h rule c oncer ned violations of the Occ upational Safe ty

and He alth Act (29 U .S.C. § 651 et seq. (2006)) . Z elasc o testified that violation of the rules c ould result in immediate and per manent re moval of the subcontr actor from the projec t. Z elasc o testified that “[e]veryone has to wor k as a te am” to ensur e a sa fe w ork site and that “w e’r e committed to ever y one’s sa fety

on the job site.” ¶ 53 Z elasc o held safe ty “in the hig hest priority ,” and he was a uthorized to be an outrea ch trainer for the O ccupational Safety and He alth Administration (OSHA) and w as involved with
sever al other sa fety

org anizations. One of his duties for de fenda nt on a g iven projec t was to
ensure that the work site wa s safe . He c onsidered Sullivan Roofingto be “one of the be st” companies be cause “[t] hey have ve ry

high sta ndards of safe ty . They

*** have the rig ht equipment. It’s very , very rar e that ther e’s e ver a

n issue.” ¶ 54 Z elasc o observe d membrane used on a numbe r of r oofs and that, “ [t ]y pically , it’s moved from the truc k with a cr ane up onto the r oof. And then ve ry ty pically the roofe rs themselves, usually five or mor e guy s, will ge t behind it and push it int o position, gettingit either rolled up onto a ca rt or onto some mea

ns of transpor

ting it wher e it needs to g o. But it’s alwa y s -- it’s usually done manua lly

when they ’re stockingthe job.” Onc e they wer e rolled onto the c art or ATV, the r olls would be transported to their final destination on the roof
. ¶ 55 I f Z elasc o observe d any worke rs behaving in a

way that was c ausinga proble m, he would speak to the f

orema n or the super intendent in order to addre ss the issue. He de nied eve r telling
19No. 1-12-3663

roofe rs to stop using ATV s on the Wil ton project a nd did not know of anyone fr om defe ndant doing so. H e admitted that he a nd Majestic, fr om Sull ivan Roofing , would have the authority to tell Pesek to stop using the ATV s if they wer e dama g ing the deck. ¶ 56 Z elasc o was not informe d of plaintiff’s injury until defenda

nt was sued in the instant lawsuit. ¶ 57 After

Z elasc o’s testimony , outside the prese nce of the jury , the trial cour

t found that Z elasc o had not provided a sufficie nt foundation to admit the contrac t betwee n defe ndant and the proper ty owner into evidence . Plaintiff’s counsel indicated that they had re lied on defe ndant’s disclosure that Z elasc o would lay a foundation for the contr act, so they wer e “kind of

in a bind here ,” since he wa s unable to do so. Plaintiff’s counse l reque sted that, “if the Court f eels the foundation, as it re lates to the contra ct spec ifically , is inadequate , then I -- g iven the [Rule] 213 disclosure of de fense , relative to Mr. Z elac so, Ithink I ’m entitled to call a r ecor d keepe r, a signatory or somebody

from F CL

that can la

y the founda

tion, notwiths tandingthe fa ct it’s the day befor e I rest my case .” Ove r def

endant’ s objection, the cour t ag ree d and told defe ndant, “you’re on notice that I

would g rant plaintiff’ s motion. And that the request will come to you, I ’m assuming , within the next12 hours. And that bef ore this ca se is put to rest, Iexpect to see some discussion and/or re solution one way or anothe r.” The next day , plaintiff ca lled Christopher L inn, vice pre sident of def endant, who pr ovided the nec essar y foundation and the contra ct was a dmitted into evidence. ¶ 58 5. Sabino Ramirez ¶ 59 Sabino Ramirez, plaintiff’s brother, who also worke d as a r oofer for Sullivan Roofing on
20No. 1-12-3663

the Wilt on projec t, testified that, on September 29, 2004, both he and plaintiff we re w orkingat the Wilt on projec t; Sabino as a “sig nal guy” for the cr ane a

nd plaintiff “[p]us h[i ng ] t he rolls and other mate rial.” Ty

pically , when r olls of rubber me mbrane neede d to be moved, they would be moved by ATVs. Howe ver, the cre w was or dere d not to use ATVs to push the rolls by someone
wea ringa white ha

rd hat, 5 so plaintiff was movingthem manually . Approxim ately two hours later, pla intiff informed Sabino that he ha d a g reat deal of ba ck pain. ¶ 60 Sabino testified that he took all of his direc tion on the job from Pesek, the for eman, or from other

Sulli van Roofingemploy ees, suc h as Majestic or Sulli van. Sabino had no communication with defe ndant on the job. ¶ 61 6. Plaintiff ¶ 62 Plaintiff testified that he wa s born in Mexi co and move d to the United States in 1986; he beg an wor

king a s a roof

er in 1989 a

nd was a roofe r until his inj ury

in 2004. On September 29, 2004, he wa s workingas a r oofer and wa s not permitted to use ATVs to push the rolls of rubbe r membrane “[b] eca

use some guy

told us don’t use the Hondas” ; plaintiff testified that the man who told the worke rs not to use the ATVs w as John Zela sco, but plaintiff neve r spoke to him direc tly . Pesek then orde red the m to roll the membrane ma nually . The ATV s were only used to move bundles of insulation. Plaintiff testified that it was unusual to manually move the rolls 300 fee t and that “[a]ll t he time we use the Hondas.” ¶ 63 Plaintiff testified that the roof w as we t and slightly inclined. He te stified that “I , my self,

5 Pesek, the for eman f

or Sullivan Roofing, testified that defe ndant’s employees w ore white har d hats. 21No. 1-12-3663

and seve n more guy s, Iwas in the middle, we started to push the roll fr om the edg e of the roof to 300 fee t far, f

ar a way .” Plaintiff continued: “I hurt my back when we was pushingthe roll into the ridg e. And the me tal is very wet and slipper

y . So, the roll goe s back a nd ever y body is trying to hold it, butthat’s impossible to hold t hat kind of roll. So, ever y body , they

start to hold it and they -- I was in the middle. So, Itried to hold it, the roll, and that’s when I fee l my back like
cra ck whe n y ou cra ck your fing ers a nd Ifee l very , very

painful.” Plaintiff testified that they wer e moving the r oll up a slight incline, a nd it beg an rollingback f our to five f

eet, until someone wa s able to stop it by

placing insulation under it. ¶ 64 Plaintiff testified that afte r he notice d the pain in his back, he informed Pese k, the fore man; he did not inform Sullivan, who was not on the roof that day . Pesek instructed pla intiff to “take it ea sy ,” so plaintiff did lig ht work for sever al hours, then took pain pills and re sted for a few hours. Afte r re turninghome, plaintiff wa s walkingslowly and had a

g reat deal of pa in in his low back. ¶ 65 Plaintiff went to work the ne x t day , a Thursda y , but ag ain only

did light work. H e did not work F riday , Saturday , or Sunday , but rested a t home. On Tuesda

y , his wife made an appointment with Dr. De smond Martello, a c hiroprac tor she found through the y ellow pag es. That we ek, plaintiff avoided hea vy lifting at work and w as per mitted light duty . On Octobe r 8, 2004, he visited Dr. Ma

rtello, and visited him often duringthe next three months for phy sical thera py ; however , his back did not improve. Plaintiff also had injec tions ordere d by Dr. Sea n Salehi, and Dr . Salehi perf ormed surg ery

in 2005; the surg ery

helped f or the fir st severa l months, but the pain re turned.
22No. 1-12-3663

¶ 66 Plaintiff testified that Dr. Albe rto, 6 a pain doc tor, ag ain injected pla intiff and pre scribed pain medicine a

nd, at some point, plaintiff visited J aime Rojas for a functional c apac ity evaluation. Eventually , plaintiff visited Dr. Edwa rd Goldber g , who per formed a second sur g ery . Ag ain, the surg ery

seeme d to help at first, but the pain re turned. ¶ 67 Plaintiff testified that he is unable to pa rticipate in a ctivities that he had e njoy ed, such a s box ing a nd socce r. Plaintiff furthe r testified that he attempted to obtain work w ith his wife’s employ er, but wa s not hired. ¶ 68 Plaintiff testified that there was no ply wood runwa

y sy stem in place to pe rmit the ATVs to be used at the time of the ac cident. ¶ 69 B. Me dical and L ifestyle Witnesses ¶ 70 1. J uana Ramirez ¶ 71 J uana Ramirez, plaintiff’s wife, te stified that plaintiff had be en a r oofer since he came to the United States fr om Mex ico in 1986 and loved his job. Until his accident in 2004, plaintiff play ed socc er a

nd basketba ll and enjoy ed runningand boxing. J uana te stified that on September 24, 2004, plaintiff was w orkingfor Sullivan Roofing w ith his brother Sabino. When plaintiff
came home from wor

k, J uana obse rved him holdinghis back with his left hand a nd having trouble wa lking. Plaintiff informe d J uana that he had injure d his back at work, so J uana pr epar ed a hot bath for

him. She also ga

ve him painkillers and plac ed a c old pack on his bac k, but none of it helped his back pa in. Plainti ff we nt to work the next day , but J uana c alled the doc tor, Dr. Martello, the f

ollowing we ek. That Frida y , J uana a ccompa

nied plaintiff to visit Dr. Martello,

6 Dr. Albe rto’s first name is not in t he re cord on a ppeal. 23No. 1-12-3663

who took X-ra

y s and per formed hot a

nd cold thera

py and ele ctrica l stim ulation. Plainti ff visited Dr. Mar tello for appr ox imately

three months, but hi s back ha d not improved and he was in continuous pain. ¶ 72 In 2005, plaintiff and Juana visited Dr. Salehi, a surg eon, who g ave pla intiff cortisone injections and, whe n those did not work, per formed sur g ery on plaintiff’s bac k in August 2005. Plaintiff attended phy sical thera py and visited Dr. Elborno, 7 a “pa in manag ement doctor ” re fer red by Dr. Salehi. Plaintiff then be g an tre atment with Dr. Edwa rd Goldber g , “an or

thopedic,” a

nd had a se cond surg ery

on his low back in Oc tober 2007; plaintiff ha s not returne d to his roofing job or worke d at all. ¶ 73 J uana te stified that, as of the tr ial date in May 2012, plaintiff had not re turned to work a s a roof er. H e had attempted to find other wor k, such as in the maintena nce de partment of Juana’s employ er, but wa s rejec ted bec ause of his back proble ms. J uana c hara cter ized plaintiff as “totally differ ent” than pr ior to his accide nt, since he w as unable to work or pa rticipate in the activities he e njoy ed, such a s sports, or do work a round the house, suc h as mowingthe lawn or shovelingsnow. ¶ 74 2. Dr. De smond Martello ¶ 75 Dr. De smond Martello, 8 a license d chiropra ctor, testified that plaintiff’s treatment rec ords included a patient history that reve aled that plaintiff w as injured on Septembe r 29, 2004, whe n

7 Dr. Elborno’ s first name is not in the rec ord on appe al.
8 Martello’s testimony

was pre sented by

rea ding the transcr ipt of a videotape d evidenc e deposition in open court, but the video wa s not play ed bef ore the jury
. 24No. 1-12-3663

pushing bundle s of insulation at work and r eporte d the injury to Fra nk Pesek. ¶ 76 3. Dr. Thomas Cronin ¶ 77 Dr. Thomas Cronin, a g ener al surg eon pra cticingin occupational medicine, eva luated plaintiff on J anuar

y 22, 2005, and testified that the “ trig g eringevent” from plaintiff’ s “history and mec hanism of injury” wa s “pushingthis 2,000 pounds of rubber w ith eight other people.” After evaluating plaintiff a

nd examining his MRI , Cronin concluded that “number one , he had chronic low back sy

ndrome, whic h means low ba ck pain, on a continuing ba sis. That was number one . Number two, he had what’s known as spondylolist hesis, which is a slippag e of the verte brae , one on the other , with radiculopathy , which is pain down the le gin his case a t the L 5- S1 level. The third thingwas he had a he rniated disc a t the lumbar three , lumbar four are a, and the lumbar four , lumbar five a rea with encr oachme nt upon the left later al re cess at both levels, which mea

ns, in common terms, a pinche d nerve , but that can be extremely uncomforta

ble.” Cronin opined that plaintiff nee ded fur ther tre atment by

a spec ialist because he had a “long
measure of tende rness” down his spine and had “ considera ble limitation of mot ion” and numbness and ting ling on his leg s; plaintiff was also “ notably uncomforta

ble” while in Cronin’s office and had dif

ficulty duringthe examination during te sts such as straig ht-leg -ra ising and heelto-toe tests. Cronin opined that plaintiff nee ded to visit a spine surg eon, “e ither an or thopedist or
a neur osurg eon that does that ty pe of sur g ery .” In his report, Cronin opined that plaintiff “ was not able to do any

heavy lifting, no re peate d bendingor twisting, only light wor k with a restric tion of five to ten pounds of liftingwould be advisa ble.”

25No. 1-12-3663

¶ 78 4. Dr. Sea n Salehi ¶ 79 Dr. Sea

n Salehi, 9 a phy sician boar d-ce rtified in neur ologic al surg ery , testified that he treated plaintiff fr om April 14, 2005, to Febr uary 27, 2007, and per formed spina l surg ery on him on October

17, 2005. Salehi first examined plaintiff at the ne urosurg ery clinic at Nor

thwestern University

Hospital on April 4, 2005. Plaintiff reporte d that “he w as injured a t work in September by

pulling a 2,000 pound obje ct with the help of othe r cow orker s. At the time he had immediate low bac k pain and a lso left legpain.” Salehi opined that plaintiff “wa s having fra cture of his L 5 verte brae on the bac kside. He a lso had deg ener ation of the discs in the low back a nd also stenosis of his lower ba ck ca using his complaints of ba ck and le gpain, and I wanted to put him throug h [a] conser vative cour se of c are ,” mea ning nonsur g ical ca

re. ¶ 80 Plaintiff nextvisited Salehi on J uly 8, 2005, and wa s still experiencingback a nd legpain; the conse rvative c ourse of car e had not r elieved his pa in at all. Salehi rec ommended proc eeding with a lumbar fusion ope ration to stabiliz e the spine, a nd perf ormed a transfor aminal lumber interbody fusion on October

17, 2005. As of January 17, 2006, three months after sur g ery , plaintiff’s lef

t legpain was still present but sig nificantly improved, and he complained of low back stiff ness when r olling in bed, whic h was not an unusua l complaint. ¶ 81 Salehi testified that plaintiff visited him on April 11, 2006, six months after the operation, and wa s complainingof modera te low bac k and lef

t legpain, as we ll as neck pa in when turning his head. Plaintiff under

went a f unctional ca

pacity evaluation, and Salehi opined that he wa s

9 Salehi’s testimony

was pre sented in the for

m of a videota

ped evide nce de position, t he transcr ipt of which is included in the re port of proc eeding s. 26No. 1-12-3663

capa ble of sede ntary

to light-duty

work a nd was phy sically

unable to re turn to his work as a roofe r. On June 19, 2006, plaintiff was c omplaining of low back pa in and intermittent left leg pain. A CT sca

n and MRIreve aled that, while one level of the two-leve l fusion was a solid fusion, the other le vel had not yet hea led. Salehi re fer red pla intiff for pa in manag ement and a lso made a rec ommendation for a

n epidura l steroid injection. ¶ 82 The last time that Salehi examined plaintiff was on F ebrua ry 27, 2007, and plaintiff complained of

low back a

nd legpain. The low ba ck pain wa s constant and a g gravated by any movement, and the le gpain trave led down the leg . Salehi opined that, if additional imag ing showed no e vidence of hea ling, plaintiff ne eded a second lumbar

fusion to alleviate the sy mptoms and should rece ive furthe r treatment from Dr. Edw ard G oldberg . Salehi opined that the ca use of plaintiff’ s injury

was “ [t ]he rolling of the 2,000 pound object” a nd that plaintiff was not phy sically

capa ble of re turningto his work as a r oofer as of F ebrua

ry 2007. ¶ 83 5. Dr. Edwa rd Goldber g ¶ 84 Dr. Edwa

rd Goldber g , 1 0 a boar d-ce rtified orthope dic spine surg eon who tre ated plaintiff from August 2005 to April 2012, testified that he first met plaintiff on August 15, 2005, when “[h] e re ported that he was wor king f or Sullivan Roofing, injured himself on or about Octobe r 6 of 2004 whe n he wa s pushing a nd lifting bundles of

insulation. He deve loped low bac k and lef t legpain.” Goldbe rgperf

ormed a phy sical exam and re viewed pla intiff’s ra diogr aphic imag es; Goldbergtentatively

opined that plaintiff had “ ag g ravated a spondylolisthesis at L 5-S1.” At that

1 0 Goldberg ’s testimony

was pre sented in the for

m of a videota

ped evide nce de position, the transc ript of which is included in the r eport of pr ocee dings. 27No. 1-12-3663

time, plaintiff’s treating phy sician, Dr. Sale hi, was re commendingsurg ery , and Goldber g
concur red w ith that recommendation; plainti ff visited Goldber gfor a second opinion. ¶ 85 Plaintiff was then e x amined by Goldbergon October

30, 2006, postsurg ery , in order to assess his clinical c ondition. P laintiff continued to complain of low back pa in and an ong oing left legradic ular pa in. Goldbergrevie wed plaintiff’ s postoperative f ilms on November 1, 2006, and opined that plaintiff’ s fusion had not hea led at either L 4-L 5 or L 5-S1. At that point, plainti ff had two options: live with the sy mptoms or repeat the surg ery to obtain a solid fusion. ¶ 86 On August 3, 2007, plaintiff was still sy mptomatic, complaining of low back pa in and some numbness in both lower extremities. On August 28, 2007, Goldbergperf ormed the r epeat surg ery . Postsurge ry , plaintiff’s bac k pain improved, but he still had some per sistent left leg radic ulitis that had bee n prese nt even be fore Salehi’s initial surge ry . Plaintiff underwe nt phy sical thera py and had a

work e valuation, and ultimately , his fusion healed. Plaintiff ha d a func tional capa city evaluation at a fa cility

called A TI , which wa s perf ormed by J aime Rojas; the eva luation indicated that plaintiff w as workingat a lig ht phy sical dema nd level. At the time of his evaluation, Goldbergclassified pla intiff’s re cover y as maxim um medical improveme nt. Goldbergopined that plaintiff wa s not capa ble of g oing ba ck to work a s a roof er, which was a heavy-dema

nd level job. ¶ 87 Plaintiff was last examined by Goldbergon April 23, 2012, approximately a we ek and a half prior to his testim ony , and plaintiff “ complained of some dull low back pa in, some pain into the left buttock a

nd proxi mal left hamstring , in other words, the backside of the uppe r thig h.” Plaintiff was still at max imum medical improvement. Duringhis last visi t, Goldbergopined that
28No. 1-12-3663

the fusion was he aled at both L 4-L 5 and L 5-S1, with very mild dis c deg ener ation at L 3-L 4. Goldbergopined that plaintiff could e x pect the r esidual ef fec ts of his injury

to be of a perma nent nature ; he opined that plaintiff “ will intermitt ently have some dull low back pain, still some of the pain, numbness in the lef t buttock into the hamstring.” Goldbergfurther opined that plaintiff “wa s injured at wor

k. He ha d ag g ravation of an asy mptomatic spondylolist hesis of L 5-S1 and deg ener ative disc with spinal stenosis at L 4-5.” ¶ 88 6. J aime Rojas ¶ 89 J aime Rojas, 1 1 a ce rtified license d athletic tra iner, testified that he was f ormerly the clinical dire ctor of A TIPhy sical Ther apy (ATI ), whe re he perf

ormed a functional c apac ity assessment of pla intiff on J uly 9, 2008. Rojas testified that he had pe rfor med a number

of functional c apac ity

assessments for

roofe rs, and he char acte rized roofingas a he avy phy sical demand leve l job. ¶ 90 Rojas testified that plaintiff was r efe rre d to ATIby Dr. Goldbe rg , who re quested that they perf orm a func tional capa city assessment. Rojas explained the proc ess of pe rfor ming the assessment: first, the c lient filled out a 164-question questionnaire “to deter mine wher e they

fee l that they ’re at at that moment,” whic h took approxim ately an hour to c omplete. Rojas did not have a copy of the que stionnaire duringhis deposition, and no questionnaire wa s ever provided to defe ndant by

ATI . Howeve r, Rojas testified that the c ontents of the questionnaire wer e not important to the assessment and “ we don’ t rea lly g o throug h that questionnaire.” Instead, while

1 1 Rojas’ testimony

was pre sented in the for

m of a videota

ped evide nce de position conducte d via telephone , the transc ript of which is included in the r eport of pr ocee dings. 29No. 1-12-3663

the client wa s completingthe questionnaire , Rojas would be watc hing him in orde r to observe whether he wa s uncomforta

ble sitting or shifting , “just due to the fa ct they might have some pain, discomfort, what have you. We don’t tell them that we’r e lookingat that, but that’s what we are watchingfor within that hour.” In addition to assessing the client’s sitting tolera nce, Rojas a lso assessed the client’s standingand wa lking toler ance , as we ll as his enduranc e in terms of bending , squatting, c raw ling, a nd kneeling . Rojas also assessed the client’s liftingtoleranc e at three levels – desk to cha ir heig ht, chair to floor heig ht, and above shoulders – and a ssessed the client’s ability

to push, pull, and carr

y . ¶ 91 Rojas opined that plaintiff was de monstrating f ull effor t duringhis evaluation, but was only able to demonstrate the ability to perfor m work at a

light phy sical dema

nd level, lifting approximately

32 pounds occa sionally ; the light phy sical dema nd level mea

nt that he could
occa sionally

lift approxim ately

20 pounds. Rojas ex plained that the a ssessment did not make any repr esentations about plaintiff’s ability to return to wor

k and that “[u]lt imately , it’s up to the doctor’s discr etion to do that. We’re just stating that this i s what we saw on that pa rticular da

y , y ou know, we f

eel that he can do - - ac cordingto our functional c apac ity assessment, we fee l like he ca n do a lig ht phy sical dema nd level job.” Af

ter the e valuation, plaintiff wa s returne d to Dr. Goldberg , and Rojas did not have a ny further contac t with him. ¶ 92 C. Safety and Damag es Witnesses ¶ 93 1. Dennis Puchalski ¶ 94 Dennis Puchalski, a c onstruction safe ty expert, testified that he wa s a for mer saf ety inspector with OSHA, a s well as havingjobs as a construc tion safety supervisor with the I llinois
30No. 1-12-3663

Toll Highw ay

Authority

and other construction saf

ety jobs. Puchalski was also a membe r of the National Safe ty

Council, Const ruction Section, and the Americ an Society of Safe ty Eng ineer s, Construction Section, and was c urre ntly a construc tion safety

litigation consultant. ¶ 95 Puchalski testified that “the g ener al contra ctor ha s to enforc e saf ety . They ’re the ultimate controllingcontra ctor on the w ork site.” Pucha lski further testified that defe ndant had the obligation to ensure saf

e wor k proce dures on the r oof and ha d an oblig ation to supervise, inspec t, and coor dinate the wor

k involved, as we ll as proac tively interce ding if

it observed unsa fe w ork prac tices. As an e x pert in construc tion safety , Puchalski opined that defe ndant “did violate OSHA and c ustoms and prac tices in that you’re allowingunsafe materia l handling.” Puchalski pointed to the moving of

heavy rubber membrane “[a]nd the custom and prac tice is when you have he avy , heavy

weig hts that y ou use mec hanica l means ***. *** B ut at the time of the incident these w ere n’t beingused and you’re doing ma nual mater ial handlingover de cking ,” which could be slippery . Puchalski further opined that def

endant violated the Association of Gene ral Contrac tors manual on ac cident pre vention in that, “when you’re not planning f or prope r materia l handling a

nd then you don’t control it to ensure i[t] then, y es, it’s violated.” ¶ 96 Puchalski testified that, pursuant to the c ontrac t betwee n defe ndant and the pr operty
owner , defe ndant was “ solely responsible for

the construc tion, means, methods, techniques, sequenc es and pr ocedur es and to c oordinate a ll portions of the work.” ¶ 97 On cr oss-examination, P uchalski admitted that neither defe ndant nor Sullivan Roofing
was c ited for OSHA violations as a result of the a ccide nt. Puchalski opined that the number of men pushingthe roll of rubbe r membra ne wa s irrele vant, bec ause the fac t that it was being
31No. 1-12-3663

pushed manua lly

violated OSHA. ¶ 98 2. Thomas Hutchinson ¶ 99 Thomas Hutchinson, an a rchitec t and license d roof c onsultant, testified that he wa s an expert in the desig n and installation of roofingsy stems such as the one involved in the Wil ton projec t. Hutchinson testified that when the rubber membrane used in the Wilt on projec t first
came into use, the membrane was rolled ma nually acr oss the roof; the c ircular nature of the roll permitted momentum to unroll the membrane , once it had be en starte d with a push. Howe ver, with the advent of

supersize projec ts and larg e wa rehouse s, contrac tors beg an usingmecha nical means of unr olling the membr ane in or der to be more e fficie nt; ATVs beg an beingused in approximately

2000. Hutchinson testified that, “e ven today ,” rubbe r membra ne wa s often rolled manually , beca

use contra ctors did not have the means to put ATVs on the r oof or the r oof wa s too small. ¶ 100 Hutchinson testified that “[t] here are sever al means a nd methods and customs and prac tices in reg ards to movingjust the membrane a cross the r oof.” The first was the “ traditional way ,” in which a

g roup of c rew

members would stand be hind the membrane and push the roll. The other option was the “bump a

nd roll,” usingmecha

nical mea ns. Hutchinson testified that, even usingmecha

nical mea ns, worker

would still need to manua lly move the roll somewhat, since the r oll needed to be in a position where the ATV c ould roll it. ¶ 101 3. David Gibson ¶ 102 David Gibson, senior a naly st for Voc ational Service s, Inc., testified that his work involved understandingthe way s in which a disability interfe red w ith a person’ s ability to
32No. 1-12-3663

perf orm work in the United States la bor marke t, as well as pr ojectinga per son’s ea rning s befor e and af ter a g iven eve nt in order to dete rmine in dollars what loss the person incurr ed as a result of the eve nt. ¶ 103 Gibson testified that, based on a n interview w ith plaintiff and a r eview of plaintiff’s medical a nd employ

ment rec ords, plaintiff had six y ear s of forma l education and been e mploy ed
as a r oofer

since 1989 a

nd had planne d on continuing in that line of work until retire ment. Howeve r, plaintiff ha d signific ant pain, which impac ted him in his abili ty to walk, stand, sit, lift, and bend, a s well as his abilities to crouch, c raw l, balance , and climb stairs or ladde rs. Plaintiff’s
overa ll streng th limi tation was appr ox imately 20 pounds and his back limitations impacted his ability to rea ch above his head. ¶ 104 Gibson testified that the func tional capa city evaluation that plaintiff had under g one wa s important to his analy sis, since it measure d plaintiff’s ability to lift. Gibson ex plained that lifting
was a key component of ma

ny manual labor

jobs, and that “[t] he less educ ation a per son has, the more likely

they are to have to wor

k in manual labor ty

pe jobs.” ¶ 105 Gibson testified that plaintiff’s re strictions “essentially limit ed him to sedentar

y employ ment,” which pa inted a “ve ry bleak pictur e,” sinc e sede ntary jobs were larg ely

skilled in nature . Howeve r, plaintiff “ has no transf era ble skills. The skills that he had w ere all very important skills and we ll paying skills, but they ’re specific to a job that he did as a roofe r that he can no long er do due to the streng th require ment.” Consequently , “the pe rce ntag e of jobs that he has ava ilable to him to apply ag ainst in the U.S. labor marke t is less than one perc ent.” Gibson further noted that many

sedenta ry jobs require fluenc y

in Eng lish, which plaintiff did not have,
33No. 1-12-3663

further diminis hing his a cce ss to the labor marke t. ¶ 106 Gibson testified that plaintiff’s pre -injury aver ag e annua l income was a pproxi mately $57,848 in base sala

ry using a calc ulation based on the thre e year s prior to the ac cident, and w as approximately

$55,419 using a

five-year calc ulation. His work life e x pecta ncy from the da

te of injury would have be en 18.5 year s. After his injury , plaintiff had no substantial likelihood of havingfurther

g ainful employ

ment and had a

work life e x pecta

ncy of zero. ¶ 107 Gibson testified that, based on his a nnual income a

nd including f

ring e bene fits, plaintiff’s lifetime loss from his injury would be $1,166,244 in pre sent ca sh value usingthe five- y ear
aver ag e and $1,214,252 using the three -y ear

aver ag e. F urther, G ibson testified that plaintiff’s pension was r educe d by

$118,423 in present c ash value due to his injury . Includingthe pension loss, the total present ca sh value of pla intiff’s losses was $1,284,667 usingthe five- y ear aver ag e and $1,332,675 usingthe three -y ear aver ag e. ¶ 108 D. J ury Instructions and Ve rdict ¶ 109 The jury

was g iven the followinginstruction conce rningliability of a g ener al contra ctor over de fenda

nt’s objection: “A c ontrac tor who entrusts wor k to a subcontra ctor c an be liable for injurie s resultingfrom the wor k if the contra ctor re tains some control over

the safe ty

of the wor

k and if the injuries w ere proxi mately

cause d by

the contra ctor’s f

ailure to e x erc ise that control with ordinar

y car e.” ¶ 110 On May

11, 2012, the jury

completed “ Ver dict For

m B,” findingin favor of

plaintiff and
34No. 1-12-3663

ag ainst defe ndant and that the a mount of damag es suffe red by plaintiff was $1.985 million. The jury further found: “Assumingthat 100% re prese nts the total combined leg al responsibility

of all per sons or entities that proxi mately cause d Teodoro Ramirez’s injury , we f ind the perc entag e of le g al responsibility

attributable to ea ch as f

ollows: a) Te odoro Ramirez 20% b) F CLBuilder s, Inc. 40% c) Sullivan Roofing , Inc. 40%.” Finally , reduc ing pla intiff’s total damag es by the per centa g e of c ontributory neg lige nce attributable to plaintiff, the jury awa rded pla intiff damag es in the amount of $1.588 million. The court e ntere d judgme nt on the jury ’s ver dict. ¶ 111 On J uly

11, 2012, afte r obtainingan extension of time, defe ndant filed a posttrial motion in which it rene wed its morion for a direc ted ver dict, moved the cour t to vacate the May

11, 2012, judgme nt, and re quested judg ment notwithstanding the ve rdict in defe ndant’s fa vor or, in the alter native, a ne w trial. On Nove mber 6, 2012, the tria l court denie d defe ndant’s motion in a written orde r. The c ourt found that ther e wa s sufficient e vidence for the jur y to have c oncluded that defe ndant exercised suf ficient c ontrol over the a spect of Sullivan Roofing ’s work that cause d plaintiff’s injury . The c ourt furthe r found that the ve rdict for m was appr opriate, a

nd that the other e rror s asserte d by

defe ndant wer e insuffic ient to require a new trial or judgment notwithstanding the ve rdict.
35No. 1-12-3663

¶ 112 ANALYSI S ¶ 113 On appe al, def

endant a rgues that (1) the trial cour t erre d in not gr antinga judg ment notwithstanding the ve rdict in favor of def endant, whe re de fenda

nt had no liability

for plaintiff’ s injuries as a matter of law ; and, alter natively , (2) the tr ial court should have g rante d defe ndant a new tria l where the trial cour t improperly

instructed the jury , made e rror s in the admission of evidenc e, and f

ailed to sanc tion plaintiff for seve ral discove ry violations. ¶ 114 I . J udg ment Notwithstanding the Ver dict ¶ 115 Def

endant f irst argues that the trial c ourt err ed in fa iling to enter a judg ment notwithstanding the ve rdict in defe ndant’s fa vor bec ause de fenda

nt had no liability

for plaintiff’ s injuries as a matter of law . Def endant a rgues both that it did not know of any unsafe work prac tice on the pa

rt of Sullivan Roofing a

nd that it did not ex erc ise sufficie nt control over the work site to expose it to l iability for plaintiff’ s injury
. ¶ 116 J udg ments notwithstanding the ve rdict ar e prope r only wher e all the e vidence viewed most favora

bly to the opponent so overwhelmingly favor s the movant that no contra ry verdic t could eve r stand. Maple v . Gustafson , 151 I ll. 2d 445, 453 (1992). It is the province of the jury to resolve c onflicts in the evidenc e, to pass upon the c redibility of the witnesse s and to dec ide what we ight should be g iven to the witnesses’ te stimony
. Maple , 151 I ll. 2d at 452. On revie w of a tria l court’s de cision to deny a motion for a judg ment notwithstanding the ve rdict, all of the evidenc e must be re viewed in a light most favor able to the oppone nt of the motion. Thacker v

. UNR Industries, Inc. , 151 I ll. 2d 343, 353-54 (1992). A c ourt does not weigh the evidenc e, nor is it concer ned with the cr edibility

of the witnesse s; rather , it may only consider the evidenc e and
36No. 1-12-3663

any infere nces the ref

rom in the light most favor able to the pa rty resistingthe motion. Mizowek v

. De Franc o , 64 I ll. 2d 303, 309-10 (1976). A judg ment notwithstanding the ve rdict is not appropr iate if “ rea sonable minds might diffe r as to the infe renc es or c onclusions to be drawn from the f acts pre sented.” Pasquale v. Spe ed Products Enginee ring , 166 I ll. 2d 337, 351 (1995). ¶ 117 A. Section 414 of the Restatement (Sec ond) of Tor ts ¶ 118 In the ca se at ba

r, plaintiff’s the ory

of re cover

y is gr ounded in common-lawneg lige nce. “The essential ele ments of a c ause of action base d on common-law ne g lige nce a re the exis tence of a duty owed by the def endant to the plaintiff, the brea ch of that duty , and the injury proxi mately

cause d by

that brea ch.” Cochran v. Ge orge Sollitt C onstruction Co. , 358 I ll. App. 3d 865, 873 (2005) ( citing W ard v. K mart Corp. , 136 I ll. 2d 132, 140 (1990)). He re, de fenda nt’s arguments focus on the duty element. ¶ 119 “Ge nera lly , one who e mploy s an indepe ndent contra ctor is not liable for the latter’s a cts or omissions.” Joyc e v. M astri , 371 I ll. App. 3d 64, 73 (2007) (c iting Downs v. Steel &Craft Builders, Inc. , 358 I ll. App. 3d 201, 204-05 (2005)) . Howeve r, sec tion 414 of the Restatement (Second) of Torts (1965) , “which ha s long be en re cog nized as an expression of law in I llinois ,” provides an e x ception to the g ener al rule, r efe rre d to as the “r etained c ontrol” exception. Cochran , 358 I ll. App. 3d at 873-74 (c iting Larson v. Commonwealth Edison Co. , 33 I ll. 2d 316, 325 (1965)) ; Callow ay v. B ovis Lend Lease, Inc

. , 2013 I LApp (1st) 112746, ¶ 47. ¶ 120 Section 414 provides:

“One who entrusts work to a n independe nt contrac tor, but who re tains the control of a ny part of the work, is subject to
37No. 1-12-3663 liability for phy sical har

m to others for whose safe ty the employer
owes a duty to exercise re asonable car e, which is c aused by his failure to exercise his control with re asonable car e.” Re statement (Second) of Torts § 414 (1965)
. ¶ 121 “The Restatement desc ribes a c ontinuum of control, explaining [that] the employer is subject to liability

as master under the principles of a g ency wher e the e mploy er r etains control over the operative detail of a ny part of the contra ctor’s w ork. [Ci tation.] I f the e mploy er r etains only supervisory

control, i.e. , power

to direct the or der in whic h work is done, or to forbid its beingdone in a da

ng erous manne r, then the e mploy er is subjec t to liabili ty under se ction 414 unless he exerc ised supervisory control with rea sonable c are .” Martens v. M CL Construction Corp. , 347 I ll. App. 3d 303, 314 (2004) (c iting Restateme nt (Second) of Torts § 414, cmt. a (1965)) . Thus, “[a]s comment a to section 414 clar ifies, the g ener al contra ctor, by reta ining control over

the oper ative deta ils of its subcontractor’ s work, may become vicar iously

liable for the subcontra ctor’s ne g lige nce; a lternatively , even in the a bsence of such c ontrol, the g ener al contra ctor may

be dire ctly

liable for not e x erc ising his supervisory control with rea sonable c are .” Cochran , 358 I ll. App. 3d at 874. ¶ 122 Howeve r, the “ reta ined control” conce pt is li mited by comment c to sec tion 414: “In order for the r ule stated in this Section to apply , the employer must have re tained at lea st some degree of control ove r the manne r in which the wor

k is done. I t is not enough that he has mer ely a g ener al rig ht to order the w ork stopped or r esumed, to inspect its
38No. 1-12-3663 prog ress or to r ece ive re ports, to make sug g estions or
rec ommendations which nee d not nece ssarily be followe d, or to presc ribe a lterations and de viations. Such a g ener al rig ht is usually
rese rved to e mploy ers, but it does not mean that the contra ctor is controlled a s to his methods of work, or as to ope rative de tail. There must be such a r etention of a rig ht of supervision that the contra ctor is not entirely

fre e to do the wor

k in his own way .” Restatement (Sec ond) of Tor ts § 414, cmt. c (1965). Thus, neg lige nce a

nd, specific ally , the exist ence of a duty under se ction 414 “turn[] on whether the def endant c ontrols the work in such a manner that he should be he ld liable.” Martens , 347 I ll. App. 3d at 315; Callow ay , 2013 I LApp (1st) 112746, ¶ 50. “ Whether a c ontrac tor reta ined such control ove r a subc ontrac tor’s work so a s to give rise to liability is an issue rese rved f

or a trier of fac t, unless the evidenc e pre sented is insufficie nt to create a f actua l question.” Joyc e v. Mastri , 371 I ll. App. 3d 64, 74 (2007) (c iting Bokodi v. Foste r W heele r Robbins, Inc. , 312 I ll. App. 3d 1051, 1059 (2000)) . In the ca se at ba r, def endant a rgues that plaintiff fa iled to prove control suffic ient for e ither direc t or vicar ious liabili ty under se ction 414. ¶ 123 B. V icar ious L iability Under Section 414 ¶ 124 As noted, “the g ener al contra ctor, by reta ining c ontrol over the ope rative de tails of its subcontrac tor’s work, ma y become vicar iously

liable for the subcontrac tor’s neg lige nce” pursuant to sec tion 414. Cochran , 358 I ll. App. 3d at 874. In the ca se at ba r, def endant a rgues that “[t] he evide nce in the c ase a t bar shows no ha

nds-on involvement by

[defendant] in the
39No. 1-12-3663

incidental or ope rational a spects of Sullivan Roofing ’s work,” emphasizing that, “ at most, its direc tive to Sull ivan Roofingwas, e ssentially , ‘Stop damag ing the client’s roof decking .’ ” Def endant f urther a rgues that it was neve r involved in the manne r in which Sullivan Roofing did its work and did not order Sulli van Roofingto stop using ATVs. ¶ 125 We note that, in consideringthe denial of a motion for judg ment notwithstanding the verdic t, we do not weigh the evidenc e, nor a re w e conc erne d with the cre dibilit y of the witnesse s; rathe r, we may

only consider the evidenc e and a ny infere nces dr awn ther efr om in the light most favor able to plaintiff. Mizowek, 64 I ll. 2d at 309-10. Additionally , a judg ment notwithstanding the ver dict is proper only

wher e all the e vidence viewed most favorably to the opponent so
overwhelmingly

favor s the movant that no contra ry verdic t could ever

stand. Maple , 151 I ll. 2d at 453. Her e, conside ringthe evidenc e in the lig ht most favorable to plaintiff, we c annot find that the evidenc e so over

whelming ly

favor ed def

endant that no c ontrary

verdic t could ever

stand. ¶ 126 There was e vidence prese nted at trial that de fenda nt had the right to control the safe ty of the work at the Wil ton project a nd exercised that right by controllingoperative details of Sullivan Roofing’ s work whe n (1) de fenda nt noticed the dama g e to the dec king a nd order ed wor

k to stop; (2) de fenda

nt participate d in finding a solution t o the problem; and ( 3) def endant or dere d the use of ATVs to c ease , resultingin the worke rs’ manua lly pushing the rolls of rubber membrane . The jury could re asonably

have f ound that this conduct was suff icient to demonstrate that defe ndant reta ined a leve l of control over Sulli van Roofing ’s work to g ive rise to liability . See Joyc e , 371 I ll. App. 3d at 74 (“Whether a contr actor

reta ined such c ontrol over a subcontrac tor’s work so a s to give rise to liability

is an issue rese rved f

or a trie r of f

act, unless the e vidence prese nted is
40No. 1-12-3663

insufficient to cr eate a fa ctual question.” ( citing Bokodi , 312 I ll. App. 3d at 1059)). ¶ 127 First, Micha el Sullivan, Sul livan Roofing’ s safe ty direc tor at the time of plaintiff’ s injury , testified that, prior to beg inning wor k on the Wilt on projec t, Sull ivan Roofingrec eived a “we lcome subcontra ctor ty pe letter ” fr om defe ndant, in which def endant indicated that it was “committed” to Sullivan Roofing’ s safe ty and wa nted to provide a

workplac e “r easona

bly fre e of
rec og nized safety

hazards,” which Sullivan testified was “ve ry common” on a pr oject of the scope of the Wilt on projec t. The letter f urther sta ted that “sa fety

and saf ety awa rene ss is a twoway street,” which Sullivan ag ree d with, testifying that “[e]very body on site is responsible for safe ty ,” includingthe g ener al contra ctor, subcontr actor , and employ ees. Sullivan also testified that, on the Wilt on projec t, defe ndant had c erta in “intolerable offe nses,” whic h meant that “g ener ally

the subcontra ctor ha s to behave in a ce rtain fa shion or they ’re g one.” ¶ 128 Sulli van testified that John Ze lasco ha d the authority to stop work on the projec t if he observe d unsafe prac tices and f urther te stified that “F CLis very strict on safe ty . So that’s more - - you know, any

thing that ha

ppens, John has the right. He runs the job. He ha s the rig ht to stop.” I f Z elasc o observe d someone pe rfor ming his job in an unsaf

e manne r, Z elasc o would have the rig ht to stop t hat work a

nd then would contac t Sull ivan. Z elasc o would also coordinate the wor k and monitor the work of

the subcontra ctors. ¶ 129 Sulli van testified that whe n roofingmateria ls were hoisted onto the roof of the Wil ton projec t, the materia ls were “dimpling” or dentingthe dec k, and a solution nee ded to be pr ovided by “the powe rs that be.” Sulli van testified that “ Ibelieve John [ Z elasc o] called me” a nd informed him of the pr oblem with the decking . Sulli van testified that AT Vs wer e used on the
41No. 1-12-3663

Wil ton project a

nd wer e only

temporar ily

stopped: “That wa s a dec ision made at the point in time all this happened, to stop ever y thing, a nd we ha d to figure out a

way that we c ould use them ag ain and g et things r olling and be able to load - - so we w ouldn’t damag e the de ck.” ¶ 130 At a mee ting be tween Sullivan and Da vid Majestic, they

“ca me up with a ply

wood
runwa y solution,” which would use a ply wood runwa

y sy stem to distribut e the we ight of the heavy roofingmateria ls and permit the ATV s to be used, and “ posed that to J ohn to help to protec t the roof.” Sulli van fur ther testified that “af

ter a confe renc e betwe en John and the powers that be at Sullivan, that was a solution t hat was implemente d.” ¶ 131 Thus, afte r hea

ringSulli van’s testimony and makingrea sonable infe renc es there from, the jury could have rea sonably

conclude d that defe ndant had at least some control ove r the saf ety of the work; orde red Sullivan Roofing ’s work, inc luding the use of ATVs, to stop when it wa s damag ing the roof; and a

pproved Sullivan Roofing ’s proposed solution of usinga ply wood
runwa y sy stem. ¶ 132 Next, David Majestic, vice pr esident of f ield operations for Sulli van Roofing , testified that defe ndant’s super intendent, J ohn Z elasc o, place d a ca ll to S ullivan Roofing infor ming it of damag e to the dec king; de fenda nt had the right to stop t he wor k if Sulli van Roofingwas damag ing the roof. The problem re quired the w ork to stop until a solut ion was deve loped, and Majestic testified that the de cision to use ply wood to solve the problem wa s a collabor ation betwee n Sulli van Roofingand def endant. Thus, a fter he aring Majestic’s testimony

and making
rea sonable infe renc es there from, the jury could have rea sonably

conclude d that defe ndant had some control over

the work be ing pe rfor

med on the roof

, order ed the wor

k to stop unti l a solution
42No. 1-12-3663

was de veloped, a

nd participated in the dec ision to use ply wood. ¶ 133 Additionally , Fr ank Pesek, the roofingfore man for Sullivan Roofingon the Wilt on projec t, testified that, on a job the size of the Wilton project, ATVs would be use d to push rolls of rubbe r membra

ne to var ious points on t he roof ; the ATVs had be en used “ since da y one whe n Iwas he re” and Sullivan Roofing “ alway s used the ATV s” to move rolls of membra ne sig nificant distances “ beca

use it’s ea sier” on the worke rs’ bodies. ¶ 134 Pesek testified that he was notified by “[s] omeone f

rom [defenda

nt] FCL ” that ther e wa s damag e to the roof

decking , and he “ took a timeout to craf t a solution to t his deck damag e issue.” Pesek could not re call whe ther someone g ave a n order not to use ATVs, but “if we stopped using the Hondas, it’s be cause someone told me not to use them.” Pese k ag ree d that “it was more likely than not that there was a

n order to not use the Hondas to push the rolls,” a nd he testified that “the or der to not use the H ondas either came from Dave Maje stic or the [defenda nt’s] superintende nt on this j ob.” Pesek f urther te stified that Majestic would not ca ll Pesek “out of the blue” a

nd order him to st op using the ATVs and te stified that defe ndant had the pow er to ha lt the work that Sull ivan Roofingwas pe rfor ming. ¶ 135 Pesek testified that onc e the AT Vs wer e not allowed to push the r olls, the rolls of membrane would have to be manually pushed by

the cr ew. Pese k “would rather use H ondas,” but he did not view any

thing unsa fe in manua lly

rolling the rubber

membrane , providingthere
wer e enough worke rs doingso, and orde red his cr ew to manua lly move the rolls. Fina lly , Pesek testified that there was a

ply wood runwa

y sy stem in place to pe rmit the ATVs to transport bundles of insulation but they wer e not in place at that point in tim e to per mit the ATVs to move
43No. 1-12-3663

the rolls of rubbe r membra ne. ¶ 136 Thus, afte r hea

ringPesek’s testimony

and making

rea sonable infe renc es there from, the jury could have rea sonably

conclude d that defe ndant had some c ontrol over Sullivan Roofing’ s work a nd order ed the wor

k halted over

the damag e to the dec king. F urthermor e, the jury could have r easona

bly conclude d that defe ndant orde red the use of AT Vs in pushing r olls of rubber membrane to cea se, mea

ning that the worke rs would nee d to manually move them, something that Sulli van Roofingdid not normally do of its own acc ord. ¶ 137 Next, J ohn Z elasc o, defe ndant’s proje ct superintende nt on the Wil ton project, testified that he wa s prese nt on the site on a daily basis. Z elasc o, as a supe rintendent, “ had the powe r to stop work on this job ge nera lly ” and one of his duties for de fenda nt on a g iven projec t was to
ensure that the work site wa s safe . Z elasc o also testified about de fenda nt’s list of “intolerable offe nses” by

subcontrac tors, which we re “ cer tain job rules that ar e strictly enfor ced,” and testified that violation of the rules c ould result in immediate and per manent re moval of the subcontrac tor from the pr oject. Z elasc o testified that “[e]veryone has to wor k as a te am” to
ensure a saf

e wor k site and that “w e’r e committed to ever y one’s sa fety

on the job site.” ¶ 138 Z elasc o testified that, on the first da y that roofingmateria ls were loaded onto the r oof, he noticed that roof

ing a ctivity

was c rea sing the deckingand notified Pesek a nd Sulli van. Z elasc o also testified that it was a joint dec ision between de fenda nt and Sullivan Roofing to ce ase workingfor a

day to assess the dama g e. ¶ 139 Z elasc o testified that it was ver y common for r oofer s to use ATVs on a r oof and that it would be hig hly

unusual not to use ATVs on a r oof the size of the Wilton project. Z elasc o
44No. 1-12-3663

testified that Sullivan Roofing had unr estricted use of ATVs to move its materials and that “I
never g ave a ny restric tions on the means and methods of the contra ctor to do his job.” He admitted that he and Ma

jestic, from Sullivan Roofing, w ould have the a uthority to tell Pesek to stop using the AT Vs if they wer e dama g ing the deck. ¶ 140 Z elasc o observe d membrane used on a numbe r of r oofs and that, “ [t ]y pically , it’s moved from the truc k with a cr ane up onto the r oof. And then ve ry ty pically the roofe rs themselves, usually five or mor e guy s, will ge t behind it and push it int o position, gettingit either rolled up onto a ca rt or onto some mea

ns of transpor

ting it wher e it needs to g o. But it’s alwa y s -- it’s usually done manua lly

when they ’re stockingthe job.” Onc e they wer e rolled onto the c art or ATV, the r olls would be transported to their final destination on the roof
. ¶ 141 Thus, afte r hea

ringZ elasc o’s testimony

and makingrea sonable infe renc es there from, the jury could have rea sonably

conclude d that defe ndant had c ontrol over the sa fety of the wor

k site and had the power

to stop work, and that def endant in fa ct orde red the roofingwork to stop. Fur thermore , the jury

could have rea sonably

conclude d that Z elasc o knew that AT Vs wer e normally used to move rolls of rubbe r membra ne and that the other a lternative w as movingthe rolls manually
. ¶ 142 Finally , plaintiff’s brothe r testified that, on the da y of plaintiff’s injury , the cr ew wa s order ed not to use ATVs to push the r olls by someone we aringa white ha rd hat, 1 2 so plaintiff was moving them manua lly , and plaintiff testified that he was not pe rmitted to use ATVs to push the

1 2 Pesek, the for eman f

or Sullivan Roofing, testified that defe ndant’s employees w ore white har d hats. 45No. 1-12-3663

rolls of rubber

membrane “[b] eca

use some guy

told us don’t use the Hondas” ; plaintiff testified that the man who told the wor kers not to use the A TVs was John Ze lasco. Pesek the n order ed them to roll the membrane manually , and the AT Vs wer e only used to move bundles of insulation. P laintiff testified that it was unusual to manua lly move the rolls 300 fe et and that “[a]ll the time we use the Hondas.” Thus, afte r hea ringtestimony

from plaintiff a

nd his brother and makingrea sonable infe renc es there from, the jury could have rea sonably

conclude d that defe ndant orde red the worke rs to stop using ATV s to move the rolls of rubbe r membra ne, resultingin the order

to move the membra

ne manua lly
. ¶ 143 In sum, taking a ll evidence in the light most favor able to plaintiff a s the nonmovant, the jury could have rea sonably

conclude d that: defe ndant had a deg ree of control ove r work site safe ty and had the power

to stop the work; defe ndant did stop the work whe n damag e to the deckingwas discove red; de fenda nt participate d in finding a solution t o the problem; and defe ndant orde red the use of AT Vs to stop, despite beingawa re tha t the alternative was to manually push the rolls of rubbe r membra ne, a de cision that directly led to plaintiff’s injury . The jury could have rea sonably

found that this conduct wa s sufficient to demonstrate that def endant reta ined a leve l of control over Sulli van Roofing ’s work so a s to give rise to liability , espec ially since the c ontrol exercised by defe ndant was c ontrol over the me thod and means of rolling membrane , an oper ative deta il of Sull ivan Roofing ’s work. See Joyc e , 371 I ll. App. 3d at 74 (“Whether

a contr actor

reta ined such c ontrol over a subcontrac tor’s work so a s to give rise to liability is an issue rese rved f

or a trie r of f

act, unless the e vidence prese nted is insufficient to
cre ate a fac tual question.” (c iting Bokodi , 312 I ll. App. 3d at 1059)). The jury hear s the evidenc e
46No. 1-12-3663

and dec ides the cr edibility of the witnesse s and the we ight to be g iven to their testimony
. Maple , 151 I ll. 2d at 452. In the ca se at ba r, this jury

believed the versions testified to by Pesek, plaintiff, and his brother , and we cannot sa y that all of the e vidence viewed most favorably to the opponent so overwhelmingly favor s the movant that no contra ry verdic t could ever

stand. Maple , 151 I ll. 2d at 453. ¶ 144 We find the ca ses re lied on by defe ndant to be fa ctually distinguishable. F or instance , in Rangel v. Brook

haven Constructors, Inc. , 307 I ll. App. 3d 835, 839-40 (1999), w e af firmed the g rant of summar

y judgme nt in a g ener al contra ctor’s f avor, f inding that the g ener al contra ctor owed no duty

to the subcontrac tor’s employ ee. I n that case , Rang el, the employee, w as injured afte r fa lling fr om scaff

olding that ha d been c onstructed by Dry wall, the subcontra ctor, two da y s
ear lier. Rangel , 307 I ll. App. 3d at 837. Rang el brought suit aga inst Brookhaven, the g ener al contra ctor, a lleg ing that Brookha ven owe d Rang el a duty

of ca re, which it brea ched by

failingto inspect the sca ffold or w arninghim of the dang erous c ondition the scaff old presente d. Rangel , 307 I ll. App. 3d at 837. ¶ 145 We upheld the trial cour t’s g rant of summar

y judgme nt in Brookhaven’s f avor, f inding that “[t] here is no evidence to sugg est that Dry wall was not e ntirely

fre e to per form the wor

k in its own way . The e vidence showed B rookhave n never direc ted the ‘ope rative de tails’ of the work pe rfor

med by Dry wall and Rang el. Dry

wall, not Br ookhaven, supplied the scaf fold on which Rang el worke d. A Dry wall supervisor, not B rookhave n, direc ted Rang el to utiliz e the brac es whe n nece ssary

for positioning the dry

wall. This unsafe method of per formingthe work, which led to Rang el’s injury , was propose d by Rang el’s employer just hours bef ore the acc ident.”
47No. 1-12-3663

Rangel , 307 I ll. App. 3d at 839. Thus, we c oncluded that, since “ ‘[the employ er] controlled the ends, [the independent c ontrac tor] was responsible for the means by

which those e nds were achie ved,’ ” there could be no liability imposed on Br ookhaven. Rangel , 307 I ll. App. 3d at 839 (quoting Fris v. Personal Products Co. , 255 I ll. App. 3d 916, 924 (1994)). ¶ 146 Simi larly , in Joyc e , we a ffirme d the trial cour t’s g rant of summar

y judgme nt in a g ener al contra ctor’s f

avor where the employ ee of a subcontra ctor wa s injured while usinga ladde r that malfunctioned. The re, the ladder was provide d by

another subcontrac tor and the g ener al contra ctor did not provide a ny equipment or have any

contac t with the employ ee. Joyc e , 371 I ll. App. 3d at 68. We upheld the tria l court’s grant of summar y judgme nt, finding that “the fa cts indicate that Ma dison Services did not control EGM’ s work. The re is no evide nce that Madison Service s directe d the ‘ope rative de tails’ of the wor k site or that EGM wa s not free to perfor m the demolition work in its own way . The e vidence showed that Madison Servic es did not participate in or supervise a

ny of the de moliti on work. Reiner sman, on beha lf of Madison Servic es, visited the work site at the beg inning of the projec t merely

to inform EGM of the sc ope of w ork and a ny subsequent visits were to monitor the prog ress of the work. Reiner sman did not direct EGM employ ees a s to the operative details as to how to per form their w ork and did not g ive any job assig nments to EGM’s employ ees. The evidenc e showe d that Olson, EGM’s super intendent, ra n the job and that EGM’ s worker s were supervised by its lead man, Jerry

J ohansen. O lsen himself testified that Madison Service s did not supervise EGM’s wor k and that EGM wor

kers would g o to him if they

had any ty pe of pr oblems.” Joyc e , 371 I ll. App. 3d at 75-76. ¶ 147 Finally , in Cochran , we a ffirme d the trial cour t’s g rant of summar

y judgme nt in the
48No. 1-12-3663

g ener al contra ctor’s f

avor where a subcontra ctor’s e mploy ee w as injured whe n fallingoff a ladder set up in an unsaf

e manne r; the equipment wa s provided by the subcontra ctor a

nd the employ ee r ece ived work instruc tions from the subcontra ctor. Cochran , 358 I ll. App. 3d at 867- 68. We found that there was no ba sis for vicar ious liabili ty “bec ause no e vidence was pre sented that [t he g ener al contra ctor] so controlled the oper ative deta ils of [ the subcontra ctor’s] work that [t he subcontra ctor’s] employ ees w ere not entirely fre e to per form the wor

k in their own wa

y .” Cochran , 358 I ll. App. 3d at 879. ¶ 148 In the ca se at ba

r, by contra st, there wa s evidenc e that def endant involved itself in the operative details of the r oofingwork. Contrar y to defe ndant’s asse rtion that, “at most, its direc tive to Sull ivan Roofingwas, e ssentially , ‘Stop damag ing the client’s roof decking ,’ ” the re
was e vidence prese nted that def endant ha d a role in ordering the work to stop, in implementing a solution t o the damag e issue, and in or deringthe use of A TVs to stop, leadingto the worke rs’ manually pushing the rolls of rubber membrane . Thus, we f

ind defe ndant’s ca ses inapposite and aff irm the trial cour

t’s denial of de fenda

nt’s motion for judgme nt notwithst andingthe ver dict. ¶ 149 C. Direct L iability Under Section 414 ¶ 150 Def

endant a lso argues that there was no e vidence that it was direc tly liable for pla intiff’s injuries under se ction 414. As noted, “the g ener al contra ctor may be dire ctly

liable for not exercisinghis supervisory control with rea sonable c are ,” eve n in the absenc e of c ontrol sufficient to subject the g ener al contra ctor to vica rious liability
. Cochran , 358 I ll. App. 3d at 874. Her e, defe ndant ar gues that plaintiff did not prove dir ect liability under se ction 414 beca

use (1) plaintiff did not prove a

n unsafe work method a

nd (2) plaintiff did not prove that defe ndant was
49No. 1-12-3663

on notice of the alleg ed unsaf e wor k method. “Ac cordingto comment b to section 414, the g ener al contra ctor’s know ledg e, ac tual or construc tive, of the unsaf e wor k methods or a dang erous c ondition is a pre condition to direct liability .” Cochran , 358 I ll. App. 3d at 879-80. Thus, in Cochran , we f

ound that the g ener al contra ctor wa s not directly liable for a

worke r’s injury in fallingoff a

n unsafe ladder

wher e the unsa fe c ondition was in ex istence f or an hour

at most and the g ener al contra ctor ha d no knowledg e of the unsafe condition. Cochran , 358 I ll. App. 3d at 880. ¶ 151 In the ca se at ba

r, there was suff

icient evidenc e for

the jury to conclude tha

t defe ndant was dire ctly

liable for pla intiff’s injury . First, ther e wa s evidenc e that manua lly moving the r olls
was a n unsafe work method. Pucha lski testified that manually moving r olls of rubber me mbrane was unsaf e, and a ll of the roofingwitnesses testified that usingan ATVwas pre fer able to manually moving the r olls. The jury could have found Puchalski cr edible and de termined that manually moving the r olls was an unsaf e wor k method. ¶ 152 Additionally , there was testimony that defe ndant was a

war e of the unsafe work method throug h its order to stop using the ATVs. Ag ain, we note that, althoug h there was c ontradictory testimony over who order ed the wor kers to stop using the ATVs, our r eview must take the evidenc e in the lig ht most favorable to plaintiff. Pesek testified that, onc e the use of ATVs w as stopped, the membra

ne would nee d to be manually pushed by

the cr ew. Plaintiff’s br other a lso testified that plaintiff wa s moving rolls manua lly beca use the c rewwas orde red to stop the use of ATVs by someone we aringa white ha rd hat, a nd the evidenc e esta

blished that defe ndant’s employ ees w ore white hard hats. Pl aintiff also testified that Z elasc o order ed the wor kers to stop
50No. 1-12-3663

using A TVs, re sulting in them pushing the rolls manually . Fur thermore , since Sullivan Roofing was still required to wor

k despite being

order ed not to use the ATV s, a re asonable infere nce would be that the wor

kers would manua lly

push the rolls. ¶ 153 Def

endant a rgues that def

endant did not know that the wor kers would push the r olls manually , and that Sullivan Roofing c ould have use d the ATVs on the ply wood runwa

y sy stem. Howeve r, there was e vidence prese nted that ca st doubt over whethe r the ply wood runwa

y sy stem was implemented a

nd whether

it was used for

rolling me mbrane . For

instance, pla intiff testified that there was no ply

wood runwa

y sy stem in place a

nd Pesek testified that the ply wood runwa

y sy stem permitted ATVs to move insulation but could not be used to roll membra ne. ¶ 154 Additionally , Hutchinson, defe ndant’s expert, testified that the r olls could be moved in one of two w ay s: manually or throug h mecha

nical mea ns. The jury

could have inferr ed that, once the mecha

nical mea ns were stopped, the manua l method would need to be use d. Finally , Z elasc o testified that he ha d observe d membrane used on a numbe r of r oofs and ha d observe d worke rs both using A TVs and manua lly moving membr ane. T he jury could have inferr ed fr om Z elasc o’s testimony

that Z elasc o would have be en aw are that the re sult of stopping the use of ATVs would be the manual rollingof the membra ne. Thus, we do not find defe ndant’s ar gument persua sive and a ffirm the tria l court’s de nial of def endant’ s motion for judgme nt notwithst anding the ver dict. ¶ 155 I I . New T rial ¶ 156 Def

endant a lternatively

argues that the trial c ourt should have grante d defe ndant a ne w trial wher e the tria l court improper ly instructed the jury , made e rror s in the admission of

51No. 1-12-3663

evidenc e, and f

ailed to sanc tion plaintiff for seve ral discove ry violations. Defenda

nt also argues that the jury ’s ver dict was a g ainst the manifest we ight of the evidenc e. ¶ 157 A. J ury Ver dict Ag ainst Manifest Weig ht ¶ 158 First, def

endant a rgues that the jury ’s ver dict was a g ainst the manifest we ight of the evidenc e, cla iming that ther e wa s no evidenc e that def endant r etained c ontrol of the roof ing work. “ ‘[O] n a motion for a ne w trial a [trial] court will weig h the evidenc e and se t aside the verdic t and orde r a ne w trial if the ve rdict is contra ry to the manifest we ight of the evidenc e.’ ” Maple v . Gustafson , 151 I ll. 2d 445, 454 (1992) (quoting Mizowek v . De Franc o , 64 I ll. 2d 303, 310 (1976)) . “ ‘Averdic t is ag ainst the manifest we ight of the evidenc e whe re the opposite conclusion is clea

rly evident or where the finding s of the jury are unrea sonable, a

rbitrar y and not based upon a

ny of the e vidence .’ ” Maple , 151 I ll. 2d at 454 (quoting Villa v. Crown Cork & Seal Co. , 202 I ll. App. 3d 1082, 1089 (1990)). Atrial court’ s ruling on a motion for a new

trial will not be reve rsed e x cept in those instance s where it is affirmatively shown that it clear ly abused its discre tion. Maple , 151 I ll. 2d at 455 (citing Reidelbe rger v. Highland Body Shop, Inc. , 83 I ll. 2d 545, 548 (1981)); Duffek v . Vanderhei , 81 I ll. App. 3d 1078, 1087 (1980); Prange v. W allenburg , 27 I ll. App. 3d 618, 626 (1975); Y occo v . Barris , 16 I ll. App. 3d 113, 115 (1973). In deter mining whe ther a

trial court a

bused its discretion, the re viewingcourt should consider whether the jury ’s ver dict was supporte d by evidenc e and whether

the losing pa

rty was de nied a fair tr ial. Maple , 151 I ll. 2d at 455 (citing Reidelbe rger , 83 I ll. 2d at 549). Fur thermore , it is important to keep in mind that “ ‘ “ [t ]he presidingjudge in passing upon the motion for new tria l has the be nefit of his pre vious observation of the a ppear ance of the witnesse s, their manner in
52No. 1-12-3663

testifying, a

nd of the c ircumstance s aidingin the deter mination of cre dibilit y .” ’ ” Maple , 151 I ll. 2d at 456 (quoting Buer v. H amilton , 48 I ll. App. 2d 171, 173-74 (1964), quoting Hulke v

. International Manufacturing Co. , 14 I ll. App. 2d 5, 47 (1957)). I f the trial judg e, in the exerc ise of his discretion, finds that the ve rdict is ag ainst the manifest we ight of the evidenc e, he should g rant a new tria l; on the other hand, where there is sufficient evide nce to support the ve rdict of the jury , it constitut es an a buse of discr etion for the tr ial court to g rant a motion for a new

trial. Maple , 151 I ll. 2d at 456 (citing Kitsch v. Goode , 48 I ll. App. 3d 260, 270-71 (1977)) ; Morella v. Melrose Park

Cab Co. , 65 I ll. App. 2d 175, 181-83 (1965). ¶ 159 In the ca se at ba

r, as noted, pla intiff’s theory of re cover

y is gr ounded in common-law neg lige nce. “ The e ssential elements of a cause of ac tion based on common-law neg lige nce a

re the exist ence of a duty

owed by the def endant to the plaintiff, the brea ch of that duty , and the injury proxi mately

cause d by

that brea ch.” Cochran , 358 I ll. App. 3d at 873 (citing W ard , 136 I ll. 2d at 140). Howe ver, de fenda nt’s arguments conce rningthe jury ’s ver dict conce rn only the duty element. He re, w e ca

nnot find that the jury ’s ver dict was a g ainst the manifest we ight of the evidenc e. ¶ 160 As explained in the previous sec tion, the jury could prope rly

have de termined that defe ndant owed a

duty to plaintiff pursuant to sec tion 414 of the Restatement (Sec ond) of Tor ts, based on the testimony

of the witnesse s at trial. Acc ording ly , we c annot find that the jury ’s verdic t was ag ainst the manifest we ight of the evidenc e and a ffirm the tria l court’s de nial of defe ndant’s motion for a ne w trial.

53No. 1-12-3663

¶ 161 B. Jury Instructions ¶ 162 Def

endant ne x t argues that the trial c ourt err ed in issuing c erta in jury instructions based on the I llinois Pattern Jury Instructions (I PI ), cla iming that they are not an ac curate statement of the law. “ Although jur

y instructions are g ener ally revie wed f

or an a buse of discr etion, our standard of

revie w is de novo when the que stion is whether the a pplicable law

was a ccur ately conveyed.” Barth v. State Farm Fire &Casualty Co. , 228 I ll. 2d 163, 170 (2008) (c iting People v. Pierc e , 226 I ll. 2d 470, 475 (2007)); Studt v. Sherman He alth Systems , 2011 I L108182, ¶ 13. De nov o considera

tion means we pe rfor

m the same a

naly sis that a trial judg e would per form. Khan v. BDO Se idman, LLP , 408 I ll. App. 3d 564, 578 (2011). ¶ 163 I llinois Supreme Court Rule 239(a ) (e ff. Jan. 1, 1999) states that a trial court “ shall” use an I PIinstruction when it is “applica ble in a civil ca se, g iving due considera tion to the facts and the pre vailing la

w, *** unless the cour

t determines that it does not ac curately state the law .” A non-I PIinstruction may

be used if the I PIinstruction does not acc urate ly state the law
. Studt , 2011 I L108182, ¶ 14 (c iting I ll. S. C t. R. 239(b) (ef f. Jan. 1, 1999)); Schultz v. Northeast Illinois Regional Commuter R.R. Corp. , 201 I ll. 2d 260, 273 (2002). ¶ 164 Howeve r, eve n if the re viewingcourt de termines that the tria l court g ave f aulty instructions to the jury , reve rsal is not warr anted unless the e rror results in “ ‘se rious prejudice ’ ” to the appellant’ s rig ht to a fair tr ial. Studt , 2011 I L108182, ¶ 28 (quoting Heastie v . Roberts , 226 I ll. 2d 515, 543 (2007)); Schultz , 201 I ll. 2d at 274 (“A r eviewingcourt ordina rily will not
reve rse a trial court f

or g iving f

aulty instructions unless they

clea rly misled the jury

and re sulted in prejudice to the appellant.” ).
54No. 1-12-3663

¶ 165 In the ca se at ba

r, the trial c ourt g ave the jury instructions based on the I PI . Specifica lly , the trial cour

t ga ve the f ollowing instruction, base d on I llinois Pattern Jury Instructions, Civil , No. 55.01 (2011) ( here inafter , I PICivil (2011) No. 55.01) :

“A c ontrac tor who entrusts wor k to a subcontra ctor c an be liable for injurie s resultingfrom the wor k if the contra ctor re tains some control over

the safe ty

of the wor

k and if the injuries w ere proxi mately

cause d by

the contra ctor’s f

ailure to e x erc ise that control with ordinar

y car e.” Def endant a rgues that this instruction did not accurately state the lawbeca

use a g ener al rig ht to control saf

ety is not sufficient to impose liabilit y under se ction 414. We ag ree . ¶ 166 The c ommitt ee c omments to the 55.00 series indicate that, “[d] ue to the lac k of conse nsus amongthe appe llate cour ts and no Supreme Court ca ses on this subject since Larson [ v. Commonwealth Edison Co. , 33 I ll. 2d 316 (1965)], the conce pt of ‘contr ol’ ca used the c ommitt ee g reat difficulty .” I PICivil (2011) No. 55.00, I ntroduction, at 261. Consequently , “[t] he committee chose to conce ntrate on the are a of ‘ safe ty ’ in these instructions. The c ommitt ee believed that the overr iding c onsideration throughout all of these c ases is the a bility of the controllingentity

to affe ct over all job safety . I t would appea r that the a

bility to stop unsafe wor

k and not per

mit itto be re sumed until done to the satisfaction of the controllingentity satisfies both the require ment of ‘c ontrol’ and de monstrates that the c ontrac tor is ‘not entirely fre e to do the work in his own wa

y .’ ” I PICivil (2011) No. 55.00, I ntroduction, at 261. ¶ 167 The c ommitt ee’ s statement that “[i] t would appea r that the a

bility to stop unsafe wor

k and
55No. 1-12-3663

not permit it to be resumed until done to the satisfac tion of the controllingentity ” would bring the contra ctor unde r the purvie w of sec tion 414 is l ikely an ac cura

te statement of the law beca use, under

that scena

rio, the contra ctor would have the powe r to aff ect the me thods by

which the subcontra ctor a lleviated the sa fety problem. See, e.g. , Callow ay , 2013 I LApp (1st) 112746, ¶ 74 (g ener al contra ctor’s a uthority included right “to stop any work that they

saw be ing done in an unsaf e manne r and to dire ct that the wor k be done in a

differ ent manner ”); Bokodi v. Foste r W heele r Robbins Inc. , 312 I ll. App. 3d 1051, 1063 (2000) (g ener al contra ctor’s a uthority included rig ht to “shut down the work of the subcontra ctors until a safe ty brea ch wa s alleviated to defe ndants’ satisfa ction”). ¶ 168 Howeve r, the languag e of I PICivil (2011) No. 55.01 is broa der tha n the sce nario posed by the committee comments, re quiringonly that the contra ctor “ reta in[ ] somecontrol over the safe ty of the wor

k.” (Empha sis added.) “ Some” is defined a s “[b] eingan unspec ified number or quantity .” Amer ican He ritag e Dictionar y 1164 (2d coll. ed. 1985) . In other wor ds, the pattern instruction require s the contra ctor to have reta ined an unspe cified por tion of the control over safe ty in order to be liable. Section 414, howeve r, applies to “[o]ne who entrusts work to an independe nt contrac tor, but who reta ins the control of a ny part of the work.” (Emphasis adde d.) Restatement (Sec ond) of Tor ts § 414 (1965). “[A] principle of statutory construction is that ‘the definite a rticle “ the” pa

rticularizes the subjec t which it prec edes. I t is a word of limitation as opposed to the indefinite or g ener alizing forc e of “ a” or “an.” ’ ” ( Emphasis omitt ed.) Sibenaller v. Milsche wski , 379 I ll. App. 3d 717, 722 (2008) (quoting Brooks v. Zabka , 450 P.2d 653, 655 (Colo. 1969)). Section 414' s use of the phr ase “ the control,” then, implies that there is only one
56No. 1-12-3663

person or entity exercisingcontrol over

a par t of the work, some thing that is not true of the pattern instruc tion’s require ment of “some c ontrol.” Indeed, sinc e the jury is not inst ructe d as to the amount of c ontrol require d, a jury could ea sily

find that minimal control over saf ety is sufficie nt to hold a contrac tor liable. Thus, it is evident that I PICivil (2011) No. 55.01 encompa sses conduc t that would not give r ise to liabilit y under se ction 414. ¶ 169 Fur

thermore , the I PIlanguag e does not include the explanation of “re tained contr ol” found in the comments to sec tion 414. Com ment c to sec tion 414 specifica lly provides that “[i]t is not enoug h that [t he contr actor ] has merely a g ener al rig ht to order the w ork stopped or resumed, to inspec t its progr ess or to re ceive repor ts, to make sug g estions or rec ommendations which nee d not nece ssarily be followe d, or to presc ribe a lterations and de viations. Such a g ener al rig ht is usually

rese rved to e mploy ers, but it does not mean that the contra ctor is controlled a s to his methods of work, or as to ope rative de tail. There must be such a r etention of a right of supervision that the contr actor is not entirely

fre e to do the wor

k in his own way .” Restatement (Sec ond) of Tor ts § 414, cmt. c (1965). H oweve r, under the languag e of I PICivil (2011) No. 55.01, a

jury could consider

such a g ener al rig ht to be a re tention of “some c ontrol over the safe ty

of the wor

k,” since the jury

is not further instructe d as to what c onduct constitutes control. ¶ 170 Additionally , as noted by defe ndant, our re cent c ase la w, not cited by

the committee comments, consistently

finds no control whe re the re is only a g ener al right to control. Pek in InsuranceCo. v. Roszak/ADC, LLC , 402 I ll. App. 3d 1055, 1067 (2010) (“ a g ener al contra ctor that reta ins the power to c oordinate the order in which work is done a

nd to stop work that is
57No. 1-12-3663

perf ormed da ng erously” does not re tain sufficie nt control so as to be vica riously liable for the subcontrac tor’s neg lige nce) ; Calderon v. Residential Home s of America, Inc

. , 381 I ll. App. 3d 333, 346 (2008) ( “ ‘the rig hts retained by [a ge nera l contrac tor] to s chedule and stop work [and] to order c hang es, *** ar e g ener al rig hts of supervision and not a r etention of c ontrol over the incidental aspe cts of the wor k’ ” ( quoting Downs v. Steel &Craft Bui lders, Inc. , 358 I ll. App. 3d 201, 206 (2005)) ); Bieruta v. Klein Creek Corp. , 331 I ll. App. 3d 269, 278 (2002) (“ even where the employ er or

g ener al contra ctor re tains the rig ht to inspect the work done , order s chang es to the spec ifications and plans, a nd ensure s that safe ty

prec autions are observe d and the wor k is done in a sa fe ma

nner, no liability

will be imposed on the employ er or g ener al contra ctor unless the evidenc e shows that the e mploy er or g ener al contra ctor re tained contr ol over the ‘ incidental aspec ts’ of the indepe ndent contra ctor’s w ork”) . Acc ording ly , in light of the de velopment of
case law interpr etingsection 414, we find that the broa d languag e of I PICivil (2011) No. 50.01 is not an acc urate statement of the la w. ¶ 171 Whil e plaintiff state s, without citation, that “[t ]he I llinois Pattern Jury instructions on neg lige nce ha

ve bee n amongthe most tested and appr oved instructions in I llinois ,” our r esea rch has only reve aled the two c ases c ited by defe ndant in which the a ccur acy of I PICivil (2011) No. 50.01 has bee n considere d: Jones v . DHR Cambridge Hom es, Inc

. , 381 I ll. App. 3d 18 (2008), and Diaz v. Legat Architec ts, Inc. , 397 I ll. App. 3d 13 (2009), which a pplied the holding in Jones . In Jones , a diffe rent division of the appe llate cour t rejec ted a g ener al contra ctor’s argument that I PICivil (2005) 50.01 1 3 no longe r re flec ted an a ccur ate state ment of the law
.

1 3 I PICivil (2005) No. 50.01 a nd I PICivil (2011) No. 50.01 a re ide ntical. 58No. 1-12-3663

Jones , 381 I ll. App. 3d at 37-38. The g ener al contra ctor a rgued that the instruction wa s no longe r
an ac curate statement of the law in light of Martens , wher e the Martens court indicated: “ ‘The centr al issue [in a section 414 analy sis] is retained c ontrol of the indepe ndent contra ctor’s w ork, whether contra ctual, super

visory , operational, or some mix there of. The pa rty who re tains control is the log ical par

ty upon whom to impose the duty to ensure w orker

safe ty .’ ” Jones , 381 I ll. App. 3d at 37 (quoting Martens , 347 I ll. App. 3d at 318). The Jones court disagree d with the g ener al contra ctor’s a

rgument, noting that the Martens court re fer red to I PICivil (2005) No. 55.02 without criticism, indicating that the Martens court did not intend its decision to mean that the patter n instruction no longe r re flec ted an a ccur ate state ment of the law
. Jones , 381 I ll. App. 3d at 38. Additionally , the Jones court distinguishe d Martens on its facts, notingthat the g ener al contra ctor in Jones could re quire c ompliance with its safe ty standards a

nd stop the work if its safe ty rules we re violate d, wher e the g ener al contra ctor in Martens could not. Jones , 381 I ll. App. 3d at 38. ¶ 172 We note that the par ties and the c ourt in Jones proce eded f rom an a ssumption t hat the pattern instruc tion was an a ccur ate state ment of the law , and only considere d whether Martens chang ed the a ccur acy

of the stateme nt. Here , by contra st, defenda

nt does not beg in with such an assumption but ins tead a

rgues that the instruction is inacc urate beca use it is based on an inc orre ct interpre tation of section 414. Thus, the f act that the Jones court did not find that the patter n instruction no longe r re flec ted an a ccur ate state ment of the lawdoes not prec lude us from finding that I PICivil (2011) No. 50.01 is not an a ccur ate state ment of the law
. ¶ 173 Howeve r, despite our conclusion that the trial c ourt issued an improper instruction,
59No. 1-12-3663

reve rsal is not warr anted unless the e rror results in “ ‘se rious prejudice ’ ” to the a ppellant’s rig ht to a fa ir trial. Studt , 2011 I L108182, ¶ 28 (quoting Heastie , 226 I ll. 2d at 543). In the ca se at bar, w e ca

nnot find that the err oneous instruction resulted in ser ious prejudice to de fenda nt. Although the pattern instruc tion permits a jury to find control in situations that would not s atisfy the re quirements of se ction 414, there is no indication that this was the case here . Instead, the
rec ord demonstrates that the cr ux of plaintiff’s the ory

was that de fenda

nt made the de cision to stop the use of ATV s, demonstratingcontrol over an oper ative deta il of Sull ivan Roofing ’s work. Thus, throug hout trial, the parties f ocused on the extent of defenda nt’s involvement in the decision to manually

move the rolls of rubbe r membra ne. Indeed, dur ing c losing a rgument, plaintiff’s counse l noted that “the main issue that you guy s will have to dec ide is who g ave tha t no Honda or der a s it relates to the bigrolls.” ¶ 174 As noted in previous sec tions, there wa s sufficient e vidence for the jur y to conclude that defe ndant was liable under se ction 414, both vicariously and dire ctly , as a r esult of testimony
conce rningdefe ndant’s par ticipation in the proce ss that led to manual rollingof the rubbe r membrane . This is not, as defenda nt contends, a situation wher e the only evidenc e wa s that defe ndant orde red pla intiff to stop damag ing the roof. I nstead, ther e wa s testimony that defe ndant orde red the stoppag e of w ork, par ticipated in implementing a solution t o the damag e issue, and orde red the use of AT Vs to cea se – an or der that directly impacted the me ans by

which Sulli van Roofingcompleted its roofingwork. ¶ 175 First, ther e wa s evidenc e at tria l that defe ndant noticed the da mag e to the dec king a

nd order ed the wor

k stopped. Z elasc o testified that on the first da y that roofingmateria ls were
60No. 1-12-3663

loaded onto the r oof, he notice d that roofingactivity was c rea sing the deckingand notified Pesek and Sullivan; Ze lasco a lso testified that it was a joint decision betwe en def endant a nd Sulli van Roofing to c ease workingfor a day to assess the dama g e. Sullivan and Majestic a lso testified that Z elasc o place d a ca ll to S ullivan Roofing infor ming them of

damag e to the dec king, a nd Pesek testified that he was notified by “[s] omeone f

rom [defenda

nt] FCL ” that ther e wa s damag e to the roof de cking , and he “ took a timeout to craf t a solution to t his deck damag e issue.” ¶ 176 Additionally , there was testimony that defe ndant was involved in see king a solution t o the problem with the dec king. F or instance , Majestic testified that the de cision to use ply wood to solve the problem wa s a collabor ation betwee n Sulli van Roofingand def endant, a nd Sulli van testified that “a fter a

confe renc e betwe en John [ Z elasc o] and the powers that be at Sullivan, that
was a solution t hat was implemente d.” More over, se vera l of the witnesses testified that defe ndant g ave the order

to stop using ATVs to push the rolls of r ubber me mbrane . Sulli van testified that use of A TVs was te mporarily stopped: “That wa s a dec ision made at the point in time [ that] all t his happene d, to stop every thing, a nd we ha d to fig ure out a

way that we c ould use them ag ain and g et things r olling and be able to load - - so we w ouldn’t damag e the de ck.” Pese k testified that “it was more likely than not that there was a

n order to not use the Hondas to push the rolls,” and te stified that “the or der to not use the H ondas either came from Da

ve Maje stic or the [defenda

nt’s] superintendent on this job.” Plainti ff’ s brother a lso testified that the cre w was order ed not to use ATVs to push the r olls by someone we aringa white ha rd hat, a nd the evidenc e established that def

endant’ s employ ees w ore ha rd hats. F inally , plaintiff testified that Z elasc o order ed the wor

kers to ce ase usingATVs to move the r olls of rubber me mbrane
. 61No. 1-12-3663

¶ 177 Thus, the evidenc e at tria l focused spe cifica lly on defe ndant’s involvement in the dec ision to manually

push the rolls of rubbe r membra ne, and the testimony

related to that issue was sufficie nt for a jur

y to find control. Since, under the fa cts in the ca se at ba r, the jury considere d the same e vidence as would have been pr esente d had an a ccur ate instruction bee n g iven, we f ind no prejudice and, conse quently , no reve rsible er ror. See Studt , 2011 I L

108182, ¶¶ 28- 29 (despite a n inacc urate jury

instruction indicating that evidence other than e x pert testimony would suffice to establish the standard of car e in a pr ofessional ne g lige nce a ction, findingno serious prejudice beca

use evide nce of

the standar d of ca

re w as in fac t introduced through expert testimony). ¶ 178 As a fina l matter, in its petition for rehe aring , defe ndant ar gues that our de cision conflicts with the rec ent dec ision of Powell v. Dean F oods , 2013 I LApp (1st) 082513-B . Howeve r, the issues prese nt in the case at bar are not the same a s those prese nted in Powell . There , the jury was instructe d: “ ‘I f you find that Def endant Jaime Reeves w as the a g ent of the D efe ndant Dea n Food Company

at the time of the oc curr ence and if you find J aime Ree ves is liable, then all Def endants a re liable . I f you find that J aime Ree ves is not liable, then no Def endant is liable.’ ” Powell , 2013 I L

App (1st) 082513-B , ¶ 133. The c ourt noted that “[t] he instructions, as g iven to the jury , did not state that it was plaintiffs’ burde n to prove that Ree ves wa s an ag ent of De an Foods” and conc luded that “it was r ever sible err or not to g ive an instruction on the bur den of proof on the issue of

Dea n Foods’ a g ency .” Powell , 2013 I L App (1st) 082513-B , ¶ 135. Thus, the problem with the jury instruction in Powell

was that it did not state who neede d to prove the issue of ag ency . 62No. 1-12-3663

¶ 179 In the ca se at ba

r, by contra st, the issue does not perta in to who needs to prove that defe ndant controlled the work of Sullivan Roofing , but instead conc erns what evidence is
nece ssary to demonstrate “ control.” In other wor ds, the issue is not about who needs to prove something, but howit needs to be prove d, i.e. , throug h evidenc e demonstrating c ontrol over operative details of the wor k. Whil e we have de termined that the pattern instruction is not an
acc urate statement of the la w bec ause it could be rea d to encompass c onduct broa der tha n that contemplated by

section 414, in the ca se at ba r, the e vidence prese nted went to the issue of “re tained contr ol,” as would have bee n the ca se had a corr ect instruction bee n g iven. Since the evidenc e esta

blished this element, defe ndant did not suffer serious pre

judice fr om the incorre ct instruction. ¶ 180 C. Improper Jury Ver dict For

m ¶ 181 Def

endant ne x t argues that he is entitled to a ne w trial due to the inc lusion of Sull ivan Roofing, pla intiff’s employ er, on ve rdict for m B, whic h was ba sed on I PICivil (2011) No. B45.03.A . On that form, the jur y found: “Assumingthat 100% re prese nts the total combined leg al responsibility

of all per sons or entities that proxi mately cause d Teodoro Ramirez’s injury , we f ind the perc entag e of le g al responsibility

attributable to ea ch as f

ollows: a) Te odoro Ramirez 20% b) F CLBuilder s, Inc. 40% c) Sullivan Roofing , Inc. 40%.”

63No. 1-12-3663

Def endant a rgues that Sullivan Roofing should not have be en included on the verdic t form. We ag ree . ¶ 182 “An a

buse of discr etion standard a pplies when we revie w a tria l court’s de cisions relating to verdict for

ms.” W erner v . Nebal , 377 I ll. App. 3d 447, 457 (2007) (c iting People v . Roberts , 351 I ll. App. 3d 684, 690 (2004)); Gold v. Ziff Communications Co. , 322 I ll. App. 3d 32, 45 (2001). “ The standa

rd for deciding whether a trial c ourt abused its discre tion and the proprie ty of tender ed [jury ] i nstructions is ‘whether the jury was fa irly , fully

and compr ehensive ly

informed on the re levant princ iples, consideringthe instructions in their entirety .’ ” Auten v. Frank lin , 404 I ll. App. 3d 1130, 1137 (2010) (quoting Saunders v. Sc hultz , 20 I ll. 2d 301, 314 (1960)). ¶ 183 Analy sis of the verdic t form re quires conside ration of se ction 2-1117 of the Code of Civil Procedur e (the Code), which pr ovides:

“Except as provide d in Section 2-1118, in actions on ac count of bodily injury or dea th or phy sical dama g e to prope rty , based on neg lige nce, or

product liability

based on stric t tort liabili ty , all defe ndants found liable a re jointly and seve rally

liable for plaintiff’s past a

nd future me dical and me dically rela ted expenses. Any defe ndant whose f

ault, as dete rmined by

the trier of

fac t, is less than 25% of the total fault attributable to the plaintiff, the defe ndants sued by

the plaintiff, and a

ny third party

defe ndant except the plaintiff’s e mploy er, sha ll be sever ally liable for a ll other damag es. Any

defe ndant whose f

ault, as dete rmined by

the
64No. 1-12-3663 trier of fac t, is 25% or g reater of the total fault attributable to the plaintiff, the def

endants sued by

the plaintiff, and a

ny third party defe ndants except the plaintiff’s e mploy er, sha ll be jointly and
sever ally liable for a ll other damag es.” 735 I L CS 5/ 2-1117 (West 2008). Under the express terms of se ction 2-1117, any fault of Sullivan Roofing, a s plaintiff’s employ er, cannot be included in the appor tionment of fault for the purposes of de terminingdefe ndant’s joint and severa l liabilit y . Consequently , defe ndant ar gues that Sullivan Roofing likewise c ould not have be en included on the verdic t form. ¶ 184 Ba sed on our r esea rch, the re ha

ve bee n no case s consideringthe issue of whe ther a plaintiff’s employer c an be inc luded on the ver dict form filed a fter our supreme c ourt issued its decision in Ready

v. United/Goe deck

e Serv ices, Inc

. , 232 I ll. 2d 369 (2008), a de cision that we find controls the outcome of the issue. In Ready , our supre me cour t considere d whether

settling tortfea sors wer e conside red “ ‘def endants sued by

the plaintiff’ ” within the meaningof sec tion 2-1117. Ready , 232 I ll. 2d at 374 n.2 (quoting 735 I L CS 5/ 2-1117 (West 2004)). The re, the plaintiff’s husband w as killed duringa construc tion project and the plaintiff filed a wrong fuldeath suit ag ainst the building owne r, her husband’s e mploy er; the g ener al contra ctor; and a subcontrac tor on the projec t. Ready , 232 I ll. 2d at 372. The building owner a nd the g ener al contra ctor settled pr ior to trial. Ready , 232 I ll. 2d at 372. Duringtrial, the subcontra ctor wa s not permitted to prese nt any

evidenc e as to the c onduct of the se ttling def endants a nd the settling defe ndants wer e not listed on the verdic t form; the jury found the subcontr actor

liable for
65No. 1-12-3663

neg lige nce a

nd the trial cour

t found the subcontra ctor jointly and seve rally

liable for the amount of the ve rdict re maining a fter of fsets for the husband’s c omparative neg lige nce a nd the settlement amounts paid by the settling de fenda

nts. Ready , 232 I ll. 2d at 373. ¶ 185 On appe al, the subcontra ctor a rgued that the tria l court er red by failingto include the settling de fenda

nts on the verdict f

orm, claimingthat if the jury had bee n able to conside r their share of fa

ult, the subcontrac tor’s shar e may have be en less than 25% , makingthe subcontra ctor only sever ally liable. Ready , 232 I ll. 2d at 373. The appe llate cour t ag ree d, concludingthat, under se ction 2-1117, a nonse ttling def endant’ s fault should be asse ssed re lative to the fa ult of all defe ndants, includingsettling de fenda nts, and, thus, the settling de fenda nts should have bee n included on the ve rdict for m for purpose s of fa

ult apportionment. Ready , 232 I ll. 2d at 373-74. ¶ 186 The supre me cour t, however , afte r consider ing the languag e and history of the statute, found that nonsettling de fenda nts are not “ ‘def

endants sued by

the plaintiff’ ” within the meaningof sec tion 2-1117, stating that “ we disagree with the appellate court’s holdingthat, under se ction 2-1117, a r emainingdefe ndant’s culpa bility must be assessed r elative to the culpability

of all def endants, includingsettling de fenda nts.” Ready , 232 I ll. 2d at 383. Acc ording ly , the supreme court he ld that “sec tion 2-1117 does not apply to good- faith settling tortfea sors who have been dismissed fr om the lawsuit” and r ever sed the portion of the appellate court’s judg ment that reve rsed the tr ial court a s to liabili ty
. Ready , 232 I ll. 2d at 385. ¶ 187 After

the supreme court’s 2008 de cision in Ready , appellate courts and pa rties have uniformly interpre ted Ready

as pre ventingsettling de fenda nts from appe aringon a ver dict form. See Miranda v. W

alsh Group, Ltd. , 2013 I LApp (1st) 121674, ¶ 14 ( noting that, in Ready , “our
66No. 1-12-3663

supreme c ourt held that a se ttling def endant wa s not a ‘def

endant sue d by

the plaintiff’ unde r section 2-1117 of

the Code and should not be named on the jury verdic t form for the appropr iation of fault”) ; Cellini v. Village of Gurnee , 403 I ll. App. 3d 26, 37 (2010) (dur ing a hear ing on a

motion for a g ood-fa ith finding be tween se ttling par ties, a nonsettling de fenda nt argued “that in light of our supre me cour t’s decision in Ready

v. United/Goe deck

e Serv ices, Inc

. , which held that a

settling tortfe asor wa s not a ‘def endant’ considere d in apportioningfault and would not be listed on the verdic t form, a nonse ttling def endant *** would be ‘left holdingthe bag ’ ”) ; Jablonski v. Ford M otor Co. , 398 I ll. App. 3d 222, 271 (2010) (f inding that the tr ial court did not abuse its discre tion in refusinga def endant’ s proposed ve rdict for ms, which would have r equire d the jury

to allocate f

ault betwee n the def

endant a nd a settlingtortfea sor, due to the supreme c ourt’s dec ision in Ready ). ¶ 188 Indeed, at least one c ourt has found r ever sible err or whe re a settling tortfe asor wa s improperly

listed on the jury

verdic t form. In Heupe l v. Je nkins , 395 I ll. App. 3d 689, 690 (2009), the pla intiff was injured when the de fenda nt’s vehicle c ollided with another ve hicle, driven by Murug eson. Prior to filing suit, the plaintiff se ttled with Muruge son and, af ter a jury trial, the jury

returne d a ver dict in favor of the def endant. Heupe l , 395 I ll. App. 3d at 690. On appea l, the plaintiff ar gued, inter alia , that the trial cour t erre d by including Mur

ug eson on one of the jury verdic t forms and the a

ppellate c ourt aff

irmed. Heupe l , 395 I ll. App. 3d at 690. ¶ 189 In deter

mining that inclusion of Murug eson on the jury verdic t form was pr oper, the court in the orig inal opinion filed in 2008 addresse d policy rea sons: “Presumably

in the case at bar , plaintiff settled with the ‘indig ent’

67No. 1-12-3663 tortfea sor with the intent of insulating Mur ug eson fr om the issue of fault and pr ocee ded ag ainst defe ndant, the ‘w ealthy ’ tortfe asor, who the jury

ultimately

conclude d was not liable. More over, unlike the drivingconce rn in Blake[ v. Hy Ho Restaurant, Inc. , 273 I ll. App. 3d 372, 374 (1995)], namely , that allowingthe jury to consider se ttled tortfeasor s in the fault allocation would ex pose them to the expense of discove ry and ‘f rustrate I llinois public policy favor ing pe ace ful and voluntary resolutions of claims throug h settlement ag ree ments’ [citation] , plaintiff in the instant
case essentially

brought Murug eson into the ca se as a party when she ca lled Murug eson as a witness to disprove def

endant’ s ‘empty chair defe nse.’ Plaintiff’s attempt to use Murug eson and the prior settlement as both a swor d and a shie ld completely contra dicts the spirit and purpose of

section 2-1117 of

the Code. Consequently , we c onclude that na

ming Murug eson on the jury verdic t form was proper .” Heupe l v. Je nkins , 379 I ll. App. 3d 893, 904 (2008) (opinion prior to rema

nd). ¶ 190 After

the supreme court de cided Ready , it vacate d the judg ment in Heupe l and dire cted the Heupe l

court to re consider its dec ision in l ight of Ready . On re considera tion, the Heupe l court re verse d and re manded the c ase f or a ne w trial. Heupe l , 395 I ll. App. 3d at 690. The Heupe l

court de termined that, ba sed on Ready , Murug eson wa s not a “de fenda nt sued by

the
68No. 1-12-3663

plaintiff” within the mea

ning of section 2-1117 a

nd, conseque ntly , should not have bee n listed on the jury verdic t form. Heupe l , 395 I ll. App. 3d at 693. Fur thermore , the cour

t determined that the inclusion of Murug eson’s name on the ver dict form constituted re versible e rror war rantinga new tria l beca

use “he re, the jury

hear d a g reat deal of te stimony reg arding

Murug eson’s role in the collision” and “ we c annot be c erta in that the jury did not consider the amount of fault attributable to Murug eson.” Heupe l , 395 I ll. App. 3d at 693. ¶ 191 In the ca se at ba

r, we are not asked to consider the pre sence of a se ttling tortfea sor on a jury verdic t form. Instead, we are asked to c onsider the pr esenc e of pla intiff’s employ er, Sullivan Roofing, on the form. Howe ver, w e find that the same re sult mustfollow. ¶ 192 As defe ndant notes, there is no doubt that S ullivan Roofing is spec ifically excluded from an appor tionment of fault under

section 2-1117 of

the Code. Thus, the sole que stion is whether that exclusion also means that Sull ivan Roofingshould have be en excluded fr om the jury verdic t form. The trial court a

nd plaintiff re ly

on the comments to the I PIjury verdic t form to support Sulli van Roofing ’s pre sence on the ver dict form. The comments attempted to re concile Ready with older ca ses findingthat the fa ult of nonparty

tortfea sors could be c onsidered. Q uoting Bofman v. Mate rial Service Corp. , 125 I ll. App. 3d 1053 (1984), and Smith v. Central Illinois Public Servic e Co. , 176 I ll. App. 3d 482 (1988), 1 4 the comments note:

“ [‘]C onsideration of the neg lige nce of both parties and non- parties to an ac tion is essential for dete rmining liability commensurate

1 4 We note that neither Bofman nor Smith has bee n cited for this propositi on since Ready was de cided. 69No. 1-12-3663 with deg ree of total fault.’ [Citation.] [‘] In case s where contributory

neg lige nce is involved, it is permissible to introduce evidenc e of the liability

of a non- party . The liability of non-pa

rty tortfea sors may

be conside red in orde r to deter mine the extent of plaintiff’s re sponsibili ty

for his injuries.’ [Citation.] ” IPICivil (2011) No. B 45.03.A, Comment, at 229. The c omments then continue:

“In Bofman , a plaintiff wa s able to obtain re versa l of a verdic t beca

use the jury

was not prope rly

instructed to ac count for the neg lige nce of

a settled nonpa

rty . Whil e Ready

v. United/Goede ckeServic es, Inc

. , 232 I ll. 2d 369 (2008) held that the perc entag e fa

ult of a def

endant who se ttled is not part of the calc ulation under 735 I L CS 5/ 2-1117, that ca se did not reduc e the vitality of Bofman or Smith . I f the jury hear s evidenc e to sug g est fault on the pa

rt of settled pa

rties and if c ontributory

neg lige nce is claimed, the se ttled parties should be listed on the ver dict form to
corr ectly deter mine the per centa g e contr ibutory fault of the plaintiff. The f

ault of the settlingparties, howe ver, should be disreg arde d for pur

poses of the 2- 1117 calc ulation.” I PICivil (2011) No. B 45.03.A, Comment, at 230. Howeve r, applica

tion of the rule pr oposed by the comments demonstrates that these c omments
70No. 1-12-3663

are inconsistent with the holding in Ready
. ¶ 193 In Ready , as noted, the supr eme c ourt reve rsed the a ppellate c ourt’s dete rmination that settling tortfe asors should be listed on the jury verdic t form, findingthat “sec tion 2-1117 does not apply to good- faith settling tor

tfea sors who have been dismissed fr om the lawsuit.” Ready , 232 I ll. 2d at 385. Ready came befor e the supre me cour t ag ain af ter its rema

nd to the appellate court, a nd the supreme court then de termined that the tria l court er red in e x cludingevidenc e of the settling pa

rties’ c ulpability , findingthat it would have supported the defe ndant’s soleproxi mate-c ause de fense
. Ready v. United/Goe deck

e Serv ices, Inc

. , 238 I ll. 2d 582, 591-92 (2010). Thus, de spite the settling de fenda nts’ absenc e fr om the verdic t form, evidenc e of the ir culpability

should have be en pre sented to the jury . Acc ordingto the I PIcomments, then, since (1) the jur y should have he ard e vidence to sugg est fault on the pa rt of settled pa

rties and ( 2) the jury found the plaintiff’ s comparative neg lige nce to be 35% ( Ready , 232 I ll. 2d at 373), meaning that contributory

neg lige nce w as cla imed, it would follow that “the settled par ties should be listed on the verdict f

orm to corr ectly

deter mine the per centa g e contr ibutory fault of the pla intiff” (I PICivil (2011) No. B 45.03.A, Comment, at 230). Howe ver, the supreme c ourt held that the settled parties should not

be listed on the ver dict form, without any ref ere nce to the impac t of the settled parties’ absenc e on the plaintiff’ s perc entag e of f ault. Indeed, none of the c ases c iting Ready and conc luding that se ttled tortfeasor s should not appear on the ver dict form conta in any discussion of the deter

mination of the plaintiff’s leve l of fault. Instead, the c onclusion to be drawn is that the section 2-1117 a naly sis determines whe ther the nonpa rty may appea r on the verdic t form. See a lso Jones , 381 I ll. App. 3d at 31-32 (de terminingthat, based on se ction 2-
71No. 1-12-3663

1117, “in orde r for

[a nonparty ] t o be included on the verdic t form, it must have bee n named a s a party” by the def endant) . Her e, since section 2-1117 e x pressly excludes Sull ivan Roofingas plaintiff’s employer, Sullivan Roofingshould not have bee n named on the ve rdict for m. ¶ 194 We do not find plaintiff’s argument that “def endant c annot have it both way s, leg ally or equitably ,” to be pe rsuasive. A s noted, the Heupe l court identified policy

rea sons for including Murug eson on the ve rdict for m. Heupe l , 379 I ll. App. 3d at 904 (opinion prior to rema nd). Despite those r easons, in lig ht of Ready , the cour t was compe lled to find that Murug eson should not have be en listed on the jury verdic t form. Heupe l , 395 I ll. App. 3d at 693. L ikewise, in the
case at bar , although plaintiff poses re asonable arguments for includingSulli van Roofingon the verdic t form, our supre me cour t’s decision in Ready

is equally

applicable here , wher e sec tion 2- 1117 expressly

excludes that entity

from appor

tionment of fault. ¶ 195 Howeve r, despite our conclusion that Sullivan Roofing should not have be en listed on the verdic t form, re versa l on the basis of fa ulty jury instructions is not warrante d unless the er ror results in “ ‘se rious prejudice ’ ” to the a ppellant’s right to a fair tr ial. Studt , 2011 I L 108182, ¶ 28 (quoting Heastie , 226 I ll. 2d at 543); Schultz , 201 I ll. 2d at 274 (“A r eviewingcourt ordinarily will not reverse a trial c ourt for g iving f aulty instructions unless they

clea rly misled the jury and re sulted in prejudice to the a ppellant.”) . In the ca se at ba r, def endant’ s brief doe s not specify any prejudice it suffere d from the imprope r ver dict form, and it is difficult to deter mine wher e any

prejudice would arise. T his is not a situation wher e a pa rty was e x cluded f

rom a verdic t form er

roneously , such that a pr oper jury form would likely

lessen the de fenda

nt’s perc entag e of f

ault. Instead, he re, f

ault was a pportioned among moreparties, pr esumably
72No. 1-12-3663

resultingin defe ndant bea ringa smaller sha

re of fault than would other

wise be the case . ¶ 196 Duringoral a

rgument, defe ndant’s counse l stated that defe ndant was pr ejudiced be cause the 40% fa

ult allocated to Sullivan Roofing would have instead be en allocated to plaintiff had Sulli van Roofingbeen e x cluded f rom the ver dict form. We do not find this argument persua sive. The e vidence at trial established that either Sullivan Roofing (under de fenda nt’s view) or defe ndant (unde r plaintiff’s vie w) orde red the worke rs to stop using ATV s and push the membrane rolls manually ; there is absolutely no evidenc e that plaintiff made the choice to manually roll the membrane independe ntly . Any share of the fa

ult apportioned to plaintiff involved the question of whe ther more people should have assisted in moving the r oll. Thus, we find no merit in defe ndant’s conte ntion that Sul livan Roofing w as fa ctually more a ligne d with plaintiff than with def

endant. Nor

mally , the more pa

rties listed on a jury

verdic t form will help a defe ndant more tha

n a plaintiff. Since w e ca nnot find that defe ndant was se riously prejudice d by the er roneous ve rdict for

m, we find no re versible e rror . ¶ 197 D. Admission of Evidence ¶ 198 Next, defenda

nt claims that the trial cour t erre d in refusingto permit the Sulli van Roofing incident re port into evidence and in per mitti ngthe contra ct betwe en def endant a nd the prope rty
owner to be admitted into evidence . The de cision to admit or exclude evidence rests within the sound discretion of the tr ial court a nd that decision will not be disturbed abse nt an abuse of discretion. Snelson v. Kamm , 204 I ll. 2d 1, 24 (2003). A trial c ourt abuses its discre tion only when “ no rea sonable pe rson would take the view adopte d by the trial cour

t.” (Interna l quotation marks omitted.) Foley v . Fletche r , 361 I ll. App. 3d 39, 46 (2005). More over, a party is not
73No. 1-12-3663

entitled to reve rsal base d upon the trial cour t’s evidentiar

y ruling s unless the err or substantially prejudice d the ag g rieve d party and af fec ted the outcome of

the ca se. Bosco v. J

anowitz , 388 I ll. App. 3d 450, 462 (2009). T he par ty seekingreve rsal bea

rs the burde n of establishingsuch prejudice
. Bosco , 388 I ll. App. 3d at 462. ¶ 199 1. Sulli van RoofingIncident Report ¶ 200 First, def

endant a rgues that the trial c ourt err ed in re fusingto permit the Sulli van Roofing incident re port into evidence . DuringSulli van’s testimony , defe nse counse l attempted to introduce a

n incident re port completed by Sulli van into evidenc e. Sullivan testified that plaintiff repor ted his back injury

to Sull ivan, who filled out an inc ident repor t in his capac ity

as saf ety direc tor; Sull ivan testified that kee ping suc h repor ts was par t of Sulli van Roofing ’s normal
course of business. Sullivan further te stified that the re port was in his handwr iting and bor e his signature. De fense counsel then sought to admit the report into evidenc e, and pla intiff’s counse l objected. A fter e x amining the document and f urther que stioning of Sullivan outside the prese nce of

the jury , the cour

t sustained the objection: “The objection as to the re cord itself is sustained. Whatever

y ou choose to have him testify to as to his memory

is stil l of evidentiar

y value. B ut beca

use of the la ck of r eliability on the dates ba sed on the voir dire and the *** deposition, I ’m g oing to sustain the objec tion. Idon’t *** find it to be within the business
rec ords exception beca

use of lac k of re liability . The re st of the testimony is up to y ou.” The court fur ther noted: “ I t has to be cr eate d in an ordinar y course of business and if it’s on or a bout the time. That’s why

they ’re reliable . And what we have is that missing e lement. It wasn’t
cre ated on or

about the time bec ause he say s the date ma y be wr ongand I

don’t reme mber.”
74No. 1-12-3663

¶ 201 On appe al, def

endant a rgues that the trial c ourt err ed in conc luding that the inc ident repor t did not qualify

as a business r ecor d and wa s, theref ore, ina dmissibl e hea

rsay . Admission of business re cords into evidenc e is g overne d by Supreme Court Rule 236, which pr ovides: “Any writingor re cord, whether in the form of a

ny entry in a book or otherw ise, made a s a memora ndum or rec ord of a

ny act, transac tion, occurr ence , or eve nt, shall be admissible as evidenc e of the a ct, transa ction, occur renc e, or e vent, if made in the regular
course of any

business, and if it was the r egular c ourse of the business to make such a

memorandum or r ecor d at the time of such
an ac t, transac tion, occurr ence , or eve nt or within a rea sonable time there afte r. All other c ircumstance s of the makingof the wr iting or
rec ord, includinglack of

persona l knowledg e by

the entra nt or maker , may

be shown to af

fec t its weight, but shall not aff ect its admissibili ty . The ter

m ‘business,’ as use d in this rule, includes business, profe ssion, occupation, and c alling of ever y kind.” I ll. S. Ct. R. 236(a) (e ff. Aug . 1, 1992). Thus, if it was the re gular c ourse of the business to make such a memorandum at the time of such
an ac t, “Rule 236 requir es only that the par

ty tender ing the rec ord satisfy the foundation require ment of demonstrating that the r ecor d was made in the regular c ourse of business and at or
near the time of the tra

nsaction.” In re Estate of W eiland , 338 I ll. App. 3d 585, 600 (2003) (citing Progressive Printing Corp. v. JaneByrne P olitical Committee , 235 I ll. App. 3d 292, 305
75No. 1-12-3663

(1992)) ; Kimble v. Earle M. J orgenson Co. , 358 I ll. App. 3d 400, 414 (2005). ¶ 202 In the ca se at ba

r, the trial c ourt found that the incide nt report did not qualify as a business rec ord bec ause Sullivan’s testimony was insuffic ient to demonstrate that the inc ident repor t was made at or ne ar the time of plaintiff’s injury . We cannot find that the tria l court abused its discre tion in making that dete rmination. Sull ivan testified, and the incident re port stated, that plaintiff’s injury was re ported to Sullivan on October 11; howe ver, Sullivan admitted that the pay

roll rec ords indicated that plaintiff’s last day on the pay

roll was Oc tober 7. More importantly , howeve r, Sullivan further a dmitted that it was possibl e that he w as standingon a differ ent roof, a

nd not the Wil ton roof, whe n plaintiff informed him of the incident and that “ my dates c ould be wrongon the document. And I don’t know. I

can’ t verify

that. But I

reme mber specific ally

standingthere talking to him.” Give n this uncertainty by the re port’s pre pare r over the date the repor

t was complete d, we c annot find that the trial c ourt abused its discre tion in deter mining that def

endant ha d not satisfied the founda tional require ments for a dmission of the incident re port as a busine ss rec ord. ¶ 203 Def

endant a rgues that cour

ts have re peate dly

ruled that “ ‘a r easona

ble time there afte r’
can e ncompass a pe riod of time fa r, fa r long er tha

n the fe w day s at issue in the ca se at ba r.” F or support, defe ndant cites Taluzek v. Illinois Central Gulf R.R. Co. , 255 I ll. App. 3d 72, 85 (1993), in which a doc ument prepa red a pproxi mately

two wee ks after

an injury was c onsidered
rea sonable, a

nd Amos v. Norfolk &W

estern Ry . Co. , 191 I ll. App. 3d 637, 646 (1989), in which a one-month dela

y was re asonable . Howeve r, the trial c ourt’s dec ision was not based on the f act that the incident wa s repor ted on Octobe r 11 whe n the injury occur red on O ctober

6. Instead, the
76No. 1-12-3663

trial court’ s conce rn wa s that “[i] t wasn’t cr eate d on or about the time be cause he say s the date may be wr ongand I

don’t reme mber.” In other wor ds, the date r eporte d was not the issue; the issue was that the pr epar er of the re port did not know exactly when the doc ument was pre pare d. We cannot find that e x cludingthe document on this basis was e rror . ¶ 204 Def

endant a lso argues that the incide nt report should have been a dmitted because it was the admission of a pa

rty opponent and, thus, not hea rsay at all. “Any

oral or written out-of-c ourt statement by

a par ty to the action, or attributable to a par ty , which tends to establish or disprove any materia l fac t in a case is an admission and is competent evide nce a g ainst that party in the action.” Ficke n v. Alton &Southern Ry. Co. , 291 I ll. App. 3d 635, 647 (1996) (c iting W erner v . Botti, Marinaccio &DeSalvo , 205 I ll. App. 3d 673, 679 (1990)); CFC Investme nt, L.L .C. v. McLean , 387 I ll. App. 3d 520, 529 (2008). “T he admissibility of such state ments of fa ct re sts on the pre sumption t hat cour ts can usually

rely on statements made a g ainst the speake r’s intere sts.” CFC Investme nt , 387 I ll. App. 3d at 529 (citing Felke r v. Bartelme , 124 I ll. App. 2d 43, 50 (1970)) . Howeve r, in the ca se at ba r, the trial c ourt expressly found that the incide nt report wa s not reliable ba sed on the discr epanc y over when it was c ompleted. Thus, we c annot find that it should have be en admitted as a n admission of a par

ty opponent. See Zaragoza v. Ebenroth , 331 I ll. App. 3d 139, 141-42 (2002) ( in order f or a c odefe ndant’s testimony of a c onversation betwee n the code fenda

nt and the def

endant to be a dmissibl e as a party admission, the defe ndant “must have be en a pa

rty opponent, he must have made a n admission, and the [codefe ndant’s] testimony must have bee n reliable ”). The same re asoningapplies to defe ndant’s cla im that, since it would not have bee n offe red to prove the truth of the matter asser ted, it was not hea

rsay at all.
77No. 1-12-3663

¶ 205 Moreove r, eve n if the re port should have be en admitted, its exclusion does not constit ute
reve rsible er

ror be cause the same infor mation was pre sented to the jury throug h Sulli van’s testimony . Sulli van testified that, a t one point duringthe two wee ks of the Wilton project, plaintiff appr oache d him on the roof of the Wil ton project a nd informed him and Pese k that he had bee n pushing a

bundle of insulation alone “ and fe lt a twinge in his back.” Sullivan furthe r testified that, base d on the time sheets, plaintiff wa s workingon a diffe rent proje ct on Monday , September 27. H e wa s workingon the Wilt on projec t on September 28 a nd 29, and wa s working on a third projec t on September 30 a nd did not work on Fr iday , October 1. Thus, the jury

hear d that plaintiff had initially

g iven a diff

ere nt acc ount of the injury and that plaintiff wa s workingon other Sullivan Roofing pr ojects duringthe same time fr ame. Ac cording ly , we a ffirm the tria l court’s de cision not to admit t he incident r eport into evidenc e. ¶ 206 2. Gene ral Contrac t ¶ 207 Def

endant a lso argues that the trial c ourt err ed in admitting the c ontrac t betwee n defe ndant and the pr operty owner into evidence beca

use it was not re levant. De fenda nt emphasizes that the issue ce ntral to the ca se is the deter mination of who had c ontrol as betwe en Sulli van Roofing , the subcontra ctor, a nd defe ndant, the g ener al contra ctor – not the que stion of who had c ontrol as betwe en the g ener al contra ctor a nd the prope rty

owner , which wa s the only purpose of

the contra ct betwe en def endant a nd the prope rty

owner . ¶ 208 “The rule is stark a nd absolute: ‘I

rre levant evide nce is not admissible.’ ” Downey v

. Dunnington , 384 I ll. App. 3d 350, 387 (2008) (quoting Maffett v. Bliss , 329 I ll. App. 3d 562, 574 (2002)) . “ ‘[E]vidence is rele vant if it has any tendenc y to make the e x istence of

a fa ct that is of
78No. 1-12-3663

conseque nce to the de termination of the a ction either more or less proba ble [than] it would be without the evidence .’ ” In re Estate of Bitoy , 395 I ll. App. 3d 262, 277 (2009) (quoting Downey , 384 I ll. App. 3d at 387). In the ca se at ba r, we cannot f

ind that the contra ct was irr eleva nt and, there fore , inadmissible. ¶ 209 The c ontrac t betwee n defe ndant and the pr operty owner indicated that, a s betwee n defe ndant and the pr operty owner , defe ndant was “ solely responsible for

the construc tion, means, methods, techniques, se quence s and proc edure s and to coordinate all portions of the wor k,” as Puchalski testified. Additionally , under the contra ct, def endant unde rtook the re sponsibili ty of safe ty for the w ork site. Fina lly , althoug h not mentioned by either pa rty , the contra ct included a provision in which defe ndant could re quire e ach subc ontrac tor “to assume towa rd the Contrac tor all the obligations and responsibilities, including the re sponsibili ty for sa fety

of the Subcontrac tor’s Work, which the Contrac tor, by these Doc uments, assumed towar d the Owne r and Ar chitect.” Thus, the contac t was re levant in assisting the jury to determine the issue of control. ¶ 210 Def

endant a rgues that we have r epeatedly held that contra ct betwe en a g ener al contra ctor and a pr operty

owner “simply has no bea

ringon the Section 414 ana ly sis.” Howeve r, defe ndant’s cited c ases do not support that argument. Whil e the c ontrac t betwee n the g ener al contra ctor a

nd the prope rty

owner cer tainly is substantially

less rele vant for the section 414 analy sis than the contra ct betwe en the g ener al contra ctor a nd the subcontra ctor, none of defe ndant’s cited c ases ha s determined that the contra ct should not be admissible at all bec ause it is irreleva nt; indeed, all of the c ases involve motions for summary judgme nt and do not consider
79No. 1-12-3663

evidentiar y issues. Acc ording ly , we c annot find that the trial c ourt abused its discre tion in findingthe contra ct admissible. ¶ 211 Def

endant f urther a rgues that, eve n if the contra ct was r eleva nt, plaintiff failed to lay

a proper foundation for

its admissi on and the tria l court “grossly oversteppe d its bounds in assisting Plaintiff by

forc ing D efe ndant FCL

in mid-trial to produce a

foundation witness for Plaintiff.” We find defe ndant’s ar gument unpersua sive. ¶ 212 After

the trial cour

t found that Z elasc o had not laid a pr oper f oundation for the a dmission of the c ontact, plaintiff’ s counsel indicate d that they had re lied on defe ndant’s disclosure that Z elasc o would lay

a foundation for the contr act, so they wer e “kind of

in a bind here ,” since he
was una ble to do so. Plainti ff’ s counsel re quested that, “ if the Court fee ls the foundation, as it relates to the contra ct spec ifically , is inadequate , then I -- g iven the [Rule] 213 disclosure of defe nse, re lative to Mr. Z elac so, Ithink I ’m entitled to call a r ecor d keepe r, a sig natory or somebody

from F CLthat can la

y the founda

tion, notwiths tandingthe fa ct it’s the day befor e I rest my case .” Ove r def

endant’ s objection, the cour t ag ree d and told defe ndant, “you’re on notice that Iwould g rant plaintiff’ s motion. And that the request will come to you, I ’m assuming , within the next12 hours. And that bef ore this ca se is put to rest, Iexpect to see some discussion and/or re solution one way or anothe r.” The next day , plaintiff ca lled Christopher L inn, vice president of

defe ndant, who provide d the nec essar y foundation and the contra ct was a dmitted into evidence
. ¶ 213 An examination of the rec ord re veals that plaintiff r elied on Z elasc o, defe ndant’s employ ee, to pr ovide a f

oundation for the c ontrac t, as disclosed in defe ndant’s discove ry

80No. 1-12-3663

response s. When Ze lasco wa s unable to do so, the trial c ourt order ed def endant to provide another employ ee that could provide the suf ficient foundation. Defe ndant ar gues that its discovery disclosures said only

that Z elasc o would testify as to the subcontra cts on the Wilt on projec t. Howeve r, these disc losures ar e not included in the r ecor d on appea l, so we ca nnot make any comment as to their c ontents. Acc ording ly , we c annot find any err or in the trial cour

t’s conduct a nd aff irm its decision as to the admission of the contac t betwee n defe ndant and the proper ty owner . ¶ 214 E. Discover y Violations ¶ 215 Def

endant a lso argues that the trial c ourt err ed in per mitti ngthe testimony

of Jaime Roj as and David Gibson to be prese nted due to the imprope r disclosure of these witnesse s under Rule 213. “The admission of evidenc e pursua nt to Rul e 213 is within the sound discretion of the tria l court, a nd the cour

t’s rulingwill not be disturbed absent a n abuse of

that discretion.” Sullivan v. Edward Hospital , 209 I ll. 2d 100, 109 (2004). As noted, trial c ourt abuses its discre tion only when “ no rea sonable pe rson would take the view adopte d by the trial cour

t” (interna l quotation marks omitted) (

Foley , 361 I ll. App. 3d at 46) and a party is not entitl ed to re versa l based upon the trial cour

t’s evidentiar

y ruling s unless the err or substantially prejudice d the ag g rieve d party and af fec ted the outcome of

the ca se. (

Bosco , 388 I ll. App. 3d at 462). ¶ 216 The Rule 213 disclosure require ments are mandatory and subjec t to strict compliance by the par ties. Sullivan v. Edward Hospital , 209 I ll. 2d at 109; W arrender v . Millsop , 304 I ll. App. 3d 260, 265 (1999). In Sullivan , the I llinois Supreme Court stated that its rules we re its best eff orts to manag e the c omplex and important proc ess of discove ry . Sullivan , 209 I ll. 2d at 109.
81No. 1-12-3663

“To a llow either side to ig nore Rule 213' s plain languag e def eats its purpose a

nd encour ag es tactica l ga

mesmanship.” Sullivan , 209 I ll. 2d at 109-10 (citing Departme nt of Tr ansportation v. Crull , 294 I ll. App. 3d 531, 537 (1998)). I n the ca se at ba

r, eve n if disclosure of

plaintiff’s witnesses violated Rule 213, we cannot f ind that the trial court a

bused its discretion in permitting the witnesses to testify
. ¶ 217 Our I llinois Supreme Court has se t forth six fac tors that must be considere d in deter mining whe ther the e x clusion of testimony is an appropr iate sanc tion for nondisclosure: (1) the surprise to the a dverse party ; (2) the pr ejudicial ef fec t of the testimony ; (3) the nature of the testimony ; (4) the dilig ence of the a dverse party ; (5) the timely objection to the testimony ; and (6) the g ood faith of the pa rty callingthe witness. Sullivan , 209 I ll. 2d at 110. ¶ 218 1. J aime Rojas ¶ 219 Wit h reg ard to Jaime Rojas, plaintiff purportedly disclosed Rojas as a Rule 213( f)( 2) witness in a J anuar

y 4, 2012, letter to def

ense c ounsel; howeve r, def ense c ounsel claimed not to have r ece ived the letter

and only lear ned of Rojas whe n plaintiff’s counse l faxed a notice of evidenc e deposition. We have no w ay of knowingwhether

the letter w as sent or r ece ived; howeve r, the trial c ourt hea rd def endant’ s argument that counsel ne ver r ece ived the letter and
never theless per

mitted the evidence deposition to take place and per mitted the evidence deposition to be prese nted to the jury
. 1 5 ¶ 220 Consideringthe fa ctors set for th in Sullivan , we c annot find that the trial c ourt abused its

1 5 We note that differ ent judg es dec ided the motion to quash the evidenc e deposition and the motion in limine seeking to bar Rojas’ testimony
.

82No. 1-12-3663

discretion in re fusingto bar Rojas’ testimony . Rojas testified that he per formed a functional capa city assessment of pla intiff and opined that plaintiff c ould only work a t a light phy sical demand leve l. I f def

endant did not know of Rojas’ e x istence until two day s befor e his deposition, it was cer

tainly surprised a

nd timely objected, a

nd there is no issue of defe ndant’s diligenc e in other discove ry matters. Howe ver, a s noted, it is unclear whether defe ndant had prior notice of

Rojas’ status as a Rule 213(f )(2) witness. Additionally , the nature of his testimony and its prejudicial e ffe ct ar e small; plaintiff had seve ral witnesse s testify as to plaintiff’s limitations, and Rojas’ testimony conce rned a

single evaluation and an opinion limit ed to plaintiff’s condition on that day . Finally , there is no indication that plaintiff was not ac ting in g ood faith: plaintiff had r etained ne w counse l in October 2011, a nd counsel e x plained the
rea sons for the e vidence deposition to the trial court, statingthat it had only been r ece ntly discovere d that Rojas was now livingin Colorado and he w ould only be ava ilable for a

fewday s. ¶ 221 We find defe ndant’s citation of Nedzvek as v. Fung , 374 I ll. App. 3d 618 (2007), and Boyd v. City of Chicago , 378 I ll. App. 3d 57 (2007), to be unpe rsuasive. I n both case s, the revie wing court wa s determiningwhether the trial cour

t had abuse d its discretion in barringwitnesses due to Rule 213 violations and determined that it had not. Howe ver, in the c ase at bar, we are consideringwhether

the trial cour

t abused its discretion in not barr ing Rojas. Conseque ntly , defe ndant’s ca ses ar e of limited use and w e ca nnot find that the trial cour t abused its discretion in permitting Rojas to testify
. ¶ 222 2. David Gibson ¶ 223 Def

endant’ s only

arguments conce rningGibson involve prejudice . Whil e def endant
83No. 1-12-3663

acknow ledg es that Gibson was disclose d with sufficient time to be de posed, def endant a lso argues that Gibson’s testimony was much more prejudicia l, since Gibson attac hed a dollar figure to plaintiff’s losses. Howe ver, c onsideringthe other f actor s, we c annot find that the trial c ourt abused its discre tion in permitti ngGibson to testify . There was no indication that plaintiff acted in bad fa ith, and defe ndant’s surpr ise was limited, as plaintiff’s ne w counse l immediately made
an ora l motion t o disclose a damag es witness upon takingover the case . Additionally , defe ndant had suff icient time to retain its own damag es expert, as de fenda nt stated duringthe hea

ringon the motion in limine to bar Gibson, so def endant c ould have mitigated the dama g ing na ture of Gibson’s testimony
. 1 6 Acc ording ly , we c annot find that the trial c ourt abused its discre tion in permitting G ibson to testify
. ¶ 224 F. Cumulative Err or ¶ 225 Finally , defe ndant ar gues that the c umulative err ors duringthe trial re quire a new tria l. “A ne w trial is nece ssary

when the c umulative eff

ect of trial err ors so deprive s a par ty of a f air trial that the ver dict might have been a ffe cted.” Netto v. Goldenbe rg , 266 I ll. App. 3d 174, 184 (1994). How ever , in the case at bar , we c annot find that def endant wa s deprived of

a fa ir trial such that the ve rdict mig ht have be en af fec ted. ¶ 226 CONCLUSI ON ¶ 227 The trial c ourt did not err in de nying de fenda nt’s motion for judgme nt notwithst anding the ver dict, nor did it err in de nying de fenda nt’s motion for a new

trial. ¶ 228 Affir

med.

1 6 Gibson was the only

damag es witness to testify at trial. 84