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A p p e l l a t e C o u r t

Maggi v. RAS Dev elopm ent, Inc. , 2011 IL App (1st) 091955

Appellate Court Caption J OHN MAGGI
, I ndividually and as I ndepende nt Administrator of the Estate of Ger ald Mag g i, Dec ease d, Plaintiff-App ellee and CrossAppellant, v. RAS Deve lopment, I nc., De fendant-Appellant and CrossAppellee (State Fa

rm Fire and Casualty Company
, Cross-Appellee ).

District & N o. First District, F ourth Division Docke t No. 1–09–1955

Filed May 26, 2011

Held ( N ote : Thi s syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Trial court' s judgme nt for plaintiff in an action arising from a fata l fall at

a construction site was aff irmed, over defe ndant' s contentions, inter alia
, that plaintiff' s addition of the proper defe ndant did not relate back to the filing of the orig inal complaint for the purposes o f the statute of limit ations, t h at t h e verdic t was ag ainst the manifest weig ht of the evidenc e whe re de fendant did not re tain control over the work, and that the trial court erred in allowing plaintiff t o el i ci t testimony about the
contra ct provisions discussing defe ndant' s responsibility for safe ty and in ref using to bar evidenc e of the pos tremedia l measure s defe ndant was asked to take

.

Dec ision Under Review Appea l from the Circuit Court of C ook County
, No. 0 2

– L

– 0 1 0922; the Hon. B ill Tay lor, J udg e, pre siding.

J udg ment Affirmed.Counsel on

Appea l Robert K. Scott and Matthew R. Bloom, b o t h o f Scott, Halsted & Ba betch, PC, of Chicag o, for a ppellant RAS Development, Inc.

Michae l Resis and Glen E. Amundsen, both of Smit hAmundsen LL C, of Chicag o, for a

ppellant State Fa

rm Fire& Ca sualty

Company

.

Michae l W. R athsac k, of Chicag o, for a ppellee.

Panel PRES IDING JUS TI CE LAVIN deliver ed the judg ment of the c ourt, with opinion.
J ustices Salone and Ster

ba conc urre d in the judgme nt and opinion.

OP INION

¶ 1 J err

y Mag g i, a 46-y ear -old veter an labore r on a bricklaying cre w, died sever al day s afte r an Aug ust 28, 2000 fall throug h an unprotec ted window opening at a new construction projec t on the near north side of C hicag o, afte r a strap binding a bundle of bricks broke as he maneuve red it in a tight workspac e under a patent scaf fold on an exposed t hird floor, causing him to lose his balanc e. His estate broug ht a construction neg lige nce lawsuit ag ainst

sever al entities involved in the projec t, which co n s i sted of the construction of sever al multis tory condominium buildings on Wolfram S t re et. The case proce eded to a jury trial, with th e j u ry returning a $3,286,382 verdic t afte r finding dece dent 1% contributorily
neg lige nt. The sole defe ndant at trial, RAS Deve lopment, appeals from the judgme nt enter ed

on the verdic t and the trial court’s denial of its posttrial motion. Plaintiff also filed a crossappeal, alleg ing that the trial court improperly declin e d to s an c ti o n d e fendant for understating the amount of available insurance cover ag e in discovery

. For rea sons that will be delineate d
at some leng th below, we aff irm the judgme nt enter ed on the jury verdic t and also aff irm the trial court’ s ref

usal to sanction def

endant. ¶ 2 BA CKGROUND ¶ 3 The projec t on Wolfram Street was spear heade d by three men, Robert L evin, Arnold Boris and S aul W aimberk, whose first names’ initials formed the RAS pref ix

. These three

men wer e the sole share holders in RAS Deve lopment, as well as RAS Wolfram, which then formed a partne rship called Wolfram Tower s. They hired RAS Deve lopment as the g ener al
contra ctor, meaning that they
, as owner s, essentially hired themselves to run the projec t. During the course of construction, various permits wer e issued by the City of Chicag o which interchang eably ref

erred to one or more of the entities as the owner or g ener al contra ctor of the deve lopment. ¶ 4 Plaintiff’s first complaint, filed on Aug ust 26, 2002, included as defe ndants various

-2-entities th at h ad s o me connec tion to the development, including, inter alia
, plaintiff’s

employ er, Rockford Construction, and RAS Wolfram, which initially volunteere d in its

answe r that it was the g ener al contra ctor. The parties eng ag ed in leng thy written and oral d i scovery , some of which was desig ned to divine the interplay betwee n the variou s R AS enti t i es o n the Wolfram Street projec t. I n May 2003, befor e the limit ations period had expired, R AS Wolfram, in an interrog atory answe r, chang ed course and stated that it had hired RAS Development as the g ener al contra ctor and that RAS Development had enter ed into separate contra cts with subc ontrac tors on its be half, while also indicating that it could
not locate the contra ct betwee n RAS Wolfram and RAS Deve lopment. This turn was larg ely confirme d in a deposition of RAS Deve lopment’s projec t manag er, L ance Shalzi. D u ring this period of time, p l aint iff was seeking the contra ct that would unequivoca lly establish the
proper entity to sue as the g ener al contra ctor, with Wolfram Tower s assuring p l ai n tiff’s counsel that “all” construction contra cts had been produce d. Neither RA S Wolfram nor Wolfram Tower s moved for dismissal on the basis that it was not the g ener al contra ctor. ¶ 5 Some 18 months passed without any further discovery on this subject. Then, afte r the four- y ear limit ations period passed, plaintiff’s attorney rec eived a letter from defe ndant’s inhouse insurance counsel that indicated that it had located the contra ct that RAS Deve lopment
enter ed into with Wolfram Tower s, entitled “Standar d Form of Ag ree ment Be tween Owner and C o n t rac tor” (the Prime Contract), to perf orm g ener al contra cting service s for the construction of the four- story residential buildings and that it would be chang ing its answe r to confirm that RAS Deve lopment was the g ener al contra ctor. This led plainti f f to voluntarily dismiss RAS W olfram and amend his c omplaint, a dding RAS De velopment as the g ener al
contra ctor. RAS Deve lopment then moved to dismiss the complaint ag ainst it, on the basis that it wa s o u t s i d e the limit ations period, while plaintiff endeavored to persua de the trial
court that the amende d complaint should re l at e b ac k to the filing of the initial complaint beca use RAS Deve lopment knew all along that it should have been sued, while plaintiff was mistaken in his belief that RAS Wolfram was the g ener al contra ctor. I nitially
, the trial court ag ree d with defe ndant and dismiss ed the complaint, but chang ed its mind an d gra n t ed plaintiff’s motion to reconsider

. ¶ 6 The case t h en p ro ce eded to trial, wher e plaintiff prese nted a case of the g ener al
contra ctor’s failure to provide a safe place to work and for inadequately supervising the work of t he subcontractors, while the defe ndant denied liability and claimed it would assert that the fall was not related to the brea king of the brick band but, rathe r, that Mr. Mag g i suffe red a coinc idental hea

rt attac k, causing him to slip and fall from his elevated workspa ce. RAS Deve lopment planned to call J ohn T. Ba rron, M.D., at trial to support this theory
, but the trial
court barred Dr. Ba

rron from testify ing that Mag g i’s fall was cause d by a heart attack

occur ring immediately prior to his fall. T h e trial court initially ruled that Dr. Ba rron’ s opinion was not based on a rea sonable deg ree o f m ed i ca l certainty but clarified upon defe ndant’s motion to rec onsider that it was not barring Dr. Ba rron’ s entire testimony
, only the specific opinion about the timing of the attack. At t ri al
, RAS Deve lopment did not mention thi s t heory to the jury
, did not make an offe r of proof conce rning Dr. Ba rron’ s testimony
, and g ave all appea ranc es of having abandone d the theory until its resur rec tion at defe ndant’s posttrial motion.

-3-¶ 7 TESTIMONY AT T RI AL

¶ 8 There was but one ey ewitness to Mag g i’s fall. The veter an bricklay er to whom he was assig ned, Charle s Wi ncheste r, testified on direc t e x amination that the fa ll was prec ipitated by the bre aking of a metal band that was meant to keep a la rg e bundle of

bricks in a stable condition which his labore r maneuve red into a convenie nt location for Winchester’s use. Winchester explained that they wer e working on the front of th e t h i rd floor of the condo buil d i n g. A scaf

fold had been ere cted on that floor. The bundle of bricks that Mag g i was bring ing to Winchester weig hed 150 pounds and neede d to be maneuve red around the front of the scaf

fold, which had a set of cross-br ace s in the back. The fr o n t o f t he scaf fold was unprotec ted by any brac ing, but it was done so purposef ully
, to allow the mason acc ess to the block, brick and mortar that he would need in order to build the brick wall. There exis ted a

narr ow space in betwee n the scaf fold and the outer wall. It was in this space that the mason plied his trade

. Whil e he was so eng ag ed, there was no functional fall protec tion, but this was expected by the mason, beca use they wer e employ ing the so-ca lled o v erhand bricklaying method, which invol ves the mason (or “brickie” in construction worker arg ot) kneeling or standing while leaning over the ledg e and applying the bricks in “cour ses” to build the wall. ¶ 9 The fall itself, Winchester testified, happene d as Mag g i was attempting to “inch” the bricks under the s caf

fold close to Winchester’s n ar ro w wo rkspac e, which was hard by the edg e of the building’s under- construct i on wall. Winchester explained that Mag g i had to “stationary ” the bricks with his hands. It was at this point that the metal band popped and he
went over the edg e, throug h the bottom part of a work-in- prog ress window opening
, rig ht in the area where Winchester would have soon started to lay the nex t course of bricks. The re

was no safe ty rail i n the area of that window opening or any other window opening on the jobsite. On the subject of the g ener al contra ctor, Winchester testified that he did not have any contac t with its repr esentative and never attended any safe ty meeting s with L ance Shalzi
, the projec t manag er f

or RAS Development, who w as purportedly in char g e of sa fety

. ¶ 10 On cross-e x amination, defe nse counsel presse d a somewhat reluc tant Winchester to testify that Mag g i was st an d i n g in a prohibited are a at the time of his fall. Winchester did admit that it would have been safe r for Mag g i to be under the scaf fold, rathe r than betwee n the s caf fold and the edg e of the floor. Winchester was also impeached wit h his deposition testimony that indicated that Mag g i had “slipped and backe d out the window” while trying to break a bundle of bricks down. Winchester admitted that Mag g i was betwe en the bricks (which w ereunder the scaf fold) and the floor edg e whe n he “slipped out.” ¶ 11 The jury also hear d t es t i m o n y fr o m P at ri ck Br u nory , the owner of Rockfor d Construction, the bricklaying contra ctor and the employ er of M aggi and Winchester. He testified that the wor

k are a was first prepa

red by his br other, Sean Br unory , who would set up the scaf

fold, mortar table and other nece ssaries befor e the brickie and his la borer would beg in their work. Heexplained that there w as no fall protec tion be cause there was nothing for the protec tion to adher e to, sinc e the building was still g oing up. He also explained that

one could not g uard or place any railing s acr oss an are a that was in v o l v ed i n overhand bricklaying be causeit would interfer e with the nec essary acc ess for the bricklay er.

-4-¶ 12 Robert L evin, one of the owner s of RAS Deve lopment, testified at some leng th about

the projec t. He was asked to identify the Prime Contract and t h e co n t ract with Rockford Cons t ru ct i o n

. He explained that he had hired Rockford on other projec ts in the past. He agr eed that it was the responsibility of RAS to employ a competent superintenden t wh o would be responsible for jobsite safe ty

. L ance Shalzi was employ ed for that purpose on this job. Shalzi was a licensed arc hitect, but L evin was singula rly unawa re of whether he had any specia liz ed saf

ety backg round, OSHA training or the like. He said that Shalz i did have the authority to stop the work if he saw anythi n g u n safe

. He acknow ledg ed that RAS was responsible for initiating, maintaining and supervising all safe ty prog rams on the jobsite and
to desig nate a person to prevent accidents, while steadfa stly maintaining that his company and its employ ees w ere“neve r, neve r” supposed to enter Rockf ord’s wor k zone because it was “ too dang erous.” ¶ 13 The RAS projec t manag er, Mr. Shalzi
, testified that he was a licensed arc hitect who worke d as a projec t manag er for the Wolfram projec t. He had been in a simil ar position for RAS on at least seven other sites. He admitted that he had never been trained in construction site safe ty

. He had no training for fall hazards with building s of heig ht and this projec t was the highe st building that he had worke d on with RAS. He denied bein g t h e “r es ponsible”
person for safe ty for RAS Deve lopmen t

. He s ai d that the projec t did not have a superintende nt and called himself a “mana g er.” He never went to the are a wher e Rockford

was laying bricks bec ause hewould have be en “r emoved” by Rockford. He did te stify that there wer e metal safe ty rails acr oss the window opening s, but was not “100 %” sure that they

wer e there befor e Mag g i’s acc ident. He said that he hired someone to put up boards on other floors afte r the acc ident and saw Rockford’ s men take them down when they did work on the individual floors. ¶ 14 Plaintiff’s workplac e safe ty expert, Phili p Colleran, had more than three deca des of construction safe ty experience
, including 17 y ear s as an OSHA compliance officer. He had published article s with respe ct to masonry , including the Mason Contractors Association of Ameri c a ’ s Saf

e ty M an u al, an d also wrote an article about overhand bricklaying. Colleran was critica l of the actual prese nce of the scaf fold near the building’s edg e b ec au s e it was

unnece ssary and prese nted a phy sical impediment to the labore r g etting the brick bundles to the brickie. He was of the opinion that the window opening throug h which Mag g i fell should have been protec ted at all times just short of the actua l overhand bricklaying by the mason, beca use the mason is trained specific ally to deal with the dang er and cannot car ry out his job of coursing the bricks if there are bars or g uardr ails in his way

. He explained that a g uardr ail should be place d until the bricklaying proce eds, when it would be repla ced by blocks to form

a temporary g uardr ail of sorts. The scaf fold was set up prematurely
, in his j u d gment, compromising the safe ty of the workspac e. The config uration basica lly require d Mag g i to g et into the brickie’ s are a, beca use the back of the scaf

fold had cross brac es and the only way for the labore r to g et the bundle of bricks close to the bricklay er was to enter that trea cher ous

are a betwe en the sc aff

old and the building’ s edg e. ¶ 15 Colleran also found fault with the safe ty supervision on the site and opined that the failure of RAS Deve lopment to initiate a safe ty prog ram with a com petent superintende nt

was a proxi mate cause of Mag g i’s fall. Colleran acknow ledg ed that the te s timony established

-5-that Mag g i’s position in betwee n the scaf fold and the floor edg e constituted a fall hazard. He also aff irmatively stated that Mag g i should not have put himself in that position beca use of its dang er, but allowed that he still could have fallen the same way wer e he phy sically located under the scaf

fold, as he was supposed to have been, since it was the edg e of the scaf fold that formed oneborder

of the bric kie ar ea. In his opinion, whether Mag g i w as under or outside the confine s of the scaf

fold and near the floor edg e was of no moment, bec au s e t h e setup offe red no prot ec t i o n for worke rs who might fall from either are a. He opined that it was incumbent on RAS, throug h Shalzi
, to intervene and require Rockford to corr ect the hazard
prese nted by the prese nce of the scaf fold near the edg e and the absent fall protec tion. He also

a d mi tte d th at Ro c kf

o r d
, p laintiff’s dece dent’s employ er, violated various safe ty rules and th at it was primarily

responsible for

the safe ty

of its own worksite. ¶ 16 Plaintiff’s case -in-chie f also included testimony from R o b er t E ri ck s o n , M.D., a

neurosur g eon who was called in as a consultant to e valuate Mag g i w hen he was broug ht to I llinois Masonic Hospital immediately afte r the fall. He explained that Maggi was

re s uscitated three ti mes due to his heart stopping or due to a severe rhythm disturban ce o f the heart from the fall. He also testified that Mag g i did have a my ocar dial i n far ction, as a result of the f

inding of an ar rhythmia, but was of the opinion that he died as a result of the fall, due to brain and s p i n e t ra uma, and severe chest trauma which cause d a hemopneumothorax , which is the prese nce of b l ood and excessive air in the chest cavity causing compre ssion of the lungs. He noted that the patient was uncon s ci o u s and unresponsive in the “fie ld” and remained so until he was pronounce d dead on September 4, 2000. ¶ 17 I n terms of damag es, the jury also heard substantial testimony about the dece dent, a lifelong bache lor who l ived wit h sib l i n g s at t he ti me of his death. Mag g i was described as being very close to his family and was a “g o-to g uy ” i f anybody neede d anything done. Def endant does not complain on appeal about the measure of damag es awa rded by the jury

. ¶ 18 Def

endant co u n tere d p la

inti f f ’ s c a s e s o le ly w it

h the testimony of Gre g ory Wis newski,

a licensed arc hitect for some 32 y ear s. He was of the opinion that the brick masons could not install fall protection such as g uardr ails while t hey wer e lay ing bricks for the wa l l

. He felt that the are a was safe beca use it was a controlled acc ess zone that was restric ted to bricklay ers and labore rs who wer e ere cting the building from the inside. He, too, was critica l of Mag g i’s positioni ng of himself betwee n the scaf fold and the building’s edg e beca use he put himself in a hazardous position in the mason’s are a. He opined that Rockford, not RAS, h ad overa ll safe ty responsibility and could have stopped the work if it saw a h az ar d o u s condition. He felt that the masonry work to ere ct the wall was consistent with the custom and
prac tice of the industry

.

¶ 19 ANALYSI S ¶ 20 Relation-B ack D octrine ¶ 21 RAS Deve lopment’s overa rching contention on appeal is that the trial court err ed in denying its motion to dismiss plaintiff’s action pursuant to section 2–619(a) (5) of the Code of Civil Procedure (the Code) (735 IL CS 5/2–619(a)( 5) (West 2006)) based on the applicable

-6-statute of limit ations. We revie w the trial court’s denial of a section 2–619 motion to dismiss

under the de novo standard of revie w. Polites v. U.S. Bank National Ass’n
, 361 I ll. App. 3d 76, 80 (2005). ¶ 22 The four- y ear construction statute of limit ations applied and it expired on Aug ust 28, 2004, prior to the date plaintiff added RAS Deve lopment as a defe ndant. Se e 7 3 5 I L CS 5/13–214 (West 2000). The issue thus is whether p la inti f f ’ s ac ti o n a g ainst RAS Deve lopment should “re late back” to the orig inal complaint, which was filed well within t h e statute of limit ations, pursuant to se ction 2–616(d) of the Code (735 IL CS 5/2–616(d) (West 2002) ). RAS Deve lopmen t c o n tends that plaintiff knew of its involvement in the construction projec t

more than 18 months befor e the limit ations period expired but made no attempt to add it as

a defe ndant un t il more than 2 y ear s afte r the expiration of the statute of limit ations. Contrarily
, plaintiff contends that he satisfied the three prer equisites under the relation-back doctrine: (1) he filed suit on time; (2) RAS Deve lopment had notice of both the suit and that it was the intended targ et prior to the expiration of the limit ations period; and (3) plaintiff’s amende d complaint g rew out of the same tr ansac tion. ¶ 23 The first issue for us to resolve is whether section 2

– 6 1 6 (d ) ap p l ies to the pre sent

case , a qu estion which turns on whether the fac ts sug g est a case of misnomer or mistaken identity

. Pruitt v. Pervan
, 356 I ll. App. 3d 32, 36 (2005); Fassero v. Turigl iatto
, 349 I ll. App. 3d 368, 370 (2004). I n a caseof misnomer, the relation-back doctrine would automatically apply , and the amended c omplaint naming the pr oper defe ndant would be conside red f iled
upon the fil ing date of the original complaint. Fassero
, 3 4 9 I l l

. Ap p. 3d at 370. I f t his is a

case of mistaken identity
, we wo u l d need to analy ze the three fac tors provided in section 2–616(d) to determine whether plaintiff’s amende d complaint relates back to the date of filing of his orig inal complaint. Id

. Thus, our initial inquiry is whether plaintiff would have named RAS Deve lopment as the defe ndant in his o ri ginal complaint but for a mistake

conce rning the identity

of the prope r party . See Polites , 361 Ill. App. 3d at 82. ¶ 24 Whether a case involves mistaken identity or misnomer depends on the intent of the plaintiff as established by the plaintiff’s objective manifestations of that intent as contained in the rec ord. Fassero
, 349 I ll. App. 3d at 371-72. “Themost probative evidenc e of w hom the plaintiff intended to sue is the party named in the complaint.” Id

. at 372 “ ‘I f the named party in fac t exis ts but is not a real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party .’ ” Id

. (quoting Zito v. Gonzalez
, 291 I ll. App. 3d 389, 393 (1997))

. ¶ 25 The Fassero court was the first appellate court to interpre t the amended v er sion of section 2–616(d). I n Fassero
, the plaintiff motorist broug ht a persona l injury action, naming the owner of the car , instead of the driver, as the defe ndant. After discovering that she sued the wrong defe ndant, plaintiff broug ht a motion to amend the complaint afte r the statute of limit ations had run. The trial court denied the motion, and the plaintiff appealed. This court

reve rsed, holding that the case was of mistaken identity , not misnom er, explaining that the

rea l party in interest was not orig inally sued or serve d, which indicated that the plaintiff was mistaken as to the corr ect party ’s ident i t y

. F a s s ero , 349 I ll. App. 3d at 373-74. The court noted that the plaintiff’s complaint was direc ted at the driver of the vehicle, but the complaint named someone else as the defe ndan t

. Id

. at 374. The court conclude d that the plaintiff

-7-simply sued the wrong person, meaning it was a case of mistaken identity and the misnomer

rule did not apply

. Id

. ¶ 26 Fo l l o wi n g Fassero
, the Pruitt court found that the relation-back doctrine did n o t apply in a premises liability action wher e the plaintiff’s failure to name the proper defe ndants

was due to a lack of information about the other parties’ responsibility for the premises. There
, the plaintiff assumed the manag ement company was liable for her injury
, rathe r than the p ro p er ty ’s owner

. The plaintiff later attempted to amend her complaint to name the

owner s. This court found that the plaintiff was not misled in any way causing her to file her initial suit ag ainst only the manag ement company

. The Pruitt court conclude d that it was not a case of mistaken identity beca use t he p l ai n t iff deliberately named the party she i ntended to hold responsible for he r injuries. Pruitt , 356 I ll. App. 3d at 37. ¶ 27 Shortly afte r Pruitt
, the Polites court consider ed s ec t i o n 2

– 616(d) wher e a bank

cu s t o m er sustained injuries while at a U.S. Bank branc h office

. Plaintiff’s counsel sent a claim letter to the branc h office wher e the injury occur red and rec eived a response from an insurance claims service repr esenting U.S. Bancorp, a separ ate entity descri b ed as U.S. Bank’s pare nt corpor ation, indicating that the owner of the bank was U.S. Bancorp, not U.S. Bank. Unable to rea ch a settlement, the plaintiff filed a premises liability action ag ainst U.S. Bancorp. When U.S. Bancorp was subsequent l y d i s missed from the case , the plaintiff amende d his complaint to substi t u te U.S. Bank as the defe ndant afte r the statute of limit ations had run. Thetrial court g rante d U.S. B ank’s motion to dismiss
, finding that the amende d complaint did not relate back to the plaintiff’s first complaint. This court reve rsed, holding that the plaintiff’s amende d complaint did indeed relate back to the first complaint, since plainti ff had orig inally intended to bring his claim ag ainst the owner and operator of the bra n ch office and had acte d rea sonably in relying on the insurance claims service ’s statement that U.S. Bancorp w as the prope r def endant. Polites , 361 Ill. App. 3d at 84. ¶ 28 The curr ent iteration of the relation ba ck doctrine is patterned after F eder al Rule of Civil Procedur e 15(c)

. See Polites
, 361 I ll. App. 3d at 88. Until very rec ently
, there had been

a split in the fede ral circ uits on the very issue prese nted in the matter sub judice

. This conflict in the fede ral ca s e law has been unequivoca lly resolved by the United States Supreme Court’s opinion in Krupski v. Costa Crociere S.p.A.
, 560 U.S.
___, 130 S. Ct. 2485 (2010). There
, a cruise ship passeng er broug ht an action in the District Court fo r t h e S outhern District of F lorida against the carrier to rec over f or injuries she sustained w hile aboar d the ship. On Fe bruary

1, 2008–three wee ks befor e the one-y ear limit ations period ex pired–the
passeng er f

iled a neg lige nce action ag ainst Costa Cruise

. The complaint alleg ed that Costa Cruise “owne d, opera t ed, manag ed, supervised and controlled” the ship on which the
passeng er ha d injured her self. The passeng er se rved Costa Cruise shortly there afte r. ¶ 29 Over the next sever al months–after the limit ations period had expired–Costa Cruise thrice broug ht Costa Crocier e’s exis tence to the passeng er’ s attention. First, in its answe r to the complaint, Costa Cruise asserted that it was not the proper defendant, as it was merely
t h e No rt h Americ an sales and marke ting ag ent for Costa Crocier e, which was the actua l

car rier and vessel operator. Second, in its corpor ate disclosure statement, Costa Cruise listed Costa Crocier e as an int ere sted party

. Finally
, Costa Cruise moved for summary judgme nt and ag ain stated that Costa Croc iere was the proper defe ndant. In J une 2008, the passeng er

-8-responde d to the motion for summary j u d gm ent and simult aneously moved to amend her

complaint to add Costa Crocier e as a defe ndant. ¶ 30 On J uly 2, 20 0 8
, t h e d i s t ri ct co u rt d enied Costa Cruise’s motion for summary judgme nt and g rante d the passeng er leave to amend. Nine day s later, the passeng er filed an amende d complaint and served Costa Croc iere on Aug ust 21, 2008. On that same date, the district court issued an order dismiss ing Costa Cruise from the case pursuant to the parties’ joint stipulation. Shortly thereafter
, Costa Crocier e moved to dismiss the complaint, contending that the amende d complaint did not relate back under Ru l e 15(c) and was there fore untimely

. The district court ag ree d and g rante d Costa Crocier e’s motion to dismiss
, and the Ele venth Circuit Court of Appea ls affirme d. ¶ 31 T h e Supreme Court reve rsed, holding that “re lation back under Rule 15(c)(1 )( C ) d epends on what the party to be added knew or should have known, not on the amending party ’s knowledg e or its timeliness in seeking to amend the pleading .” Krupski
, 560 U.S. at

__, 130 S. Ct. at 2490. This prec ise jux taposition is prese nted in this appeal, with defe ndant
arg uing that plaintiff should be subj ect to dismiss al because he was not dilige nt in naming the rig ht pa

rty and plaintiff arg uing that defe ndant knew all along that it wa s the entity that
acte d as the g ener al contra ctor, while he was clea rly mistaken in his bel i ef t h at a related
corpor ate e ntitywas the g ener al contra ctor. ¶ 32 The Supreme Court direc tly addre ssed the meaning of the t er m “m i s t ak e” in the
context of a party attempting to name an en t ity responsible for causing injury

. It define d mistake as “ ‘[a]n err or, misc o n ce p t ion, or misunderstanding ; an erroneous belief .’ ” (Emphasis added) Krupski
, 560 U.S. at ___, 1 3 0 S

. Ct. at 2494 (quoting Bla ck' s L aw Dictionary 1092 (9th ed. 2009)). “That a p l aintiff knows of a party ' s exis tence does not prec lude her from making a mistake with respe ct to that party ' s identity .” Krupski
, 560 U.S.
at ___, 130 S. Ct. at 2494. The Supreme Court rea soned, “[b] eca use the complai n t made clea r that [t he passeng er] meant to sue the company t h at ‘owne d, operated, manag ed, supervised and controlled’ the ship on which she was injured, [citation]
, and also indicated (mistakenly ) that Costa Cruise perf ormed those roles, [citation]
, Costa Crociere should have known, within the Rule 4(m) period, that it was not named as a defe ndant in that complaint only beca use of [t he passeng er’ s] misunderstanding about which ‘Costa’ entity was in char g e of t he shi p–clea

rl y a ‘m i s t ake conce rning the proper party ’s i dentity .’ ” Krupski
, 560 U.S.
at ___, 130 S. Ct. at 2497. The S u p re m e C o u rt also noted that Costa Cruise and Costa Crocier e are “re lated corpor ate entities with very simil ar names,” wh i ch should have “heig hten[ed] t he expectation that Costa Croc iere should suspe ct a mistake ha s been ma de when Costa Cruise i s n am ed i n a complaint that actua lly describes Costa Crocier e’s activities.” Krupski
, 560 U.S. at ___, 130 S. Ct. at 2498. The Supreme Court lastly noted that “Costa Crocier e’s own actions contributed to passeng er confusion over ‘the proper party ’ for

a lawsuit.” Krupski
, 560 U.S. at ___, 130 S. Ct. at 2498. Likewise, in the case sub judice
, we

are confr onted with related co rp o ra t e enti ties with simil ar names, one of whom surely contributed to conf

usion over the pr oper de fendant’s identity

. ¶ 33 There fore
, we conclude that this is indubitably a case of the plaintiff being mistaken about the correct identity of the g ener al contra ctor on the projec t in question. The lang uag e in plaintiff’s orig in al complaint supports the conclusion that plaintiff intended to sue the

-9-entities that “owne d and or w erein char g e of the ere ction, construction, repairs, alteration,

remova l and/or brick- laying” for the pr oject site and also mistakenly alleg ed that Wolfram Tower s perf

ormed those roles. RAS Deve lopment should have known that it was not named as a defendant in that complaint only beca use of plaintiff’s mi sunderstanding about which of the related “RAS” corpor ate entities was the g ene ral contra ctor–c learly a mistake

conce rning the prope r party ’s identity

. ¶ 34 The mistake in identify ing the g ener al contra ctor in this case was not exclusive to the plaintiff, since an orig inally named, related defe ndant specific ally admitted that it was the “g ener al contra ctor” in response to the alleg ation about who “owne d” or was “in char g e of” the “er ection” and “construc tion” of the Wolfram Street projec t. On November 26, 2002, Wolfram Tower s, Marianne P

. , and RAS Wolfram jointly answe red plaintiff’s complaint, in which Wolfram Tower s adm i t t ed that it was the g ener al contra ctor for this projec t. I ntending to sue the g ener al contra ctor, and having been informed that Wolfram Tower s was the g ener al contra cto r, i t i s ea sy to see why plaintiff believed Wolfram Tower s was the
proper party

. Our car eful revie w of the r ecor d indicates that Wolfram Tower s never filed a timely amende d answe r to inform plaintiff that both it and plaintiff wer e mistaken about the
true identity of the g ener al contra ctor. J ust as the plaintiffs in both Fassero and Polites wer e led to believe they had sued the proper party , plaintiff in this case was led to believe throug h Wolfram Tower s’ own admission that he had su ed the g ener al contra ctor in char g e of the construction site. For these rea sons, we find this case is one of mistaken identity and section 2–616(d) a

pplies. ¶ 35 Be causewe ha ve dete rmined this is a caseof mistaken identity
, we now return to a discrete analy sis of section 2–616(d) of the Code to determine whether plaintiff’s amende d complaint ag ainst RAS Deve lopment relates back to the date of filing of h i s orig inal complaint for purposes of the statute of limit ations. Section 2–616(d), as amende d in 2002, provides:
“A cause of action ag ainst a person not orig inally named a defe ndant is not barr ed by lapse o f t i me under any statute or contra ct presc ribing or limit ing the time within which an action may be broug ht or rig ht asserted, if all the followin g terms and conditions are m et : (1 ) the time presc ribed or limit ed had not expired when the orig inal action was commence d; (2) the person, within the time that the action might have been broug ht or t he right asserted against him or her plus the time for service
p er m i t t ed under Supreme Court Rule 103(b), rec eived such notice of the

commence ment of the action that the person will not be prejudice d in maintaining a defe nse on the merits and knew or should have known t h at , but for a mistake

conce rning t h e i d enti ty of the proper party , the action would have been broug ht
ag ainst him or her; and (3) it appear s from the orig inal and amende d pleading s that the cause of action asserted in the amende d pleading g rew out of the same transac tion

or occur renc e set up in the orig inal pleading
, even though the orig inal pleading was defe ctive in that it fa i l ed t o alleg e the perf ormanc e of some act or the exis tence of

some fac t or some other matter which is a nece ssary condition prec edent to the rig ht of rec overy when the condit i o n prec edent has in fac t been perf ormed, and even though the person was not named orig inally as a defe ndant. For the p u rpose of

-10-prese rving the cause of action under those conditions, an amendment adding the
person as a defe ndant relates back to the date of the filing of the orig inal pleading so amende d.” 735 IL CS 5/ 2–616 (West 2002). The first and third require ments of section 2–616(d) are easily resolved here

. First, the statute of limit ations had not expired when the orig inal action commence d. The acc ident occur red

on Aug ust 28, 2000. The original complaint was filed on Augu s t 26, 2002, more than two y ear s prior to the expirat i on of the applicable construction statute of limit ations. See 735 IL CS 5/13–214 (West 2000) (four -y ear time period for filing a construction persona l injury action). Next, plaintiff has satisfied the third require ment beca use the amende d pleading sets forth a cause of ac tion that grew out of the same oc curr enceas that set forth in the orig inal pleading

. Plaintiff’s amende d complaints set forth the same set of fact s as his orig inal complaint. I n fac t, the amende d complaint cont ai n s t he prec ise lang uag e of the orig inal complaint, except for the substitution of RAS Development as the only defe ndant. ¶ 36 Under the second require ment of section 2–616(d), the timely notice require ment, we must determine if RAS Deve lopment rec eived notice of the co m m en ce ment of the action within the applicable time pe riod so that it was not pre judiced in maintaining a def ense on the merits and knew or should have known that, but for a mistake conce rning the identity of the proper part y , t h e action would have been broug ht ag ainst it. On appeal, RAS Deve lopment contends that plaintiff cannot satisfy this require ment, beca use he had specific knowledg e of its exis tence and role as the g ener al contra ctor at least 18 months prior to the expiration of the limit ations period and did n o t ad d R AS Deve lopment until more than 2
y ear s after

the expiration of the limitations period. ¶ 37 Def

endant’ s f o c u s o n w h at plaintiff actua lly knew or should have known is mispl ace d based on the s pecif

ic l ang uag e of this s tatute. In Krupski , the S upreme Court clarified t hat for purposes of relation back, the question is not whether a plaintif f knew or should have known o f t h e identity of the proper defe ndant, but whether the proper defendant knew or should have known that it would have been named as a defe ndant but for an err or. Krupski
, 560 U.S. at __, 130 S. Ct. at 2493. This focus on the defe ndant’s knowledg e, rathe r than the plaintiff’s knowledg e, finds support in the purposeof the re lation back- doctrine, w hich is:
“to balanc e the interests of the defe ndant protec ted by the statute of limit ations with the pref ere nce expressed in the Fe deral Rules of Civil Procedur e in g ener al, and Rule 15 i n p ar t i cular
, for resolving disputes on their merits. [C itation.] A prospec tive defe ndant who leg itimately believed that the limitations period ha d passed without
any attempt to sue him has a strong interest in repose

. But repose would be a windfall for a prospec tive defe ndant who understood, or who should have understood, that he

esca ped suit during the limitations period only beca use the plainti ff misunderstood

a cruc ial fac t about his identity . Be causea plaintiff' s knowledg e of the exis tence of

a party does not fore close the possibili t y t h at she has made a mistake of identity ab o u t wh i ch that party should have been awa re, such knowledg e does not support that party ' s interest in repose .” Krupski , 560 U.S. at __, 130 S. Ct . at 2494. ¶ 38 I n the case s u b j udice
, as previously discussed, it is evident that the RAS entiti es knew that RAS Deve lopment was the proper party and thus was not prejudice d in having to

-11-defe nd this suit on the merits. More to the point, de fendant was possessed of the very same

information that it somewhat confusing ly communicated to the plaintiff, so it was more than

awa re that it was the true targ et of the litigation. I n acc ord with the purpose of the statute–to resolve disputes on the merits–we cannot s ay that RAS Deve lopment was prejudice d in having to defe nd this suit when it was awa re that plaintiff intended to sue the g ener al
contra ctor at least 15 months prior to the expiration of the limit ations period. To find otherwise would be to g rant RAS Deve l o p m en t an inequitable proce dural windfall by

esca ping liability only beca

use plaintiff had misunderstood a cr ucial fac t a

bout its identity

. ¶ 39 L as t l y , wh i l e defe ndant urg es this court to find that plaintiff did not act dilig ently

once he rec eived the information that RAS Deve lopment was the g ener al contra ctor, the Supreme Court made it clea r in Krupski that a plaintiff’s diligenc e is not a fac tor enumer ated in section 2–616(d) and the speed at which a plaintiff m oves t o amend a complaint has no bearing on the relation-back doctrine. See Krupski
, 560 U.S. at __, 130 S. Ct. at 2496 (“The Rule plainly sets forth an exclusive list of require ments for relation back, and the amending party ’s diligenc e is not among them. *** [T] he speed with which a plaintiff moves to amend her co m p l ai n t or files an amended complaint afte r obt aining leave to do so has no bearing on whether

the amende d complaint relates bac k.”). ¶ 40 Ac co rd i n gl y , we co n cl u d e t h at R AS De v el o p m en t h ad knowledg e of t h e

commence ment of the action well befor e the expiration of the limit ations period. RAS Deve lopment clea

rly knew or should have known that, but for plaintiff’s misidentification, it should have been sued. Pursuant to section 2–616(d), the trial court did not err in f inding plaintiff’s ame nded complaint re lated bac k to its t imely filed orig inal complaint.

¶ 41 Control of the Project ¶ 42 RAS Deve lopment next contends that it was entitled to judgme nt n.o.v. beca use the jury ’s verdic t was clea

rly ag ainst the manifest weig ht of the evidenc e wher e it did not retain control over the operative details of Rockford’ s work, nor did i t s upervise Mag g i’s work. RAS Deve lopment also contends that the verdic t finding Mag g i o n l y 1% compar atively

n egl i g ent was ag ainst the manifest weig ht of the evidenc e. Plaintiff asserts that RAS Deve lopment’s motion was properly denied beca use defe ndant retained g ener al control over site safe ty and the jury ’s ver dict was not ag ainst the manifest we ight of the evidenc e. ¶ 43 We apply the de novo standard in revie wing the circui t co u rt ’s denial of a dire cted verdic t and it s denial of a mot ion for judgment n.o.v. Buckholtz v. MacNeal Hospita l
, 337 I ll. App. 3d 163, 167 (2003); Diaz v. Legat A rchitects, Inc.
, 397 Ill. App. 3d 13, 31 (2009). “ ‘[V] erdic ts oug ht to be direc ted and judgme nts n.o.v. enter ed only in those case s in which all of the evidenc e, when viewed i n i t s aspec t most favor able to the opponent, so

overw helmingly favor s movant that no contra ry verdic t based on that ev i d en ce could ever stand.’ ” Buck

holtz
, 337 Ill. App. 3d at 167 (quoting Pedrick v. Peoria & Eastern R.R. Co., 37 I ll. 2d 494, 510 (1967))

. W e h o ld that RAS Deve lopment’s motion for judgment n.o.v.

was properly denied becaus e the evidenc e does not so overw helmingly favor RAS Deve lopment that no contrary verdic t based on that e videncecould eve r stand. ¶ 44 RAS Deve lopment corr ectly states that one who entrusts the work to an independe nt

-12-contra ctor is g ener ally not l iable for that independe nt contra ctor’s acts or omissions

.

Calderon v. Residential Homes of America, Inc.
, 381 I ll. App. 3d 333, 340 (2008). Howeve r, the re tained contr ol exception in section 414 of the Restatement ( Second) of Torts states: “One who entrusts wo rk to an independe nt contra ctor, but who retains the control of any part of the work, is subject to liability for phy sical harm to others for whose safe ty the employ er owes a duty to exercise rea sonable car e, which is cause d by his failure to exercise his control with rea sonable car e.” Restatement (Second) of Torts § 414 (1965). The comments following t h e s ection differ entiate betwee n vicarious liability and direc t liability

. Comment a to section 414 explains the require ments to find vicarious liability

. That is, if the employ er of

an indepe ndent contra ctor retains control over the operative detail of doing any part of the work, heis subject to liabilit y for the ne g lige nce of

the employ ees of th e c ontrac tor eng ag ed there in. Restatement (Second) of Torts § 414 cmt. a (1965). Commen t b, in pertinent part, expl ains the theory of direc t liabilit y : “[T] he principal contra ctor is subject to liability i f he fails to preve nt the subcontrac t o rs fr o m doing even the details of the work in a way unrea sonably dang erous to othe rs, if he knows or by the exercise of rea sonable car e should know that the subcontrac tors’ work is being so done, and has the opportunity to preve nt it by exercising the power of control which he has retained in himself. So t o o , he is subject to liability if he knows or should know that the subcontrac tors have car elessly done their work in such a way as to cre ate a dang erous condition, and fails to exercise

rea sonable care either to reme dy it himself or by the exercise of his control cause the subcontrac tor to do so.” Restatement ( Second) of Torts § 414 cmt. b (1965). Comment c further

explains t hat, “The re must be suc h a re tention of a rig ht of supervision that the contra ctor is not entirely fre e to do the work in his own way .” Restatement (Second) of Torts § 414 cmt. c ( 1965). ¶ 45 I n t h i s ca s e, we b el i eve the jury had sufficie nt evidenc e to find the def endant vicariousl y liable beca

use it retained g ener al control over the safe ty of the site or direc tly liable in that it failed to preve nt a hazard that it was awa re of

. ¶ 46 First, in reg ard to R AS De v el o p m ent’s vicarious liability
, “The best indicator of whether a contra ctor has retained control over the subcon t ra ct or’s work is the parties’
contra ct, if one exis ts.” Downs v. Steel & Craft Builders, Inc.
, 358 Ill. App. 3d 20 1
, 205 (2 0 05). “When interpre ting a contra ct, we must consider the entire document [citati o n ] t o g ive eff ect to the parties’ intent [citation]
, as determined by the plain and ordinary meaning of the lang uag e of the contra ct [citation] .” Id. Further, “ ‘ “Thepower to forbid work f

rom being done in a manner likely to be dang erous to himself or others is g iven as an illustration of the type of power retained by an employ er which could subject him to liability .” ’ ” Bokodi

v. Foster W

h ee l er R o bbins, Inc.
, 312 I ll. App. 3d 1051, 1063-64 (2000) (quoting Ryan v. Mobil Oil Corp.
, 157 I ll. App. 3d 1069, 1078 (1987), quoting Pasko v. Commonwealth Edison Co. , 14 I ll. App. 3d 481, 488 (1973)). ¶ 47 I n this case , a plain rea ding of the applicable contra ct provisions indicates that RAS Deve lopment was responsible for jobsite safe ty

. AIA Do cu m ent A201, entitled, “Ge nera l

-13-C o n d i tions of the Contract for Construction” (the Gene ral Conditi ons), was expressl y

incorporated into the subcontrac t ag ree ment betwee n RAS Deve lopment and Rockford, entitled “Stand ar d Form of Ag ree ment Be tween Contractor and Subcontrac tor” (the Subcontrac t). Section 3.3.1 of the Ge neral Condit ions provides in pertinent part:

“The Contractor shall supervise and direc t the Work, using the Contractor’ s b es t s k i ll and attention. The Contractor shall be solely responsible for and h av e

co n tro l o v er c o n s truction means, methods, techniques, sequenc es and proce dures and for coordinating all portions of the Work under the Contract, unless th e Contract documents g ive other spe cific instruc tions concerning the se matters.” Article 3.3.2 of t he General Conditi ons states t hat R AS Deve lopment is responsible to the

owner for acts and omissions of it s employ ees, subcontrac tors and their ag ents and empl oy ees. Article 10.1.1 of the Gene ral Conditi ons states, “The Contractor shall be responsible for

initiating, maintaining and supervising a ll safety prec autions and prog rams in connec tion with the perf ormanc e of the Contract.” Article 1 0 .2.1 of the Gene ral Conditi ons elabor ates, “The Contractor shall take rea sonable prec autions for safe ty of, and shall provide reasona

ble protection to preve nt damag e, inj ury or l oss to: (1) empl o y ee s on the W o rk an d other persons who may be aff ecte d there by .” Article 10.2.3 of the Gene ral Con d i t i o n s char g es RAS Deve lopment with an aff irmative duty to ere ct and maintain

rea sonable safe g uards for safe ty and protec tion, and article 10.2.6 of the Gene ral Conditi ons require s it to designate a re sponsible member to pre vent ac cidents. ¶ 48 Acc ording to these provisions, it is clea r that the parties intended RAS Development
to b e re s ponsible for supervising
, direc ting, and controlling the construction projec t. This control included initiating, maintaining and supervising all safe ty prec autions and prog rams to preve nt damag e or injury to employ ees. Whil e Rockford may h ave been primarily responsible for s af

et y , RAS Deve lopment retained a g ener al rig ht of control and was responsible to the owne r for acts and omissions of its subcontrac tors. ¶ 49 That RAS Deve lopment was responsible for site safe ty and should have known that

a fall hazard ex i sted is further supported by the testimony adduce d at trial. Robert L evin testified that the contra ct stated that the contra ctor would evaluate, and was fully and solely responsible for, jobsite safe ty . L evin furthe r testified that RAS Deve lopment was required
to employ a competent superintende nt, L ance Shalzi
, who was the d ay -t o -d ay projec t manag er, who had the authority and responsibility to stop activities if they wer e dang erous and had a duty to investigate if he sa w a hazard. L evin agr eed that RAS Development was responsible for initiating, maintaining, and supervising all safe ty prec autions and prog rams, including ere cting and maintaining rea sonable safe g uards to preve nt acc idents. L evin stated that RAS Deve lopment put up warning signs, employ ed a security g uard f or the site, put a fenc e ar ound the projec t, and put up boards on the w indows after the ac cident. ¶ 50 Furthermore
, L ance Shalzi
, the putative safe ty manag er at the Wolfram Tower s site, testified that he was not trained in construction site safe ty or for fall hazards. He conducte d “wa lk-throug hs ” an d had the ability to stop the work. Shalzi further substantiated L evin’s testimony that RAS Deve lopment direc ted rails to be put around the building after the fall and that it posted signs for hard hats and no trespassing

. Shalzi testified that he could order

-14-subcontrac tors to corr ect any hazards he saw and that he was never ref used entry to the floor; howeve r, he did not make an eff ort to inspect the floor for safe ty

. Also, Patrick Br unory , the

owner of Rockford Construction, testified that L ance Shalzi had direc t acc ess to the floor and that he had safe ty discussions with Shalzi over basic safe ty proce dures and fall preve ntion. He walked Shalzi throug h the site once a wee k, and wh i l e R ockfor d had its own safe ty meeting s, his meetings w ith Shalz i eac h wee k sometimes discussed safe ty

. ¶ 51 The bricklay er, Charles Winchester, testified that RAS Deve lopment did nothing to protec t from falling and provided no verbal, written, or cautionary warnings. Dominick Novak, a l ab o re r fo r Rockford, testified that while the floor was a restric ted are a, RAS Deve lopment and Shalzi were not re stricted. ¶ 52 Phili p Col l er an , the workplac e safe ty expert, testified that RAS Deve lopment was require d to appoint a competent supervisor to inspect safe ty

. Colleran testified that defe ndant had duties to initiate
, m aint ain, and supervise all safe ty prec autions and prog rams, to take

rea sonable safe ty prec autions for the safe ty of employ ees, and t o desig nate a responsible member to preve nt acc idents. It was nece ssary for the superintende nt to be able to rec og nize hazards, and in this case , Shalzi did not have t h e p ro p er safe ty training

. Colleran further testified that RAS De velopment had constructive notice of the hazard beca use the sca ffold posed an obvious f

all hazard to a competent superintende nt and Shalzi had the opportunity
to see this hazard without ev en g oing up to the floor. Whil e Rockford had the primary responsibility for safe ty , the g ener al contra ctor must step in when the subcontrac tor fails to i n i t i at e safe ty

. Under the prime contra ct, RAS Deve lopment was still responsible to the

o wn ers for acts and omissions of the subcontrac tor and had the authority to in t er v en e. Colleran testified that, “It is not rea sonable for a g ener al to overlook obvious hazards that are universal to the c onstruction industry .” ¶ 53 We ag ree with plaintiff that it was unrea sonable for RAS Deve lopment to ove rlook this obvious hazard. RAS Deve lopment was contra ctually obligated to o v e r s e e s ite safe ty and

corr ect any known hazardous an d d an gerous conditions. The contra cts demonstrate that defe ndant did have control over the projec t and was responsible for overse eing site safe ty

. L evin, RAS Deve lopment’s owner , even ag ree d that RAS Deve lopment was responsible for safe ty

. Whil e R o ck fo rd was require d to take safe ty prec autions on its own, it was also require d to comply with any safe ty measure s in i t i at ed by RAS Deve lopment. RAS Deve lopment posted warning signs, hired a security g uard to watch the site, an d p u t up boards in the windows. Fur ther, defe ndant was contra ctually responsible for the acts and omissions of the subcontrac tors it hired. As a result, when Rockford failed to addre ss the fall hazard, it was incumbe nt upon RAS Development to addre ss the dang er. ¶ 54 I n addition, RAS Deve lopment was require d to hire a competent superintende nt, w ho

was responsible for the pre vention of ac cidents. See Diaz v. Legat Architec ts, Inc. , 397 I ll. App. 3d 13, 36 (2009) (finding the g ener al contractor’ s superintende nt was not competent beca use he was unable to ask t he right questions
, lacke d the necessary traini n g, an d failed
to observe the hazard). Shalzi was not trained in construction site safe ty and persona lly stated that he was unable to rec og nize hazards. C o lleran testified that Shalzi had the opportunity
to view the hazard and that it was incumbent upon RAS De v elopm ent to addre ss safe ty

conce rns where R o ck fo rd failed to do so. Rockford had alre ady perf ormed the same work

-15-on three buildings; there fore
, defe ndant and its projec t manag er, S h alzi, wer e put on

constructive or actua l notice of the hazardous means employ ed an d t he fall hazards that exis ted. ¶ 55 I n sum, RAS Deve lopment’s responsibility for site safet y i s ev i d en ce d i n t h e contra cts and also throug h its actions as demonstrated by the testimony at trial. The jury was able to properly weig h the evidenc e and make an informed decision based on this evidenc e. Acc ording ly
, RAS Deve lopment’s motion for judgme nt n.o.v. was properly denied beca use the evidenc e does not so overw helmingly favor RAS Deve lopment that no contra ry verdic t based on that evidencecould eve r stand. ¶ 56 S i m i l ar l y , the jury heard considera ble but conflicting evidenc e ab o u t M aggi ’s contributory neg lige nce. Whil e ther e wa s t es timony that he was in an are a that was purportedly the exclusive domain of t h e b ri ck l ay er to whom he was partne red, plaintiff’s expert Colleran testified that the fall was attributable, at least in part, to a failure to properly
g uard the window opening through which Mag g i fe l l

. I n C olleran’ s opinion, the s ame fall could have occur

red we re M aggi under the scaf fold and thus technically in his proper l o ca t ion, beca

use the edg e of the scaf

fold itself formed the boundary of the mason ’s ar ea

. Mag g i’s prese nce just unde r the scaf fold or just outside its edg e would have resulted in the

same fall under these circ umstances, acc ording to Colleran, beca use there is no meaning ful differ ence betwee n those two locations as they relate to the window opening

. Acc ording to plaintiff’s theory of liabilit y , t h e main vice of the scaf fold setup was that it compelled the labore r to enter the brickie’ s are a in order to deliver the bundles of bricks and other materia ls that he was require d to su p p l y t o Mr. W inchester

. Once delivere d, these bundles of bricks neede d to be “inche d” into position and stabiliz ed befor e removing the strapping
, actions that fo re s eea bly could place the labore r in an are a of dang er, espec ially with the unprot ec t ed
nature of the nearly adjac ent window opening

. Given these fac ts, w e will not second- g uess th e j u ry ’s assi g nment of 1% of contributory fault to the labore r who found himself in this perilous s ituation. There fore
, the j ury ’s finding was appropriate and the evidenc e does not so overwhe lmingly

favor RAS Development that this verdict c ould never stand.

¶ 57 Evidentiary Rulings ¶ 58 RAS Deve lopment next contends that it is entitled to a n ew t ri al b ec au s e t hree d i ff er en t evidentiary ruling s made by the trial court, either individually or cumulatively
, constituted reve rsible er

ror, e ach of

which will be addr essed in turn be low. ¶ 59 First, RAS Deve lopment contends that the trial court err ed when, following a motion in limine
, it barr ed Dr. Ba

rron from testify ing that Mag g i’s fall was cause d by a massive and fata l ac u t e my ocar dial infarc tion occur ring immediately prior to his fall. I nitially
, we note p l ai n tiff’s contention that we are prec luded from revie wing this issue beca use R AS Deve lopment ultimately did not call Dr. Ba rron as a witness at trial and did not make an offe r of proof with respe ct to Dr. Ba rron’ s opinions. Our supreme co u rt explained in Dillon v. Evanston Hospital, 199 I ll. 2d 483, 495 (2002): “When a trial court excludes evidenc e, no appealable issue remains unless a formal offe r of proof is made. The failure to do so results in a waiver of the issue on appeal.

-16-The purpose of an offe r of proof is to inform t he trial court, opposing counsel, and

a revie wing cour t o f the nature and substance of the evidenc e soug ht to be introduced. Howeve r, an offe r of proof is not require d wher e it is appar ent t hat t he trial court clearly understood the nature and chara cter of t he ev i d en ce soug ht to be introduced.” ¶ 60 I n this case , an offe r of proof was not require d beca use the trial court understood that Dr. Ba rron would testify that Mag g i’s death was due to a massive and fatal acute my ocar dial infarc tion prior to his fall rathe r than as a re s u l t o f t he fall. See Dillon
, 199 I ll. 2d at 495 (off er of proof not nece ssary wher e trial court understood that doctor would testify as to the medical standa

rd of c are ). ¶ 61 Turning to the merits, we review a t ri al court' s decision on motions in limine and motions for a new trial for an abuse of discretion. Alm v. Loyola University Medic al Center
, 373 I ll. App. 3d 1, 4 (2 0 0 7 ); S ch mi tz v. Binette
, 368 Ill. App. 3d 447, 452 (2006). “A t rial
court abuses its discretion only if it ‘ac t[ s] arbitra rily without t h e employ ment of conscie ntious judgme nt, exceed[s] the bounds of rea son and ignor e[s] rec og nized principles of law [citation] or if no rea sonable person wo u l d take the position adopted by the court.’ [C itation. ] ” S ch mi tz , 368 I ll. App. 3d at 452. “In determining whether there has been an abuse of discretion, thi s court does not substitut e it s judgme nt for that of the trial court, or

even determine whether the trial court exercised its discretion wisely .” Alm
, 373 I ll. App. 3d at 4. ¶ 62 RAS Deve lopment contends that Dr. Ba rron’ s opinions wer e based on a re asonable deg ree of medical certainty
, evidenc ed by his report and deposition testimony and supported by a solid foundation of medical finding s and anatomica l fac ts. Plaintiff co n t ends that the trial court’s ruling was proper beca use Dr. Ba

rron’ s hypothetical opinion about why Mag g i fell lacke d foundation wher e the unrebutted t es t i m o n y established that he was acting purposef ully rig ht up to the moment he fell and that he was alive afte r he f ell. ¶ 63 “ ‘The trial court is not require d t o b l i n d l y ac ce p t t he expert' s asser tion that his testimony has an adequate foundation. Rather, the trial court must look behind the expert' s conclusion and analy ze the adequacy of the foundation.’ ” Hudson v. City of Chi cago , 378 I ll. App. 3d 373, 401 (2007) (quoting Soto v. Gaytan
, 313 I ll. App. 3d 137, 146 (2000))

. “ ‘I f the basis of an expert' s opinion includes so many varying or uncert ain fac tors that he is require d to g uess or surmise to rea ch an opinion, the expert' s opinion is too speculative to be reliable .’ ” Modelski v . Navistar Inte rnational Transportati on Corp.
, 302 I ll. App. 3d 879, 885 (1999) (quoting First Midwest Trust Co. v. Rogers
, 296 I ll. App. 3d 416, 427-28 (1998))

. Further, “expert opinions based u p o n the witness' s g uess, speculation, or conjec ture as to what he believed might have happene d are inadmissible.” Modelski
, 302 I ll. App. 3d at 886. ¶ 64 I n ruling on plaintiff’s motion in limine
, the tr i al co u rt ex p l ai ned that it was not barrin g Dr

. Ba rron’s entire testimony
, only his specific opinion as t o the precise ti ming of the attac k:
“THE COURT: It’s just his conclusions that he can l o ok at a postmortem heart and determine that down to almost t he prec ise second on when a person was h av ing a car diac arr est, which he alleg ed happene d befor e the dece dent fell
, n o t

-17-during the decedent falli ng , not afte r t he decede nt fell. S o within three seconds, he

can determine wh en a person was having a car diac arr est. Unfortunately
, for this Court, that doesn’t pass my smell test. It doesn’t smell rig ht. It stinks. And there fore
, his testimony will be barr ed. I ’m sure the appellate Court will have more eloquent words to use in terms of supporting my decision. MR. SC OTT [defenseattorney ]: J udg e, it’s not the entire testimony , unless I misheard y ou. It’s his specific opinion.
THE COURT: Specific opi n i o n s, that’s why I wasn’t challeng ing his

cre dentials or his qualifications. It’s just his conclusion that he can tell to the second when a person is having a hea

rt attac k beca

use if he c an, I

would ask him to please

come to this Court today and watch me so t h at he could preve nt my heart attack, since I have to g o throug h this.” ¶ 65 We conclude that the trial court did not abuse its discr etion in barring Dr. B arr on’s testimony reg arding the prec ise timing of the heart attack. Whil e RAS De velopment chose not to call Dr. B arr on at trial, pre sumably the trial cour

t would have a llowed him to testify

as to his postmortem medical finding s reg arding Mag g i’s heart. The trial court explained that it did not f

ind D r. Ba

rron unqualified and did not bar D r. B arr on’s testimony entirely
, only his specific opinion as to the prec ise timin g of Mag g i’s heart attack prior to his fall. This finding does not exceed the bounds of rea son cons i d ering Dr. Ba rron’ s opinion as to the
prec ise timing of the hear

t attack was not supported by any other fac ts in evidenc e. There was

no testimony prese nted that Mag g i was disoriented or stuporous befor e he fell, the sy mptoms of ca rdiac arr est. Rather, e y ewitness testimony reve aled that Ma g g i fell when he pulled on the bundle’s stra

p and it broke. ¶ 66 Moreove r, Dr. Ba rron’s co n cl u s i on that Mag g i was dead when he hit the g round
contra dicts with Novak’ s testimony that he saw Mag g i immediately afte r the fall and witnessed Mag g i try ing to g et up. Finally
, Dr. Ba rron stated in his deposition that he could
not state to a rea sonable deg ree of medical certainty what, if any , trig g ering event cause d the heart attack to occur moments before M aggi fell. Dr. Bar ron also ag ree d that trauma from the fall could have been the trig g ering event. I n light of these inconsistencies and uncertain fac tors, the trial court did not abuse its discr etion in ba rring Dr. Ba

rron from testifying that Mag g i’s fall wa s cause d by a hea rt attac k he suff

ere d immediately

prior to his fall. ¶ 67 Second, d ef en d an t contends that the trial court err ed when it denied its motion in limine seeking to bar plaintiff from eliciting opinion testimony and leg al conclusions relating
to contra ct provisions discussing RAS Deve lopment’s retained control and responsibility for safe ty

. Def

endant arg ues that plaintiff’s adver se examination of Robert L evin and the direc t examination of plaintiff’s expert witness, Phi l l ip Colleran, reg arding the interpre tation of
contra ct provisions discussing RAS Deve lopment’s responsibility for safe ty was improper. Plaintiff, meanwhile, disputes that either witnes s actua lly interpre ted any provisions and further arg ues that RAS Deve lopment was not prejudice d by either examination. We revie w

a trial court’s decision on motions in limine and the admissibili ty of expert testimony under

an abuse of discretion standard. See Alm
, 373 I ll. App. 3d at 4; Compton v. Ubilluz
, 353 I ll. App. 3d 863, 866 (2004).

-18-¶ 68 After car efully revie wing Robert L evin’s examination, we find that the trial court did

not abuse its discretion in permitting him to respond to q u es t i o ns reg arding the t ext of t he Gene ral Conditi ons. The complained- of line of questioning consisted of plaintiff’s counsel

rea ding the text of article s 3.3.1, 3.3.2, and 10.1 of the Gene ral Conditi ons to Robert L evin and asking him if the literal rec itation of those provisions was corr ect. Robert L evin was not asked to “i n t er p re t ” the contra ct and did not offe r his opinion as to what the contra ct provisions meant. I nstead, Robert L evin mere ly offe red bland response s to these questions, like: “Whatever y ou said, that’s what it say s in the contra ct,” and “That’s what it say s in the
contra ct. I ag ree .” During this line of questioning, the trial court also admonished plaintiff’s counsel to rea d the lang uag e of the contra ct exactly

. As such, this line of questioning did not call for leg al conc lusions or contrac t interpretation. ¶ 69 R AS De v el o p m en t al s o co n t en ds that Phill ip Colleran, plaintiff’s ex p er t i n construction safe ty , g ave improper testimony reg arding con tr a c t inte rpre tation. During direc t examination, C olleran w as aske d, “Did those saf ety responsibilities that we know about in th e subcontrac t with Rockford relieve or exclude any responsibilities from the g ener al
contra ctor with respe ct to these type[s] of s af et y issues and acc ident preve ntion? ” Over defe nse counse l’s objection, Colleran r esponded:

“T h e plaintiff’s simple story is that the individual contra ctors have the primary responsibilityto provide saf ety for their own individual worker s. * * * What’s at issue here is that we have a contra ctor t h at wa sn’t safe

. And as such, the question is, to what extent some other entity that has the ability to intervene should intervene. And in this particula

r case , there was plain evidenc e befor e the acc ident, plain notice befor e the acc ident that there wer e hazar ds associate d with f alls and nothing was done about them.
* * * So the point being is that the primary re s p o nsibili ty does rest with the individual employ er, but it’s in t h e fa ce of that individual employ er’ s failure to initiate safe ty that it’s incumbent on the gene ral to step in, to intervene and correc t the matter, and they ’reentirely in a position to do t hat.” ¶ 70 C o l l er an al s o testified during redire ct examination that article 10 of the Gen er al Conditi ons would be pointless if all liability was place d on subcontra ctors instead of the
g ener al contra ctor. ¶ 71 De fendant does not contest that Colleran was quali fi ed t o gi v e an o p i n i o n o n workplac e safe ty but rathe r contests that Colleran should not have been permitted to interpre t the contra ct. Having wo rk ed as an OSHA safe ty office r for 17 y ear s and having been in private prac tice since 1990, Colleran was well qualified in the field of construction safe ty and

was permitted to draw on this extensive experience to formulate his opinion. I n response to the complained- of question, Colleran did not ref ere nce the contra ct provi s i o n s

. I nstead, Colleran g ave testimony that there was evidenc e of a noticeable fall hazard that exis ted prior
to the acc ident and that nothing was done about those hazards. He testified that the primary

-19-responsibility for those hazards rested with Rockford, but that in the event that Rockford had

not taken corrective measure s, defe ndant was obligated to intervene

. This testimony does not amount to the i nterpre tation of a statute or provide a lega l conclusion. S ee LID Associates v. Dolan , 324 I ll. App. 3d 1047 (2001) (expert witness may not g ive t estimony amounting
to statutory interpre tation or testify with respe ct to leg al conclusions). Furthermore
, even if Colleran was relying strictly on the contra ct to formulate his opinion, defe ndant questioned its own witness, Gre g ory Wis newski, on the meaning of v a rio us contra ct provisions. Be cause its own witness testified as to his interpre tation of these provisions, we cannot conclude that defe ndant was prejudice d in any meaning ful way by Colleran’s testimony

. Acc ording ly
, the trial court did not abuse its discretion in permitting Colleran’s testimony in a manner which prejudice d defe ndant so as to war rant a new tria l. ¶ 72 Finally
, defe ndant contends that the trial court err ed in denying its motion in limine seeking to bar plaintiff from prese nting evidenc e that afte r the acc ident, the City of Chicag o asked RAS Deve lopment to g uard the opening wher e Mag g i had fallen. I llinois law permits evidenc e of postremedial measure s to show control, but not to prove neg lige nce. Herzog v. Lexington Townshi

p , 167 I ll. 2d 288, 300-01 (1995). In ruling on the motion in limine , the trial court order ed, “The Plaintiff may introduce evidenc e relatin g to the Def endant’ s subsequent remedial m easur es for the purpose of demonstra t i n g t he Defendant’s control.” We find nothing improper i n this ruling

. The iss ue of control wa s a conte sted issue at t rial wher e defe ndant arde ntly arg ued that it maintained no control over the third fl o o r where Mag g i was working

. Plaintiff i n t ro d u ced evidenc e of the postremedial measure to demonstrate that defe ndant was in control of the third floor. Acc ording ly
, the trial court did
not abuse its discretion in p ermit ting plaintiff to introduce evidenc e of this postremedial

measure

. ¶ 73 Cross-Appeal ¶ 74 The issue raised in plaintiff’s cross-a ppeal is whether the trial court, afte r it had rule d

on RAS Deve lopment’s posttrial moti on, retained subject matter jurisdiction pursuant to I llinois Supreme Court Rule 219(c) (ef f. J uly 1, 2002), to consider discovery sanctions related to RAS Development’s a lleg ed misrepr esentation of its ins uranc e cove rag e. ¶ 75 On J une 5, 2009, the t ri al court enter ed judgme nt on the jury ’s verdic t in favor of plaintiff in the amount of $3,286,382. Subsequent to the verdic t, plaintiff learned that RAS Deve lopment had $3 milli on in liability cover ag e consisting of a $1 milli on contra ctor’s policy and a $2 milli on umbrella policy with State Fa rm Fire & Casualty Company

. On J uly 8, 2009, the trial court hear d and denied RAS Deve lopment’s posttrial motion. At that same hearing, plaintiff’s counsel orally reque sted leave to issu e d ep o s i t ion subpoenas for State Fa rm personne l and Robert L evin and repr esente d that the depositions wer e neces s ar y for
two rea sons: (1) to confirm the extent of the cover ag e; and (2) to pursue possible discovery sanctions for alleg ed misrepr esentations concerning the extent of coverag e. The trial court
g rante d plain tiff “lea ve to issue subpoenas for depositions” for the president and chief executive officer of State Fa rm, a second State Fa

rm employ ee, and Robert L evin. At no point did plainti ff f

ile a motion for sanc tions pursuant to Rule 219(c). ¶ 76 On J uly 22, 2009, the t rial court denied RAS Deve lopment’s emer g ency motion to

-20-quash the subpoenas. On Aug ust 19, 2009, State Fa rm filed an emer g ency moti o n to

rec onsider the July22 order denying themotion to quash the deposit ion subpoenas, which

was also denied. At the hear ing, the trial cou rt s t at ed t h at it had “anc illary ” or “auxiliary ” jurisdiction ove r the discovery sanctions. The trial court made clea r the basis for its ruling : I llinois Supreme Court Rule 219(c)

. On September 8, 2009, State Fa rm filed an emer g ency motion to rec onsider the Aug ust 19 order
, asserting that the court lacke d s u b j ect matter jurisdiction to enter

tain discovery sanctions under Rule 219(c)

. On September 9, 2009, the trial court g rante d the motion to rec onsider and vaca ted the order of Aug ust 19, finding that it lacke d jurisdiction “to rule upon any motion for discovery sanctions t hat m ight or could be filed in the f

uture.” ¶ 77 Plaintiff contends that the ruling on RAS Deve lopment’s posttrial m o t i o n d i d not dives t t h e trial court of jurisdiction over his discovery reque sts aimed at determining who misrepre sented the available insurance cover ag e. RAS Deve lopment and State F a rm contend that the trial court properly found that it did not have subject matter jurisdiction to proce ed

on plaintiff’s reque st to pursue Rule 219(c) sanctions afte r judgme nt had been entered. The construction of a supreme court rule is a question of law, which we revie w de novo

. Badea

v. Phillips
, 389 I ll. App. 3d 292, 296 (2009) (ci t i n g In re Marriage of Zuberbier
, 309 I ll. App. 3d 386, 388 (1999))

. ¶ 78 Rule 219(c) extends a circ u i t co u rt ’s jurisdiction to addre ss sanctions afte r a fina l judgme nt is enter ed; howeve r, the motion for sanctions must have been “ ‘pending *** prior
to the filing of a notice or motion seeking a judgme nt or order of dismiss al.’ ” Badea v. Phillips
, 389 I ll. App. 3d 292, 297 (2009) (finding no basis to conclude that the circ uit court retained residual jurisdiction under Rule 219(c) wher e m otion for sanctions was not filed until afte r the trial court had dismiss ed the underlying suit with prejudice ) (quoting I ll. S. Ct. R. 219(c) ). I n this case , plaintiff never filed a motion for sanctions. Plaintiff mere ly reque sted leave to issue deposition subpoenas in an eff ort to de termine if a later motion for sanctions would be appropr

iate. Rule 219(c) does not contemplate this scena rio. Rather, by the express lang u age o f R u l e 219(c)
, and consistent with this court’s holding in Badea
, the trial court would only retain residual jurisdiction if plaintiff had filed a motion for sanctions prior to the entry of judgme nt. Be cause plaintiff did not do so in this ca s e, we conclude that the trial
court properly found that it did not have residual jurisdiction to addre ss this matter pursuant to Rule 219(c). ¶ 79 CONCLUSI ON ¶ 80 For the afor ementioned rea sons, we aff irm the judgme nt enter ed on the jury verdic t and also a ffirm the tria l court’s re fusal to hea r the motion for sanc tions. ¶ 81 Affirmed.

-21-