Calloway v. Bovis Lend Lease, Inc.

• Decision Date: 03 October 2013
• Docket Number: Docket No. 1–11–2746.
• Citation: 374 Ill.Dec. 242,995 N.E.2d 381,2013 IL App (1st) 112746
• Parties: Herman CALLOWAY, Jr., and Gwen Brown, Special Administrator of the Estate of Herman Calloway, Sr., Deceased, Plaintiffs–Appellees, v. BOVIS LEND LEASE, INC., Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 112746

995 N.E.2d 381

374 Ill.Dec. 242

Herman CALLOWAY, Jr., and Gwen Brown, Special Administrator of the Estate of Herman Calloway, Sr., Deceased, Plaintiffs–Appellees,

v.BOVIS LEND LEASE, INC., Defendant–Appellant.

Docket No. 1–11–2746.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 16, 2013.

Rehearing Denied Oct. 3, 2013.

Cremer, Spina, Shaughnessy, Jansen & Seigert, LLC, of Chicago (Francis A. Spina, Heather Kingery, and Patrick J. Giese, of counsel), for appellant.

Michael W. Rathsack, of Chicago (Allen N. Schwartz, Amanda L. Brasfield, Craig P. Mannarino, and Michael W. Rathsack, of counsel), for appellee Herman Calloway, Jr.

O'Connor & Nakos, Ltd., of Chicago (D. Jeffrey Comeau, of counsel), for appellee Gwen Brown.

Justice PALMER delivered the judgment of the court, with opinion.

OPINION

¶ 1 This appeal arises out of consolidated injury and wrongful death lawsuits. At all relevant times, the Community Unit School District 200 (the District) engaged various entities for a construction project located at Wheaton–Warrenville South High School (the project). The District hired defendant Bovis Lend Lease as the construction manager for the project. The District also contracted with DuPage Top Soil, which then subcontracted with Hamilton Construction (Hamilton) for the installation of underground sewer and storm pipes.¹ On June 6, 2005, two of Hamilton's employees, father and son Herman Calloway, Sr. (Senior), and Herman Calloway, Jr. (Junior), were working in a trench as part of Hamilton's work on the project. The trench collapsed, killing Senior and injuring Junior. Plaintiffs, Junior and Gwen Brown, special administrator of Senior's estate (the Estate), each brought a negligence action against Bovis and the cases were consolidated for trial. A jury returned a verdict in favor of Junior in the amount of $8,587,591.97, subject to a setoff of $406,915.85. The jury also returned a verdict in favor of the Estate, awarded it $1,020,000 subject to a $97,275 setoff and found that Senior was 49% contributorily negligent. The $1,020,000 represented the recoverable damages awarded after the Estate's total damages of $2 million were reduced by the percentage of negligence attributed to Senior.

¶ 2 On appeal, Bovis contends that the trial court erred in denying its motion for judgment notwithstanding the verdict and in failing to grant Bovis a new trial. For the reasons that follow, we affirm.

¶ 3 In its capacity as construction manager, Bovis was responsible for coordinating day-to-day activities on the project, including the work of all contractors and subcontractors. On the day of the accident, Hamilton was digging a trench to install a sewer line. The process typically involved a backhoe digging a trench and then a hole in the trench in which a trench box was to be placed. A trench box is a wooden or metal box that is placed in the trench in order to provide protection for workers against a trench collapse. The trench box is put in the trench and then a stone base is placed in the bottom of the trench. A backhoe is used to place the sewer pipes on top of the stone base. Workers are required to be in the trench to level or hand-grade the stone base, to detach the sewer pipes from the backhoe and to connect the segments of sewer pipe together inside the trench. On the day of the accident, the trench being dug had intersected with markings indicating a buried electric line. Work had stopped while the Hamilton crew attempted to locate the cable. It was at some point during this process that Junior and Senior were in the trench without a trench box when the trench collapsed. With this background in mind, we set forth the evidence presented at trial.

¶ 4 Jim Blowers was the senior superintendent for Bovis at the time of the accident. He testified that Bovis was the construction manager and that in that role it coordinated the day-to-day activities at the construction site. As the senior superintendent, Blowers was assigned to coordinate activities on the project and was at the site daily. Blowers was responsible for “the whole site” and walked the site daily to check on the progress of the contractors and subcontractors. He typically did not have the authority to direct the manner, method or means of a subcontractor's work and left those decisions to the subcontractor. However, Blowers had the authority to stop unsafe work that he observed. If he saw a subcontractor not following proper procedure or doing something unsafe, he would stop the activity and have a discussion with the foreman about his concerns and how the task could be done differently.

¶ 5 Blowers testified that Bovis provided a safety orientation to all subcontractors and contractors who worked on the project. The orientation involved reading through documentation, talking about specific things related to the project, reviewing a general list of “basic common sense rules” appropriate for the project and then watching a 15–minute safety video. Part of the documentation distributed to all workers on the project was a 34–page site-specific “Safety Plan” that Bovis expected all contractors and subcontractors to follow. Bovis superintendents were responsible for ensuring that all contractors and subcontractors followed that safety plan. Bovis also distributed a project orientation to all subcontractors and contractors. The orientation contained, among other things, a “trenching” section that Bovis expected all subcontractors to follow. That section stated that when working in a trench over five feet deep, all workers were required to use a “trench box” or to “slope” the side of the trench to avoid injury resulting from a trench collapse. Enforcement of the provisions in the orientation was within the scope of Blowers' job duties.

[374 Ill.Dec. 249]¶ 6 Blowers also testified that all of his contact with Hamilton was through Senior. Blowers and Senior met each morning to discuss the tasks Hamilton was going to perform and to ensure that Blowers and Senior were “on the same page.” When Blowers arrived at site on the morning of the accident, he spoke with Senior about Hamilton's plan to dig a north-south trench that day in order to lay sewer lines. Blowers told Senior to use proper trenching equipment because of the importance of safety. Senior did not mention that he planned to work without a trench box that day. Blowers left to check on work being done inside the school but returned later that morning and saw that work had begun on the north-south trench. No one was working in the trench at the time and he did not recall if a trench box was in the trench.

¶ 7 Blowers returned to the trench at approximately 2:45 p.m. He walked to the east side of the trench and saw two workers in the partially filled trench and Senior standing outside of the trench. Senior nodded to the workers and they walked out of the trench. There was no trench box in place at that time. Blowers asked Senior “what's going on here” because he was concerned about workers being in the deep trench without protection. Senior explained that he was concerned about the trench crossing a submerged power line and that he did not feel a trench box would fit into the trench. Blowers responded, “we got to do something about this” and told Senior that he needed to use some form of trench protection. Although he agreed he had the authority to do so, Blowers explained that there was no reason to shut the job down at that point because there was no one in the trench. Based upon his conversation with Senior, Blowers understood that no one was going to work in the trench without protection. Prior to the day of the accident, Blowers had never seen Hamilton employees working in a trench over five feet deep without protection and Hamilton workers had never previously disregarded his directives.

¶ 8 At this point a backhoe operator was finishing some cleanup in the trench and a front-end loader had just dropped a bucket of stone into the trench. The backhoe operator then swung the backhoe over to an area where the pipe was kept. Blowers explained that the backhoe was to his left and the north end of the trench was to his right. Blowers was approximately 10 to 12 feet away from the backhoe. Blowers did not see Senior give a signal to the backhoe operator to pick up the pipe and did not recall if Senior was standing beside him at this point or had moved somewhere else. Blowers watched as the men on the west side of the trench hooked the pipe to the backhoe, which took approximately 30 seconds. The backhoe operator then swung the pipe over to the trench and Blowers noticed that Senior and Junior were in the north end of the trench. He did not see them enter the trench and did not expect them to be there because he had just spoken to Senior about five minutes ago. Blowers thought, “what the hell are you doing down there? What's going on?” Shortly thereafter, the trench collapsed. When asked how much time elapsed between when he saw Senior and Junior in the trench and when it collapsed, he responded that it was “hard to say, * * * it was certainly 30 seconds to, * * * I can't remember exactly.” Blowers testified that he did not recall what Senior and Junior were doing in the trench. He did not have any warning before the trench wall blew in and he was unable to call out to Senior and Junior before the collapse.

¶ 9 Blowers did not stop the work when the stone was being dropped in the trench or when the pipe was being hooked to the backhoe because he did not think that any workers were going to be in the trench. He explained that the stone and pipe can be placed without anyone entering the trench and that he “figured they were just going to drop the section [of pipe] in the hole without anybody down there.” Blowers also believed that a trench box could have been used in the location of the collapse. At some point during this time, Bovis assistant superintendent ...