Diaz v. Legat Architects, Inc.

Decision Date14 December 2009
Docket NumberNo. 1-08-3622.,No. 1-08-3635.,1-08-3622.,1-08-3635.
Citation920 N.E.2d 582,336 Ill. Dec. 373
PartiesJose DIAZ and Maria Diaz, Plaintiffs-Appellees and Cross-Appellants, v. LEGAT ARCHITECTS, INC., a Corporation, and The Durant Company, a Corporation, Defendants (Boller Construction Company, Inc., a Corporation, Defendant-Appellant and Cross-Appellee and Third-Party Plaintiff-Appellant; Larmco Construction Company, Third-Party Defendant-Appellee and Cross-Appellant).
CourtUnited States Appellate Court of Illinois

Presiding Justice HALL delivered the opinion of the court:

The plaintiffs, Jose Diaz, and his wife, Maria Diaz, filed a complaint against defendant Boller Construction Company, Inc. (Boller), for personal injuries he sustained while working on a construction site. Boller filed a third-party complaint against Mr. Diaz's employer, Larmco Construction Company (Larmco), seeking contribution pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/1 et seq. (West 2004)). The jury returned a verdict for the plaintiffs and against Boller. The jury also returned a verdict for Boller and against Larmco in the third-party suit. After reducing the award by the percentage of Mr. Diaz's negligence, the jury awarded Mr. Diaz $1,246,875 and awarded Mrs. Diaz $50,000 for loss of consortium.

Following the filing of posttrial motions, the trial court ordered a remittitur of the jury award based on the improper admission at trial of future medical costs. The trial court denied the plaintiffs' request to adjudicate Larmco's workers' compensation lien and granted Larmco's motion to dismiss Boller's third-party complaint for contribution. After allowing other setoffs and credits, not at issue in this case, Mr. Diaz's award was reduced to $1,029,270.06, and Mrs. Diaz's award was reduced to $47,500, resulting in a total award of $1,076,770.06.

Both Boller and the plaintiffs have appealed from the judgment in this case. The plaintiffs and Larmco have also filed cross-appeals. This court ordered the consolidation of the plaintiffs' and Boller's appeals and the cross-appeals for purposes of review and decision.1

Boller raises the following issues on appeal: (1) whether Boller's motion for a directed verdict should have been granted or a judgment n.o.v. entered; (2) whether the trial court erred in instructing the jury with the pattern construction negligence instructions; (3) whether trial court errors require a new trial, either individually or cumulatively; and (4) whether the trial court erred in granting Larmco's motion to dismiss Boller's third-party complaint. In their appeal, the plaintiffs contend that the trial court erred in denying their motion to adjudicate Larmco's workers' compensation lien. In their cross-appeal, the plaintiffs contend that the trial court erred in granting the remittitur. Due to the length of the record in this case, we will limit our recitation of the facts to the trial testimony pertinent to the issues raised on appeal.


Boller performs general construction and concrete work. It was one of 17 "prime" contractors hired to perform work on the Highland Park High School project (the project). Thereafter, Boller entered into a contract with Larmco to perform the masonry work on the project.

I. Trial Court Proceedings

A. Liability Testimony

In March 2002, Mr. Diaz was 53 years of age, and he was working on the project for Larmco as a laborer. As part of his duties he would assist in the building of scaffolds. Larmco used two kinds of scaffolds, either Non-Stops or Morgans.

On March 19, 2002, Mr. Diaz and the other laborers were working on a Non-Stop scaffold. A laborer named "Al"2 put an extension on the scaffold. Mr. Diaz explained that, when an extension was added to a scaffold, it was necessary to put up two cross braces. A second extension required two more cross braces and a straight brace at the top. Al told Mr. Diaz that he was only using one cross brace because there was not a lot of material.

In the afternoon, Mr. Diaz was working on the scaffolding with other laborers. There were two types of planks on the scaffold; one for materials, such as bricks and mortar, and one used for walking. While he was walking across the scaffold, a pile of bricks on the material plank broke open and fell on the bricklayers' plank. Mr. Diaz went back to remove the bricks so that the bricklayers would not trip over them. When he stepped on the material plank, it gave way, and he fell. He briefly lost consciousness. After he regained consciousness, he was transported to the hospital. He remained in the hospital over night and was released the next day.

On cross-examination, Mr. Diaz denied complaining to Al that there was a problem with the scaffold. However, he acknowledged that he felt there was something wrong when Al was putting up the extensions and told him he was going to put up only a single brace. Mr. Diaz considered the scaffold safe. Mr. Diaz took all of his instructions from Ed Allen from Larmco. He did not take any instructions from anyone from Boller. He did not hear any warning not to step on the plank. He never complained to Mr. Allen about the scaffold. He did not know whether the lack of the braces caused his accident.

Miguel Diaz (Miguel)3 testified that he was employed by Larmco as a laborer and was working with Mr. Diaz on March 19, 2002. One of the material planks holding bricks fell. "Maris," one of the bricklayers, told them to be careful. Mr. Diaz grabbed on to the tower portion of the scaffolding and stepped on the plank. The plank fell with Mr. Diaz on top of it.

According to Miguel, the laborers took their instructions for extending the scaffold and as to safety issues from Mr. Allen. Miguel did not notice anything unusual about the scaffold prior to the accident. He did not pay any attention to the position of the planks. Miguel and Mr. Diaz cranked the scaffold up to about 15 or 20 feet.

Miroslaw Kundzicz testified that he was employed as a laborer by Larmco. On March 19, 2002, just prior to Mr. Diaz's fall, Mr. Kundzicz was standing on one of the walking planks and noticed that one of the material planks was not completely on the angle iron where it normally rested. About an inch of the plank was resting on the angle iron. Mr. Kundzicz told the laborers nearby that the plank was not positioned correctly and warned them to be careful; he thought Miguel was behind him and would have heard the warning. After turning back to his work, he heard the bricks fall to the walking platform. He noticed that the Boller superintendent was always walking around the project.

On cross-examination by Boller, Mr. Kundzicz testified that he took all of his orders from Mr. Allen. He took no orders or directions from Boller. The planks that fell were material planks. Material planks are not intended for walking. He was not sure what Mr. Diaz was walking on when he fell. The only planks that moved prior to the fall were material planks. He told the laborers that there was something wrong with the planks because it was their job to fix it.

Francisco Gutierrez testified that he was employed as a machine operator by Larmco. Prior to that, he had been a laborer and had assisted in assembling Non-Stop scaffolds and adding extensions to them. On March 19, 2002, he was operating a crane, lifting up bricks to the scaffolding. After he saw Mr. Diaz fall, he stopped the crane and went over to where Mr. Diaz was on the ground. He observed a plank on the ground. When he looked up at the scaffold, two planks were missing. Based on his experience, a straight brace would be placed at the top of the scaffold.

On cross-examination by Boller, Mr. Gutierrez testified that Mr. Allen directed how the scaffold was to be built. Mr. Gutierrez had not been trained to assemble that type of scaffold, but he had assembled them. He had also done pipe scaffolding but that was different from a Non-Stop scaffold. Mr. Allen would be the appropriate person to decide where and when straight braces should be put on the scaffold. Mr. Allen was his foreman; all the directions and orders came from him. Mr. Gutierrez had no dealings with Boller. Larmco employees were the only ones to erect and maintain the scaffold. He did not know what caused the planks to fall or why Mr. Diaz fell. After Mr. Diaz fell, Mr. Gutierrez looked up and saw the straight brace was missing. On redirect examination, Mr. Gutierrez testified that, at the height of the scaffold in this case, when no cross braces are used, a straight brace is placed at the bottom and the top of the scaffold.

Edward Allen, field superintendent for Larmco, testified as an adverse witness. As a field superintendent, he was in charge of projects for Larmco. He had taken an OSHA4 course in scaffolding. At the time of Mr. Diaz's accident, he was a foreman but was still in charge of supervising the Larmco workers on the project. OSHA required scaffolds to be built under the direction and supervision of a competent person. According to Mr. Allen, he was considered a competent scaffold person. There were scaffold builders but, as the foreman, he was responsible for making sure that the scaffolds were erected correctly.

The day following Mr. Diaz's fall, Mr. Allen inspected the site of the accident in compliance with Larmco's safety manual. In his report of the accident, he noted that two material planks had fallen off the scaffold, one of which fell when Mr. Diaz stepped on it. Mr. Allen acknowledged that there was no straight arm brace at the top of the scaffold but explained that the Non-Stop scaffold used here did not require it. He acknowledged that, at his deposition, he stated that the straight...

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