Jones v. Dhr Cambridge Homes, Inc.
| Decision Date | 04 March 2008 |
| Docket Number | No. 1-05-3526.,1-05-3526. |
| Citation | 381 Ill.App.3d 18,885 N.E.2d 330 |
| Parties | Andrew JONES, Plaintiff-Appellee, v. DHR CAMBRIDGE HOMES, INC., Defendant-Appellant and Third-Party Plaintiff-Appellant (Residential Carpentry, Inc., Third-Party Defendant-Appellee). |
| Court | United States Appellate Court of Illinois |
David F. Pardys, Linda E. Spring, David S. Goles, Swanson, Martin & Bell, LLP, Libertyville, for Appellant.
Gregory T. Henry, Fraterrigo, Beranek, Feiereisel & Kasbohm, Chicago, for Residential Carpentry, Inc.
Kirsten M. Dunne, Goldberg, Weisman & Cairo, Ltd., Chicago, for Andrew Jones.
The plaintiff, Andrew Jones, filed a complaint against the defendant, DHR Cambridge Homes, Inc. (Cambridge), seeking damages for personal injuries he sustained while working on a construction site. Cambridge filed a third-party complaint against the plaintiff's employer, Residential Carpentry, Inc. (RCI), seeking contribution pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/1 et seq. (2000)). Prior to sending the case to the jury, the trial court granted RCI's motion for a directed verdict on Cambridge's contribution claim. The jury returned a verdict in favor of the plaintiff.
Cambridge appeals raising the following issues: (1) whether the trial court erred in granting RCI's motion for a directed verdict; (2) whether the trial court erred in failing to include RCI on the verdict form apportioning damages; (3) whether the trial court erred in failing to include a nonparty on the jury verdict form; (4) whether the trial court erred in barring the use of a surveillance videotape of the plaintiff; (5) whether the trial court erred in barring any testimony that OSHA had failed to issue any citations for walking on sill plates; (6) whether the plaintiff's counsel's remarks during closing argument required a new trial; and (7) whether the trial court erred in refusing to give Cambridge's nonpattern jury instructions. The pertinent evidence is summarized below.
The plaintiff was employed as a carpenter by RCI. Cambridge, the owner and general contractor, subcontracted with RCI to perform the carpentry work on the Cambridge Walk subdivision it was constructing. The plaintiff described the process of erecting first floor joists. The sill plates were affixed to the steel beams set in place and braced by the ironworkers. Sometimes the carpenters have to move the steel slightly and rebrace it. There were several houses in the subdivision on which the plaintiff had to restraighten the bracing before the sill plates could be placed. The plaintiff reported the problem to Mr. Zembruzski, the RCI foreman, but the problem did not get resolved.
On November 4, 1999, the plaintiff walked out on a wooden sill plate that was mounted on a structural steel beam to take measurements for the layout of the floor joists. The sill plate was approximately eight to nine feet off the ground and was wider than the steel beam. The "brace," which the plaintiff had secured the day before, ran perpendicular to the sill plate on which the plaintiff stood and spanned the distance between that sill plate and an adjacent sill plate and beam. In performing his measurement, the plaintiff placed his left foot upon the brace and leaned forward to obtain a measurement. The brace flipped up causing the plaintiff to fall forward into the basement area.
According to the plaintiff, he was never told he could not walk out on a sill plate on a steel beam. While he was trained not to walk on a brace, he was never told he could not place the weight of his foot on the brace. It was not unusual to put a foot on a brace.
The subcontract agreement between Cambridge and RCI provided in pertinent part as follows:
The subcontract agreement also provided that "the latest edition of the General Conditions of the Contract for Construction, AIA Document A-201" was also made part of the subcontract agreement.
Mark Tuma was the construction superintendent for Cambridge on the project. Cambridge scheduled and sequenced the work of the various trades on the project. It would also inspect the work of the trades for compliance with the subcontracts, which included compliance with Cambridge's safety manual. It was part of Mr. Tuma's job to make sure that the trades adhered to the safety manual. Cambridge held weekly meetings to discuss the progress of the work and to address problems, including safety issues. He would inform a trade to fix a problem. Each trade had to provide a safety manual.
Mr. Tuma acknowledged that the subcontract agreement identified Cambridge as the "contractor," that RCI was a subcontractor and that the AIA Document A-120 general conditions were made part of the subcontractor agreement. Mr. Tuma was then questioned by the plaintiff's counsel about specific provisions of the general conditions as follows:
"Q. Section 3.3 of these general conditions are entitled `supervision and construction procedures;' do you see that?
A. Yes.
Q. And 3.3.1 reads as follows — tell me if I've read correctly.
keyword here `solely' — do you see that?
A. Yes.
Q. `Solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for having coordination — and for coordinating all portions of the work under the contract unless the contract documents give other specific instructions concerning these matters.' Do you see that? So far I am reading it right?
A. Yes.
Q. It goes on to read, `if the contract documents give specific instructions concerning construction means, methods, techniques, sequences or procedures, the contractor shall evaluate the job site safety thereof and as except stated below, shall be fully and solely responsible for the job site safety of such means, methods, techniques, sequences or procedures."
Mr. Tuma agreed that was what the general conditions provided.
Mr. Tuma was then questioned about article 10 of the general conditions as follows:
"I'm referring you to specifically to article ten which is entitled `protection of persons and property;' do you see that?
A. Yes.
Q. 10.1, `safety precaution and programs;' do you see that?
A. Yes.
Q. 10.1.1, reads as follows — tell me if I'm not reading it correctly, please.
`The contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the contract.' Do you see that?
A. Yes.
Q. And if you go down to 10.2.1, safety of persons and property, it reads:
`The contractor shall take reasonable precautions for the safety of and shall provide reasonable protection to prevent damage, injury, or loss to .1, employees on the work,' correct?
A. Yes."2
According to Mr. Tuma, if he observed an OSHA violation or an unsafe practice on a construction site, he could stop it. OSHA required that residential construction workers have some type of fall protection if they were exposed to a six-foot or greater fall. A "controlled access zone" (CAZ) was used to control the environment for particular work. Other than "awareness," no other fall protection was in place, even though Mr. Tuma was aware that the RCI carpenters were working nine feet in the air on the sill plates. Mr. Tuma did not think this was dangerous; it was a common practice and utilizing a CAZ complied with OSHA. While there were safer alternatives to walking the sills, he chose not to instruct the trades on how to perform their jobs. He did recall that someone from RCI brought the problems with the steel to his attention. Mr. Tuma had no problems with RCI on the project.
At the time of the plaintiff's accident, Randall Jensen was employed by RCI and was the safety coordinator for the project. He described the plaintiff as a very qualified carpenter and not known to take any unnecessary risks. While working on the project, he observed Cambridge supervisors, Mr. Tuma and Mark Gagliano inspecting the work on the site. If the supervisors requested that a trade correct a problem, the trade would do so. Only Cambridge had authority to change specifications. No safety issue was ever raised about working off the sill plates. If Cambridge had directed RCI to stop the practice, it would have done so. While it was safer to use a ladder, the job then took longer. Neither Cambridge nor RCI told the carpenters they could not use ladders. Cambridge's weekly safety meetings were attended by RCI's foremen, who would then meet with RCI employees, because it was RCI's job to educate its employees, not Cambridge's.
Richard Lamb was a regional director for Cambridge. At the time of the plaintiff's accident, he was overseeing 14 projects including the Cambridge Walk project. Mark Tuma and Mark Gagliano worked under him as superintendents. Part of the superintendents' job was to enforce Cambridge's safety manual. Cambridge's safety regulations applied to all the subcontractors on the site. If a superintendent observed a safety violation, it was his responsibility to see that it...
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