Maggi v. Ras Dev. Inc.

• Decision Date: 19 July 2011
• Docket Number: No. 1–09–1955.,1–09–1955.
• Citation: 949 N.E.2d 731,350 Ill.Dec. 939
• Parties: John MAGGI, Individually and as Independent Administrator of the Estate of Gerald Maggi, Deceased, Plaintiff–Appellee and Cross–Appellant,v.RAS DEVELOPMENT, INC., Defendant–Appellant and Cross–Appellee (State Farm Fire and Casualty Company, Respondent and Cross–Appellee).
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 091,955

949 N.E.2d 731

350 Ill.Dec. 939

John MAGGI, Individually and as Independent Administrator of the Estate of Gerald Maggi, Deceased, Plaintiff–Appellee and Cross–Appellant,

v.RAS DEVELOPMENT, INC., Defendant–Appellant and Cross–Appellee (State Farm Fire and Casualty Company, Respondent and Cross–Appellee).

No. 1–09–1955.

Appellate Court of Illinois, First District, Fourth Division.

May 26, 2011.As Corrected July 19, 2011.

Michael W. Rathsack, Chicago, for Plaintiff–Appellee and Cross–Appellant.Robert K. Scott, Matthew R. Bloom, Chicago, for Defendant–Appellant and Cross–Appellee RAS Development, Inc.Michael Resis, Blen E. Amundsen, SmithAmundsen LLC, Chicago, for Defendant–Appellant and Cross–Appellee State Farm Fire & Casualty Company.

OPINION

Presiding Justice LAVIN delivered the judgment of the court, with opinion.

¶1 Jerry Maggi, a 46-year-old veteran laborer on a bricklaying crew, died several days after an August 28, 2000 fall through an unprotected window opening at a new construction project on the near north side of Chicago, after a strap binding a bundle of bricks broke as he maneuvered it in a tight workspace under a patent scaffold on an exposed third floor, causing him to lose his balance. His estate brought a construction negligence lawsuit against several entities involved in the project, which consisted of the construction of several multistory condominium buildings on Wolfram Street. The case proceeded to a jury trial, with the jury returning a $3,286,382 verdict after finding decedent 1% contributorily negligent. The sole defendant at trial, RAS Development, appeals from the judgment entered on the verdict and the trial court's denial of its posttrial motion. Plaintiff also filed a cross-appeal, alleging that the trial court improperly declined to sanction defendant for understating the amount of available insurance coverage in discovery. For reasons that will be delineated at some length below, we affirm the judgment entered on the jury verdict and also affirm the trial court's refusal to sanction defendant.

¶2 BACKGROUND

¶3 The project on Wolfram Street was spearheaded by three men, Robert Levin, Arnold Boris and Saul Waimberk, whose first names' initials formed the RAS prefix. These three men were the sole shareholders in RAS Development, as well as RAS Wolfram, which then formed a partnership called Wolfram Towers. They hired RAS Development as the general contractor, meaning that they, as owners, essentially hired themselves to run the project. During the course of construction, various permits were issued by the City of Chicago which interchangeably referred to one or more of the entities as the owner or general contractor of the development.

¶4 Plaintiff's first complaint, filed on August 26, 2002, included as defendants various entities that had some connection to the development, including, inter alia, plaintiff's employer, Rockford Construction, and RAS Wolfram, which initially volunteered in its answer that it was the general contractor. The parties engaged in lengthy written and oral discovery, some of which was designed to divine the interplay between the various RAS entities on the Wolfram Street project. In May 2003, before the limitations period had expired, RAS Wolfram, in an interrogatory answer, changed course and stated that it had hired RAS Development as the general contractor and that RAS Development had entered into separate contracts with subcontractors on its behalf, while also indicating that it could not locate the contract between RAS Wolfram and RAS Development. This turn was largely confirmed in a deposition of RAS Development's project manager, Lance Shalzi. During this period of time, plaintiff was seeking the contract that would unequivocally establish the proper entity to sue as the general contractor, with Wolfram Towers assuring plaintiff's counsel that “all” construction contracts had been produced. Neither RAS Wolfram nor Wolfram Towers moved for dismissal on the basis that it was not the general contractor.

¶5 Some 18 months passed without any further discovery on this subject. Then, after the four-year limitations period passed, plaintiff's attorney received a letter from defendant's in-house insurance counsel that indicated that it had located the contract that RAS Development entered into with Wolfram Towers, entitled “Standard Form of Agreement Between Owner and Contractor” (the Prime Contract), to perform general contracting services for the construction of the four-story residential buildings and that it would be changing its answer to confirm that RAS Development was the general contractor. This led plaintiff to voluntarily dismiss RAS Wolfram and amend his complaint, adding RAS Development as the general contractor. RAS Development then moved to dismiss the complaint against it, on the basis that it was outside the limitations period, while plaintiff endeavored to persuade the trial court that the amended complaint should relate back to the filing of the initial complaint because RAS Development knew all along that it should have been sued, while plaintiff was mistaken in his belief that RAS Wolfram was the general contractor. Initially, the trial court agreed with defendant and dismissed the complaint, but changed its mind and granted plaintiff's motion to reconsider.

¶6 The case then proceeded to trial, where plaintiff presented a case of the general contractor's failure to provide a safe place to work and for inadequately supervising the work of the subcontractors, while the defendant denied liability and claimed it would assert that the fall was not related to the breaking of the brick band but, rather, that Mr. Maggi suffered a coincidental heart attack, causing him to slip and fall from his elevated workspace. RAS Development planned to call John T. Barron, M.D., at trial to support this theory, but the trial court barred Dr. Barron from testifying that Maggi's fall was caused by a heart attack occurring immediately prior to his fall. The trial court initially ruled that Dr. Barron's opinion was not based on a reasonable degree of medical certainty but clarified upon defendant's motion to reconsider that it was not barring Dr. Barron's entire testimony, only the specific opinion about the timing of the attack. At trial, RAS Development did not mention this theory to the jury, did not make an offer of proof concerning Dr. Barron's testimony, and gave all appearances of having abandoned the theory until its resurrection at defendant's posttrial motion.

¶7 TESTIMONY AT TRIAL

¶8 There was but one eyewitness to Maggi's fall. The veteran bricklayer to whom he was assigned, Charles Winchester, testified on direct examination that the fall was precipitated by the breaking of a metal band that was meant to keep a large bundle of bricks in a stable condition which his laborer maneuvered into a convenient location for Winchester's use. Winchester explained that they were working on the front of the third floor of the condo building. A scaffold had been erected on that floor. The bundle of bricks that Maggi was bringing to Winchester weighed 150 pounds and needed to be maneuvered around the front of the scaffold, which had a set of cross-braces in the back. The front of the scaffold was unprotected by any bracing, but it was done so purposefully, to allow the mason access to the block, brick and mortar that he would need in order to build the brick wall. There existed a narrow space in between the scaffold and the outer wall. It was in this space that the mason plied his trade. While he was so engaged, there was no functional fall protection, but this was expected by the mason, because they were employing the so-called overhand bricklaying method, which involves the mason (or “brickie” in construction worker argot) kneeling or standing while leaning over the ledge and applying the bricks in “courses” to build the wall.

¶9 The fall itself, Winchester testified, happened as Maggi was attempting to “inch” the bricks under the scaffold close to Winchester's narrow workspace, which was hard by the edge of the building's under-construction wall. Winchester explained that Maggi had to “stationary” the bricks with his hands. It was at this point that the metal band popped and he went over the edge, through the bottom part of a work-in-progress window opening, right in the area where Winchester would have soon started to lay the next course of bricks. There was no safety rail in the area of that window opening or any other window opening on the jobsite. On the subject of the general contractor, Winchester testified that he did not have any contact with its representative and never attended any safety meetings with Lance Shalzi, the project manager for RAS Development, who was purportedly in charge of safety.

¶10 On cross-examination, defense counsel pressed a somewhat reluctant Winchester to testify that Maggi was standing in a prohibited area at the time of his fall. Winchester did admit that it would have been safer for Maggi to be under the scaffold, rather than between the scaffold and the edge of the floor. Winchester was also impeached with his deposition testimony that indicated that Maggi had “slipped and backed out the window” while trying to break a bundle of bricks down. Winchester admitted that Maggi was between the bricks (which were under the scaffold) and the floor edge when he “slipped out.”

¶11 The jury also heard testimony from Patrick Brunory, the owner of Rockford Construction, the bricklaying contractor and the employer of Maggi and Winchester. He testified that the work area was first prepared by his brother, Sean Brunory, who would set up the scaffold, mortar table and other necessaries before the brickie and his laborer would begin their work. He explained that there was no fall protection because there was nothing for the protection to adhere to, since the building was still going up. He...