Ramirez v. FCL Builders, Inc.

Decision Date31 January 2014
Docket NumberNo. 1–12–3663.,1–12–3663.
PartiesTeodoro RAMIREZ, Plaintiff–Appellee, v. FCL BUILDERS, INC., an Illinois Corporation, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

OPINION TEXT STARTS HERE

Elizabeth A. Knight, Sarah Hansen Sotos, Knight, Hoppe, Kurnik & Knight, Ltd., Rosemont, John P. Prusik, Louis S. Glaza, Prusik, Selby, Daley & Kezelis, P.C., Chicago, for appellant.

Robert J. Napleton, John C. Coyne, Motherway & Napleton, Chicago, Law Offices of Lynn D. Dowd, Wheaton (Lynn D. Dowd, of counsel), for appellee.

OPINION

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

¶ 1 Plaintiff Teodoro Ramirez was injured while employed as a roofer for Sullivan Roofing, a nonparty to this litigation. At the time of plaintiff's injury, Sullivan Roofing was operating as a subcontractor for defendant FCL Builders, Inc., the general contractor for a warehouse project. Plaintiff filed suit against defendant, alleging that defendant was negligent and, after a jury trial, the jury found defendant liable, awarding plaintiff damages in the amount of $1.588 million. Defendant appeals, arguing that (1) the trial court erred in not granting judgment notwithstanding the verdict in favor of defendant, where defendant had no liability for plaintiff's injuries as a matter of law; and, alternatively, (2) the trial court should have granted defendant a new trial where the trial court improperly instructed the jury, made errors in the admission of evidence, and failed to sanction plaintiff for several discovery violations. For the reasons that follow, we affirm.

¶ 2 BACKGROUND
¶ 3 I. Complaint

¶ 4 On June 13, 2008, plaintiff filed a complaint against defendant; the complaint was amended twice and it was the second amended complaint on which the parties went to trial.1 The second amended complaint alleges that, on or before September 29, 2004, defendant was a general contractor responsible for the design, construction, and maintenance of a warehouse facility in Romeoville, Illinois. Plaintiff was working on the roof of the warehouse on September 29, 2004, when plaintiff and his coworkers from Sullivan Roofing were manually pushing a “large, bulky and heavy roll of roofing membrane material” on the roof of the warehouse, causing plaintiff's injuries. Although plaintiff was working on the roof of the warehouse as an employee of Sullivan Roofing, defendant “was present during the course of the construction project, supervised and coordinated the work being done, designated various work methods, maintained and checked work progress, and participated in scheduling the work and the inspection thereof.” Additionally, defendant “had the authority to stop the work, refuse the work, tools and materials, and to order changes in the work in the event that the work was being performed in a dangerous manner or for any other reason.”

¶ 5 The second amended complaint alleges that, at the time of the injury, defendant, through its agent, knew or should have known of the manner in which plaintiff's work was being performed and defendant had a duty to exercise reasonable care under the circumstances to protect the safety of plaintiff. Notwithstanding that duty, defendant was negligent in one or more of the following ways:

“a. Failed to permit Honda [all-terrain vehicles (ATVs) ] to be used by the roofing crew to move heavy roofing materials; or

b. Allowed an improper work practice to occur as it relates to material handling in violation of OSHA Standard 2236; or

c. Failed to place plywood planking at various locations on the metal deck thereby allowing Honda ATV's to be used to move heavy roofing materials; or

d. Failed to instruct the Sullivan Roofing crew in the recognition and avoidance of an unsafe condition as it relates to material handling in violation of 29 CFR 1926.21(b)(2); or e. Failed to follow the safe customs and practices of the construction industry in the manner in which the workers, such as the plaintiff, were required to perform their duties; or

f. Failed to ensure handling of heavy roofing materials were done in a reasonably careful manner.”

The second amended complaint alleges that, as a result of one or more of defendant's acts or omissions, plaintiff suffered injuries “of a personal and pecuniary nature.”

¶ 6 As an affirmative defense, defendant alleges that plaintiff had the duty to exercise reasonable care and caution for his own safety and failed to do so in one or more of the following ways:

“a. Failed to properly move and/or push roofing materials;

b. Failed to make a reasonable inspection of the premises to ensure that he was familiar with the premises;

c. Failed to use appropriate methods in the moving and/or pushing of roofing materials;

d. Performed his work in a manner in which the Plaintiff knew, or in the exercise of ordinary care, should have known was harmful or dangerous;

e. Was otherwise careless and negligent.”

¶ 7 II. Discovery

¶ 8 Since defendant raises several arguments concerning discovery, we relate the relevant facts.

¶ 9 On August 12, 2010, plaintiff filed answers to defendant's Rule 213 interrogatories, disclosing his anticipated witnesses, including five Rule 213(f)(2) independent expert witnesses and no Rule 213(f)(3) controlled expert witnesses. Ill. S.Ct. R. 213 (eff. Jan. 1, 2007). On January 11, 2011, the trial court ordered plaintiff to answer defendant's Rule 213(f)(3) interrogatories by April 1, 2011. On March 13, 2011, the court entered an order that discovery was to close on May 4, 2011. On April 5, 2011, the trial court ordered plaintiff to disclose any Rule 213(f)(3) witnesses by April 4, 2011, with the witnesses to be deposed by May 5, 2011; the court again ordered discovery closed on May 4, 2011.

¶ 10 On April 20, 2011, plaintiff filed supplemental Rule 213 disclosures, including an additional Rule 213(f)(1) lay witness and one Rule 213(f)(3) controlled expert witness, Dennis Puchalski, a construction safety consultant.

¶ 11 On September 16, 2011, plaintiff's current attorneys filed an appearance as additional attorneys of record and, in October 2011, plaintiff's current attorneys replaced the former attorneys as plaintiff's counsel.

¶ 12 On February 21, 2012, the attorneys for the parties certified that all fact, medical, and opinion discovery was complete; that all deposition of Rule 213(f)(1), (2), and (3) witnesses had been taken or waived in writing or in a court order; that all necessary evidence depositions had been taken; and that no dispositive motions were pending or would be filed by any party prior to trial. On March 8, 2012, the case was set for trial on May 3, 2012.

¶ 13 On April 24, 2012, plaintiff filed a notice of videotaped evidence deposition for Jaime Rojas, which would take place via telephone on April 26, 2012, since Rojas was located in Colorado. On April 26, 2012, defendant filed an emergency motion to quash the videotaped telephone evidence deposition. In the motion, defendant argued that two days' notice for a videotaped evidence deposition was insufficient and would not allow defense counsel the opportunity to attend the deposition in person and to cross-examine the deponent in person. Further, defendant claimed that the deponent, Jaime Rojas, had not been listed by plaintiff as a Rule 213(f)(1), (2), or (3) witness. On the same day, the trial court denied defendant's motion to quash the deposition and further ordered the May 3, 2012, trial date to stand.

¶ 14 On May 8, 2012, during trial, defendant filed a motion in limine seeking to bar plaintiff from calling David Gibson as a trial witness. The motion claimed that, on October 28, 2011, plaintiff made an oral motion seeking to disclose an additional Rule 213(f)(3) damages witness, which the trial court granted over defendant's objection. Plaintiff's disclosure of Gibson as an additional witness “resulted in defense counsel being compelled to retain its own defense expert on the issue of damages,” causing prejudice. On the same day, the trial court denied defendant's motion.

¶ 15 Defendant also filed a motion in limine seeking to bar plaintiff from calling Jaime Rojas as a witness for three reasons: “insufficient notice of an evidence deposition, violation of the Supreme Court 213(f)(2), and subsequently after taking the deposition learning of additional documentation that was relevant to the functional capacity evaluation that Mr. Rojas was testifying about on that given day.” Defendant argued that, despite plaintiff's claim that a letter was sent in January 2012 disclosing Rojas as a witness, defense counsel never received such a letter. The trial court denied defendant's motion.

¶ 16 III. Trial

¶ 17 Trial began on May 7, 2012. Evidence was presented concerning the installation of the roof in the case at bar, as well as plaintiff's medical history following the injury. Several witnesses also testified about the safety of the procedures used on the roof, as well as plaintiff's damages.

¶ 18 A. Roofing Witnesses
¶ 19 1. Michael Sullivan

¶ 20 Michael Sullivan, who was employed by Sullivan Roofing and was the brother of the company's owner, was Sullivan Roofing's safety director in September 2004. Sullivan testified that Sullivan Roofing was in the business of installing commercial roofs, including “ballasted roofing which has rock on top to hold [it] down”; Sullivan estimated that 30 to 40 roofers would have been employed by Sullivan Roofing in 2004, and it was typical for Sullivan Roofing to have multiple jobs at the same time. In 2004, defendant, the general contractor, hired Sullivan Roofing as a subcontractor on a project called the “Wilton Industries Project” in Romeoville (the Wilton project). The Wilton project was to be a big-box warehouse with a ballasted roof “somewhere in the vicinity” of 450,000 square feet, which was “a large roof, but it wasn't a huge...

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