Calloway v. Bovis Lend Lease, Inc.
2013 IL App (1st) 112746
Ill. App. Ct.2013Background
- Construction at Wheaton-Warrenville South High School: District hired Bovis Lend Lease as construction manager; Hamilton (via DuPage Top Soil) performed sewer/trench work. On June 6, 2005 a trench collapsed, killing Herman Calloway Sr. and severely injuring Herman Calloway Jr.
- Bovis’s role: coordinated day-to-day site activity, ran safety orientation and a 34‑page site-specific safety plan, and its superintendents (e.g., Blowers) had authority to stop unsafe work and required subcontractors to sign safety documents.
- On the accident day Blowers told Senior (Hamilton foreman) no one should work in an unprotected trench; later Blowers and assistant superintendent Staroske saw Senior and Junior in the trench without a trench box shortly before the collapse and did not stop work in time.
- Plaintiffs (Junior and Estate) tried the case under Restatement (Second) of Torts § 414 (liability where employer entrusts work to independent contractor but retains control). Jury awarded substantial damages to Junior and the Estate and found Senior 49% contributorily negligent; Junior was not negligent.
- Bovis moved for JNOV or a new trial arguing (inter alia) no entrustment, no retained control, lack of proximate cause, evidentiary and instruction errors, inconsistent comparative fault findings, and excessiveness of damages; trial court denied relief and appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entrustment under Restatement § 414 | Bovis functionally selected bidders, acted as owner’s agent, and exercised hiring/selection duties — so it entrusted work to Hamilton | Bovis was only construction manager and did not sign the subcontract; entrustment absent because it didn’t formally hire Hamilton (relying on O’Connell) | Jury question: totality of contract and conduct supported entrustment; court rejects a formalistic rule requiring signature and affirms jury finding of entrustment |
| Retained control / duty to supervise safety | Bovis ran site safety program, required safety plans, orientations, inspections, and its superintendents had authority to stop unsafe work, so it retained sufficient control | Contract limited Bovis’s duties; Hamilton controlled means/methods and trench protection; Bovis did not retain operative control | Sufficient evidence for jury that Bovis retained control over safety; duty under § 414 could be imposed — denial of JNOV affirmed |
| Proximate cause / intervening act of workers reentering trench | Bovis’s failure to stop unsafe work and to require protection foreseeably resulted in collapse; multiple proximate causes allowed | Senior and Junior knowingly entered unprotected trench on their own — their reentry was an unforeseeable superseding intervening act | Reentry was foreseeable in context (superintendent saw them, had opportunity to stop); jury could find Bovis’s negligence a proximate cause; denial of JNOV affirmed |
| Admission of Staroske deposition (and use at trial) | Plaintiffs needed to use deposition; Bovis failed to timely disclose Staroske’s departure so deposition admissible and corroborated by other testimony | Deposition improperly admitted under Rule 212(a)(5) (deponent not dead/infirm) and Rule 219 cannot authorize that sanction; prejudiced defense | Deposition admissible as party‑opponent admission (agent’s statements within scope of employment) and any error was harmless because testimony was corroborated; no reversal |
Key Cases Cited
- Maple v. Gustafson, 151 Ill. 2d 445 (Ill. 1992) (jury credibility and conflicts in evidence are for jury)
- Velarde v. Ill. Cent. R.R. Co., 354 Ill. App. 3d 523 (Ill. App. Ct. 2004) (standard for JNOV and deference to jury)
- Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491 (Ill. App. Ct. 2008) (general contractor retained control via safety oversight can create § 414 liability)
- O'Connell v. Turner Constr. Co., 409 Ill. App. 3d 819 (Ill. App. Ct. 2011) (construction manager did not entrust work where it lacked final hiring authority under that record)
- Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394 (7th Cir. 2012) (construed entrustment where construction manager selected subcontractor even if acting as owner’s agent)
- Bokodi v. Foster Wheeler Robbins, Inc., 312 Ill. App. 3d 1051 (Ill. App. Ct. 2000) (extensive safety oversight supports finding of retained control)