Gomez v. Bovis Lend Lease, Inc.
2013 IL App (1st) 130568
Ill. App. Ct.2015Background
- Plaintiff Carlos Gomez fell through a plywood board covering an "infill" on the 86th floor of Trump Tower and sued the construction manager (Bovis) and general contractor (McHugh).
- McHugh had contracted with PERI to design, supply, and provide on-site technical support for the project’s concrete forming systems; PERI did not supply plywood for infills.
- McHugh supplied and placed the plywood over the infill areas; PERI did not prepare designs, drawings, or technical support for the infills and had not done so on ~20 prior projects with McHugh.
- Bovis and McHugh asserted a third-party contribution claim against PERI, alleging PERI’s contractual duty to support infills and that its failure proximately caused Gomez’s injury.
- PERI moved for summary judgment, presenting undisputed extrinsic evidence (course of prior dealings and project performance) showing PERI never had an infill-support duty; an expert for PERI attributed the accident to defective plywood provided/used by McHugh.
- The trial court granted summary judgment for PERI on the contribution claim; the appellate court affirmed, holding the contract ambiguous but extrinsic evidence established PERI had no duty to support infills.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the contract unambiguously required PERI to design/ support infill areas | Contract language obligates PERI to provide all forming systems (infills are forming systems), so duty is clear | Contract contains no explicit reference imposing infill-support duties; exclusion of plywood for infills shows otherwise | Contract is ambiguous on infill duties (but ambiguity found) |
| Whether extrinsic evidence may be used to resolve the contract ambiguity given the integration clause | Integration clause does not bar use of extrinsic evidence because ambiguity exists | Integration clause argued to foreclose extrinsic evidence | Because contract ambiguous, extrinsic evidence may be considered; court may decide as matter of law if extrinsic facts are undisputed |
| Whether extrinsic evidence created a factual dispute on PERI’s duty | PERI’s course of performance and prior projects still could impose a duty due to this project’s unusual scale | Undisputed extrinsic evidence (20 prior projects, no requests for infill support; McHugh never requested or complained; PERI paid in full) shows no duty | Extrinsic evidence established no duty as a matter of law; summary judgment affirmed |
| Whether PERI’s alleged duty (if any) proximately caused Gomez’s injury; and OSHA argument | PERI's failure to support infills was a proximate cause (expert affidavit) | PERI’s expert said defective plywood (McHugh’s) was sole proximate cause; OSHA argument waived | Court did not decide proximate-cause issue because no duty existed; OSHA argument deemed waived |
Key Cases Cited
- Williams v. Manchester, 228 Ill. 2d 404 (Illinois 2008) (standard of review for summary judgment)
- William Blair & Co. v. FI Liquidation Corp., 358 Ill. App. 3d 324 (Ill. App. 2005) (contract interpretation and ambiguity principles)
- Loyola Academy v. S & S Roof Maintenance, 146 Ill. 2d 263 (Illinois 1992) (use of extrinsic evidence and when interpretation raises factual issues)
- Air Safety, Inc. v. Teachers Realty Corp., 185 Ill. 2d 457 (Illinois 1998) (integration clause effect on extrinsic evidence)
- Board of Trade v. Dow Jones & Co., 98 Ill. 2d 109 (Illinois 1983) (contract interpreted in light of whole agreement)