2013 IL App (1st) 123663
Ill. App. Ct.2013Background
- Ramirez, a Sullivan Roofing employee, injured his back while manually pushing a large roll of roofing membrane on a Romeoville warehouse roof; Sullivan Roofing was a subcontractor to FCL Builders (general contractor).
- Plaintiff sued FCL (general contractor) alleging negligence under the retained-control doctrine (Restatement §414); jury found FCL 40% liable, Sullivan Roofing 40%, Ramirez 20%, and awarded $1.985M (reduced to $1.588M for contributory fault).
- Key factual dispute: whether FCL exercised sufficient control (ordered work stopped, participated in a solution, and prohibited ATVs) so that stopping mechanical help forced manual rolling and caused the injury.
- Pretrial and trial discovery disputes arose (late disclosure of expert/witnesses including a functional-capacity evaluator and a vocational damages analyst); trial court allowed testimony despite motions to bar.
- Trial rulings included admission of the owner–general-contractor contract (after foundation witness) and exclusion of an incident report as a business record; FCL posttrial moved for JNOV or new trial; court denied and FCL appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether JNOV was required because FCL had no duty under §414 (retained control) | Ramirez: evidence showed FCL retained/control over safety (ordered stoppage, approved solution, ordered ATV-use to stop) so jury question on duty exists | FCL: at most general supervisory rights (stop/resume, inspect) — insufficient to control operative details or create liability | Affirmed denial of JNOV; reasonable minds could find FCL retained control over operative detail and thus duty under §414 |
| Whether FCL is directly liable (knew of unsafe method and failed to exercise supervisory control) | Ramirez: manual rolling was unsafe, FCL knew (ordered ATVs stopped) and should have prevented manual rolling | FCL: no notice that crews would manually roll; plywood runway could have allowed mechanical means | Affirmed jury could find manual rolling unsafe and FCL on notice; direct liability sustainable |
| Whether IPI instruction on contractor control (IPI No. 55.01) accurately stated law and warranted reversal | Ramirez: instruction appropriate to focus jury on safety-control question | FCL: pattern instruction too broad — “some control” may permit liability without the specific retention of supervisory/control required by §414 | Court held the IPI instruction is broader than §414 but any error was harmless here because trial evidence focused on operative-control (no serious prejudice) |
| Whether verdict form improperly included plaintiff’s employer (Sullivan Roofing) for apportionment of fault | Ramirez: inclusion permissible to apportion comparative fault evidence heard at trial | FCL: section 2-1117 excludes plaintiff’s employer from apportionment; inclusion was error and prejudicial | Court agreed Sullivan should not have been on the verdict form but found no reversible prejudice given the record and denied new trial |
Key Cases Cited
- Maple v. Gustafson, 151 Ill.2d 445 (Illinois Supreme Court) (standard for JNOV and deference to jury credibility and inferences)
- Thacker v. UNR Industries, Inc., 151 Ill.2d 343 (Illinois Supreme Court) (view evidence in light most favorable to nonmovant on JNOV)
- Cochran v. George Sollitt Construction Co., 358 Ill. App.3d 865 (discussing §414 retained-control principles)
- Joyce v. Mastri, 371 Ill. App.3d 64 (apportioning retained-control inquiry to the trier of fact)
- Martens v. MCL Construction Corp., 347 Ill. App.3d 303 (describing continuum of control and supervisory/vicarious liability distinctions)
- Larson v. Commonwealth Edison Co., 33 Ill.2d 316 (Illinois recognition of retained-control exception)
- Pasquale v. Speed Products Engineering, 166 Ill.2d 337 (JNOV standard — reasonable minds differ test)
- Ready v. United/Goedecke Services, Inc., 232 Ill.2d 369 (Illinois Supreme Court — settling defendants and effect on verdict forms and section 2-1117 analysis)