*1 process, speak parents has asked to with either his or a concerned adult, police prevented juvenile’s parents or where the have added)). him” speaking (emphasis Here, police requests refused defendant’s two to contact his mother and made parents no effort themselves to contact defendant’s Knox, during juvenile before or the interview. As in there no of- present during parent. ficer the interview to offset the absence of a We recognize given warnings defendant was Miranda and did not same, however, any promises receive or threats. The was true of the Knox, respondent V.L.T. and the defendant but in neither case did this fact override the coercion that the court found in the remain- ing Likewise, provision warnings circumstances. of Miranda and promises pres- the absence of or overt threats did not ameliorate the defendant, brought 17-year-old sure to bear on who was “immature” age custody for his became “terrified” while when his two specific requests parent to contact a were refused and when Galason said, jail him “I if give you go raised his voice to don’t a shit not.”
Considering circumstances, totality of the we conclude prove did preponderance State evidence voluntary. defendant’s confession was reasons, foregoing
For the we affirm the of the circuit County. of Kane court
Affirmed. CALLUM, J.,
GEOMETER, EJ., concur. al., Plaintiffs-Appellees, v. JAMES FASSBINDER et STEVE TOWNSEND et al., al., Defendants-Appellants (Rainbow et Inc., Services, Painting Intervenor). Defendants; Liability Company, Insurance United States Second District No. 2 — 06—0226
Opinion 2007. filed March *3 Peterson, Hughes, Socol, Piers, Ltd., Dym, Donald G. Resnick & Chicago, appellants. for Kupets, Kupets DeCaro, P.C.,
David J. of Law Offices of & and A. David Novoselsky Rosen, Offices, Novoselsky and Leslie J. both of Law both of Chicago, appellees. for opinion
JUSTICE BYRNE delivered the of the court: Plaintiffs, wife, Townsend, brought Steve Townsend and his Kristi negligence premises liability this common-law and action defendants, (Jim), individually, James Fassbinder Fassbinder United Builders, (United), Services, (Rainbow), Painting Inc. Inc. Rainbow Wlodarski, Service, individually Robert and Romar Insurance d/b/a Service, injuries and Romar Insurance he Steve sustained when through unguarded fell and hole in unbarricaded the floor while house, was at Jim’s which was under construction. pending alleged Plaintiffs that a workers’ claim was its against United and that United had denied that Steve was of either agent alleged further that Steve was employee. They defendants) sought (collectively, Jim and United Rainbow or United. employee and al- Steve was his summary judgment. Jim denied that failing injuries by proximately caused his own leged that Steve danger of encountering the known opening, by protect or cover entering working in the area by knowingly and and opening, im- was its opening. United claimed that Steve he knew contained the Rainbow, barred that he was employee not an employee, mediate remedy of the provision the exclusive suing from United because of 2000)) 305/5(a) (West (Act) (820 Act ILCS Compensation Workers’ benefits, judicially that he was and receiving employer, his immediate that United was estopped denying Commission, stat- presented to the Industrial because of an affidavit that, working for Rainbow. ing on the he was not asserting that it had no sought summary judgment, also Rainbow presence alternatively alleged presence its at the work site employer. there was as Steve’s judgment, summary
The trial court denied defendants’ motion for finding question there a of fact in terms of there whether employer-employee relationship, receipt was an such that Steve’s workers’ compensation plaintiffs’ benefits was not a bar to common- suit, finding binding law that the admission. affidavit was not remedy The court noted that there could for United for the be paid, recovery payments benefits it be a from an award “whether special interrogatory with a jury to the terms of whether there is an employer/employee relationship.” defendants, proceeded jury only against
The case to a trial the ad- ditional having previously named defendants been dismissed. Also intervenor, Liability Company dismissed was United States Insurance (USLIC), United’s workers’ insurance carrier. Rainbow ultimately prejudice. Following settled and dismissed verdict, negligent denial of a directed found defendants verdict, $1,951,238, awarding court entered finding contributory negligence, after and Kristi applying a of 10% $250,000 The trial court denied defendants’ for loss of consortium. n.o.v.) judgment notwithstanding (judgment motions for the verdict and, alternative, However, it reduced Kristi’s for a new trial. by $25,000 fault of Steve and further reduced award based on 10% *4 $50,000 by by paid Steve’s as a setoff for the amount Rainbow award to Steve. the trial court appeal judgment, contending
Defendants that (1) judgment a directed verdict or by denying erred the motion for from remedy provision n.o.v. that the exclusive of the Act barred Steve (2) bringing claim; denying common-law the motion for a directed verdict or n.o.v. that judicially estopped Steve was (3) arguing employed by Rainbow; that he was refusing to tender instructions for workers’ primary assumption (4) (a) risk; allowing testimony Yotz, plaintiffs’ Ken safety (b) expert, Rainbow; that Adams, Steve worked for John defendants’ attorney, that employee Steve was not an (c) United; and plaintiffs that United’s workers’ cover- age was suspended by USLIC misrepresentations. because of Jim’s We affirm.
FACTS day 2, 1999, On the of the February 47-year- Steve was a painter old reported Rainbow, who for at work where he had worked past years, for the five at approximately 40 hours a week. Each reported to the shop, Fassbinder, Rainbow where Mike Rainbow’s owner, painters told the where would be day. The painters put would then equipment Rainbow in the Rainbow truck and drive to the work site. places Work sites consisted of various but usually Kristi, were previously homes. who had worked for Rainbow herself, verified that Steve had exclusively worked for the Rainbow past years. five man,”
As a “lead responsible equipment, Steve was for the for the truck, and coordinating eight painters two to jobsite, depend- at the ing on the size project. Mike gas entrusted Steve with a card to fill the gas. Rainbow truck when the vehicle was low on February Rainbow,
On when Steve arrived at Mike ordered painters go Steve and a crew of to a house under construction at Turnberry Illinois, Jim, in McHenry, belonging to Mike’s brother, paint drywall. Mike being never told that he was employed day by crew, organized Jim. Steve loaded the equipment truck, Rainbow into the Rainbow drove to site. Jim general owned United. United was the contractor for the home trial, Turnberry. at 32108 At Jim admitted that United not the painting job, contractor for the though represented even he had on a permit application sworn and on sworn contractor statements painting United was the contractor.
Upon house, his arrival at Jim’s met with Jim and noticed an uncovered and opening unbarricaded hole the floor. The was to basement, be stairway used for the to the which not been installed time, four-by-eight at that and measured about The feet. hole had previously protect been barricaded at the site from the workers dangerous condition it created the workers became distracted when *5 Jim Although the barricade. earlier, Jim had removed days work. Two dangerous and hole was that an uncovered that he knew testified the hole or cover the barricade condition, replace he did not hazardous at the house. before Steve arrived hole. with the in the room working only painter
Steve was insuring responsible contractor was general that the Steve believed take he would Jim told Steve that covered. type that that of hole was understanding, that barricading the hole. With covering or care to sweeping the walls started different area and Steve went to a wak- memory had before the last Steve drywall dust. That is remove ing up hospital. in the father, his son, working for Fassbinder, 26-year-old
Eric Jim’s Eric was at the house. While rough framing general labor doing to thump heard a and went February the basement floor with on the concrete lying He found Steve investigate the noise. his nose, mouth, the back of ears, out of his coming blood hole, crack- through 15 feet approximately had fallen head. Steve called 911 and yelled help. Jim ing his head on the concrete. Eric sustained hospital. to the paramedic transported crew IQ impaired currently has an overall significant injuries and decisions, capacity. ability make and borderline mental to accident, he called Mike that, day Jim testified before the that he did not file W-2 painters. Jim claimed and asked to borrow did laborers” who painters forms for the because were “casual did not filing requirements. Jim enough money trigger not earn medical bills. telling Kristi that he would take care of Steve’s recall However, voluntarily paid Steve’s medical after the USLIC because benefits were discontinued wages. bills and interim Those on his insurance misrepresentations had made USLIC believed Jim painters Nevertheless, trial that the Rainbow Jim testified at policy. accident. United on the of the employed by were February 2. When prior to spoke any with Steve at time Jim never be work- house, told him that he would at the Jim never Steve arrived any of the other day. supply Jim did not Steve or ing for United that perform directions on how to equipment painters Rainbow job. accident, he told her of Steve’s called Kristi to inform
When Mike bills, a fact that Jim veri- going pay the medical her that Jim was never told morning. Jim hospital Kristi him at the fied when saw employee that that Steve was his gave impression her the Kristi or going pay to Kristi about who was day. hospital talked When Rainbow, working for but bills, that Steve was she said Steve’s her to bills, is what Jim told because that paying United would be say. hospital The records admitted into evidence disclose that hospital was told that Steve’s employer was Rainbow and that the medical guaranteed bills were by United.
Steve was not a W-2 employee of United and was paid by United for any performed work he on February 2. In the “Dome” kept books by United in regular business, course of there is no showing any painters Rainbow paid were as United employees. They paid were category certs,” under the of “subs w/o subcontractors who did not have insurance certificates. Steve’s paycheck for the week in injured which he was was issued Rainbow.
Over defendants’ continuing objection, Yotz, plaintiffs’ Ken expert safety and consultant, health testified. He audits workplaces to identify hazards that may be in violation of OSHA requirements, general industry practice, custom and guidelines or other or written standards. *6 In explaining how the policy OSHA apply statements general to contractors, explained Yotz typical site, that at a construction where multiple there are employers present, OSHA has what calls a multi- employer policy work-site parties which various safety share responsibilities.
Yotz rendered opinions. several Yotz first noted that person entity that employer served as Steve’s was a matter that was in dispute. that, He then opined regardless of who was determined to be Steve’s employer, United created the hazard to which Steve was exposed 2, 1999, on February because it controlled the work and had a duty provide to a safe workplace and to take corrective action to remedy the hazard. This conclusion deposition was based on testimony as well as the OSHA multi-employer policy work-site and industry custom and practice regarding general opined contractors. Yotz next that frequent regular and inspections of the work site were not made by a competent person using OSHA and standards that defendants guard, failed to properly protect, or opening. cover the Finally, that, opined although Yotz ultimately must decide issue, there was sufficient information demonstrating that Steve working was not day injured. for United on the he was Yotz based this opinion knowledge on his inway which construction sites are run; the fact that general United is a contractor that had other trades site; working at the only employee site, fact that the United Jim, Eric; other than and the fact that Rainbow directed Steve to provided truck, tools, the work site and materials, and paint- other ers. Yotz testimony also considered Steve’s at trial that he was employed by Rainbow on the hospital accident and the report stating that Rainbow was Steve’s employer that United paid the hospital bills. Yotz further considered that Steve was not a ending February that, on for the week of United employee W-2 Finally, Yotz had the time he worked. paid had Steve for Rainbow not his Steve was point at one that Jim admitted observed employee. CLAIMS
WORKERS’ COMPENSATION AND UNITED RAINBOW AGAINST filed plaintiffs and before after the Three months for workers’ 1, 2001, filed claims February on present action After the ac- against and United. compensation benefits both Rainbow wages. cident, and interim voluntarily medical bills paid USLIC Steve’s completed insurance on behalf application compensation The workers’ did subcontractors. stated that United not use United benefits compensation USLIC terminated interim workers’ Steve’s trial, they reinstated. May 2, at the time of had been on in the noted, alleged complaint their at law that work- plaintiffs As United, had denied pending against ers’ claim 16, 2000, Steve, knowing employee. May On that Steve was its affidavit, terminated, signed been an unnotarized that his benefits had Rainbow, he that, although employed by regularly which stated he was 2, 1999, at time February on was not for Rainbow did United. This was used accident. The affidavit not involve affidavit dismiss support agreed prejudice with Steve’s work- motion Rainbow, May 2000. against ers’ claim testified at trial that Steve was told their work- Both attorney sign af- attorney ers’ and Rainbow’s employer dispute fidavit or there be a about who was Steve’s would Plaintiffs testified that and his benefits would be terminated. case filed an action Rainbow for fraud and that that since still the Industrial Commission. pending *7 that Steve Jim never before the Industrial Commission testified However, February correspondence dated employee. was United’s 28, 2003, claim regarding compensation workers’ Steve’s Adams, United, attorney attorney told Steve’s John USLIC’s testimony on it was based Steve’s employer, United denied that Steve’s Following denial of defendants’ motion before the Commission. limine, regarding Adams testify to at trial the trial court allowed correspondence. in his statement
ANALYSIS Judgment N.O.V 1. Directed Verdict or by failing grant that the trial court erred Defendants contend a directed judgment A motion for them a directed verdict or a n.o.v. judgment as motion for a same manner verdict is reviewed 898 (2002). Shannon, 424,
n.o.v. Evans v. 201 Ill. 2d 427 The motion should granted be all of evidence, where when favorably viewed most opposing party, so overwhelmingly favors the moving party that no contrary verdict Evans, based on the could evidence ever stand. 201 words, Ill. 2d at 428. In other it presents question “a of as law to whether, considered, when all of the evidence together is all reasonable inferences from it in aspect its most favorable to the plaintiffs, there is a total failure or lack of to prove any evidence necessary [plaintiffs’] element of the case.” Merlo v. Public Service Co. (1942). Illinois, 300, Northern 311 381 Because the for standard (Razor entry of a directed judgment verdict or a “is a high n.o.v. one” America, v. Hyundai 75, (2006)), Motor 222 Ill. 2d 106 judg such a ment is if differ inappropriate might “reasonable minds as to infer ences or presented” conclusions to be drawn from the (Pasquale facts (1995)). 337, v. Speed Engineering, Products Ill. 2d 351 The reviewing court reviews de novo the trial court’s decision on a motion for a directed verdict v. Rush-Presbyterian- n.o.v. York Center, St. Luke’s Medical (2006); Evans, 222 Ill. 2d 2d at 427.
Specifically, defendants contend that because Steve collected some United, benefits from may defendants invoke (820 305/5(a) (West provision remedy exclusive Act ILCS 2000)). Defendants also contend judicially estopped that Steve was at arguing by trial that he on employed day was Rainbow signed presented because affidavit that he in his against United, stating claim that he day Rainbow the accident. Defendants assert the dispute employment applying over can be resolved judicial doctrine of estoppel. that, Defendants assume if are Rainbow, barred from arguing employed by then Steve employed by must have Thus, been United on the of the accident. assert, defendants if employer, United was Steve’s then United should (820 be remedy entitled to the exclusive defense under the Act ILCS 305/5(a) (West 2000)). We remedy first examine whether the exclusive here. applicable defense designed provide proof
The Act “was speedy recovery without injuries” workplace during of fault for accidental that occur in the (1983). Gillespie, Fregeau course work. v. 96 Ill. 2d The compensation provided by remedy the Act is the such exclusive 2000). 305/5(a) (West injuries. Thus, injured employees 820 ILCS are Act permitted to seek recover both under the Co., damages. Wagner and common-law Ill. 2d Castings Collier However, supreme court has stated that
899 ac file a common-law uncertainty,” may “out of caution or employee, already a workers’ though has filed against employer, an he tion 485; 2d at Rhodes v. Industrial Fregeau, claim. 96 Ill. compensation (1982). employee who Comm’n, 471 This enables 2d of limita recovery to toll the statute proper basis of uncertain of filing Although Steve admitted on the civil action. tions benefits, it was Steve’s United denied that voluntarily collecting some the benefits stopped and USLIC employer on the date of the accident defendants. no between Steve and this basis. There was settlement Commission by the Industrial has been a final issued Nor there award counsel, ap and, an according compensation to defendants’ workers’ see the denial of benefits under peal pending. is still We fail to how common- trying Act to recover plaintiffs could bar from thereafter damages. law (1976), to Co., Ill. 2d 437 find v. Bell & Zoller Coal We Laffoon Laffoon, plaintiffs case. In were the immedi
be instructive this provide that did not workers’ employees ate subcontractors injury an compensation insurance. Each of the suffered job. respective Consequently, general on his contrac while injured pay plaintiff’s case workers’ tor each was forced question claim. The that the court faced was Laffoon 5(a) provided general section of the Act contractors with whether immunity plaintiffs, paid litigation by from further as held: plaintiffs’ workers’ claims. The court Laffoon 5(a) im “Accordingly, interpret conferring section we must as statutory
munity upon only employers from common law actions damages employees.To their hold otherwise immediate light be violative of the present factual situations would injured employee’sright process equal protection due added.) (Emphasis Laffoon, 65 Ill. 2d at laws.” 447. employer at the light Laffoon,
In if Rainbow was Steve’s right pursue common- time of the Steve would have Although paid some of Steve’s work against law suit United. immediate claim, if United was Steve’s ers’ 5(a) im not provide of the Act would United with employer, section 447; Gray munity litigation. Laffoon, 65 Ill. 2d at see also from further Inc., 354-55 Systems, v. National Restoration (2004) judicially estopped pursuing common- (plaintiff was not compensa although law action defendant collected defendant). tion claim from the Industrial Commission position
United took the before employee, stopped compensa- its was not USLIC its that Steve was payments tion on that basis. Now United asserts employee so that it cannot be sued under the common law. Defendants now, them, cannot when the occasion suits posi take inconsistent tion and claim the remedy provision. exclusive See Mortimer v. River Toyota, Inc., Oaks Ill. Accordingly, we *9 find that the trial refusing court did not err in grant defendants a directed verdict or judgment a on n.o.v. the basis the exclusive remedy provision of the Act.
We observe the question that of who was Steve’s immediate employer was essential to this case. It was defendants’ burden to prove the employed affirmative defense that United the day Steve on (see Dillbeck, of the accident 309, (1977)), Hindle v. 68 2d Ill. 317-18 jury’s the verdict shows that defendants did not meet that burden. Further, there was abundant evidence that Steve was not employed by the date of accident. If defendants had submitted to the special jury interrogatory asking a if employed United on accident, recommended, date of the as the trial court jury affirmatively it, then might answered have a legitimate defendants argument judgment that the was in However, error. defendants did not special submit a interrogatory point. on this failWe to see how defendants can claim that United employer, given was Steve’s Additionally, verdict them. because the did not find that employer United was Steve’s on the date of the United can not claim that it employer purposes was Steve’s of the exclusive remedy defense of the Act. Accordingly,there was no basis on which grant n.o.v., regardless a judgment directed verdict or a of defendants’ judicial argument. estoppel
Nevertheless, judicial find estoppel apply we that does not to the facts this first that plaintiffs case. We note maintain that defendants argument have waived this because specifically failed to raise it in a disagree. Although their motion for directed verdict. We upon defendants did not argu move for a directed verdict based this ment, defendants did make posttrial a motion for n.o.v. on this basis. Defendants’ failure to include in their motion a directed ground verdict the that from judicially estopped arguing employer that Rainbow was his on the accident did not preclude seeking judgment ground. defendants from n.o.v. same 1202(b) (West 2000); Co., See 735 ILCS Kennan v. Checker Taxi 5/2 — (1993). 155, App. Ill. 250 3d 159-60 that, judicial estoppel provides party The doctrine of a as when legal a in position proceeding, party estopped sumes certain a is contrary subsequent legal proceeding. in a assuming position Casino-Aurora, Inc., 710, 3d Hollywood App. Grobe v. 719 (1999). (2001); 595, v. Ill. 3d 598 For the People Coffin, App. 305 apply: doctrine to
901 (2) positions “(1) positions; taken two party must have judicial quasi-judicial separate taken in have been must (3) intended party must have proceedings; administrative alleged support facts accept the truth of the trier of fact to (4) asserting first must have succeeded party positions; (5) it; posi the two from and some benefit position and received Harlem, School Consolidated must be inconsistent.” Boelkes tions 551, App. Ill. 3d District No. must the doctrine applying courts parties dispute The whether must be taken positions requirement impose an additional at with Ceres Boelkes, Ill. Compare under oath. Co., Terminals, Bank & Trust Chicago City Inc. v. (where (1994) that in order to invoke the court found
doctrine, contrary posi took a opponent that the party must show not Although specifi we did prior proceeding). in a tion under oath requirement apply, appears cally determine that the oath does ad need not position Regardless, Boelkes. we adopted that we issue, judicial estoppel doctrine of dress this because we find that the applicable for other reasons. *10 asserting in First, is was successful showing there no that Steve proceeding. in the first position the first and received some benefit 16, 2000, voluntarily May submitted the and then Steve affidavit against claim prejudice compensation dismissed with his workers’ Thus, certainly proceeding did benefit from the Rainbow. he statement, Furthermore, Rainbow. signed at time the against the he already USLIC had terminated Steve’s workers’ benefits, Thus, did not and the never reinstated. benefits were claim position benefit from the in his workers’ Moreover, signed that he the statement defendants. Steve testified not, losing some interim he did he would risk under belief that if receiving he from compensation benefits that had been United.
Second, Steve’s statement positions the two are not inconsistent. did day of accident on the that he was not for Rainbow did it necessar employment his as a matter of law. Nor not determine employ an The existence of ily employer. mean that United was his “ given case, question of primarily, any in a ‘relationship ment is from fact, a derived involving ultimate its determination conclusion evidence, of facts disclosed evidentiary a consideration all the principles law to of of application in connection with ” Comm’n, Cab v.Industrial Morgan of the evidence.’ Co. consideration Comm’n, 92, (1975), 2d v. Industrial quoting 60 Ill. Lawrence (1945). determining 80, to be considered Some of the factors whether an employer-employee relationship right exists are: the done, control the manner in which the is work the method of pay ment, right to discharge, required level, skill and who provided tools, materials, equipment. Co., Davila v. Yellow Cab 333 Ill. 595-96 conclusory Steve’s statement was It unsupported. could not necessarily upon, be relied given that Steve layperson is a legal that, with no training and at signed the time he statement, an IQ 75, impaired overall of ability to make decisions, and the impression that he would lose compensa tion benefits.
Finally, importantly, and most judicial estoppel the doctrine of is an equitable applied doctrine cannot be party invoking where the it making the same inconsistent claims. Defendants derived the benefit of paying further and then claimed that employer. United was Steve’s equitable “[T]he maxim ‘he who ***” equity comes into a court of must come with clean hands’ “as asking equity sumes suitor the aid of a court of has himself been of guilty conceptions conduct in violation equity fundamental jurisprudence, and him recognition therefore refuses all and relief subject reference matter question.” or transaction in Mills Susanka, (1946); 394 Ill. 444-45 Long see also v. Kemper Life (1990) (the Co., Insurance doctrine of precludes “unclean hands” party taking advantage from of his own wrong). complain judicial estoppel Defendants cannot precludes bringing guilty from suit when are of the same sum, In inconsistent behavior. we find that the trial court did not err refusing grant defendants directed verdict or a n.o.v. remedy basis of the exclusive provision the Act or the issue judicial estoppel. 2. Tendered Workers’ Compensation Defense Instruction argue
Defendants next the trial abused its court discretion by refusing the tendered instruction on its affirmative defense that was, employee United, at the time of the Act, that pursuant suing employer. to the he is barred *11 “Generally, a trial court has to appropriate discretion determine the instructions, jury and its only determination will be reversed (2003). Gramins, of discretion.” v. 345 App. abuse Ozik Ill. 3d refusing We find that the trial court did not abuse its discretion give the instruction. 20-A, nonpattern
Defendants’ proposed jury instruction No. on suing the from by affirmative defense that Steve was barred Act, provision the defendants had the exclusivity stated that (1) time of the at the elements: proving two burden of (2) collected workers’ and that Steve employee; United’s Steve was from United. compensation benefits (1980), Co., 3d 64 case Amling F.
In De Rosa Albert that the defense also the affirmative point, the defendant asserted Act, and by exclusivity provision of the the plaintiffs suit was barred following the instruction: submitted the defendant “ defense asserted the affirmative ‘In case the defendant has this employee the at the time of the occurrence plaintiff that the duty and employee line of as an engaged defendant in the his the suing employer [Act], he his pursuant the is barred *** injuries employer his may only damages from recover duty by a engaged employee as an while line sustained the Industrial Compensation before proceeding for Workmen’s ***. Commission proving this defense.
The has the burden of defendant plaintiff employeeof the To or not the was an determine whether occurrence, you weigh must the fol- defendant at the time of the lowing factors:
First, the defendant directed and controlled the work whether plaintiff; by done
Second, right discharge whether the defendant plaintiff;
Third, by used whether the defendant furnished the materials plaintiff; Fourth, controlled the manner in which whether defendant by plaintiff; was done work Fifth, by plaintiff paid whether the on a time basis or ” job.’ Rosa, Ill. App. De 3d at 74-75. proffered De The Rosa court held that instruction was singling unduly emphasized particular by matters improper because addition, ignoring them out and other factors. In the instruction did Further, that the mentioned were not conclusive. state factors merely right to the to control referring instruction[ ] “the erred in right details, and method and not to the to control the manner Rosa, Ill. which the was to be De at 76. work done.” of tendered instructions is determining propriety “The test comprehensively informed as to jury fairly, fully, whether the entirety.” in their considering the instructions principles, relevant Chicago, 168 Loyola University Leonardi v. comprehen Here, proffered fully instruction would have prof The sively principles of the law. informed the of the relevant far the law and is more completely fered instruction misstates in De Under these objectionable the instruction Rosa. than offered *12 circumstances, we find of failing no abuse discretion in grant the instruction.
3. Primary Assumption Tendered of Risk Instruction Defendants next contend that the trial court abused its discre by refusing tion to instruct the on the affirmative defense of primary assumption Although of risk. primary assumption of risk is a defense, complete applies it only [to where “the risk harm of the plaintiff] by is created the in defendant but is inherent the activity plaintiff agreed which the has plaintiff regarded to undertake. The tacitly impliedly as or agreeing to take his own chances such as where accepts he employment knowing that is expected he work a Clark Rogers, v. dangerous horse.” App. Heideman, Vanderlei
In Ill. App. (1980), 162-63 the supreme court set forth the of basis the defense: an employment
“In setting has been stated that defense of assumption may interposed of risk be ‘where the risk was so obvi ordinarily prudent ous that an person under the circumstances (Johnson v. Scandrett appreciated would have observed and it.’ 201.) (1938), sense, 296 Ill. simplest primary ‘In its assumption advance, given of risk means in plaintiff, that has his consent of obligation to relieve defendant an of conduct him, injury toward and to take his a chances from known risk arising from (Prosser, what the defendant is to do or leave undone.’ *** (4th 1971).) Torts 440 ed. theory It is based that a plaintiff ‘will not be heard to he complain of risk which has voluntarily, brought encountered upon or himself with full (4th knowledge and appreciation danger.’ (Prosser, Torts 523 1971). Instructions, Civil, ed. also Jury See Illinois Pattern No. *** (2d 1971).) applied 13.01 ed. The doctrine has persons been by being professionals who reason are held to bear the risks of Thus, jockey their profession. single hired to ride in a race was injury by held to have assumed risk caused a fall that Vanderlei, race.” 3d at 162-63. voluntarily
We find no that evidence assumed the risk. dangerous Defendants created condition and there was no inher- ent hazard Jim previously in Steve’s work. removed the barricade floor, over the hole and he told that he care of would take having work, began relying the hole or covered barricaded. Steve covering Furthermore, on Jim to take barricading care the hole. responsible safety Jim admitted that he of the workers at site; knew that workers could be distracted while working; unprotected dangerous were and that an hole be a would condition. do find We the trial court abused its discretion assump- primary instruction on grant defendants an refusing to tion of risk defense. Errors
4. Trial Court when fair trial they were denied a last contend Defendants (a) Yotz, Ken testimony of: erroneously allowed the trial court Rainbow safety expert, that Steve worked plaintiffs’ (b) at- accident; Adams, defendants’ John (c) United; employee of torney, was not an that Steve coverage suspended that United’s *13 misrepresentations. because of Jim’s USLIC Ken Yotz Testimony A. of Yotz’s prejudice resulted from contend that unfair Defendants United, Rainbow, not because for testimony that Steve worked expert testimony.” of beyond the bounds “went testimony, the trial deciding expert opinion “In whether to admit jury aid the in testimony court must would consider whether 137, Gaytan, v. Ill. 3d 146 understanding the facts.” Soto App. 313 (2000). include the general, In the factors a trial court will consider involved, opinion for purpose of “the which the complexity subject determined, and the offered, its to the ultimate issue to be relation Heights, 295 Ill. City Chicago Wade v. danger prejudice.” of undue of (1998). 873, testify on App. expert The “decision to allow an to 3d Burns opinion the trial court.” matters of lies within the discretion of (1992). Michelotti, an v. 3d We will reverse App. ruling prejudicial or the result erroneous unless error was v. Chapman, affected. Stricklin materially App. 197 Ill. 3d trial was (1990). 385, 388 its in
We do not find that the trial court abused discretion allow ing testify to to whether he believed that Steve Yotz worked expert may generally An witness Rainbow on the accident. in a The test for express opinion an as to the ultimate issue case. an ultimate issue is whether expert’s opinion whether to admit on the aid of fact to understand the evidence opinion that will the trier Danz, determine 314-15 issue. Nika in 199 Ill. fact (1990). workplace case, in safety In Yotz’s hazards expertise this covering understanding responsible in jury was assisted who Moreover, already presented been he tied those facts that hole. knowledge way in the construction expertise to the to his and employee and vis-a-vis relationship employer run between sites are trial court al construction-safety in note also that the context. We offered, part, response in to opinion it was lowed Yotz’s because controlling employer. opinion United was the expert’s defendants’ B. Testimony John Adams Defendants next contend that were by denied fair trial the trial overruling court’s objections their testimony to Adams’ Steve was not employee United’s the trial court’s denial of their motion in limine to bar testimony. Adams was United’s at torney before the Industrial regarding Commission involving matters injuries. Steve’s accident and attorney, As United’s responded by attorney letter to Steve’s and denied that employer. Steve’s Adams testified at trial regarding complain this letter. Defendants now that Adams was not deny authorized to that Steve was United’s employee; testimony that his by United; a factual admission and that he was authority without to the attorney-client waive privilege.
“[A] agent, statement of an when made in the exercise of his du ties pertaining matters scope authority, within the may binding constitute admission principal which can be substantively against Botti, introduced principal.” Werner v. Mari DeSalvo, naceio & The trial court al evidence, lowed Adams’ be subject statement admitted into to cross- examination. The statement was made in exercise of Adams’ duties pertained scope authority. matters within of his Accord ingly, we find allowing no abuse discretion testify Adams to regarding his employee statement that Steve was not United’s and in denying testimony. defendants’ motion limine to bar that
C. Testimony of Plaintiffs last Defendants contend that were a denied fair trial because the trial court testimony by allowed plaintiffs that Steve’s compensation suspended. benefits were Defendants contend “[ajdmission testimony that suspension comp of on the of benefits and speculation the it probative about was abuse of discretion when the value, if any, is measured unfair prejudice.” argument.
We find that defendants have waived their Defense object counsel did testimony to Kristi’s that Steve’s workers’ compensation attorney told attorney plaintiffs and the for Rainbow sign should his the affidavit or suspended, only ground benefits be would but defendants parties Moreover, were not the then to conversation. defense counsel expressly telling for limiting asked the court instruction by that defendants bound Defendants’ were not that conversation. specific objection to the admission of evidence waives their current (1997) 378, argument. Bowen, 3d People See v. 289 Ill. 386 asserted). (specific objection grounds “the Additionally, waives all
907 at the testimony object to certain timely specifically failure review.” Rice objection purposes of presented is waives the time it (1991). Further, Bank, 213 790, 798 v. Merchants National instruction, cannot limiting he for a defense counsel asked because See Auton inadequate to cure the error. argue that the instruction was (a (1984) Inc., party cannot Landfill, 537, Ill. 2d 543 Logan v. consented). of error to which complain court circuit reasons, order we affirm the foregoing
For County. of Lake
Affirmed.
McLAREN, J., concurs. RAPALA, dissenting:
JUSTICE my In availed himself of the respectfully opinion, I dissent. for and Compensation applied of the Act when benefits Workers’ Therefore, exclusivity I benefits from United. believe that received (820 305/5(a) (West 2000)) bars provision of the Act ILCS I suing negligence. Consequently, in would from common-law court. reverse the circuit 5(a) provides pertinent part of the Act as follows: Section “(a) statutory right damages or recover No common law broker, insurer, organization employer, any his service his by employer, provide safety retained his insurer or his broker to service, employer agents or advice or recommendations for the any by any injury of them for or death sustained employees or duty employee, employee engaged while the line of his as such provided, any herein is available to other than the Act, any one provisions is of this employee who covered him, legal representatives wholly partially dependent upon or estate, any damages one otherwise entitled to recover (West 305/5(a) 2000). injury.” such 820 ILCS long recovery has double supreme position Our court taken suit Act a common-law tort benefits under the v. (1983); prohibited. Fregeau Gillespie, Rhodes 96 Ill. 2d Wagner Comm’n, Collier v. Cast (1982); Industrial Co., ings exclusivity Application Ill. 2d the claimant actu provision hinge of the Act does not on whether for and ac applied claimant ally employee, but on whether *15 Community Fire Protec under the Act. Wren v. Reddick cepted benefits District, tion “[Ajpplying for App. 337 Ill. nonemployee does not transform a accepting benefits under the Act Wren, employee.” into an App. “Instead, 337 Ill. 267. at it as a acts form of estoppel, denying plaintiff a who has availed herself of the benefits of the Act from asserting thereafter that she falls outside its Wren, reach.” Consequently, 3d at 267. the relevant inquiry disposition appeal of this is whether applied Steve for and accepted United, benefits under the from Act not whether Steve was United’s employee. or Rainbow’s injured
Steve was February 4, 1999, on 1999. May On he filed a claim against United. Steve thereafter received benefits from May United until 2000. Steve steps took additional affirmative in the Commission to ensure that Act, continued to benefits pay to him under the which evinced his a remedy choice elect under Act. admittedly Steve dismissed his workers’ against claim Rainbow because someone told him dispute that United its obligation pay would to continue to asserting benefits where Steve was his employer. Rainbow was As result, finding the arbitrator made a that Rainbow was Steve’s employer. Ultimately, payment USLIC terminated its of benefits to Steve because James misrepresentations Fassbinder made material application and at audit. insurance
The majority states that “United denied that it was Steve’s employer on the date of the stopped accident and USLIC the benefits on this basis.” 372 Ill. 3d at 899. To the contrary, dispute over continued payment benefits USLIC and between Fassbinder did not legal address employer. United’s status as Steve’s USLIC filed declaratory sought suit federal court that to rescind its policy misrepresentations because ap of Fassbinder’s material plication point stopped, for insurance. At the benefits were USLIC was disputing coverage its duty on that basis. stopped paying simultaneously
USLIC the benefits almost with against dismissal of his Steve’s claim Rainbow. When he dismissed the Rainbow, against claim did not know that USLIC had made the decision terminate payment benefits. It was after USLIC’s deci- stop benefits, payment sion to finding and after the arbitrator’s employer, position that Rainbow was not the that Adams took the the Commission that United This employer. position Steve’s premise that, employer, was based on the if Rainbow was not Steve’s then United could not have from Up borrowed Steve Rainbow. until Rainbow, saying Steve dismissed his claim Rainbow was not dispute employer, United did not under the covered Therefore, disagree majority Act. I that United has taken positions preclude claiming protection inconsistent exclusivity provision. *16 compensation filed for workers’ that Steve majority The concedes I this conces believe that United and received them. against benefits the motion denying orders of the trial court’s requires sion a reversal is This case and the for n.o.v. for a directed verdict motion Industries, Inc., App. 282 Ill. 3d 540 Zurowska v. Berlin analogous to (1996). her when Zurowska, injured while plaintiff In was Zurowska, Ill. 3d at App. machine. 282 got caught strapping hand in a Commission, and she also ac in filed a claim the Industrial 541. She disability as as medical benefits benefits well cepted temporary total Subsequently, she Zurowska, at 541-42. App. 282 Ill. 3d under the Act. tort. alleging an intentional against employer, her filed a lawsuit accept and filing for Zurowska, Ill. 3d at 545. She admitted App. 282 her benefits, argued she but ing the workers’ dismissal, the benefits she received subject because lawsuit was not Zurowska, 3d App. Ill. at voluntarily by employer. her 282 paid were suit, in Fre holding upon The court dismissed her based 543. trial Zurowska, appellate Ill. The court affirmed geau. App. 282 3d at 541. Commission, filing of the claim with Industrial held that Act, a constituted coupled receipt with the of under Zurowska, Ill. App. appellate a action. at 544. The bar to tort 282 3d claim, that, plaintiff if all the had done file her her court stated Zurowska, App. Ill. 3d at 544. lawsuit would not be barred. 282 “However, disability accepted temporary payments she also total Zurowska, at evinced pursuant App. to the Act.” 282 Ill. 3d 544. This actively pursued Act she a proceed her election to under the because Zurowska, Ill. 3d at remedy App. in the Industrial Commission. 544. He case, in did. filed plaintiff
In this did what the Zurowska adjustment against an of claim application benefits, approximately year’s he a worth received following filing of that claim. temporary disability total benefits reached a final settle- majority The notes that Steve and United never Commission, nor make an award. ment did Commission plaintiff’s This lawsuit consequence, is of no because Zurowska disability temporary total benefits and accepted was barred where she did not reach final settlement. to Steve payments
The United’s benefits majority characterizes “voluntary” excepting “voluntary.” concept payments as The Il Act plaintiff exclusivity provision Copass from the arose Co., Copass, plaintiffs Ill. In App. Power 3d 205 linois gas pipeline. working on Illinois Power husband was killed while accident, Il days Ill. Three after the Copass, App. at 207-08. entitled to receive plaintiff informed the that she was linois Power Act, benefits under the paid. which Illinois Copass, Power 211 Ill. 3d at 209. The plaintiff filed a compensation claim, never claim, executed a written settlement “or any [took] otherwise af firmative action before the Industrial Copass, Commission.” App. 3d at circumstances, 209. Under those appellate court labeled Illinois payments Power’s as voluntary and held that the common-law suit was not barred. Copass, at 211.
Copass distinguishable from our Approximately case. three months after his Steve filed for workers’ compensation against benefits what, United. While it any, is not clear if benefits he prior claim, filing received his paid it is clear he accepted benefits for 12 months after he filed his claim. It is also clear that steps Steve took additional affirmative in the Commission to assure ongoing receipt of benefits against when dismissed his claim purpose Rainbow for the admitted pursuing his claim *17 Steve, therefore, United. express took the position injury that his was compensable accepted benefits, under barring the Act and thereby recovery him in Copass, tort. See at App. 3d 210. At the trial, time taking position of Steve was still injury that his was compensable under the Act. He tried to reinstate his claim Commission, in Rainbow the and that case was still in pending Commission. engaging Fregeau
Instead of
in a
analysis, which would lead to the
Zurowska,
result I reach under
the majority
exclusivity
holds that the
provision of the
is inapplicable
Act
under
&Bell Zoller Coal
Laffoon
Co.,
Thus,
liability
pay
general
in
contractors’
to
Laffoon, the
employers
immediate
were
statutorily
plaintiffs’
tion
arose where the
situation,
benefits
paid
contractors
In that
insured.
where
1(a)(3)
Act,
that the
supreme
court held
our
pursuant
section
suing
general contractors
from also
plaintiffs were not barred
supreme
at
Our
Laffoon,
Act.
444.
under the Structural Work
1(a)(3) would
any
interpretation of section
court concluded that
other
upon
in the
of an unconstitutional classification based
result
creation
arbitrary
employer carried insur
circumstance of whose immediate
injured
Laffoon,
I National believe that the First District’s decision also (2004), Inc., which construed Systems, Restoration 5(a) I do majority, wrongly decided. way the same as the section Gray. partial it. I with the dissent agree not think we should follow reasons, I foregoing For the would reverse County. circuit court of Lake