Diaz v. Legat Architects, Inc. - Corrected 12/23/09

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 1st District Appellate » 2009 » Diaz v. Legat Architects, Inc. - Corrected 12/23/09

State: Illinois

Court: 1st District Appellate

Docket No: 1-08-3622 & 1-08-3635

Case Date: 12/14/2009

Preview:FIRST DIVISION Date Filed: December 14, 2009 Nos. 1-08-3622 & 1-08-3635 Cons. JOSE DIAZ and MARIA DIAZ, Plaintiffs-Appellees and Cross-Appellants, v. LEGAT ARCHITECTS, INC., a Corporation, and THE DURANT COMPANY, a Corporation, Defendants (Boller Construction Company, Inc., a Corporation, Defendant-Appellant and Cross-Appellee and Third-Party PlaintiffAppellant; Larmco Construction Company, Third-Party DefendantAppellee and CrossAppellant). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

No. 04 L 2874

Honorable Clare Elizabeth McWilliams, Judge Presiding.

PRESIDING JUSTICE HALL delivered the opinion of the court: The plaintiffs, Jose Diaz, and his wife, Maria Diaz, filed a complaint against defendant Boller Construction Company, Inc. (Boller), for personal injuries he sustained while working on a construction site. Boller filed a third-party complaint against

Mr. Diaz's employer, Larmco Construction Company (Larmco), seeking contribution pursuant to the Joint Tortfeasor Contribution Act (740 ILCS 100/1 et seq. (West 2004)). The jury

Nos. 1-08-3622 & 3635 Cons. returned a verdict for the plaintiffs and against Boller. The

jury also returned a verdict for Boller and against Larmco in the third-party suit. After reducing the award by the percentage of

Mr. Diaz's negligence, the jury awarded Mr. Diaz $1,246,875 and awarded Mrs. Diaz $50,000 for loss of consortium. Following the filing of posttrial motions, the trial court ordered a remittitur of the jury award based on the improper admission at trial of future medical costs. The trial court

denied the plaintiffs' request to adjudicate Larmco's workers' compensation lien and granted Larmco's motion to dismiss Boller's third-party complaint for contribution. After allowing other

setoffs and credits, not at issue in this case, Mr. Diaz's award was reduced to $1,029,270.06, and Mrs. Diaz's award was reduced to $47,500, resulting in a total award of $1,076,770.06. Both Boller and the plaintiffs have appealed from the judgment in this case. cross-appeals. The plaintiffs and Larmco have also filed

This court ordered the consolidation of the

plaintiffs' and Boller's appeals and the cross-appeals for purposes of review and decision.1
1

In its cross-appeal, Larmco requested that the plaintiffs' In the

appeal and cross-appeal and Boller's appeal be denied.

alternative, Larmco requested a judgment n.o.v. be entered in its favor on Boller's third-party complaint or that it be granted a 2

Nos. 1-08-3622 & 3635 Cons. Boller raises the following issues on appeal: (1) whether Boller's motion for a directed verdict should have been granted or a judgment n.o.v. entered; (2) whether the trial court erred in instructing the jury with the pattern construction negligence instructions; (3) whether trial court errors require a new trial, either individually or cumulatively; and (4) whether the trial court erred in granting Larmco's motion to dismiss Boller's third-party complaint. In their appeal, the plaintiffs contend

that the trial court erred in denying their motion to adjudicate Larmco's workers' compensation lien. In their cross-appeal, the

plaintiffs contend that the trial court erred in granting the remittitur. Due to the length of the record in this case, we

will limit our recitation of the facts to the trial testimony pertinent to the issues raised on appeal. BACKGROUND Boller performs general construction and concrete work. was one of 17 "prime" contractors hired to perform work on the Highland Park High School project (the project). Thereafter, It

Boller entered into a contract with Larmco to perform the masonry work on the project. I. Trial Court Proceedings A. Liability Testimony

new trial. 3

Nos. 1-08-3622 & 3635 Cons. In March 2002, Mr. Diaz was 53 years of age, and he was working on the project for Larmco as a laborer. As part of his Larmco used

duties he would assist in the building of scaffolds. two kinds of scaffolds, either Non-Stops or Morgans.

On March 19, 2002, Mr. Diaz and the other laborers were working on a Non-Stop scaffold. extension on the scaffold. A laborer named "Al"2 put an

Mr. Diaz explained that, when an

extension was added to a scaffold, it was necessary to put up two cross braces. A second extension required two more cross braces Al told Mr. Diaz that he was

and a straight brace at the top.

only using one cross brace because there was not a lot of material. In the afternoon, Mr. Diaz was working on the scaffolding with other laborers. There were two types of planks on the

scaffold; one for materials, such as bricks and mortar, and one used for walking. While he was walking across the scaffold, a

pile of bricks on the material plank broke open and fell on the bricklayers' plank. Mr. Diaz went back to remove the bricks so When he stepped He briefly

that the bricklayers would not trip over them. on the material plank, it gave way, and he fell.
2

"Al" was never identified, although it was suggested that However, Mr. Allen was the

Mr. Diaz was referring to Mr. Allen. foreman, not a laborer. 4

Nos. 1-08-3622 & 3635 Cons. lost consciousness. After he regained consciousness, he was He remained in the hospital over

transported to the hospital.

night and was released the next day. On cross-examination, Mr. Diaz denied complaining to Al that there was a problem with the scaffold. However, he acknowledged

that he felt there was something wrong when Al was putting up the extensions and told him he was going to put up only a single brace. Mr. Diaz considered the scaffold safe. Mr. Diaz took all He did not take

of his instructions from Ed Allen from Larmco. any instructions from anyone from Boller. warning not to step on the plank. Allen about the scaffold.

He did not hear any

He never complained to Mr.

He did not know whether the lack of

the braces caused his accident. Miguel Diaz (Miguel)3 testified that he was employed by Larmco as a laborer and was working with Mr. Diaz on March 19, 2002. One of the material planks holding bricks fell. "Maris,"

one of the bricklayers, told them to be careful.

Mr. Diaz

grabbed on to the tower portion of the scaffolding and stepped on the plank. The plank fell with Mr. Diaz on top of it.

According to Miguel, the laborers took their instructions for extending the scaffold and as to safety issues from Mr. Allen.
3

Miguel did not notice anything unusual about the scaffold

No relation to the plaintiffs. 5

Nos. 1-08-3622 & 3635 Cons. prior to the accident. position of the planks. He did not pay any attention to the Miguel and Mr. Diaz cranked the scaffold

up to about 15 or 20 feet. Miroslaw Kundzicz testified that he was employed as a laborer by Larmco. On March 19, 2002, just prior to Mr. Diaz's

fall, Mr. Kundzicz was standing on one of the walking planks and noticed that one of the material planks was not completely on the angle iron where it normally rested. was resting on the angle iron. About an inch of the plank

Mr. Kundzicz told the laborers

nearby that the plank was not positioned correctly and warned them to be careful; he thought Miguel was behind him and would have heard the warning. After turning back to his work, he heard He noticed that the

the bricks fall to the walking platform.

Boller superintendent was always walking around the project. On cross-examination by Boller, Mr. Kundzicz testified that he took all of his orders from Mr. Allen. directions from Boller. planks. He took no orders or

The planks that fell were material He was

Material planks are not intended for walking.

not sure what Mr. Diaz was walking on when he fell.

The only He

planks that moved prior to the fall were material planks.

told the laborers that there was something wrong with the planks because it was their job to fix it. Francisco Gutierrez testified that he was employed as a

6

Nos. 1-08-3622 & 3635 Cons. machine operator by Larmco. Prior to that, he had been a laborer

and had assisted in assembling Non-Stop scaffolds and adding extensions to them. On March 19, 2002, he was operating a crane, After he saw Mr. Diaz

lifting up bricks to the scaffolding.

fall, he stopped the crane and went over to where Mr. Diaz was on the ground. He observed a plank on the ground. When he looked

up at the scaffold, two planks were missing.

Based on his

experience, a straight brace would be placed at the top of the scaffold. On cross-examination by Boller, Mr. Gutierrez testified that Mr. Allen directed how the scaffold was to be built. Mr.

Gutierrez had not been trained to assemble that type of scaffold, but he had assembled them. He had also done pipe scaffolding but Mr. Allen would be

that was different from a Non-Stop scaffold.

the appropriate person to decide where and when straight braces should be put on the scaffold. Mr. Allen was his foreman; all Mr. Gutierrez had no

the directions and orders came from him. dealings with Boller.

Larmco employees were the only ones to He did not know what caused the After Mr. Diaz fell, Mr. On

erect and maintain the scaffold.

planks to fall or why Mr. Diaz fell.

Gutierrez looked up and saw the straight brace was missing.

redirect examination, Mr. Gutierrez testified that, at the height of the scaffold in this case, when no cross braces are used, a

7

Nos. 1-08-3622 & 3635 Cons. straight brace is placed at the bottom and the top of the scaffold. Edward Allen, field superintendent for Larmco, testified as an adverse witness. As a field superintendent, he was in charge He had taken an OSHA4 course in

of projects for Larmco. scaffolding.

At the time of Mr. Diaz's accident, he was a

foreman but was still in charge of supervising the Larmco workers on the project. OSHA required scaffolds to be built under the According to There

direction and supervision of a competent person.

Mr. Allen, he was considered a competent scaffold person.

were scaffold builders but, as the foreman, he was responsible for making sure that the scaffolds were erected correctly. The day following Mr. Diaz's fall, Mr. Allen inspected the site of the accident in compliance with Larmco's safety manual. In his report of the accident, he noted that two material planks had fallen off the scaffold, one of which fell when Mr. Diaz stepped on it. Mr. Allen acknowledged that there was no straight

arm brace at the top of the scaffold but explained that the NonStop scaffold used here did not require it. He acknowledged

that, at his deposition, he stated that the straight arm brace was to be placed between the two cross braces. During his

inspection of the scaffold, he observed that five other straight
4

Occupational Safety and Health Act (29 U.S.C.

Download Diaz v. Legat Architects, Inc. - Corrected 12/23/09.pdf