Grillo v. Yeager Construction

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-2335 Rel

Case Date: 12/31/2008

Preview:THIRD DIVISION December 31, 2008

No. 1-07-2335

ANTHONY GRILLO, Plaintiff-Appellee, v. YEAGER CONSTRUCTION, Defendant-Appellant

(Rubina Shakir and Solhail Shakir, a/k/a Sam Shakir, Defendants-Appellees).

) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Appeal from the Circuit Court of Cook County.

Honorables William J. Haddad, Jeffrey Lawrence, Judges Presiding.

JUSTICE QUINN delivered the opinion of the court: Plaintiff, Anthony Grillo suffered injuries when he fell from scaffolding while performing masonry work on the construction of a new house for Sohail (a/k/a Sam) and Rubina Shakir in Northbrook, Illinois. Plaintiff filed a complaint at law against the Shakirs and defendant, Yeager Construction, alleging common-law negligence. In his complaint, plaintiff alleged that defendant was the general contractor of the construction site and that David Yeager was an employee or agent of defendant. Prior to trial, the circuit court granted summary judgment in favor of the

1-07-2335 Shakirs and also dismissed defendant's contribution counterclaim against the Shakirs. Following a trial, the jury returned a verdict in favor of plaintiff and assessed plaintiff's damages at $1,834,496. On appeal, defendant contends that: (1) the circuit court erred in denying its motion for judgment notwithstanding the verdict (judgment n.o.v.) where plaintiff failed to establish a prima facie case of negligence; (2) defendant is entitled to a new trial due to various errors committed by the circuit court; and (3) the circuit court erred in entering summary judgment for the Shakirs on defendant's contribution counterclaim against them. For the following reasons, we affirm. I. Background At trial, plaintiff testified that he had over 30 years of masonry experience. Plaintiff testified that he first learned of the Shakir residential construction project in August 2001, when he received a telephone call from David Yeager at Yeager Construction. Plaintiff testified that he met with David at the construction site in Northbrook, Illinois, to negotiate a price for masonry work. Plaintiff met with David on his first and second visits to the construction site, and they orally agreed to a contract price during plaintiff's third visit to the site. Plaintiff testified that he asked David, "Who is going to pay me?" and "[W]ho is guaranteeing the money?" Plaintiff testified that David replied, "[N]ot me. Yeager Construction." Plaintiff testified that he saw vehicles with the Yeager Construction logo at the construction site. Plaintiff testified that to get paid, he submitted his invoices to David, but he received checks from the Shakirs. Plaintiff testified that his work at the construction site included building chimneys and all of the brick around the outside of the house. David informed plaintiff that the house was to be

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1-07-2335 completed before Christmas and plaintiff testified that he was going to be able to complete his work on time if the general contractor made sure he was paid and made sure all of the backfill on the site was done before plaintiff performed his outside masonry work. Plaintiff explained that backfilling entailed placing dirt back around the foundation, nearly level with the ground, after the foundation was built. Plaintiff testified that backfilling is important for the building of scaffolding and the safety of masons and everyone else at the construction site. Plaintiff testified that he started with two employees on the construction site, which increased to seven employees in order to complete the work by winter. Plaintiff also testified that his employees built the scaffold and he supervised them. Plaintiff testified that he spoke with David about open holes and trenches on the construction site and asked David to backfill from "day one" and every day thereafter for two months. Toward the end of October 2001, plaintiff and his employees finished all of the groundlevel brick work and needed to use a scaffold to work up higher on the house. Plaintiff was laying bricks and supervised his employees as they built the scaffold. Plaintiff testified that he owned or rented the scaffolding and no one, including David, told him how to erect the scaffold. Plaintiff testified that sometimes he would be told to stop what he was doing and to start working on something else. Plaintiff testified that he observed the ground conditions at the time the scaffold was erected. Plaintiff observed that the back two legs of the scaffold were placed on cinder blocks due to the open holes at the construction site. Plaintiff testified that he is familiar with Occupational Safety and Health Administration (OSHA) regulations and that setting up a scaffold on cinder blocks violated OSHA regulations and construction industry custom and practice.

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1-07-2335 Plaintiff testified that after the scaffold was erected, the job was stopped for a week. Plaintiff testified that he would not be allowed on the site during that time and decided to address the scaffold issue when he returned. On October 29, 2001, plaintiff returned to the construction site and told his employees that he did not like the way the scaffold was erected because the scaffold was partially on cinder blocks and the scaffold was not complete without guardrails. Plaintiff testified that David was having a meeting in front of the house, and plaintiff made a "smart remark" to him by "thanking" him for the backfilling that had not been done. Plaintiff testified that he made the sarcastic comment because he had been asking David to backfill the house since the start of the job, but had been "ignored over and over and over and over." Plaintiff testified that David responded by calling him a "whiner" and walked away to his meeting. Plaintiff testified that he intended to speak with David again about the backfilling after David's meeting. Plaintiff testified that he was under pressure to complete his work, so he decided to climb the scaffold to take window measurements in order to proceed with his next phase of work. Plaintiff testified that he climbed the scaffold, about 12 feet off the ground, with just a tape measure on his belt. Plaintiff testified that the scaffold suddenly tipped upside town and he fell into an open hole, landing next to an exposed pipe inside of the hole. Plaintiff testified that after his fall, he saw that the scaffold was at an angle and no longer supported by the cinder blocks. Plaintiff testified that he was taken by ambulance to the hospital, where he had back surgery and stayed for approximately three weeks. Plaintiff testified that after a year of rehabilitation, he was able to walk on his own. Plaintiff also testified that he continues to have

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1-07-2335 tremendous pain and suffers from personality changes and nausea from the narcotic pain relievers he must take. Dr. Jerry Bauer testified that he is a board-certified physician specializing in neurosurgery. Dr. Bauer treated plaintiff in the emergency room on October 31, 2001, and shortly thereafter performed surgery to relieve pressure on plaintiff's spinal cord. Dr. Bauer testified that plaintiff's surgery left him with permanent metal screws and plates in his lower spine, and permanent disability. Dr. Bauer testified that over time, plaintiff will likely develop additional degenerative changes above and below the fused area in his spine. Dr. Bauer testified that he observed that plaintiff had recovered from his initial spinal cord injury. Dr. Bauer also testified that plaintiff was being treated with narcotics, which would preclude him from working. Dr. Victoria Santucci

testified via an evidence deposition, over defendant's objection that the subjects of her testimony had not been disclosed before her evidence deposition was taken. Dr. Santucci testified that she is employed by Advanced Pain Centers, which focuses on pain management. Dr. Santucci first examined plaintiff for back pain on March 11, 2004. Based on her examination, Dr. Santucci attributed plaintiff's pain to his fall from the scaffolding and concluded that his injury is permanent. Scott Yeager testified that he is the owner and president of Yeager Construction. Scott testified that Yeager Construction was not the general contractor on the construction site. Scott testified that Yeager Construction did not enter into a subcontract with plaintiff to perform work at the construction site and Yeager Construction did not pay plaintiff for the work that he performed. Scott testified that in 2001, his brother David was not an employee or on the payroll

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1-07-2335 of Yeager Construction. Scott testified that Yeager Construction prepared various invoices on Yeager Construction letterhead, which indicated it was general contractor, for David because David did not have a computer. Scott testified that he assisted the Shakirs in obtaining a bank loan to fund their house construction by signing a form saying Yeager Construction was the general contractor, but maintained that all of the money went to the Shakirs rather than Yeager Construction. Scott testified that he only visited the construction site twice, but David kept him apprised of the progress on the construction site. Scott also testified about the role of a general contractor. Scott admitted that a general contractor has both the ability and responsibility to correct safety hazards at the construction site. Scott testified that a mason would not do backfilling, which is performed with a backhoe that is not part of a mason's equipment. Scott testified that backfilling is important because it is unsafe for workers to work on unlevel ground or around safety hazards such as open trenches or holes in the ground. Scott testified that he did not think that a backhoe was brought to the construction site by Yeager Construction. Scott testified that even if another subcontractor performed the backfilling, it is still the general contractor's duty to make sure that the backhoe is used so that there are no safety hazards at the jobsite. Scott acknowledged that it is the responsibility of the general contractor to routinely inspect the construction site. Scott testified that if a representative of a general contractor allows work to continue on a jobsite where scaffold is improperly supported, that general contractor is negligent. Scott also identified several documents relevant to this case. First, Scott identified plaintiff's exhibit 10, a document entitled "Firstar Home Mortgage Builder Approval Checklist,"

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1-07-2335 which identified Yeager Construction as the builder. Second, Scott identified plaintiff's exhibit 12, as a schedule and outline that he created for the building of the Shakirs' residence. The schedule and outline listed "Yeager Construction project management costs," which included that David, as superintendent, would receive $5,000 a month for project management and job supervision; an additional $2,000 a month for mobile phone costs, traveling fuel, administrative costs, and temporary housing; and a note that David would sell his full-sized truck and purchase a mini-truck to decrease fuel costs. The schedule and outline also included tasks that Scott testified were tasks done by a general manager, such as acquiring subcontractor bids, procuring contracts for subcontractors, scheduling and organizing subcontractors and quality control on the project. Scott agreed that the document showed that "David was acting as the superintendent and the representative of Yeager Construction." Third, Scott identified three invoices, plaintiff's exhibits 13, 14, and 15, for work done on the Shakirs' residence by David. These invoices bear the Yeager Construction logo with the words "general contractors." Fourth, Scott identified a document entitled "Notes from Scott and Engineer," plaintiff's exhibit 19, which was a document that he created in his own handwriting. In this document, Scott made a number of design suggestions to the Shakirs, such as raising the roof line and resizing a steel beam, and gave advice on structural and cost considerations. Scott testified that he personally went through all of those things and made the recommendations in the document. Fifth, Scott identified plaintiff's exhibit 29, as a letter to the Shakirs' architect, Pete Holsman, that Scott wrote and signed on Yeager Construction letterhead. Scott's letter conveyed

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1-07-2335 the Shakirs' desired design changes directly to the architect, without any involvement by David. Sixth, Scott identified documents entitled "Residential Construction Loan Procedures," plaintiff's exhibits 7, 8, 9, and 11. Scott testified that he signed these documents to secure a construction loan for the Shakirs' residence. Scott acknowledged that he signed the bank documents on October 5, 2001, approximately three weeks prior to plaintiff's injury, and wrote "contractor" next to his name. Scott testified that although he signed the document as the general contractor for the bank, he was not the general contractor. Scott also testified that when he signed the document, he wanted the bank to rely on his representation that he was the general contractor and the bank thought that he was the contractor. Seventh, Scott identified a document entitled "Certificate of Insurance," plaintiff's exhibit 16. In this document, Yeager Construction is named as the insured on the Shakir construction project. Finally, Scott identified a document entitled "AIA-101," plaintiff's exhibits 21 through 26, which is a standard form agreement between an owner and contractor, issued by the American Institute of Architects. Scott testified that he created the AIA-101 contract used in this case by copying an AIA form that he purchased at a bookstore and adding his company's information. The contract, which Scott signed, identified Yeager Construction as the contractor and David as the "[c]ontractor's representative." The contract also states that "AIA Document 201, General Conditions of the Contract for Construction," is adopted by reference. Scott testified that he was not familiar with AIA-201 reflecting industry standards dealing with safety. The AIA-101 contract between defendant and the Shakirs included several provisions

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1-07-2335 related to control over the work and safety at the construction sire. Article 3 of the contract provided, inter alia, that the "Contractor shall be responsible to determine the procedures of construction, and to provide safe and adequate scaffolding, ladders, stages, hoists, temporary supports and other facilities or methods as he may determine are required for safety and for the execution and completion of the Work." Article 3 also provided that the "Contractor shall supervise and direct the Work, using the Contractor['s] best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract." Article 10 provided that the "Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract." Article 10 also stated that the "Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing to the Owner and Architect." David Yeager testified that Scott introduced him to the Shakirs, who needed to have a house built. David testified that Rubina Shakir was the general contractor for the Shakirs' house construction project. David testified that he was hired by the Shakirs through an oral agreement to act as a consultant for their house construction project. David testified that the Shakirs paid him a monthly salary plus expenses, such as a hotel room, gas and mileage, and phone bills. In return, David assisted the Shakirs in hiring plumbers, heating, ventilating and air conditioning (HVAC) contractors, roofers, carpenters, foundation contractors and excavators. David also

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1-07-2335 filled in the blanks on applications for building permits for the Shakirs. David testified that Yeager Construction did not control the work activities at the construction site. David testified that he reported to the Shakirs and was paid by the Shakirs. David admitted that at the time of the trial he was an employee of Yeager Construction, but testified that he never told plaintiff that he worked for Yeager Construction. David testified that plaintiff met with him and the Shakirs and the Shakirs made the final decision to hire plaintiff. David testified that he did not erect or supervise the erection of plaintiff's scaffold. David testified that plaintiff never asked him to backfill, because "[i]t was already backfilled." David also denied calling plaintiff a "whiner." David testified that he was not present when plaintiff fell off the scaffold, because he was having a meeting inside the house with the Shakirs. David testified that he is not trained in erecting scaffolding or safety, and is not familiar with OSHA regulations. David also testified that he oversaw the subcontractors and their work when he was at the construction site. David used a truck with the name "Yeager Construction" on it. David testified that Scott paid for his cellular phone bill and David used Scott's credit card to pay for expenses before being reimbursed by the Shakirs. David printed invoices to the Shakirs for his services and expenses on Yeager Construction letterhead. David also testified that he told suppliers that he was from Yeager Construction and expected them to rely on that so that the suppliers would give the Shakirs a lower price. Sam Shakir testified that he owned four gas stations in Indiana that were built by Yeager Construction. Sam testified that Scott Yeager and his brothers ran Yeager Construction, which

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1-07-2335 was also the general contractor that he used to build his house in Northbrook, Illinois. Sam testified that during the planning stages, Scott and David visited his house several times. Sam testified that Scott told him that David worked for Yeager Construction and David would supervise the construction project. Sam testified that Scott arranged for the construction project to be insured through an agency in Indiana, where Scott lived and Yeager Construction was located. Scott also told Sam that he would obtain the necessary building permits for the construction project and David took care of the whole process because the Shakirs "didn't have a clue." Sam testified that David advised Rubina to list her name on Village of Northbrook documents as the general contractor because Yeager Construction did not have an Illinois license. Sam testified that Rubina has no experience running construction sites, including no experience with masonry, plumbing, excavation or concrete. Sam testified that Rubina was not the general contractor on the construction site and only signed the Village of Northbrook documents because Scott and David told her to do so. Sam explained that Rubina and he signed documents as directed by Yeager Construction because there was "a big friendship between us and Yeager Construction. We trusted them." Sam testified that Yeager Construction was the general contractor at the construction site. Sam testified that the bank released the loan money directly to Yeager Construction, which used the money to pay for doors, lumber, and other expenses then gave remaining funds to the Shakirs. David picked up checks from the bank, then overnighted them to Scott. David paid some of the subcontractors through Scott, and the Shakirs paid some of them with checks from their personal

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1-07-2335 checkbook. The Shakirs paid whatever David told them to pay, using money from the bank loan. Sam testified that he trusted that Scott would keep track of all of the money and believed that Scott kept some of the money from the loan for his services as a general contractor, because that was part of their agreement. Sam testified that plaintiff or plaintiff's construction company, Grillo Construction, was hired by Yeager Construction, as were all of the other subcontractors at the construction site. Sam testified that Scott visited the construction site every month, which amounted to at least 12 times during the length of the construction project. Sam stated that he worked at his gas stations in Indiana Monday through Friday and was at the site only on weekends. Sam also called Scott weekly for updates and Scott would obtain information from David, who was at the construction site Monday through Friday. Sam testified that David was hired to supervise and routinely inspect the construction site. Sam testified that after plaintiff's fall, David rented a bulldozer and personally used it to backfill and level holes on the construction site. David left the project shortly after plaintiff's injury occurred. The construction site was closed for a week, then Mark Yeager, another of the Yeager brothers, was sent to finish the project. Mark Yeager did finish the project for Yeager Construction. Wayne Hanson testified that he was the director of development for the Village of Northbrook. Hanson testified that Northbrook has a program whereby a homeowner could serve as a general contractor. Hanson testified that Northbrook created a form for residents who are going to build their own homes that served to alert such residents "if they proceeded and did something illegally that they would have to remove it and correct the violation." Hanson testified

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1-07-2335 that Northbrook's involvement with construction projects relates to making sure residents comply with Northbrook's building codes and the purpose of having owners and general contractors in Northbrook's program is to provide notice that if they do something wrong, Northbrook will tell them they have to tear it down. Hanson testified that Northbrook's safety provisions are limited to "safety of the folks in the neighborhood, the adjacent property owners" and Northbrook does not get involved in compliance with OSHA or industry standards on the construction site. Hanson testified that Rubina signed an agreement with the Village of Northbrook in which Rubina requested to be her own contractor and acknowledged that she was "ultimately responsible as the permit holder for the performance of all subcontractors on the job site and compliance with the plans and specifications on *** file with the [V]illage." Hanson testified that the Village considered Rubina to be her own general contractor. Hanson testified that neither Yeager Construction nor David Yeager is identified as the general contractor on the building permits for the Shakirs' house. Hanson testified that Yeager Construction is listed as the cement contractor on one of the permit applications for the Shakirs' house. Hanson also recalled that Sam told him during preconstruction that Sam would be using a contractor from Indiana, named Yeager Construction. Dennis Puchalski testified, as plaintiff's construction safety expert, that he reviewed photos of the Shakirs house construction site which were taken by the architect, as well as numerous depositions and documents in this case. Puchalski testified that the use of cinder blocks to support a scaffold is prohibited by the safety standards of OSHA, the American National Standards Institute (ANSI), the Associated General Contractors of America Society and the

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1-07-2335 National Association of Homebuilders. Puchalski's opinion was that the cinder blocks moved, causing the scaffold to tip and plaintiff to fall from the scaffold. Puchalski's opinion was based on plaintiff's testimony, combined with reviewing the photographs and the ground conditions in this case. Puchalski testified that he did not think that the scaffold slipped off the concrete window sill because, if that had occurred, the scaffold would have gone entirely down. Peter Holsman testified that he was the Shakirs' project architect, who was hired by the Shakirs to create the design plans for their new house. Holsman testified that, to the best of his knowledge, David was working as a "freelance" assistant to Sam and was not working for Yeager Construction. Michael Mooney testified that he is a vocational rehabilitation counselor who works with individuals who have suffered an injury. Mooney testified that he becomes familiar with an individual's medical situation, work history, educational background and training and attempts to look at transferrable skills that the individual can use in a new occupation. Mooney testified that he was retained by defense counsel to offer opinions concerning vocational rehabilitation options for plaintiff that are less strenuous than masonry. Mooney testified that plaintiff most likely could no longer be a bricklayer. Mooney testified that he reviewed plaintiff's records, but never met plaintiff. Mooney testified that he was aware that plaintiff had run a masonry company since the 1980s. Mooney testified that he was provided with documents relating to the state registration of plaintiff's company's name. At the close of evidence, the circuit court denied defendant's request to submit a special interrogatory to the jury addressing the question of whether plaintiff was an independent

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1-07-2335 contractor. The jury returned a verdict in favor of plaintiff and assessed damages against defendant in the amount of $2,866,400. The jury also found plaintiff's contributory negligence to be 36%, thereby reducing plaintiff's damages to $1,834,496. The circuit court entered judgment on the jury's verdict and denied defendant's posttrial motion seeking judgment n.o.v. and a new trial. Defendant now appeals. II. Analysis A. Judgment n.o.v. Defendant first contends that the circuit court erred in denying its motion for judgment n.o.v. where plaintiff failed to prove a prima facia case of negligence. A motion for judgment n.o.v. should only be granted in those limited cases where all of the evidence and the inferences therefrom, viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Thornton v. Garcini, 382 Ill. App. 3d 813, 817 (2008). When ruling upon such a motion, the court does not weigh the evidence or make determinations of credibility and must not substitute its judgment for that of the jury merely because there are other inferences or conclusions that the jury could have drawn or because there are other results that the court believes are more reasonable. Thornton, 382 Ill. App. 3d at 817. " `The court has no right to enter a judgment [notwithstanding the verdict] if there is any evidence, together with reasonable inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the assessment of credibility of the witnesses or the determination regarding conflicting evidence is decisive to the outcome.' " Thornton, 382 Ill. App. 3d at 817, quoting Maple v. Gustafson, 151

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1-07-2335 Ill. 2d 445, 454 (1992). A trial court's ruling on a motion for judgment n.o.v. is subject to a de novo standard of review. Thornton, 382 Ill. App. 3d at 817. In order to recover on a negligence claim, plaintiff must set out sufficient facts to establish that the defendant owed a duty to plaintiff, that defendant breached that duty, and that the breach proximately caused injury to plaintiff. Buerkett v. Illinois Power Co., 384 Ill. App. 3d 418, 422 (2008). Defendant first argues that plaintiff failed to establish that it owed plaintiff a duty of care pursuant to section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts

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