Kreisman Law Offices Professional Corporation
A Cook County jury returned a verdict for $1.5 million for Teodoro Ramirez, who was injured while moving roofing materials above a warehouse. The defendant construction company, FCL Builders Inc., requested on appeal from that verdict that the appellate court grant a new trial. FCL argued that the Cook County circuit court judge gave erroneous jury instructions that made the verdict unfair.
The appeals court found that the jury instructions did include error, but the court affirmed the ruling and verdict on the ground that the defendant did not suffer from the error. In other words, the error was harmless.
It was an 84-page opinion written by appellate court Justice Robert E. Gordon. In conclusion, the appeals panel ruled that the jury instructions would not have affected the outcome of the case.
“Since, under the facts in the case at bar, the jury considered the same evidence as would have been presented had an accurate instruction been given, we find no prejudice and, consequently, no reversible error.”
In 2004, Ramirez injured his back while he was pushing heavy roofing material across a warehouse roof. This caused chronic low back pain and a slipped vertebrae, which prevented Ramirez from working. Ramirez was employed by Sullivan Roofing, which was a subcontractor for FCL Builders on this project.
Ramirez sued FCL Builders in 2008 claiming that as the general contractor, FCL was negligent in not allowing the roofers to use all-terrain vehicles to move heavy materials. This is a common industry practice. Ramirez also claimed that FCL was negligent in not instructing the roofing crew how to avoid unsafe conditions. Sullivan Roofing was not made a party to this lawsuit.
The trial was held in May 2011 wherein the jury found the amount of damages suffered by Ramirez to be $1,985,000. The jury also found that Ramirez was 20% responsible for his injuries and assigned 40% of the fault to FCL and Sullivan Roofing, each. The award was then reduced by 20% to $1,588,000, which was the percentage of fault assigned to the plaintiff, Ramirez.
Ramirez claimed that FCL directed the Sullivan Roofing crew to stop using ATVs while moving the materials to prevent roof damage and instead required Sullivan’s roofers to move the heavy items by hand.
The jury was given jury instructions on liability that said that contractors who entrust work to subcontractors can be liable for injuries to workers if the contractor “retains some control over the safety of the work.”
FCL argued that those instructions were given in error and not a correct statement of the law. In the appeal, FCL contended that previous Illinois First District cases made clear that a general right to control safety was insufficient to impose liability.
The appeals panel agreed that the language of the Illinois Pattern Jury Instructions encompassed liability conduct for parties with some control, while the accepted common law only encompassed a single party’s exclusive control over safety.
The judge writing the majority opinion stated that since the jury was not instructed as to the amount of control required, the jury could easily find that minimal control over safety is sufficient to find a contractor liable.
However, the Illinois Appellate Court found that the jury instruction, although not an accurate statement of the law, could not have adversely impacted the case against the defendant FCL. The heart of the Ramirez theory was that FCL demonstrated control over operative details of the roofing crew’s work.
There was testimony that FCL ordered the stoppage of work, participated in implementing a solution to the damage issue, and ordered the use of ATVs to stop. There had been another Illinois court opinion issued in November 2013, but FCL petitioned for a rehearing arguing that the decision conflicted with another recent appellate case finding which dealt with erroneous jury instructions. That case was Powell v. Dean Foods, 2013 IL App (1st) 082513-B.
While Powell’s error was reversible when instructions did not state who needed to prove control or agency for liability, the Ramirez case dealt with a jury instruction error with how the control or agency needed to be proved.
FCL also argued that it was entitled to a new trial because Sullivan Roofers should not have been on the jury verdict form because it was a nonparty to the lawsuit. The panel again agreed, but ruled that the defendant did not specify what prejudice it suffered as a result.
In this case, the appeals panel stated that “this is not a situation where a party was excluded from a verdict form erroneously, such that a proper jury form would likely lessen the defendant’s percentage of fault.” Here the fault was apportioned among more parties, presumably resulting in the defendant bearing a smaller share of the fault.
Teodoro Ramirez v. FCL Builders, Inc., 2014 IL App (1st) 123663.
Kreisman Law Offices has been successfully handling construction worker injury cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of another for more than 38 years in and around Chicago, Cook County and its surrounding areas, including LaGrange, Burr Ridge, Hinsdale, Wilmette, Harwood Heights, Hoffman Estates, River Grove, Chicago (Jefferson Park, Sauganash, Pulaski Park, Uptown, Andersonville, Edgewater, Lakeview, Old Town, Chinatown, Bronzeville, Canaryville, Washington Park, Calumet Heights, South Shore) and Palatine, Ill.
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