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Kohutko v. Four Columns

OPINION FILED SEPTEMBER 30, 1986.

RICHARD KOHUTKO ET AL., PLAINTIFFS-APPELLEES,

v.

FOUR COLUMNS, LTD., DEFENDANT AND THIRD-PARTY PLAINTIFF-APPELLANT (F.D. MASONRY, INC., THIRD-PARTY DEFENDANT-APPELLEE).



Appeal from the Circuit Court of Cook County; the Hon. James S. Quinlan, Jr., Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendant and third-party plaintiff, Four Columns, Ltd., appeals from the trial court's decision directing a verdict for plaintiffs, Richard Kohutko and Mitchell Ruiz. Four Columns further appeals from the jury's finding that it was 95% responsible for plaintiffs' injuries and F.D. Masonry, Inc., third-party defendant, only 5% responsible.

Four Columns makes the following arguments against F.D. Masonry: (1) improper statements by F.D. Masonry in its closing argument requires reversal; (2) the trial court gave improper jury instructions; (3) the trial court erred in refusing its request to allow the jury to view exhibit Nos. 3, 4, and 5 in the jury room; and (4) the jury's finding that it was 95% responsible for plaintiffs' injuries is against the manifest weight of the evidence.

Four Columns makes the following arguments against plaintiffs Kohutko and Ruiz: (1) the trial court erred in admitting handwritten summaries of plaintiffs' lost income and in allowing the jury to view the summaries in the jury room; (2) plaintiffs did not prove that Four Columns' alleged negligence was wilful; (3) the trial court erred in admitting the speculative and hearsay testimony of Dr. Strzyz and plaintiff Kohutko; and (4) the trial court erred in giving plaintiffs' jury instruction Nos. 44 and 49 as to damages.

We affirm.

This case arose out of an accident occurring on a construction site in Elk Grove Village on September 4, 1980. Plaintiffs were injured when the scaffolding on which they were standing collapsed. Plaintiffs filed suit against the general contractor, Four Columns, under the Structural Work Act (Ill. Rev. Stat. 1979, ch. 48, par. 60). Four Columns filed a third-party contribution action against F.D. Masonry. F.D. Masonry employed plaintiffs and was the subcontractor that erected the scaffolding which collapsed. At the close of all the evidence, the trial court directed liability in favor of plaintiffs; the court also directed liability against F.D. Masonry as to the third-party action filed by Four Columns. The issues of damages and percentages of contributions were submitted to the jury.

Four Columns, the general contractor, contracted with the owner to erect three commercial warehouses. Four Columns subcontracted with F.D. Masonry to perform the masonry work. As the general contractor, Four Columns assumed contractual responsibility for safety and the proper coordination of the various subcontractors and supervision of their work. Furthermore, it retained the authority to stop the work of subcontractors, order changes in their work, and stop any unsafe work practices. Insofar as the masonry work was concerned, F.D. Masonry assumed the same responsibilities as Four Columns had assumed in its contract with the owners. Moreover, F.D. Masonry agreed to supervise and monitor the safety of its workers. It owned and erected the scaffolding that collapsed.

Testimony at trial centered around why the scaffolding collapsed. Several witnesses testified that there was no support bracing on the scaffolding when it collapsed. There was no testimony contradicting these witnesses' statements.

George Kennedy, the expert witness for plaintiffs, testified that the method of construction of the wall was questionable and "a very poor, very unsafe, bad method of constructing such a long and high wall without any proper bracing." He further testified that the use of the Morgan scaffolding was extremely unsafe and was a poor choice of scaffolding, inasmuch as the scaffolding itself without bracing was unsafe support. Four Columns offered no evidence to rebut Kennedy's testimony.

Jude Rutkowski testified that he was the job supervisor and Four Columns' representative at the project site. His duties as job supervisor were to coordinate and supervise the work of the subcontractors. He had the authority to stop work, to order changes in the work, to stop any unsafe practices, and to initiate, maintain, and supervise all safety precautions. He further testified that for this project there was no one specially designated as being in charge of safety, and no safety meetings were held. Rutkowski also testified that on the morning of the accident, he had left the site to conduct personal business and was not there when the accident occurred; that he was at the site earlier that morning; and that on that morning he observed a machine called a "lull" on the site near the wall that collapsed. The purpose of the lull was to bring materials and mortar to the men who worked on the scaffolding. He stated that he knew the operation of the lull would interfere with the lateral support of the bracing that supported the scaffolding.

George Grizely testified that he was the brick-layer foreman for F.D. Masonry at the construction site. He stated that the bracing was taken off when the men began work at about 7:30 a.m. on the morning in question. He further stated that Jude Rutkowski was at the site at the time the men were working on the wall without bracing on the scaffolding.

Frank Dziadus, president of F.D. Masonry, testified that when he arrived at the project site on the morning of the accident the scaffolding was not braced anywhere nor was it tied to any support or other lateral support. He stated that in order to use the lull the bracing had to be removed. He also stated that Jude Rutkowski was at the jobsite inspecting F.D. Masonry's work on a daily basis. He further testified that there was nothing obstructing Rutkowski's view of the work; neither Rutkowski nor anyone else expressed any criticism regarding the manner in which the work was being performed.

I: FOUR COLUMNS v. PLAINTIFFS KOHUTKO AND RUIZ

• 1 Four Columns first contends that the trial court erred in directing a verdict for plaintiffs. A directed verdict should be entered only where all of the evidence so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. Pedrick v. Peoria ...


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