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07/21/87 Daniel J. Ryan, v. E.A.I. Construction

July 21, 1987

DANIEL J. RYAN, PLAINTIFF-APPELLEE

v.

E.A.I. CONSTRUCTION CORPORATION ET AL., DEFENDANTS-APPELLANTS AND THIRD-PARTY, PLAINTIFFS-APPELLANTS (MCNULTY BROTHERS COMPANY ET AL., THIRD-PARTY DEFENDANTS-APPELLEES)



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

511 N.E.2d 1244, 158 Ill. App. 3d 449, 110 Ill. Dec. 924 1987.IL.1027

Appeal from the Circuit Court of Cook County; the Hon. John M. Breen, Judge, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

Plaintiff Daniel J. Ryan, who suffered injuries while working on a demolition and remodeling project, brought suit against the E.A.I. Construction Corporation and La Salle Partners, Inc. (La Salle) under the Structural Work Act (the Act). (Ill. Rev. Stat. 1985, ch. 48, pars. 60 through 69.) EAI brought a third-party action against plaintiff's employer, McNulty Bros. Company (McNulty) for contribution and Dr. Arthur Connor (Connor), plaintiff's treating physician, for medical malpractice. The case was tried before a jury on plaintiff's action and the third-party cause of action against McNulty.

The jury returned verdicts in favor of the plaintiff and against EAI and La Salle in the amount of $1,219,659.25, and in favor of EAI on its contribution action against McNulty, finding contribution from McNulty in the amount of 2 1/2% of the amount awarded to plaintiff. EAI's other counts against McNulty were dismissed and the medical malpractice count was severed.

EAI and La Salle's post-trial motions seeking judgment notwithstanding the verdict or, in the alternative, a new trial, were denied and this appeal followed. For the following reasons, we affirm.

This case arose out of an accident that occurred during a remodeling project on a building located at 11 South La Salle Street in Chicago, Illinois. Plaintiff, a construction worker employed by McNulty, was injured when a wall he was working on collapsed. Defendant La Salle is the managing and leasing agent on behalf of the owners of the building, Roanoke Association, Ltd. La Salle hired EAI, the general contractor. EAI hired McNulty as subcontractor to perform the demolition work. Both EAI and La Salle occupied offices on the same floor of that building and both are one of several different corporate entities in a development investment group.

The contract between EAI and McNulty contained a description of the work to be performed and stated that McNulty would furnish "all labor, tools, equipment, materials, scaffolding, supervision, engineering . . ., to complete the demolition work."

At the time of the accident, plaintiff was on a scaffold cutting a "chase" or narrow indentation into a clay tile wall located in a staircase between floors. When he had cut the chase across the length of the wall, except for a two-foot section in the middle, the wall collapsed causing heavy debris to fall on him and the scaffold. The falling debris broke through the scaffold causing plaintiff to fall and land with debris falling on top of him. He sustained serious injuries.

At trial, conflicting evidence was presented on three focal issues in the case: the nature of the instructions given by EAI to McNulty regarding the demolition of the walls, the extent of supervision, instruction and control EAI exercised over the work, and the extent of supervision, instruction and control that La Salle had over the entire project.

Don Jenkins, EAI's project superintendent, testified that McNulty was instructed to remove all interior walls and was given an architectural drawing to assist them in the removal. However, McNulty employees testified that the field instructions given by EAI during the project were inconsistent with earlier instructions and with the drawings provided.

McNulty's foreman, Lester Eby, was told by Jenkins to leave the wall up and prepare the stairwell between the 15th and 16th floors for closure by cutting a "chase" into the east wall along its entire length. Eby relayed these instructions to John Bronson, another McNulty employee, who in turn told the plaintiff to do the "chasing."

On the day of the accident, Jenkins and Eby observed plaintiff working and told him to hurry up. Neither made any comments about the manner in which the work was being done.

Plaintiff's expert testified that since the wall was clay and hollow, chasing removed necessary support from the wall. In his opinion, this was an unsafe practice because it created instability in the wall and made collapse of the wall foreseeable.

The evidence on control and supervision on the site was also conflicting. EAI was responsible for coordinating and scheduling work, insuring job safety, approving completed work by the various subcontractors, and had authority to stop work in progress. Safety meetings were conducted regularly. McNulty as subcontractor performed the demolition work under the direction of EAI.

Bruce Peterson, senior vice-president and secretary-treasurer for La Salle, testified that La Salle and another company, Equity Associates, were owned by La Salle Partners Holding Co. EAI is a wholly owned subsidiary of Equity Associates. Mr. Peterson is an officer in all of these entities and all of the companies' offices are located at the building at 11 South La Salle. While La Salle was the manager and leasing agent of the building on behalf of the owners, they had an ownership interest through their lease. The group of companies shared expenses and allocation of these expenses was done by an internal accounting function.

The La Salle "people" attended job meetings that involved all or a majority of the subcontractors working on the building. La Salle admitted hiring EAI and in turn, EAI hired McNulty. The evidence shows that EAI's project superintendent's checks were signed by La Salle.

Dr. Connor, plaintiff's treating physician, testified that the plaintiff suffered a disc herniation as well as injuries to his elbow and knee. Plaintiff chose treatment by chymopapin rather than a spinal fusion operation. This treatment was followed by rehabilitation therapy. Dr. Connor also testified that plaintiff's condition and injuries are permanent and possible future medical treatment includes spinal fusion surgery. That surgery has a 50% chance of a good result and, if successful, plaintiff may some day return to light work but can never return to construction work.

Dr. Treister, the examining physician, also testified that plaintiff's disc condition was permanent and if future spinal fusion surgery were performed, it could increase plaintiff's walking and standing tolerance and would provide some relief from pain. I

First we will consider the errors assigned in the appeal of defendants EAI and La Salle from the judgment entered in favor of plaintiff.

A

Initially, plaintiff contends that EAI and La Salle have failed to preserve certain issues on appeal. The record shows that an oral motion for directed verdict was made on behalf of La Salle at the close of plaintiff's case in chief but was not renewed at the close of all of the evidence. EAI never made any motions for directed verdict. However, in defendants' amended post-trial motions, both EAI and La Salle prayed that the trial court enter ...


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