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09/30/88 James Clinton Fogarty, v. Parichy Roofing Company Et

September 30, 1988

JAMES CLINTON FOGARTY, PLAINTIFF-APPELLANT

v.

PARICHY ROOFING COMPANY ET AL., DEFENDANTS-APPELLEES

APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY; THE HON. JOHN

v.

VIRGILIO, JUDGE, PRESIDING. APPELLATE JUDGES:



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

529 N.E.2d 1055, 175 Ill. App. 3d 530, 124 Ill. Dec. 938 1988.IL.1492

JUSTICE QUINLAN delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN

The plaintiff, James Fogarty (Fogarty), was injured on November 18, 1982, when he fell from a residential roof on which he was working as an employee of Vernon Hoffswell (Hoffswell). Hoffswell had an oral agreement with the defendant, Parichy Roofing Company (Parichy Company),1 to reshingle a home in River Forest, Illinois. In plaintiff's one-count complaint, it was alleged that defendant Parichy Company was liable for plaintiff's injuries under the provisions of the Structural Work Act (Ill. Rev. Stat. 1985, ch. 48, par. 60 et seq.). Fogarty appeals from the judgment entered in favor of the defendant, Parichy Company, following a jury trial on his Structural Work Act complaint.

In order to establish the defendant's liability under his Structural Work Act (Act) claim, the plaintiff was required to show that Parichy Company had the responsibility for the reshingling of the roof and that Parichy Company willfully violated the Act while in charge of this work. (Ill. Rev. Stat. 1985, ch. 48, par. 60.) The parties agree that during the reshingling of the roof, Theodore Parichy, the secretary and tresurer of Parichy Roofing Company and the manager of the family-owned business, made periodic visits to jobsites to observe the progress from the ground but, according to his testimony, he was not "looking for any problems" on those visits. Parichy stated that he visited this jobsite on only two occasions before plaintiff's fall. Parichy's testimony and the testimony of Michael Kiegley established that Parichy Company did not participate in the roofing activities, was not responsible for safety at the site, and was not empowered under the agreement to unilaterally change orders or to stop the work.

It is also undisputed that Hoffswell instructed his employees to place a 30-foot ladder against the side of the house, construct a platform from two-by-fours, and then nail it to the edge of the roof to prevent workers and tools from falling off the roof. Additionally, a six-foot ladder was braced against the platform's edge, as a crawling board, to permit access to the roof peak. It was as the plaintiff was climbing the six-foot ladder, carrying a load of roof shingles on his shoulder, that he fell onto the edge of the platform and then fell from there to the ground. The plaintiff did not know whether it was a broken ladder rung or a loss of balance that precipitated his fall.

At trial, the defense theory was that Parichy Company could not be liable, first, because it was not in charge of the work as required under the Act, and, second, because it was plaintiff's congenital condition that caused plaintiff to lose his balance and fall, and that this pre-existing condition caused his disabilities. Parichy Company contented that it was Hoffswell who had complete control over the work and who was responsible for providing all necessary safety equipment and supervision. Parichy Company argued that its only role was to deliver materials to the jobsite through a jobber each morning before the work began, and that it never supervised the work of Hoffswell's employees. At trial, the plaintiff called the following witnesses: Michael Kiegley, plaintiff's co-worker and a witness to the accident; Vernon Hoffswell, plaintiff's employer; Theodore Parichy, secretary and treasurer for defendant, as an adverse witness; John Shea and Juan Angelats, the treating physicians; and Robert Krause, a safety expert. At trial, the court permitted the plaintiff's safety expert to testify to the safety standards required under the Occupational Safety and Health Act (29 U.S.C. § 651 et seq. (1985)), but prohibited him from testifying to the safety condition of a hypothetical roof, similar to the roof from which the plaintiff fell, as measured by these standards. The expert was, nevertheless, allowed on cross-examination to state, over the plaintiff's objection, that to his knowledge, OSHA standards applied only to employers and not to independent contractors.

After the plaintiff rested, the defendant called its expert medical witness, Dr. Leonard Smith, and plaintiff's employment counsel, Michael Mooney. Dr. Smith testified concerning the plaintiff's present physical condition. In his deposition 1 1/2 years before trial, Dr. Smith had given an opinion limited to his orthopedic findings, but at trial he began to testify to his neurological findings. The plaintiff objected, asserting surprise that these opinions had not been previously disclosed. The court, as a curative measure based upon the plaintiff's representation to the court that he had propounded Rule 220 interrogatories to the defendant's expert, recessed the trial so that plaintiff could again depose Dr. Smith. (See 107 Ill. 2d R. 220.) At the in-court deposition, Dr. Smith stated that he had not previously reviewed plaintiff's medical records and had only been asked to render the previously undisclosed opinions on the third day of trial. Subsequent to this deposition during trial, defense counsel showed Dr. Smith the plaintiff's medical records which had already been admitted into evidence during the plaintiff's case. When Dr. Smith again took the witness stand, he testified that in his opinion plaintiff's spinal cyst was pre-existing and had not been caused by the accident, as the plaintiff alleged in his complaint.

Mr. Mooney, plaintiff's employment counselor, testified that the plaintiff had come to him following the accident for assistance in finding employment. Mr. Mooney stated that the plaintiff told him in November 1983 that he had no difficulty in driving and in December 1983 the plaintiff told Mooney that he was able to perform all the activities of daily living and had not experienced any impairment of his sexual function. Mr. Mooney further testified that the plaintiff had expressed an interest in pursuing a legal career and was not interested in a long-term commitment with his former employer should he be reemployed.

In his closing argument, plaintiff, nevertheless, continued to assert that Parichy Company was the responsible party, under the Structural Work Act, for his injuries and asked the jury to return a verdict of $3,972,601.39 in his favor. When plaintiff attempted to argue that although Vernon Hoffswell was a subcontractor and, thus, not an independent contractor, the defendant objected and a boisterous sidebar was held outside the presence of the jury. Thereafter, upon returning to the courtroom, the trial Judge instructed the jury to disregard the references of counsel to independent contractors and subcontractors, directed counsel to complete his argument in 18 minutes, and did not further comment on the sidebar. Subsequently, the trial court instructed the jury concerning the law, the plaintiff's theory, and the defendant's theory and further directed the jury not to consider the damages issue unless it had determined that the defendant was in charge of the work at the time of the accident and that the defendant had wilfully violated the statute. The jury returned a verdict for the defendant. The plaintiff moved for a new trial or judgment notwithstanding the verdict, and his motion was denied by the trial court. The plaintiff then took this appeal, and, for the reasons set forth below, we affirm.

In his appeal to this court, the plaintiff contends that certain trial court errors denied him a fair trial and those errors mandate either a reversal of the verdict in defendant's favor or require, at least, a new trial. The plaintiff alleges that the trial court erred in its refusal to direct findings in his favor regarding certain "judicial admissions" contained in the defendant's deposition; in its ruling which barred the plaintiff from inquiring of the defendant whether he had the right to stop work or to enforce safety rules on prior jobs; and in its denial of the plaintiff's motion for a directed verdict on the basis that defendant was, as a matter of law, in charge of the work. The plaintiff also alleges it was error to refuse plaintiff's proffered instruction concerning the nondelegability of duties imposed under the Structural Work Act and to further instruct the jury that OSHA does not apply to general contractors. Other alleged errors raised by the plaintiff include the trial court's ruling which prevented plaintiff's safety engineer from testifying concerning the ultimate issue on the condition of safety on the roof at the time plaintiff was injured; its ruling which permitted Dr. Smith, the defendant's expert, to testify to his new opinions and its ruling whereby it refused to tender the jury his proffered Illinois Pattern Jury Instructions instruction concerning the propriety of awarding damages for the aggravation of preexisting conditions; its ruling which allowed the defendant to improperly impeach the plaintiff; and, finally, its ruling which denied plaintiff's motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. These and numerous other trial court errors, the plaintiff asserts, although not reversible error standing alone, cumulatively require reversal of the decision below.

Initially, plaintiff complains that the trial court erred in its denial of his motion for a directed finding that "judicial admissions" had been made by the defendant in his deposition. The plaintiff alleged that the following questions and answers from Mr. Theodore Parichy's discovery deposition should have been treated as conclusive admissions of liability:

"Question: When you go out and make those visits of Mr. Hoffswell's jobs did you ever look not only to see how the work was, but also to see whether or not the ...


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