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10/20/94 JAY NUSSBAUM v. MICHAEL P. KENNEDY

October 20, 1994

JAY NUSSBAUM, PLAINTIFF-APPELLANT,
v.
MICHAEL P. KENNEDY, DEFENDANT-APPELLEE.



Appeal from the Circuit Court for the 12th Judicial Circuit Will County, Illinois. No. 90 L 7007. Honorable Robert Lorz, Judge, Presiding

Rehearing Denied November 29, 1994. Released for Publication November 29, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Peg Breslin, Justice, Honorable Tobias Barry, Justice.

The opinion of the court was delivered by: Barry

JUSTICE BARRY delivered the opinion of the court.

Plaintiff was injured on a construction site, and thereafter brought suit alleging negligence and violations of the Structural Work Act. (740 ILCS 150/1 et seq. (West, 1992).) The trial Judge instructed the jury that it should find for defendants if they were engaged in a joint venture with plaintiff. The jury made a special finding that the parties were engaged in joint venture, and returned verdicts in favor of defendants on all counts. Plaintiff appealed. We hold (a) in light of the notice of appeal filed by plaintiff, this court lacks jurisdiction over two of the defendants, and (b) the existence of a joint venture does not bar plaintiff from suing his joint venturers for personal injuries.

I. FACTS

Plaintiff Jay Nussbaum and defendants Michael Kennedy, Thomas Gutowski and Dave Tkac were engaged in a project that included the purchase of a parcel of land and the construction a single family home in Shorewood, Illinois. During the construction, a wall fell on plaintiff thereby rendering him a paraplegic.

Some of the precise details of the business arrangement between the parties were disputed at trial. However, it was beyond dispute that Kennedy was experienced in construction work, and Kennedy purchased the land and placed it in trust. Kennedy and Gutowski purchased the plans to build the house and obtained bids for the excavation and concrete work. Kennedy supplied the lumber for the project. Plaintiff did not participate in these steps. Each of the parties, including plaintiff, contributed money, time and labor to the project.

It was the practice at the job site to build a wall on the deck or floor of the house, and then lift the wall into place. The walls were constructed of wood two-by-fours with a plate on the bottom and two plates at the top; plywood and Celotex sheeting were attached to the walls.

On August 7, 1988, about one week after construction began, the parties attempted to lift and place the south wall on the second floor. As the wall was approximately three-fourths up, Gutowski exclaimed, "I can't handle it." Kennedy said, "It's got to come down." The wall then fell on plaintiff.

Plaintiff's third amended complaint contained two counts against each defendant, one for negligence and one for violations of the Structural Work Act. (740 ILCS 150/1 et seq. (West, 1992).) Prior to trial the defense asserted, and the trial Judge agreed, that one joint venturer is legally prohibited from suing another in tort. Thus, at trial, the defense was allowed to raise the existence of a joint venture as an affirmative defense, and the jury was instructed that verdicts should be rendered for the defendants if they proved any affirmative defense.

Eventually the jury made special findings that Michael Kennedy alone was in charge of the work site, and that plaintiff was engaged in joint venture with the defendants. Accordingly, the jury rendered a verdict in favor of the defendants on all counts.

II. ANALYSIS

On appeal, the plaintiff asserts (a) the trial Judge erred in ruling that a member of a joint venture cannot sue other members of the venture, (b) the jury's finding that the parties were engaged in a joint venture was against the manifest weight of the evidence, (c) the jury's special finding that a joint venture existed was inconsistent with the jury's other special finding that defendant Kennedy alone was in charge of the work, and (d) ...


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