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John Maggi, Individually and As Independent v. Ras Development

May 26, 2011


Appeal from the Circuit Court of Cook County. No. 02 L 010922 The HonorableBill Taylor,Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Lavin

Illinois Court of Appeals, District 1 01-1091955.pdf Unpublished opinion

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justices Salone and Sterba concurred in the judgment and opinion.


Jerry Maggi, a 46 year-old veteran laborer on a bricklaying crew, died several days after an August 28, 2000 fall through an unprotected window opening at a new construction project on the near north side of Chicago, after a strap binding a bundle of bricks broke as he maneuvered it in a tight workspace under a patent scaffold on an exposed third floor, causing him to lose his balance. His estate brought a construction negligence lawsuit against several entities involved in the project, which consisted of the construction of several multistory condominium buildings on Wolfram Street. The case proceeded to a jury trial, with the jury returning a $3,286,382 verdict after finding decedent 1% contributorily negligent. The sole defendant at trial, RAS Development, appeals from the judgment entered on the verdict and the trial court's denial of its posttrial motion. Plaintiff also filed a cross-appeal, alleging that the trial court improperly declined to sanction defendant for understating the amount of available insurance coverage in discovery. For reasons that will be delineated at some length below, we affirm the judgment entered on the jury verdict and also affirm the trial court's refusal to sanction defendant.


The project on Wolfram Street was spearheaded by three men, Robert Levin, Arnold Boris and Saul Waimberk, whose first names' initials formed the RAS prefix. These three men were the sole shareholders in RAS Development, as well as RAS Wolfram, which then formed a partnership called Wolfram Towers. They hired RAS Development as the general contractor, meaning that they, as owners, essentially hired themselves to run the project. During the course of construction, various permits were issued by the City of Chicago which interchangeably referred to one or more of the entities as the owner or general contractor of the development.

Plaintiff's first complaint, filed on August 26, 2002, included as defendants various entities that had some connection to the development, including, inter alia, plaintiff's employer, Rockford Construction, and RAS Wolfram, which initially volunteered in its answer that it was the general contractor. The parties engaged in lengthy written and oral discovery, some of which was designed to divine the interplay between the various RAS entities on the Wolfram Street project. In May 2003, before the limitations period had expired, RAS Wolfram, in an interrogatory answer, changed course and stated that it had hired RAS Development as the general contractor and that RAS Development had entered into separate contracts with subcontractors on its behalf, while also indicating that it could not locate the contract between RAS Wolfram and RAS Development. This turn was largely confirmed in a deposition of RAS Development's project manager, Lance Shalzi. During this period of time, plaintiff was seeking the contract that would unequivocally establish the proper entity to sue as the general contractor, with Wolfram Towers assuring plaintiff's counsel that "all" construction contracts had been produced. Neither RAS Wolfram nor Wolfram Towers moved for dismissal on the basis that it was not the general contractor.

Some 18 months passed without any further discovery on this subject. Then, after the four-year limitations period passed, plaintiff's attorney received a letter from defendant's in-house insurance counsel that indicated that it had located the contract that RAS Development entered into with Wolfram Towers, entitled "Standard Form of Agreement Between Owner and Contractor" (the Prime Contract), to perform general contracting services for the construction of the four-story residential buildings and that it would be changing its answer to confirm that RAS Development was the general contractor. This led plaintiff to voluntarily dismiss RAS Wolfram and amend his complaint, adding RAS Development as the general contractor. RAS Development then moved to dismiss the complaint against it, on the basis that it was outside the limitations period, while plaintiff endeavored to persuade the trial court that the amended complaint should relate back to the filing of initial complaint because RAS Development knew all along that it should have been sued, while plaintiff was mistaken in his belief that RAS Wolfram was the general contractor. Initially, the trial court agreed with defendant and dismissed the complaint, but changed its mind and granted plaintiff's motion to reconsider.

The case then proceeded to trial where plaintiff presented a case of the general contractor's failure to provide a safe place to work and for inadequately supervising the work of the subcontractors, while the defendant denied liability and claimed it would assert that the fall was not related to the breaking of the brick band but, rather, that Mr. Maggi suffered a coincidental heart attack, causing him to slip and fall from his elevated workspace. RAS Development planned to call John T. Barron, M.D., at trial to support this theory, but the trial court barred Dr. Barron from testifying that Maggi's fall was caused by a heart attack occurring immediately prior to his fall. The trial court initially ruled that Dr. Barron's opinion was not based on a reasonable degree of medical certainty but clarified upon defendant's motion to reconsider that it was not barring Dr. Barron's entire testimony, only the specific opinion about the timing of the attack. At trial, RAS Development did not mention this theory to the jury, did not make an offer of proof concerning Dr. Barron's testimony, and gave all appearances of having abandoned the theory until its resurrection at defendant's posttrial motion.


There was but one eyewitness to Maggi's fall. The veteran bricklayer to whom he was assigned, Charles Winchester, testified on direct examination that the fall was precipitated by the breaking of a metal band that was meant to keep a large bundle of bricks in a stable condition which his laborer maneuvered into a convenient location for Winchester's use. Winchester explained that they were working on the front of the third floor of the condo building. A scaffold had been erected on that floor. The bundle of bricks that Maggi was bringing to Winchester weighed 150 pounds and needed to be maneuvered around the front of the scaffold, which had a set of cross-braces in the back. The front of the scaffold was unprotected by any bracing, but it was done so purposefully, to allow the mason access to the block, brick and mortar that he would need in order to build the brick wall. There existed a narrow space in between the scaffold and the outer wall. It was in this space that the mason plied his trade. While he was so engaged, there was no functional fall protection, but this was expected by the mason, because they were employing the so-called overhand bricklaying method which involves the mason (or "brickie" in construction worker argot) kneeling or standing while leaning over the ledge and applying the bricks in "courses" to build the wall.

The fall itself, Winchester testified, happened as Maggi was attempting to "inch" the bricks under the scaffold close to Winchester's narrow workspace, which was hard by the edge of the building's under-construction wall. Winchester explained that Maggi had to "stationary" the bricks with his hands. It was at this point that the metal band popped and he went over the edge, through the bottom part of a work-in-progress window opening, right in the area where Winchester would have soon started to lay the next course of bricks. There was no safety rail in the area of that window opening or any other window opening on the jobsite. On the subject of the general contractor, Winchester testified that he did not have any contact with its representative and never attended any safety meetings with Lance Shalzi, the project manager for RAS Development, who was purportedly in charge of safety.

On cross-examination, defense counsel pressed a somewhat reluctant Winchester to testify that Maggi was standing in a prohibited area at the time of his fall. Winchester did admit that it would have been safer for Maggi to be under the scaffold, rather than between the scaffold and the edge of the floor. Winchester was also impeached with his deposition testimony that indicated that Maggi had "slipped and backed out the window" while trying to break a bundle of bricks down. Winchester admitted that Maggi was between the bricks (which were under the scaffold) and the floor edge when he "slipped out."

The jury also heard testimony from Patrick Brunory, the owner of Rockford Construction, the bricklaying contractor and the employer of Maggi and Winchester. He testified that the work area was first prepared by his brother, Sean Brunory, who would set up the scaffold, mortar table and other necessaries before the brickie and his laborer would begin their work. He explained that there was no fall protection because there was nothing for the protection to adhere to, since the building was still going up. He also explained that one could not guard or place any railings across an area that was involved in overhand bricklaying because it would interfere with the necessary access for the bricklayer.

Robert Levin, one of the owners of RAS Development, testified at some length about the project. He was asked to identify the Prime Contract and the contract with Rockford Construction. He explained that he had hired Rockford on other projects in the past. He agreed that it was the responsibility of RAS to employ a competent superintendent who would be responsible for jobsite safety. Lance Shalzi was employed for that purpose on this job. Shalzi was a licensed architect, but Levin was singularly unaware of whether he had any specialized safety background, OSHA training or the like. He said that Shalzi did have the authority to stop the work if he saw anything unsafe. He acknowledged that RAS was responsible for initiating, maintaining and supervising all safety programs on the jobsite and to designate a person to prevent accidents, while steadfastly maintaining that his company and its employees were "never, never" supposed to enter Rockford's work zone because it was "too dangerous."

The RAS project manager, Mr. Shalzi, testified that he was a licensed architect who worked as a project manager for the Wolfram project. He had been in a similar position for RAS on at least seven other sites. He admitted that he had never been trained in construction site safety. He had no training for fall hazards with buildings of height and this project was the highest building that he had worked on with RAS. He denied being the "responsible" person for safety for RAS Development. He said that the project did not have a superintendent and called himself a "manager." He never went to the area where Rockford was laying bricks because he would have been "removed" by Rockford. He did testify that there were metal safety rails across the window openings, but was not "100 %" sure that they were there before Maggi's accident. He said that he hired someone to put up boards on other floors after the accident and saw Rockford's men take them down when they did work on the individual floors.

Plaintiff's workplace safety expert, Philip Colleran, had more than three decades of construction safety experience, including 17 years as an OSHA compliance officer. He had published articles with respect to masonry, including the Mason Contractors Association of America's Safety Manual, and also wrote an article about overhand bricklaying. Colleran was critical of the actual presence of the scaffold near the building's edge because it was unnecessary and presented a physical impediment to the laborer getting the brick bundles to the brickie. He was of the opinion that the window opening through which Maggi fell should have been protected at all times just short of the actual overhand bricklaying by the mason, because the mason is trained specifically to deal with the danger and cannot carry out his job of coursing the bricks if there are bars or guardrails in his way. He explained that a guardrail should be placed until the bricklaying proceeds, when it would be replaced by blocks to form a temporary guardrail of sorts. The scaffold was set up prematurely, in his judgment, compromising the safety of the workspace. The configuration basically required Maggi to get into the brickie's area, because the back of the scaffold had cross braces and the only way for the laborer to get the bundle of bricks close to the bricklayer was to enter that treacherous area between the scaffold and the building's edge.

Colleran also found fault with the safety supervision on the site and opined that the failure of RAS Development to initiate a safety program with a competent superintendent was a proximate cause of Maggi's fall. Colleran acknowledged that the testimony established that Maggi's position in between the scaffold and the floor edge constituted a fall hazard. He also affirmatively stated that Maggi should not have put himself in that position because of its danger, but allowed that he still could have fallen the same way were he physically located under the scaffold, as he was supposed to have been, since it was the edge of the scaffold that formed one border of the brickie area. In his opinion, whether Maggi was under or outside the confines of the scaffold and near the floor edge was of no moment, because the setup offered no protection for workers who might fall from either area. He opined that it was incumbent on RAS, through Shalzi, to intervene and require Rockford to correct the hazard presented by the presence of the scaffold near the edge and the absent fall protection. He also admitted that Rockford, plaintiff's decedent's employer, violated various safety rules and that it was primarily responsible for the safety of its own worksite.

Plaintiff's case-in-chief also included testimony from from Robert Erickson, M.D., a neurosurgeon who was called in as a consultant to evaluate Maggi when he was brought to Illinois Masonic Hospital immediately after the fall. He explained that Maggi was resuscitated three times due to his heart stopping or due to a severe rhythm disturbance of the heart from the fall. He also testified that Maggi did have a myocardial infarction, as a result of the finding of an arrhythmia, but was of the opinion that he died as a result of the fall, due to brain and spine trauma, and severe chest trauma which caused a hemopneumothorax, which is the presence of blood and excessive air in the chest cavity causing compression of the lungs. He noted that the patient was unconscious and unresponsive in the "field" and remained so until he was pronounced dead on September 4, 2000.

In terms of damages, the jury also heard substantial testimony about the decedent, a lifelong bachelor who lived with siblings at the time of his death. Maggi was described as being very close to his family and was a "go-to guy" if anybody needed anything done. Defendant does not complain on appeal about the measure of damages awarded by the jury.

Defendant countered plaintiff's case solely with the testimony of Gregory Wisnewski, a licensed architect for some 32 years. He was of the opinion that the brick masons could not install fall protection such as guardrails while they were laying bricks for the wall. He felt that the area was safe because it was a controlled access zone that was restricted to bricklayers and laborers who were erecting the building from the inside. He, too, was critical of Maggi's positioning of himself between the scaffold and the building's edge because he put himself in a hazardous position in the mason's area. He opined that Rockford, not RAS, had overall safety responsibility and could have stopped the work if it saw a hazardous condition. He felt that the masonry work to erect the wall was consistent with the custom and practice of the industry.


Relation Back Doctrine RAS Development's overarching contention on appeal is that the trial court erred in denying its motion to dismiss plaintiff's action pursuant to section 2--619(a)(5) of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619(a)(5) (West 2006)) based on the applicable statute of limitations. We review the trial court's denial of a section 2--619 motion to dismiss under the de novo standard of review. Polites v. U.S. Bank National Ass'n, 361 Ill. App. 3d 76, 80 (2005).

The four-year construction statute of limitations applied and it expired on August 28, 2004, prior to the date plaintiff added RAS Development as a defendant. See 735 ILCS 5/13--214 (West 2000). The issue thus is whether plaintiff's action against RAS Development should "relate back" to the original complaint which was filed well within the statute of limitations, pursuant to section 2--616(d) of the Code (735 ILCS 5/2--616(d) (West 2002)). RAS Development contends that plaintiff knew of its involvement in the construction project more than 18 months before the limitations period expired but made no attempt to add it as a defendant until more than 2 years after the expiration of the statute of limitations. Contrarily, plaintiff contends that he satisfied the three prerequisites under the relation-back doctrine: (1) he filed suit on time; (2) RAS Development had notice of both the suit and that it was the intended target prior to the expiration of the limitations period; and (3) plaintiff's amended complaint grew out of the same transaction.

The first issue for us to resolve is whether section 2--616(d) applies to the present case, a question which turns on whether the facts suggest a case of misnomer or mistaken identity. Pruitt v. Pervan, 356 Ill. App. 3d 32, 36 (2005); Fassero v. Turigliatto, 349 Ill. App. 3d 368, 370 (2004). In a case of misnomer, the relation-back doctrine would automatically apply, and the amended complaint naming the proper defendant would be considered filed upon the filing date of the original complaint. Fassero, 349 Ill. App. 3d at 370. If this is a case of mistaken identity, we would need to analyze the three factors provided in section 2--616(d) to determine whether plaintiff's amended complaint relates back to the date of filing of his original complaint. Id. Thus, our initial inquiry is whether plaintiff would have named RAS Development as the defendant in his original complaint but for a mistake concerning the identity of the proper party. See Polites, 361 Ill. App. 3d at 82.

Whether a case involves mistaken identity or misnomer depends on the intent of the plaintiff as established by the plaintiff's objective manifestations of that intent as contained in the record. Fassero, 349 Ill. App. 3d at 371-72. "Themost probative evidence of whom the plaintiff intended to sue is the party named in the complaint." Id. at 372 " 'If the named party in fact exists but is not a real party in interest, a court can conclude that the plaintiff has mistakenly sued the wrong party.' " Id. (quoting Zito v. Gonzalez, 291 Ill. App. 3d 389, 393 (1997)).

The Fassero court was the first appellate court to interpret the amended version of section 2--616(d). In Fassero, the plaintiff motorist brought a personal injury action, naming the owner of the car, instead of the driver, as the defendant. After discovering that she sued the wrong defendant, plaintiff brought a motion to amend the complaint after the statute of limitations had run. The trial court denied the motion, and the plaintiff appealed. This court reversed, holding that the case was of mistaken identity, not misnomer, explaining that the real party in interest was not originally sued or served, which indicated that the plaintiff was mistaken as to the correct party's identity. Fassero, 349 Ill. App. 3d at 373-74. The court noted that the plaintiff's complaint was directed at the driver of the vehicle, but the complaint named someone else as the defendant. Id. at 374. The court concluded that the plaintiff simply sued the wrong person, meaning it was a case of mistaken identity and the misnomer rule did not apply. Id.

Following Fassero, the Pruitt court found that the relation-back doctrine did not apply in a premises liability action where the plaintiff's failure to name the proper defendants was due to a lack of information about the other parties' responsibility for the premises. There, the plaintiff assumed the management company was liable for her injury, rather than the property's owner. The plaintiff later attempted to amend her complaint to name the owners. This court found that the plaintiff was not misled in any way causing her to file her initial suit against only the management company. The Pruitt court concluded that it was not a case of mistaken identity because the plaintiff deliberately named the party she intended to hold responsible for her injuries. Pruitt, 356 Ill. App. 3d at 38.

Shortly after Pruitt, the Polites court considered section 2--616(d) where a bank customer sustained injuries while at a U.S. Bank branch office. Plaintiff's counsel sent a claim letter to the branch office where the injury occurred and received a response from an insurance claims service representing U.S. Bancorp, a separate entity described as U.S. Bank's parent corporation, indicating that the owner of the bank was U.S. Bancorp, not U.S. Bank. Unable to reach a settlement, the plaintiff filed a premises liability action against U.S. Bancorp. When U.S. Bancorp was subsequently dismissed from the case, the plaintiff amended his complaint to substitute U.S. Bank as the defendant after the statute of limitations had run. The trial court granted U.S. Bank's motion to dismiss, finding that the amended complaint did not relate back to the plaintiff's first complaint. This court reversed, holding that the plaintiff's amended complaint did indeed relate back to the first complaint, since ...

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