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Calloway v. Bovis Lend Lease, Inc.

Court of Appeals of Illinois, First District, Fifth Division

August 16, 2013

HERMAN CALLOWAY, JR., and GWEN BROWN, Special Administrator of the Estate of Herman Calloway, Sr., Deceased, Plaintiffs-Appellees,
BOVIS LEND LEASE, INC., Defendant-Appellant.

Appeal from the Circuit Court of Cook County Nos. 05 L 8589, 06 L 2005 Honorable Clare E. McWilliams, Judge Presiding.

JUSTICE PALMER delivered the judgment of the court, with opinion. Presiding Justice McBride and Justice Howse concurred in the judgment and opinion.



¶ 1 This appeal arises out of consolidated injury and wrongful death lawsuits. At all relevant times, the Community Unit School District 200 (the District) engaged various entities for a construction project located at Wheaton-Warrenville South High School (the project). The District hired defendant Bovis Lend Lease as the construction manager for the project. The District also contracted with DuPage Top Soil, which then subcontracted with Hamilton Construction (Hamilton) for the installation of underground sewer and storm pipes.[1] On June 6, 2005, two of Hamilton's employees, father and son Herman Calloway, Sr. (Senior), and Herman Calloway, Jr. (Junior), were working in a trench as part of Hamilton's work on the project. The trench collapsed, killing Senior and injuring Junior. Plaintiffs, Junior and Gwen Brown, special administrator of Senior's estate (the Estate), each brought a negligence action against Bovis and the cases were consolidated for trial. A jury returned a verdict in favor of Junior in the amount of $8, 587, 591.97, subject to a setoff of $406, 915.85. The jury also returned a verdict in favor of the Estate, awarded it $1, 020, 000 subject to a $97, 275 setoff and found that Senior was 49% contributorily negligent. The $1, 020, 000 represented the recoverable damages awarded after the Estate's total damages of $2 million were reduced by the percentage of negligence attributed to Senior.

¶ 2 On appeal, Bovis contends that the trial court erred in denying its motion for judgment notwithstanding the verdict and in failing to grant Bovis a new trial. For the reasons that follow, we affirm.

¶ 3 In its capacity as construction manager, Bovis was responsible for coordinating day-to-day activities on the project, including the work of all contractors and subcontractors. On the day of the accident, Hamilton was digging a trench to install a sewer line. The process typically involved a backhoe digging a trench and then a hole in the trench in which a trench box was to be placed. A trench box is a wooden or metal box that is placed in the trench in order to provide protection for workers against a trench collapse. The trench box is put in the trench and then a stone base is placed in the bottom of the trench. A backhoe is used to place the sewer pipes on top of the stone base. Workers are required to be in the trench to level or hand-grade the stone base, to detach the sewer pipes from the backhoe and to connect the segments of sewer pipe together inside the trench. On the day of the accident, the trench being dug had intersected with markings indicating a buried electric line. Work had stopped while the Hamilton crew attempted to locate the cable. It was at some point during this process that Junior and Senior were in the trench without a trench box when the trench collapsed. With this background in mind, we set forth the evidence presented at trial.

¶ 4 Jim Blowers was the senior superintendent for Bovis at the time of the accident. He testified that Bovis was the construction manager and that in that role it coordinated the day-to-day activities at the construction site. As the senior superintendent, Blowers was assigned to coordinate activities on the project and was at the site daily. Blowers was responsible for "the whole site" and walked the site daily to check on the progress of the contractors and subcontractors. He typically did not have the authority to direct the manner, method or means of a subcontractor's work and left those decisions to the subcontractor. However, Blowers had the authority to stop unsafe work that he observed. If he saw a subcontractor not following proper procedure or doing something unsafe, he would stop the activity and have a discussion with the foreman about his concerns and how the task could be done differently.

¶ 5 Blowers testified that Bovis provided a safety orientation to all subcontractors and contractors who worked on the project. The orientation involved reading through documentation, talking about specific things related to the project, reviewing a general list of "basic common sense rules" appropriate for the project and then watching a 15-minute safety video. Part of the documentation distributed to all workers on the project was a 34-page site-specific "Safety Plan" that Bovis expected all contractors and subcontractors to follow. Bovis superintendents were responsible for ensuring that all contractors and subcontractors followed that safety plan. Bovis also distributed a project orientation to all subcontractors and contractors. The orientation contained, among other things, a "trenching" section that Bovis expected all subcontractors to follow. That section stated that when working in a trench over five feet deep, all workers were required to use a "trench box" or to "slope" the side of the trench to avoid injury resulting from a trench collapse. Enforcement of the provisions in the orientation was within the scope of Blowers' job duties.

¶ 6 Blowers also testified that all of his contact with Hamilton was through Senior. Blowers and Senior met each morning to discuss the tasks Hamilton was going to perform and to ensure that Blowers and Senior were "on the same page." When Blowers arrived at site on the morning of the accident, he spoke with Senior about Hamilton's plan to dig a north-south trench that day in order to lay sewer lines. Blowers told Senior to use proper trenching equipment because of the importance of safety. Senior did not mention that he planned to work without a trench box that day. Blowers left to check on work being done inside the school but returned later that morning and saw that work had begun on the north-south trench. No one was working in the trench at the time and he did not recall if a trench box was in the trench.

¶ 7 Blowers returned to the trench at approximately 2:45 p.m. He walked to the east side of the trench and saw two workers in the partially filled trench and Senior standing outside of the trench. Senior nodded to the workers and they walked out of the trench. There was no trench box in place at that time. Blowers asked Senior "what's going on here" because he was concerned about workers being in the deep trench without protection. Senior explained that he was concerned about the trench crossing a submerged power line and that he did not feel a trench box would fit into the trench. Blowers responded, "we got to do something about this" and told Senior that he needed to use some form of trench protection. Although he agreed he had the authority to do so, Blowers explained that there was no reason to shut the job down at that point because there was no one in the trench. Based upon his conversation with Senior, Blowers understood that no one was going to work in the trench without protection. Prior to the day of the accident, Blowers had never seen Hamilton employees working in a trench over five feet deep without protection and Hamilton workers had never previously disregarded his directives.

¶ 8 At this point a backhoe operator was finishing some cleanup in the trench and a front-end loader had just dropped a bucket of stone into the trench. The backhoe operator then swung the backhoe over to an area where the pipe was kept. Blowers explained that the backhoe was to his left and the north end of the trench was to his right. Blowers was approximately 10 to 12 feet away from the backhoe. Blowers did not see Senior give a signal to the backhoe operator to pick up the pipe and did not recall if Senior was standing beside him at this point or had moved somewhere else. Blowers watched as the men on the west side of the trench hooked the pipe to the backhoe, which took approximately 30 seconds. The backhoe operator then swung the pipe over to the trench and Blowers noticed that Senior and Junior were in the north end of the trench. He did not see them enter the trench and did not expect them to be there because he had just spoken to Senior about five minutes ago. Blowers thought, "what the hell are you doing down there? What's going on?" Shortly thereafter, the trench collapsed. When asked how much time elapsed between when he saw Senior and Junior in the trench and when it collapsed, he responded that it was "hard to say, it was certainly 30 seconds to, I can't remember exactly." Blowers testified that he did not recall what Senior and Junior were doing in the trench. He did not have any warning before the trench wall blew in and he was unable to call out to Senior and Junior before the collapse.

¶ 9 Blowers did not stop the work when the stone was being dropped in the trench or when the pipe was being hooked to the backhoe because he did not think that any workers were going to be in the trench. He explained that the stone and pipe can be placed without anyone entering the trench and that he "figured they were just going to drop the section [of pipe] in the hole without anybody down there." Blowers also believed that a trench box could have been used in the location of the collapse. At some point during this time, Bovis assistant superintendent Andrew Staroske walked up to the trench and was there when it collapsed.

¶ 10 Blowers acknowledged that he gave a handwritten statement explaining the accident to the police on June 6, 2005. In that statement, Blowers said he observed Senior and Junior hand-digging in the trench to avoid the power line before the collapse. At trial, he testified that this was information he received from others and that he did not personally observe the hand-digging. Blowers gave a second statement several days after the accident. In that statement, he said that the stone bed was installed with an excavator. He further stated that Senior then asked the backhoe operator to hook up the next section of pipe and then at some point Senior and Junior reentered the trench and hand-graded the stone bed. He explained at trial that the hand-grading he referenced in the statement was during the 30 seconds between when he turned around and when the trench collapsed. In the statement, Blowers also indicated that the east side of the trench blew in within a minute or two after Senior and Junior entered the trench. At trial, Blowers testified that these one to two minutes was a reference to the entire period of time between when he approached the trench and spoke to Senior and when the trench collapsed.

¶ 11 Blowers acknowledged that a reason to have stopped work on the trench would be if he had observed men in the trench while unprotected. It was his duty as senior superintendent to stop the work if he saw men working in an unprotected trench and to yell stop. When asked if 15 seconds would have been enough time to yell "stop, get out" while he saw Senior and Junior in the trench, Blowers responded, "it certainly seems that way, yes." Blowers acknowledged that he did not yell "stop, get out" to Junior and Senior and, when asked whether that was a violation of his duties, Blowers responded "it could be interpreted that way, yes."

¶ 12 Blowers testified that in addition to himself, Bovis's designated safety coordinator Brian Gawlik, Bovis superintendent Rich Liebrock and Staroske were all responsible for safety oversight on the project. Hamilton employees had always followed the directives that Blowers gave them. This included two prior occasions when Blowers told Hamilton workers to put a ladder into a trench being dug and to take a couple of cracked pipes out of service. Blowers acknowledged that workers have to be in the trench to guide the pipes into place and to unhook the pipes from a backhoe before they are placed in the trench. Blowers further acknowledged that at certain times on the project men had been in the trench hand-digging prior to installing the pipe.

¶ 13 The project orientation created by Bovis had a section regarding trenching which indicated that an excavation over five feet deep would need a trench box or sloping. Blowers agreed that this showed that Bovis had authority to direct the means and methods of a subcontractor. He acknowledged that when he gave his first statement a couple hours after the accident, neither Junior nor Senior had been extricated from the trench and he did not know if either was alive. In that statement, he did not mention the conversation he had with Senior near the trench about needing trench protection.

¶ 14 Andrew Staroske testified that the day of the accident was his first day working on the project for Bovis. He reported to Blowers that morning and was there to familiarize himself with the site. As a construction manager, Bovis's role was to "ensure the contractors performed within their safety requirements." Bovis could stop a subcontractor's work if it believed a subcontractor was not following a site-specific safety requirement.

¶ 15 Staroske testified that he went to the site of the accident twice in the morning and saw the trench box outside of the trench. Staroske returned to the trench a third time that afternoon. As he approached, he observed two Hamilton workers outside of the trench fitting a concrete pipe together and a backhoe clearing soil from the bottom of the trench. Approximately two minutes later, Blowers arrived at the area and joined Staroske on the east side of the trench. They discussed the challenge of the upcoming work inside of the school. The backhoe operator continued to clear materials from the bottom of the trench for another one to two minutes after Blowers arrived. The operator then began to attach cables to the pipe. At some point, Staroske saw some stone placed into the bottom of the trench and then observed two Hamilton workers enter the trench. Blowers was standing next to Staroske on the east side of the trench as the two men entered. After the two workers had gone halfway into the trench, Staroske observed Blowers walk around the backhoe to the west side of the trench and have a conversation with two to three Hamilton employees, one of whom he identified as Senior. The conversation lasted less than a minute and during this time the bucket of the backhoe was attached to the concrete pipe but the pipe was still on the ground. Blowers then walked back to the east side of the trench where Staroske was standing. Blowers received a phone call and walked 15 feet away to take the call.

¶ 16 At some point, approximately two minutes after Blowers' conversation with the Hamilton employees, Staroske observed two workers, whom he later learned to be Junior and Senior, enter the trench. They were not the same two workers that Staroske had previously observed entering the trench. Staroske did not know if Blowers saw Junior and Senior enter the trench as Blowers was still on the phone and was not standing next to Staroske. Staroske did not know the direction that Blowers was facing while he was on the phone. Senior and Junior walked to the bottom of the trench and appeared to be working on laying the pipe. The backhoe operator had lifted the pipe off of the ground but had not yet placed it into the trench. Staroske did not tell the backhoe operator to stop and he did not tell Junior or Senior to get out of the trench at this time. He also did not hear Blowers tell the backhoe operator to stop or tell Junior and Senior to get out of the trench at this time. Blowers then finished his phone call and returned to Staroske's side. Seconds later the top of the east trench wall began to cave in and Staroske yelled "get out." Staroske acknowledged giving a statement for the police less than two hours after the collapse in which he said that he and Blowers both yelled "get out" when the trench began to collapse.

¶ 17 Marc Morale, Hamilton's owner, testified that Senior knew to use trench protection when the trench was over five feet deep. Hamilton controlled the methods and means of its work. However, if Bovis saw Hamilton working in a manner it did not believe was correct, Bovis could tell Hamilton to stop working and to perform the task differently.

¶ 18 Steven Fournier, a licensed civil engineer, testified as plaintiff's construction safety expert. Fournier was familiar with accepted industry standards regarding trench and excavation safety. Fournier opined that, under those accepted industry standards, some form of trench protection is required for any excavation greater than five feet deep in order to protect workers inside the trench. That protection can be provided by a number of means, including "sloping" the soil, a "trench box" or some other shielding device.

¶ 19 Fournier testified that industry standards required a construction manager who observed a potentially hazardous situation, such as workers in a trench over five feet deep without protection, to stop the work immediately. The construction manager should also speak to the person in charge of the particular crew and tell that person that the unsafe condition must be mitigated or eliminated.

¶ 20 A reasonably careful construction superintendent would know that the process of hand- grading to level the stone beds beneath the sewer pipes could not be done with a backhoe alone and that the process involved laborers entering the trench to grade the stone by hand. A reasonably careful construction superintendent should also know that when a trench is being dug to lay pipes and a submerged utility is encountered, workers must manually enter the trench and dig down to locate the utility.

¶ 21 Fournier testified that he was familiar with the responsibilities, duties and obligations of a construction manager concerning safety practices and monitoring of contractors and subcontractors on projects similar to the project in this case. Fournier opined that a construction manager under these circumstances had the duty to periodically inspect the work being done, to stop unsafe work until proper safety practices have been put in place and to monitor the safety practices of contractors and subcontractors.

¶ 22 Based upon his review of the materials in this case, it was Fournier's opinion that Bovis failed to conform to industry standards regarding its duties and responsibilities. Specifically, Bovis violated its safety duties by allowing people to work in an unprotected trench, by failing to stop the work despite a dangerous condition and by failing to require appropriate trench protection.

¶ 23 Fournier testified that Bovis had notice of the unsafe condition. Blowers saw workers in the unprotected trench and ordered them out of the trench. Blowers was subsequently standing next to the trench with Staroske and saw Junior and Senior in the trench again. Blowers and Staroske saw the stone being placed in the bottom of the trench, Junior and Senior hand-grading that stone and a backhoe connecting to a piece of pipe and moving it to the trench. This gave Blowers and Staroske notice that a section of pipe was going to be installed and the failure to stop the work at this point, which Blowers and Staroske had the opportunity to do, was a violation of industry standards. In Fournier's opinion, had Bovis complied with proper industry standards and properly exercised its supervisory responsibilities, Junior and Senior would not have been exposed to the unsafe condition or the trench collapse. Bovis had time to intervene because the process of dumping the stone into the trench, grading it and then lowering the pipe could not be done quickly. It was not sufficient for Blowers to tell Junior and Senior to get out of the trench. He also should have stopped work from proceeding until the trench was made safe and spoken to Senior about obtaining trench protection. Bovis also should have stopped the work when Blowers first arrived at the site and noticed two workers in the trench without protection. Had he done so, Junior and Senior would not have had the opportunity to enter the trench at a later time. In addition to failing to stop the work, Bovis violated safety standards when it watched and permitted Junior and Senior to enter the trench.

¶ 24 Fournier agreed that Blowers approached the scene and ordered Junior and Senior out of the trench and then spoke to Senior. According to Blowers deposition, he told Senior that nobody was to be in the trench without protection. Fournier agreed that Senior and Junior violated safety standards when they entered the trench. Hamilton had the responsibility to provide trench protection, not Bovis. Senior was the foreman at the site and was charged with the safety of those working for him. Like Bovis, Senior also had the power to stop the dangerous work. Junior had the power to stop his work but could not stop work at the site generally. Although Bovis had the authority to stop the work, it did not have authority to tell Hamilton specifically how to correct the unsafe condition.

¶ 25 Bovis gave all of the subcontractors a project orientation. Junior and Senior signed the document, which stated that they would follow the guidelines for trenching procedures set forth by Bovis and the Occupational Safety and Health Administration (OSHA). Hamilton also had a safety manual that had a detailed identification regarding excavating trenching which indicated that trench protection was required for any trench greater than five feet deep. Junior and Senior should have known of the need for trench protection under the circumstances of this case. Junior testified that he did not think it was unsafe and Fournier testified that Senior exposed Junior to the unsafe condition. It was a deviation from standard practice for Senior to reenter the trench after being ordered out by Blowers. As for Junior, Fournier understood that he reentered the trench at the direction of Senior. To the extent Senior ordered him to reenter, it was reasonable for Junior to do so. If Senior did not order him to reenter, then it was unsafe and a deviation from standard practice.

¶ 26 Fournier further testified that although it was insufficient for Blowers to just tell Junior to use trench protection, Fournier had no evidence that Hamilton had ever disregarded a directive from Bovis. For example, on prior occasions Bovis asked Hamilton to put a ladder in the trench, to change some gaskets and to remove some pipes that were cracked and not to start work until a certain time. All of these directives had been followed.

¶ 27 Steve Gromala was the Bovis project manager and handled all of the contracts for Bovis on the project, including Bovis's contract with the District. Gromala testified that Bovis created a site-specific safety plan for the project, which was signed by Bovis and each Hamilton employee and was to be followed by all contractors and subcontractors. Bovis's superintendents had the responsibility to ensure that all contractors followed the safety plan. Bovis was involved in the overall management and oversight of the project. As the project manager, Gromala expected Bovis safety personnel Brian Gawlik and John Ferguson to make safety inspection visits to the site. The safety plan identified Bovis safety officer Brian Gawlik as having overall safety control of the project. Additionally, all Bovis superintendents were at the site on a daily basis and had daily health and safety responsibilities on the project. Bovis created a project orientation manual for the project that included safety rules that were to be followed by all contractors and subcontractors as well as Bovis. Bovis's superintendents had a responsibility to take action if a contractor was not following the project orientation. If the superintendents did not take action when the procedures put in place by the orientation were not followed, they would not be doing their jobs and would be violating their duties. This was because the contractors were not free to do the work in a manner that was inconsistent with the procedures put in place by the project orientation. Thus, the superintendents had a responsibility to intervene in order to ensure compliance with the Bovis project orientation. Gromala also expected Blowers, Staroske and Liebrock to walk the site as often as necessary to keep themselves apprised of the quality and safety of the work.

¶ 28 Kevin Franklin was a laborer for Hamilton and also Senior's son. He was working on the project on the day of the trench collapse. Work on the trench had stopped while the Hamilton crew attempted to locate the buried electric cable. Franklin saw a Bovis employee standing on the east side of the trench speaking to Senior "about the electric line." The trench box was then pulled out of the trench and Senior went and spoke to Junior and they both entered the trench with shovels to look for the power line. Blowers was standing close to the edge of the trench and watching as the trench box was removed and as Junior and Senior entered the trench and began digging for the power line. After watching Senior and Junior dig in the trench, Franklin turned away to hook the cable from the backhoe to a sewer pipe that was going to be put into the trench. This took about three to four minutes and when Franklin turned back around he saw Junior and Senior still digging in the trench and "the Bovis guy" talking on his cell phone while standing on the edge of the trench watching Junior and Senior dig in the trench. The next thing Franklin saw was the trench collapse onto Junior and Senior. Franklin did not see "the Bovis guy" "do anything" from the time Franklin saw Junior and Senior walk to the trench until the time Franklin turned back around after attaching the pipe. Franklin testified that Senior taught him to always use a trench box when digging in a trench that was deeper than five feet.

¶ 29 Henderson Calloway, Senior's son and Junior's step-brother, testified that he occasionally worked for Hamilton. Senior taught him to use a trench box if he was working in a trench over five feet deep. Henderson testified that from time to time his relationship with his father was strained and that there were periods of time when he did not see Senior for a year. However, Henderson's relationship with Senior was not strained at the time of Senior's death and he saw his father a few times from April to June of 2005. Henderson also testified that he was not aware of his siblings from Senior's other family until they were around six years old and Senior brought them to work.

¶ 30 Steven Giannini, Hamilton's backhoe operator, testified that the decision whether to use shoring or other trench protection was usually made by the foreman of the company doing the trenching. Giannini had never seen stone placed in a trench as bedding without men in the trench to hand-grade it and he was never able to install sewer pipe without men in the trench to guide the segments of pipe together. Prior to the accident, Giannini had never seen Hamilton employees working in a trench over 10 feet deep without trench protection. Giannini took his directions from Senior, who spoke to Bovis employees and superintendents on a daily basis. Bovis did not control the method or manner by which Giannini completed his work. Bovis had a safety orientation meeting the first day Giannini was on the job that he was required to attend. During the orientation, he spoke to a Bovis employee and watched a safety video. Senior spoke to Bovis employees on a daily basis.

¶ 31 Giannini dug a portion of a north-south trench on the morning of the accident. Hamilton workers could not get the sewer pipe in properly because of a manhole in the trench and they could not get the trench box to fit into the trench. Giannini never saw the trench box in the trench on the day of the accident. Whether to use the trench box was a decision that would have ultimately been made by Senior. The other problem with using the trench box at this stage of the process was that the "cutters" on the edge of the box could sink into the ground and contact the buried electric line. After it was determined that the trench box would not fit, Junior and Senior entered the trench without protection. The only other person he recalled being present while Junior and Senior were in the trench without protection was "the Bovis representative, " who was "pretty much always around." That representative stood on the east side of the excavation all day and watched the Hamilton employees working. Giannini did not hear this person give any directions to Hamilton employees. Giannini saw the Bovis representative speak with Senior several times on the day of the accident but could not hear what they were saying due to the noise of his machine. He did not see the Bovis representative make any hand gestures toward anyone working in the trench. Giannini did see the Bovis representative watching the unprotected Hamilton employees working in the trench. Giannini explained that when they were digging the trench on the day of the accident, he used the backhoe to dig for a bit and then Senior would hand- dig to look for the cable. Giannini did not know if, once they were past the manhole, the trench was wide enough to accommodate the trench box but the trench could have been widened had Senior asked Giannini to do so. However, Senior told him that they were not using a trench box that day.

¶ 32 Giannini was picking up pipe with the backhoe when he saw the trench collapse. The Bovis representative was standing on the east side of trench at that time. Giannini did not remember how long the representative was standing there, but it was over 10 minutes. Senior and Junior had been in the trench for about one half hour before the collapse and Giannini did not remember if either came out of the trench during that time. He never saw the Bovis representative gesture to anyone working in the trench and Blowers never told Giannini to stop the work that he was doing.

¶ 33 Evan Kuhn operated the end loader for Hamilton on the project. His main task on the sewer installation project was to take dirt from the trench and load it onto trucks. He took his directions from Senior. He testified that based on his past experiences, hand-digging is usually necessary when looking for underground utilities and that a trench box would be used when digging below five feet. He believed a trench box could be used even when digging for a utility and that decision would be made by the foreman at the jobsite. Kuhn was standing on top of the backfill looking down into the trench when it collapsed. He did not know how long Junior and Senior were in the trench before it collapsed because they had been going in and out of the trench. Kuhn did not see anyone from Bovis standing near the trench when Junior and Senior entered the trench before the collapse.

¶ 34 Bovis was the construction manager and its superintendent would come by on a daily basis to observe the work being done and to make sure everything was going "smoothly." Kuhn did not take directions from the Bovis superintendent but instead only took them from Hamilton. Senior was the Hamilton employee who "called the shots" with regard to safety and Kuhn followed his directions.

¶ 35 On cross-examination, Kuhn testified that the Bovis representative could have been hidden from his view behind a machine and therefore could have been at the trench for more than 10 minutes before the collapse. He also testified that Hamilton did not give him any safety training and that all such training was done by Bovis. The Bovis superintendent had the authority and responsibility to stop him from doing any work that was unsafe. The Bovis superintendent and Senior spoke several times a day about what work was going to done on a given day and the progress of the project. Kuhn did not see Staroske speaking to Blowers by the trench before the collapse and he did not see Blowers speaking with Senior. He never heard the Bovis representative tell the men in the trench to get out or stop the work.

¶ 36 Dr. Steven Louis testified to the injuries Junior suffered as a result of the accident. Junior sustained multiple fractures to his pelvis, a ruptured bladder and damage to his arteries, muscles and nerves around the pelvic area. These injuries made his pelvis "unstable, " meaning that half of his pelvis could "move independently in ways that it's not supposed to." Due to nerve damage, Junior was unable to flex his left foot upwards. Junior also suffered from impotence following the accident. Dr. Louis testified that his opinion, to a reasonable degree of medical certainty, Junior's muscle, nerve and bone injuries were caused by the trauma of the trench collapse.

¶ 37 Dr. Louis testified that he treated plaintiff's pelvic fracture by fixing the bones in place with plates and screws that were likely permanent. Junior complained of sharp pain down his leg and near his hips after the accident and was prescribed various narcotic and pain medications. At Dr. Louis's suggestion, Junior began treatment at a pain management clinic in 2006. Junior had his last visit with Dr. Louis in June 2007. Dr. Louis's impression at that time was that Junior's condition was not going to improve and that as a result of the accident he was permanently and totally disabled from any type of work due to his inability to stand, sit for any long time and/or do heavy labor. Dr. Louis also testified that he believed to a reasonable degree of medical certainty that Junior's pain, nerve damage and impotence were more likely than not permanent.

¶ 38 Dr. Timothy King, a pain management physician, testified that he had been treating Junior since August 2006. Junior was on pain medications when he began that treatment and Dr. King described Junior's pain as "bilateral back and hip in location with a burning type pain down into the calves and feet." Junior's numerical rating regarding his pain was 7 to 8 out of 10 and Dr. King stated this score reflected severe pain. Junior told the doctor that he had experienced that level of pain since the accident. At least part of Junior's pain was nerve-related. Dr. King outlined numerous medical procedures that were implemented in order to reduce Junior's pain and testified that the pain could be managed but not cured. Dr. King further testified that Junior's pain and physical conditions remained essentially unchanged since August 2006. Junior still exhibited bilateral leg burning, axial back pain and pelvic pain and continues to require the use of pain medications. Dr. King stated that Junior was "still pretty nonfunctional, " and that he did not believe Junior could ever return to work as a construction worker.

¶ 39 Junior testified that he had been a construction worker since a young age and that he never received any formal training but learned construction on the job. Junior attended an orientation provided by Bovis before he began work on the project. His task on the project was to install sewer pipes. He did not have authority to direct how the work was to be performed or to stop others from performing their work. On the day of the accident Junior was placing sewage pipes into the trench. Junior testified that two workers needed to be in the trench to guide the concrete pipe into the correct position as the backhoe could not do this task by itself. Work was very slow on the trench that day because of concern that the backhoe could hit the submerged power line. The trench therefore had to be dug by hand. Shortly before the collapse, Junior and Senior were probing for the power line and the trench box had been taken out of the trench because it would have hindered the probing process. The trench box was also deemed too big to fit into the trench due to the presence of a manhole. Junior testified that he knew that any trench over five feet deep posed a risk to his safety. However, he also testified that he did not think going into the trench was unsafe because the ground in the area of the trench was primarily composed of clay.

¶ 40 Junior saw Blowers near the trench when he and Senior were probing for the electrical line. Junior saw Blowers two to three times every day at work but never spoke to him directly. Instead, he took his directions from Senior, who did speak with Blowers numerous times each day. Blowers told Junior and Senior to get out of the trench. After they got out of the trench, Junior saw Senior speaking with Blowers but did not hear what was said. After Senior spoke to Blowers, he and Junior reentered the trench. Blowers watched as they did so and did not signal to them to get out of the trench and at no point before the collapse did he tell Junior and Senior to get out of the trench. After more probing for the electrical line, Junior and Senior began hand-grading the stone bedding after the backhoe dumped stone into the trench. The east wall of the trench caved in on top of them while they were doing so. Junior testified that he heard somebody yell for them to get out immediately before the trench wall collapsed.

¶ 41 Junior was in a type of sitting position near the concrete pipe when he was buried under the dirt. He testified that he could not see or hear anything, could not move and felt like he was suffocating. He was conscious during this experience and in excruciating pain. He yelled constantly while he was buried so that the workers would know his location when they were trying to dig him out of the trench. Kevin Franklin, Junior's brother, uncovered him and Junior was eventually extricated from the trench. He was taken to the hospital for surgery on his pelvis. He did not recall speaking with police after surgery.

¶ 42 Junior was eventually sent to for rehabilitation and afterwards to another hospital. He was initially wheelchair bound after the accident. Through his efforts at rehabilitation he was eventually able to walk with the assistance of a cane. Junior eventually started seeing a pain management physician, Dr. King. Junior repeatedly testified that he had been in pain "to this day" from the injuries he sustained in the trench collapse. He could not work since the accident, was impotent and felt "pretty much worthless."

¶ 43 Gwen Brown Calloway was Senior's oldest daughter and Junior's younger sister. Brown testified that she spoke to her father once a week and saw him every other week. She enjoyed spending time with him. Brown witnessed Senior doing work around the house with his sons and teaching his sons work such as roofing and plumbing. Senior did not drink or smoke, was in good health and worked until the date of his death at the age of 74. On cross-examination, Brown testified that Senior had an estranged relationship with his son Henderson.

¶ 44 Junior's wife, Belinda Denise Calloway, testified that she had been dating Junior for over 10 years at the time of the accident. She described him as an interesting, quiet and "hard working man" who took pride in his work. Junior had no physical limitations before the accident. Belinda visited Junior in the hospital and saw that he was in "a lot of pain." She and Junior had a three-level home and after the accident numerous accommodations had to made to house. These included a ramp to get into the house and "stair lifters" so Junior could get to different levels of the house. Junior could not walk when he came home and "had to literally learn to walk all over again." Junior still could not do any tasks around the house such as vacuuming but he cooked several meals a month. Junior was left impotent by the accident and Belinda could see that Junior did not feel complete and felt humiliated by all of the treatments he had unsuccessfully tried. Junior's disabilities and limitations still affected him and left him frustrated and in pain.

ΒΆ 45 Following deliberations, the jury returned a verdict in favor of Junior and Senior and found Senior 49% contributorily negligent. The trial court denied ...

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