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Gomez v. Bovis Lend Lease, Inc.

Court of Appeals of Illinois, First District, Third Division

December 24, 2013

CARLOS GOMEZ, Plaintiff,
v.
BOVIS LEND LEASE, INC., JAMES McHUGH CONSTRUCTION COMPANY, and PERI FORMWORK SYSTEM, INC., Defendants Bovis Lend Lease, Inc. and James McHugh Construction Company Third-Party Plaintiffs-Appellants; Peri Formwork System, Inc., Third-Party Defendant-Appellee

Appeal from the Circuit Court, Cook County, Illinois No. 09 L 003250 Honorable Daniel T. Gillespie, Judge Presiding.

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concur in the judgment and opinion.

OPINION

HYMAN PRESIDING JUSTICE

¶ 1 A worker injured at the construction site for the 102-story Trump International Hotel and Tower brought a negligence claim against the construction manager and the contractor. They, in turn, brought a contribution claim, which was dismissed on a motion for summary judgment. Bovis Lend Lease, Inc., the construction manager, and James McHugh Construction Co., the contractor, now ask us to reverse the entry of summary judgment on their contribution claim against third-party defendant, PERI Formwork System, Inc. Bovis and McHugh assert that the contract between McHugh and PERI required PERI to provide designs and support for the infill areas, and a genuine issue of material fact exists as to whether PERI's failure to provide that support was a proximate cause of the worker being injured. We affirm the order of summary judgment on the basis that while the contract is ambiguous on the subject of PERI's contractual duties, the undisputed extrinsic evidence demonstrates that PERI had no duty to provide support for the infill areas.

¶ 2 BACKGROUND

¶ 3 Bovis and McHugh were Trump International Hotel and Tower's (Trump Tower) construction manager and general contractor, respectively. On July 11, 2005, McHugh hired PERI to design and supply Trump Tower's concrete forming systems and to provide onsite technical support for the concrete forming systems. McHugh used the concrete forming systems to create floors by pouring concrete into PERI's metal and wood forms. After the concrete dries, the forms are removed. Infills occur when the forming system's prefabricated frames do not match the floor's size or shape, resulting in a small gap between the formed concrete and a wall or column. The parties agree that PERI did not provide any designs, drawings, or technical support for the infills. McHugh supplied and placed plywood boards over the infill areas.

¶ 4 On June 18, 2008, plaintiff Carlos Gomez, while working on the plumbing on the eighty- sixth floor, stepped on a plywood board that covered an "infill." The plywood board broke, sending Gomez to the deck of the eighty-fifth floor.

¶ 5 McHugh and PERI had worked together on about 20 projects before Trump Tower, and PERI had not provided infill design services or technical support on any of them. After the worker's fall, Bovis conducted an investigation, which found nothing deficient in PERI's performance. Similarly, McHugh never indicated that PERI breached the contract or requested PERI to perform support work for the infill areas.

¶ 6 On March 17, 2009, Gomez sued Bovis and McHugh. Almost a year later, on February 3, 2010, Bovis and McHugh brought their third-party contribution claim against PERI. They alleged that the contract between McHugh and PERI imposed a duty on PERI to provide designs, drawings, and technical support for Trump Tower's infill areas and that PERI's failure to do so was a proximate cause of Gomez's accident.

¶ 7 PERI moved for summary judgment, arguing that nothing in the contract imposed on PERI the duty asserted by Bovis and McHugh and nothing in the previous dealings and course of performance between McHugh and PERI did either. Alternatively, PERI argued that even if it had a contractual duty to provide support for the infill areas, that duty was not a proximate cause of Gomez's fall. PERI presented expert testimony that McHugh used a cracked and defective plywood board to cover the infill areas. The expert further testified that McHugh's use of the defective board was the sole proximate cause for Gomez's accident.

¶ 8 Bovis and McHugh maintained that PERI's duty to provide support for the infill areas arose out of PERI's contractual obligation to assist with forming systems, because infills are a type of forming system. McHugh's vice president testified that none of PERI and McHugh's earlier projects matched this one in terms of sheer size. Accordingly, he drafted the contract to include "all the concrete forming systems to protect McHugh's interests." Bovis and McHugh also attached an affidavit of an expert witness to the affect that PERI's failure to provide additional support to the infill was a proximate cause of Gomez's fall. The court granted PERI's motion and later denied Bovis and McHugh's motion to reconsider.

¶ 9 ANALYSIS

¶ 10 Bovis and McHugh argue: (1) the contract unambiguously requires PERI to provide support to the infill areas; (2) even if the contract is ambiguous, the use of extrinsic evidence to interpret the contract creates genuine issues of material fact; and (3) the affidavit of their expert witness on proximate cause creates genuine issues of material fact.

¶ 11 We review a trial court's order granting summary judgment de novo. Williams v. Manchester, 228 Ill.2d 404, 417, (2008). Summary judgment should be granted when "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 2012). The court must construe all pleadings, depositions, admissions, and affidavits against the movant and ...


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