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Ramirez v. FCL Builders, Inc.

Court of Appeals of Illinois, First District, Fifth Division

January 31, 2014

TEODORO RAMIREZ, Plaintiff-Appellee,
v.
FCL BUILDERS, INC., an Illinois Corporation, Defendant-Appellant

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Modified

Appeal from the Circuit Court of Cook County. No. 08 L 6482. Honorable Susan Zwick, Judge Presiding.

Affirmed.

SYLLABUS

The award of $1.588 million in damages to a roofer for the back injury he suffered while working for a roofing subcontractor on a large warehouse project was upheld where the trial court did not err in denying defendant general contractor's motion for a judgment notwithstanding the verdict, notwithstanding the general contractor's contentions that it had no liability for plaintiff's injuries and that the trial court gave improper instructions, made evidentiary errors, and failed to impose sanctions for plaintiff's discovery errors, since there was evidence of defendant's vicarious and direct liability in connection with the performance of the work of moving materials in a safe manner, and none of the alleged trial errors deprived defendant of a fair trial to the extent that the verdict was affected.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Palmer concurred in the judgment and opinion.

OPINION

GORDON, PRESIDING JUSTICE.

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[¶1] Plaintiff Teodoro Ramirez was injured while employed as a roofer for Sullivan

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Roofing, a nonparty to this litigation. At the time of plaintiff's injury, Sullivan Roofing was operating as a subcontractor for defendant FCL Builders, Inc., the general contractor for a warehouse project. Plaintiff filed suit against defendant, alleging that defendant was negligent and, after a jury trial, the jury found defendant liable, awarding plaintiff damages in the amount of $1.588 million. Defendant appeals, arguing that (1) the trial court erred in not granting judgment not withstanding the verdict in favor of defendant, where defendant had no liability for plaintiff's injuries as a matter of law; and, alternatively, (2) the trial court should have granted defendant a new trial where the trial court improperly instructed the jury, made errors in the admission of evidence, and failed to sanction plaintiff for several discovery violations. For the reasons that follow, we affirm.

[¶2] BACKGROUND

[¶3] I. Complaint

[¶4] On June 13, 2008, plaintiff filed a complaint against defendant; the complaint was amended twice and it was the second amended complaint on which the parties went to trial.[1] The second amended complaint alleges that, on or before September 29, 2004, defendant was a general contractor responsible for the design, construction, and maintenance of a warehouse facility in Romeoville, Illinois. Plaintiff was working on the roof of the warehouse on September 29, 2004, when plaintiff and his coworkers from Sullivan Roofing were manually pushing a " large, bulky and heavy roll of roofing membrane material" on the roof of the warehouse, causing plaintiff's injuries. Although plaintiff was working on the roof of the warehouse as an employee of Sullivan Roofing, defendant " was present during the course of the construction project, supervised and coordinated the work being done, designated various work methods, maintained and checked work progress, and participated in scheduling the work and the inspection thereof." Additionally, defendant " had the authority to stop the work, refuse the work, tools and materials, and to order changes in the work in the event that the work was being performed in a dangerous manner or for any other reason."

[¶5] The second amended complaint alleges that, at the time of the injury, defendant, through its agent, knew or should have known of the manner in which plaintiff's work was being performed and defendant had a duty to exercise reasonable care under the circumstances to protect the safety of plaintiff. Notwithstanding that duty, defendant was negligent in one or more of the following ways:

" a. Failed to permit Honda [all-terrain vehicles (ATVs)] to be used by the roofing crew to move heavy roofing materials; or
b. Allowed an improper work practice to occur as it relates to material handling in violation of OSHA Standard 2236; or
c. Failed to place plywood planking at various locations on the metal deck thereby allowing Honda ATV's to be used to move heavy roofing materials; or
d. Failed to instruct the Sullivan Roofing crew in the recognition and avoidance of an unsafe condition as it relates to material handling in violation of CFR 1926.21(b)(2); or

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e. Failed to follow the safe customs and practices of the construction industry in the manner in which the workers, such as the plaintiff, were required to perform their duties; or
f. Failed to ensure handling of heavy roofing materials were done in a reasonably careful manner."

The second amended complaint alleges that, as a result of one or more of defendant's acts or omissions, plaintiff suffered injuries " of a personal and pecuniary nature."

[¶6] As an affirmative defense, defendant alleges that plaintiff had the duty to exercise reasonable care and caution for his own safety and failed to do so in one or more of the following ways:

" a. Failed to properly move and/or push roofing materials;
b. Failed to make a reasonable inspection of the premises to ensure that he was familiar with the premises;
c. Failed to use appropriate methods in the moving and/or pushing of roofing materials;
d. Performed his work in a manner in which the Plaintiff knew, or in the exercise of ordinary care, should have known was harmful or dangerous;
e. Was otherwise careless and negligent."

[¶7] II. Discovery

[¶8] Since defendant raises several arguments concerning discovery, we relate the relevant facts.

[¶9] On August 12, 2010, plaintiff filed answers to defendant's Rule 213 interrogatories, disclosing his anticipated witnesses, including five Rule 213(f)(2) independent expert witnesses and no Rule 213(f)(3) controlled expert witnesses. Ill. S.Ct. R. 213 (eff. Jan. 1, 2007). On January 11, 2011, the trial court ordered plaintiff to answer defendant's Rule 213(f)(3) interrogatories by April 1, 2011. On March 13, 2011, the court entered an order that discovery was to close on May 4, 2011. On April 5, 2011, the trial court ordered plaintiff to disclose any Rule 213(f)(3) witnesses by April 4, 2011, with the witnesses to be deposed by May 5, 2011; the court again ordered discovery closed on May 4, 2011.

[¶10] On April 20, 2011, plaintiff filed supplemental Rule 213 disclosures, including an additional Rule 213(f)(1) lay witness and one Rule 213(f)(3) controlled expert witness, Dennis Puchalski, a construction safety consultant.

[¶11] On September 16, 2011, plaintiff's current attorneys filed an appearance as additional attorneys of record and, in October 2011, plaintiff's current attorneys replaced the former attorneys as plaintiff's counsel.

[¶12] On February 21, 2012, the attorneys for the parties certified that all fact, medical, and opinion discovery was complete; that all deposition of Rule 213(f)(1), (2), and (3) witnesses had been taken or waived in writing or in a court order; that all necessary evidence depositions had been taken; and that no dispositive motions were pending or would be filed by any party prior to trial. On March 8, 2012, the case was set for trial on May 3, 2012.

[¶13] On April 24, 2012, plaintiff filed a notice of videotaped evidence deposition for Jaime Rojas, which would take place via telephone on April 26, 2012, since Rojas was located in Colorado. On April 26, 2012, defendant filed an emergency motion to quash the video taped telephone evidence deposition. In the motion, defendant argued that two days' notice for a videotaped evidence deposition was insufficient and would not allow defense counsel the opportunity to attend the deposition in

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person and to cross-examine the deponent in person. Further, defendant claimed that the deponent, Jamie Rojas, had not been listed by plaintiff as a Rule 213(f)(1), (2), or (3) witness. On the same day, the trial court denied defendant's motion to quash the deposition and further ordered the May 3, 2012, trial date to stand.

[¶14] On May 8, 2012, during trial, defendant filed a motion in limine seeking to bar plaintiff from calling David Gibson as a trial witness. The motion claimed that, on October 28, 2011, plaintiff made an oral motion seeking to disclose an additional Rule 213(f)(3) damages witness, which the trial court granted over defendant's objection. Plaintiff's disclosure of Gibson as an additional witness " resulted in defense counsel being compelled to retain its own defense expert on the issue of damages," causing prejudice. On the same day, the trial court denied defendant's motion.

[¶15] Defendant also filed a motion in limine seeking to bar plaintiff from calling Jaime Rojas as a witness for three reasons: " insufficient notice of an evidence deposition, violation of the Supreme Court 213(f)(2), and subsequently after taking the deposition learning of additional documentation that was relevant to the functional capacity evaluation that Mr. Rojas was testifying about on that given day." Defendant argued that, despite plaintiff's claim that a letter was sent in January 2012 disclosing Rojas as a witness, defense counsel never received such a letter. The trial court denied defendant's motion.

[¶16] III. Trial

[¶17] Trial began on May 7, 2012. Evidence was presented concerning the installation of the roof in the case at bar, as well as plaintiff's medical history following the injury. Several witnesses also testified about the safety of the procedures used on the roof, as well as plaintiff's damages.

[¶18] A. Roofing Witnesses

[¶19] 1. Michael Sullivan

[¶20] Michael Sullivan, who was employed by Sullivan Roofing and was the brother of the company's owner, was Sullivan Roofing's safety director in September 2004. Sullivan testified that Sullivan Roofing was in the business of installing commercial roofs, including " ballasted roofing which has rock on top to hold [it] down" ; Sullivan estimated that 30 to 40 roofers would have been employed by Sullivan Roofing in 2004, and it was typical for Sullivan Roofing to have multiple jobs at the same time. In 2004, defendant, the general contractor, hired Sullivan Roofing as a subcontractor on a project called the " Wilton Industries Project" in Romeoville (the Wilton project). The Wilton project was to be a big-box warehouse with a ballasted roof " somewhere in the vicinity" of 450,000 square feet, which was " a large roof, but it wasn't a huge roof." The roof on the Wilton project was pitched, or slightly inclined.

[¶21] Sullivan testified that, prior to beginning work on the Wilton project, Sullivan Roofing received a " welcome subcontractor type letter" from defendant, in which defendant indicated that it was " committed" to Sullivan Roofing's safety and wanted to provide a workplace " reasonably free of recognized safety hazards," which Sullivan testified was " very common" on a project of the scope of the Wilton project. The letter further stated that " safety and safety awareness is a two-way street," which Sullivan agreed with, testifying that " [e]verybody on site is responsible for safety," including the general contractor, subcontractor, and employees. Sullivan also testified that, on the Wilton project, defendant had certain " intolerable offenses," which meant that " generally the subcontractor has to behave in a certain fashion or they're gone."

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[¶22] Sullivan also explained the process of laying a ballasted roof such as that installed on the Wilton project. First, panels of insulation were placed on top of metal decking; the panels were four feet by eight feet and weighed approximately four pounds. The panels were wrapped in bundles of 23 and hoisted to the roof by a " boom truck," essentially, a big truck with a crane. The materials and tools, including insulation, rolls of rubber membrane, and ATVs, were placed along the perimeter of the roof, at least six feet from the edge; it was Sullivan Roofing's decision where to place the materials and Sullivan testified that it would not be unusual to have delivery of roofing materials staggered over several weeks. The insulation was placed, beginning at one corner of the building, enough to cover an area of 50 feet by 200 feet. A sheet of rubber membrane was then placed on top of the insulation; the entire deck was not laid with insulation before beginning to place the rubber membrane because, otherwise, it would be blown away by wind. After the rubber membrane was placed, stones would be spread on top of it; initially, rows of stone would be placed to keep the insulation and rubber in place in case of wind, which would be filled in later with more stones. The bundles of insulation could be pushed by two workers over short distances.

[¶23] Sullivan testified that " once in awhile [ sic ]" ATVs would assist in rolling out the rolls of rubber membrane: " It wasn't always. When the Hondas[2] were available or they came around, sometimes they would help push the rolls over, yes." Sullivan testified that the ATVs would also be used after the rubber membrane was placed, to spread the gravel on top of the rubber membrane. He could not recall the size of the rubber membrane rolls but, on a roof the size of the Wilton project, " a lot of times we use 50 by 200s." The rolls, when wrapped, were approximately 2.5 feet high and 10 feet wide and would weigh between 1,500 to 2,000 pounds depending on the size. When moving rolls of that size and weight at distances of over 30 feet, " [i]t all depends on how many guys were available. Sometimes we had eight guys pushing the roll. Sometimes there would be less guys, and the Honda would come in between everybody and help push it." Sullivan testified that it would be " very rare" for workers to physically push the rubber membrane more than 300 feet because " [t]hose [rolls] are positioned so that we don't have to move them that far when we load the job."

[¶24] Sullivan testified that, when roofing materials were hoisted onto the roof of the Wilton project, the materials were " dimpling" or denting the deck, and a solution needed to be provided by " the powers that be." Sullivan could not recall who informed him of the issue, " but I was called, and it was said we have an issue" ; Sullivan later testified that " I believe John [Zelasco[3]] called me" and informed him of the problem with the decking. Sullivan testified that ATVs were used on the Wilton project and were only temporarily stopped: " That was a decision made at the point in time all this happened, to stop everything, and we had to figure out a way that we could use them again and get things rolling and be able to load -- so we wouldn't damage the deck." A meeting was held to discuss the solution to the problem, at which Sullivan and Dave Majestic, also a Sullivan Roofing employee,

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were present, but Sullivan could not recall whether John Zelasco was present on behalf of defendant: " I don't recall if John was there. John wouldn't have been in that discussion until we figured out what we wanted to do and then we would pose that to him."

[¶25] Sullivan testified that Zelasco had the authority to stop work on the project if he observed unsafe practices and further testified that " FCL is very strict on safety. So that's more -- you know, anything that happens, John has the right. He runs the job. He has the right to stop." If Zelasco observed someone performing his job in an unsafe manner, Zelasco would have the right to stop that work and then would contact Sullivan. Zelasco would also coordinate the work and monitor the work of the subcontractors. However, Sullivan testified that defendant was not involved in the means and methods of Sullivan Roofing's work on the Wilton project.

[¶26] At the meeting, they " came up with a plywood runway solution," which would use a plywood runway system to distribute the weight of the heavy roofing materials and permit the ATVs to be used. Sullivan testified that " [w]e made the decision to use the plywood runway and posed that to John to help to protect the roof. That was our decision." Sullivan further testified that " after a conference between John and the powers that be at Sullivan, that was a solution that was implemented," and it worked to stop the dimpling.

[¶27] Sullivan also testified to his work as safety director. Sullivan testified that, in his position as safety director, he would visit the work site once every one to three days, for approximately an hour; Sullivan was not on the roof on September 29, 2004. Sullivan testified that Sullivan Roofing had a safety manual given to each of its employees and that safe material handling was " the number one safety issue that roofers have" because " [t]here's a lot of ergonomics to it again. There's a lot of bending. There's a lot of lifting involved. There's a lot of pushing rolls, if you will. And everybody -- I harp constantly on lifting properly, don't pull, you know, how to properly lift. Constantly we go over that."

[¶28] Sullivan testified that he conducted " toolbox talks" once a week, which were " a topic for the day basically. Sometimes it's on safe lifting. Sometimes it's on wind safety. Sometimes it's on heat. We have all different kinds of topics that we use. And what I do is I go on the roofs, I go through these topics. I gather everybody together. I read them, so everybody can't just sign. They have to know that -- you know, what we're doing for the day. And they sign off on that they've read this and they understand what I've given them for the day." Sullivan testified that the toolbox talks were conducted by Sullivan Roofing for its employees to keep its employees working safely. Sullivan conducted a toolbox talk on September 29, 2004, which plaintiff and his brother Sabeno both attended, as demonstrated by their signatures. That toolbox talk was " a safety review. It was over fall protection, material handling, MSDS sheets, electrical safety, and fire safety."

[¶29] Sullivan testified that, as safety director, he did not believe it was unsafe to have a Sullivan Roofing crew move a roll manually. Sullivan further testified that, with enough workers, using ATVs was not safer than manually pushing the rolls of membrane: " If you had a number of guys on there, it really wasn't -- we've done that for a number of years -- I don't know -- safer, I wouldn't say it's safer. It helped us move it along quicker. *** If you have four guys and the Honda helps, absolutely. If you have eight guys on there, it moves pretty easily." He acknowledged that, during his deposition, he responded

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that using ATVs " would help, yes." On recross, Sullivan clarified his testimony concerning the use of ATVs: " When we were all talking about moving these rolls and speaking about moving them 20, 30 feet, that's when the rolls are in position. We use the Hondas to put the rolls in position. From the position point, when they're spread out on the roof because -- he is correct in saying that we -- sometimes we move the roll 2,300 feet because of the width of the building. We have to put them in position. The Hondas are used for that. When we have to move them in position to lay it over the insulation is when I'm talking about pushing it 20, 30 feet. It's not to get it off a load and then roll these things by hand 300, 400 feet. That does not -- that's not what we do." Sullivan further testified that it was " fair to say" that it was " never appropriate" to move a roll of rubber membrane from one side of the building to the other without the use of an ATV.

[¶30] Sullivan testified that plaintiff was an employee of Sullivan Roofing and was a " great worker" who, at one point, they were considering making a foreman. Sullivan characterized plaintiff as reliable, dependable, honest, and very good at his job. Plaintiff was familiar with rubber roofs and ballasted roofs, including installing thermal plastic membranes. Plaintiff was part of Frank Pesek's crew and worked closely with Pesek. Sullivan recalled plaintiff informing him that he was planning to visit a doctor for his back, but denied discouraging the doctor visit or threatening to fire plaintiff.

[¶31] On cross-examination, defense counsel attempted to introduce an incident report completed by Sullivan into evidence.[4] Sullivan testified that plaintiff reported his back injury to Sullivan, who filled out an incident report in his capacity as safety director; Sullivan testified that keeping such reports was part of Sullivan Roofing's normal course of business. Sullivan further testified that the report was in his handwriting and bore his signature. Defense counsel then sought to admit the report into evidence, and plaintiff's counsel objected. The trial court examined the document outside the presence of the jury, noting that it showed an incident date of October 6 and the date of reporting as October 11. Further, the report indicated that the injury was due to pushing bundles of insulation, not rolling rubber membrane; defense counsel explained that " [t]hat's exactly why I want this before the jury. Mr. Ramirez told him exactly the opposite of what he's claiming in this lawsuit." The trial court summed up the defense's theory concerning the incident report: " It appears to me that what counsel is saying is that any injury that occurred didn't occur on September 29. It occurred on October 6. It didn't occur when he was pushing a roll, it occurred when he was pushing a bundle of insulation. *** You're saying based on what Mr. Ramirez told Mr. Sullivan, September 29 didn't happen."

[¶32] The trial court brought Sullivan back into the courtroom for further questioning concerning the incident report. Sullivan testified that he had an independent memory of speaking with plaintiff about the incident that was the subject of the report, and that he recalled being on the roof with plaintiff and Frank Pesek, the foreman, when plaintiff informed him of the incident. He further testified that plaintiff reported the incident to him on October 11 but told him that it had occurred on October 6. Sullivan admitted that the payroll records went to October 10 but that the last date plaintiff was on the payroll, according to the records, was

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October 7. Sullivan further admitted that it was possible that he was standing on a different roof, and not the Wilton roof, when plaintiff informed him of the incident and that " my dates could be wrong on the document. And I don't know. I can't verify that. But I remember specifically standing there talking to him." After Sullivan's examination, the court sustained the objection: " The objection as to the record itself is sustained. Whatever you choose to have him testify to as to his memory is still of evidentiary value. But because of the lack of reliability on the dates based on the voir dire and the *** deposition, I'm going to sustain the objection. I don't *** find it to be within the business records exception because of lack of reliability. The rest of the testimony is up to you." The court further noted: " It has to be created in an ordinary course of business and if it's on or about the time. That's why they're reliable. And what we have is that missing element. It wasn't created on or about the time because he says the date may be wrong and I don't remember."

[¶33] The jury was then brought back into the courtroom, and cross-examination of Sullivan continued. Sullivan testified that, at one point during the two weeks of the Wilton project, plaintiff approached him on the roof of the Wilton project and informed him of the accident; Pesek was also present during the conversation. Plaintiff informed them that he was pushing a bundle of insulation alone " and felt a twinge in his back." Sullivan testified that pushing insulation alone was contrary to Sullivan Roofing's recommendations for material handling, which required two people to push a bundle of insulation. Sullivan denied telling plaintiff not to visit a doctor.

[¶34] Sullivan testified that, based on the time sheets, plaintiff was working on a different project on Monday, September 27. He was working on the Wilton project on September 28 and 29, and was working on a third project on September 30 and did not work on Friday, October 1.

[¶35] 2. David Majestic

[¶36] David Majestic, vice president of field operations for Sullivan Roofing, testified that, at some point during the Wilton project, he learned that there was a problem with damage to the decking. Defendant's superintendent, John Zelasco, placed a call to Sullivan Roofing informing it of damage to the decking. Majestic later testified that he " received a call at some point in time" indicating that there were issues, but " [w]ho gave me that phone call, I don't recall that." The problem required the work to stop until a solution was developed.

[¶37] Majestic testified that the decision to use plywood to solve the problem was a collaboration between Sullivan Roofing and defendant. Majestic further testified that he was present while the plywood was in use, although he admitted that in his deposition, he testified that he was not present.

[¶38] Majestic testified that general contractors left it to Sullivan Roofing to determine the means and methods of its work. On the Wilton project specifically, defendant never told him or his crew how to perform their work on the roof or not to use ATVs on the roof, although defendant had the right to stop the work if they were damaging the roof.

[¶39] Majestic testified that ATVs were " workhorse[s]" used regularly in the roofing industry, including moving insulation and pushing rolls of rubber membrane, which weighed 2,500 to 2,800 pounds. At times, ATVs were occupied with other work on the roof and were not available to workers needing to move rolls of membrane. It was preferable to have several people move a roll of membrane, and protocol

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required a worker who had issues with the size of the roll to either inform the foreman of his concern or find additional workers to push the roll. Majestic did observe men manually pushing membrane weighing 2,500 to 2,800 pounds up to 200 feet in the past.

[¶40] Majestic testified that plaintiff was a very good worker who was responsible and dependable and that the company had considered him for the position of foreman.

[¶41] 3. Frank Pesek

[¶42] Frank Pesek, the roofing foreman for Sullivan Roofing on the Wilton project, testified that plaintiff worked under him and that he was a very good worker -- hard working, dependable, and honest. At one time, plaintiff was Pesek's " leadman," or right-hand man. Pesek testified that plaintiff informed him that he was injured on the Wilton project. When someone reported an injury, Pesek reported it to Sullivan.

[¶43] Pesek testified that, on a job the size of the Wilton project, ATVs would be used to push rolls of rubber membrane to various points on the roof; the ATVs had been used " since day one when I was here." Typically, two ATVs would be used to push a roll of rubber membrane, one on the left and one on the right of the roll. Sullivan Roofing " always used the ATVs" to move rolls of membrane significant distances " because it's easier" on the workers' bodies, but " [i]f we had to" manually push them, " we would."

[¶44] Pesek testified that the type of rubber membrane used on the Wilton project would be unrolled " kind of like a paper towel" and then unfolded " like a blanket." When unfolded, the roll would be approximately 200 by 50 feet. The materials for the roofing work were brought onto the roof by Sullivan Roofing's crane. From time to time, if soil conditions prevented a crane from being placed at a particular location, the general contractor would direct the crane to be placed in a better location with more favorable soil conditions.

[¶45] Pesek testified that he was notified by " [s]omeone from [defendant] FCL" that there was damage to the roof decking, and he " took a timeout to craft a solution to this deck damage issue." Pesek could not recall whether someone gave an order not to use ATVs, but " if we stopped using the Hondas, it's because someone told me not to use them." Pesek agreed that " it was more likely than not that there was an order to not use the Hondas to push the rolls," and testified that " the order to not use the Hondas either came from Dave Majestic or the [defendant's] superintendent on this job." Pesek further testified that Majestic would not call Pesek " out of the blue" and order him to stop using the ATVs. Pesek testified that defendant had the power to halt the work that Sullivan Roofing was performing. Pesek further testified that he took his orders from Dave Majestic, his supervisor.

[¶46] Pesek testified that once the ATVs were not allowed to push the rolls, the rolls of membrane would have to be manually pushed by the crew. Pesek " would rather use Hondas, " but did not view anything unsafe in manually rolling the rubber membrane, providing there were enough workers doing so, and ordered his crew to manually move the rolls; Pesek testified that, if he observed an unsafe act being performed by a member of his crew, he had the authority to stop it. There was a potential for injury when manually pushing a roll of rubber membrane 300 feet because " they are heavy. They're heavy. You are pushing rolls that weigh a lot. Anything in roofing is strenuous."

[¶47] Pesek testified that there was a plywood runway system in place to permit

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the ATVs to transport bundles of insulation, but that they were not in place to permit the ATVs to move the rolls of rubber membrane.

[¶48] 4. John Zelasco

[¶49] John Zelasco, defendant's project superintendent on the Wilton project, testified that he was the highest-ranking employee of defendant present on the site on a daily basis. Zelasco testified that it was " more likely than not" that defendant and the property owner agreed that defendant would work in a safe manner. On the first day that roofing materials were loaded onto the roof, he noticed that roofing activity was creasing the decking and notified Pesek, the foreman for Sullivan Roofing, as well as Michael Sullivan. He also informed his two immediate superiors: his project manager and his senior project manager.

[¶50] Zelasco testified that defendant was the only general contractor on the Wilton project, and that he was defendant's only superintendent on the project. Zelasco, as a superintendent, " had the power to stop work on this job generally." After the decking was damaged, Zelasco notified Pesek and Sullivan " and at that point I think it may have been their call to stop the activity to take a look at what was going on, maybe to assess what activities were taking place." However, Zelasco also testified that it was a joint decision between defendant and Sullivan Roofing to cease working for a day to assess the damage.

[¶51] Zelasco testified that it was very common for roofers to use ATVs on a roof and that it would be highly unusual not to use ATVs on a roof the size of the Wilton project. He denied ordering Sullivan Roofing employees not to use ATVs to move rolls of rubber membrane or for any other purpose; he testified that " [t]hey had the right to perform their activities," including using the ATVs to move the rolls of rubber membrane. He testified that, prior to beginning the roofing work, he met with Majestic to discuss good access points for the cranes; Zelasco estimated that Sullivan Roofing had access to 90% of the building's perimeter, and then decided, without Zelasco's involvement, where along that perimeter it wanted to unload its materials. Zelasco testified that Sullivan Roofing had unrestricted use of ATVs to move its materials and that " I never gave any restrictions on the means and methods of the contractor to do his job."

[¶52] Zelasco also testified about defendant's list of " intolerable offenses" by subcontractors, which were " certain job rules that are strictly enforced." One such rule concerned violations of the Occupational Safety and Health Act (29 U.S.C. § 651 et seq . (2006)). Zelasco testified that violation of the rules could result in immediate and permanent removal of the subcontractor from the project. Zelasco testified that " [e]veryone has to work as a team" to ensure a safe work site and that " we're committed to everyone's safety on the job site."

[¶53] Zelasco held safety " in the highest priority," and he was authorized to be an outreach trainer for the Occupational Safety and Health Administration (OSHA) and was involved with several other safety organizations. One of his duties for defendant on a given project was to ensure that the work site was safe. He considered Sullivan Roofing to be " one of the best" companies because " [t]hey have very high standards of safety. They *** have the right equipment. It's very, very rare that there's ever an issue."

[¶54] Zelasco observed membrane used on a number of roofs and that, " [t]ypically, it's moved from the truck with a crane up onto the roof. And then very typically the roofers themselves, usually five or more guys, will get behind it and push it into

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position, getting it either rolled upon to a cart or onto some means of transporting it where it needs to go. But it's always -- it's usually done manually when they're stocking the job." Once they were rolled onto the cart or ATV, the rolls would be transported to their final destination on the roof.

[¶55] If Zelasco observed any workers behaving in a way that was causing a problem, he would speak to the foreman or the superintendent in order to address the issue. He denied ever telling roofers to stop using ATVs on the Wilton project and did not know of anyone from defendant doing so. He admitted that he and Majestic, from Sullivan Roofing, would have the authority to tell Pesek to stop using the ATVs if they were damaging the deck.

[¶56] Zelasco was not informed of plaintiff's injury until defendant was sued in the instant lawsuit.

[¶57] After Zelasco's testimony, outside the presence of the jury, the trial court found that Zelasco had not provided a sufficient foundation to admit the contract between defendant and the property owner into evidence. Plaintiff's counsel indicated that they had relied on defendant's disclosure that Zelasco would lay a foundation for the contract, so they were " kind of in a bind here," since he was unable to do so. Plaintiff's counsel requested that, " if the Court feels the foundation, as it relates to the contract specifically, is inadequate, then I -- given the [Rule] 213 disclosure of defense, relative to Mr. Zelacso, I think I'm entitled to call a record keeper, a signatory or somebody from FCL that can lay the foundation, notwithstanding the fact it's the day before I rest my case." Over defendant's objection, the court agreed and told defendant, " you're on notice that I would grant plaintiff's motion. And that the request will come to you, I'm assuming, within the next 12 hours. And that before this case is put to rest, I expect to see some discussion and/or resolution one way or another." The next day, plaintiff called Christopher Linn, vice president of defendant, who provided the necessary foundation and the contract was admitted into evidence.

[¶58] 5. Sabino Ramirez

[¶59] Sabino Ramirez, plaintiff's brother, who also worked as a roofer for Sullivan Roofing on the Wilton project, testified that, on September 29, 2004, both he and plaintiff were working at the Wilton project; Sabino as a " signal guy" for the crane and plaintiff " [p]ush[ing] the rolls and other material." Typically, when rolls of rubber membrane needed to be moved, they would be moved by ATVs. However, the crew was ordered not to use ATVs to push the rolls by someone wearing a white hard hat,[5] so plaintiff was moving them manually. Approximately two hours later, plaintiff informed Sabino that he had a great deal of back pain.

[¶60] Sabino testified that he took all of his direction on the job from Pesek, the foreman, or from other Sullivan Roofing employees, such as Majestic or Sullivan. Sabino had no communication with defendant on the job.

[¶61] 6. Plaintiff

[¶62] Plaintiff testified that he was born in Mexico and moved to the United States in 1986; he began working as a roofer in 1989 and was a roofer until his injury in 2004. On September 29, 2004, he was working as a roofer and was not permitted to use ATVs to push the rolls of rubber

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membrane " [b]ecause some guy told us don't use the Hondas" ; plaintiff testified that the man who told the workers not to use the ATVs was John Zelasco, but plaintiff never spoke to him directly. Pesek then ordered them to roll the membrane manually. The ATVs were only used to move bundles of insulation. Plaintiff testified that it was unusual to manually ...


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