                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                 Calloway v. Bovis Lend Lease, Inc., 2013 IL App (1st) 112746




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



District & No.             First District, Fifth Division
                           Docket No. 1-11-2746


Filed                      August 16, 2013
Rehearing denied           October 3, 2013


Held                       In a consolidated action arising from an accident in which a father was
(Note: This syllabus       killed and his son was severely injured when a trench at a construction
constitutes no part of     site collapsed, the trial court properly denied the construction manager’s
the opinion of the court   motion for a judgment n.o.v. or a new trial, since no basis existed to
but has been prepared      disturb the jury’s finding that the construction manager owed a duty of
by the Reporter of         care to the deceased and his son, the accident was a foreseeable result of
Decisions for the          the failure of the construction manager’s superintendent to stop the
convenience of the         deceased and his son from working in the trench without protection, the
reader.)
                           jury’s disparate findings on contributory negligence were not against the
                           manifest weight of the evidence, and the award of damages was not
                           excessive.


Decision Under             Appeal from the Circuit Court of Cook County, Nos. 05-L-8589, 06-L-
Review                     2005; the Hon. Clare E. McWilliams, Judge, presiding.


Judgment                   Affirmed.
Counsel on                         Cremer, Spina, Shaughnessy, Jansen & Seigert, LLC, of Chicago (Francis
Appeal                             A. Spina, Heather Kingery, and Patrick J. Giese, of counsel), for
                                   appellant.

                                   Michael W. Rathsack, of Chicago (Allen N. Schwartz, Amanda L.
                                   Brasfield, Craig P. Mannarino, and Michael W. Rathsack, of counsel), for
                                   appellee Herman Calloway, Jr.

                                   O’Connor & Nakos, Ltd., of Chicago (D. Jeffrey Comeau, of counsel),
                                   for appellee Gwen Brown.


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




                                                     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


                    1
                        DuPage Top Soil is not a party to this appeal, having been dismissed from the case prior
        to trial.

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     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

                                              -3-
     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

                                              -4-
       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


                                                -5-
       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,

                                                -6-
       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.


                                                 -7-
¶ 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.

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       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

                                                -9-
       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 the 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

                                                -10-
       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 be 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

                                                  -11-
       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 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


                                                -12-
       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 the 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.
¶ 45        Following deliberations, the jury returned a verdict in favor of Junior and Senior and
       found Senior 49% contributorily negligent. The trial court denied Bovis’s posttrial motion.
       This appeal followed.
¶ 46        Bovis first contends that its motion for judgment notwithstanding the verdict should have
       been granted. A motion for judgment notwithstanding the verdict should be granted only
       when all the evidence, viewed in the light most favorable to the nonmovant, so
       overwhelmingly favors the moving party that no other verdict based on the evidence could
       stand. Barth v. State Farm Fire & Casualty Co., 228 Ill. 2d 163, 177 (2008). “ ‘This is
       clearly a very difficult standard to meet, limiting the power of the [trial] court to reverse a
       jury verdict to extreme situations only.’ ” Velarde v. Illinois Central R.R. Co., 354 Ill. App.
       3d 523, 537 (2004) (quoting People ex rel. Department of Transportation v. Smith, 258 Ill.
       App. 3d 710, 714 (1994)). “ ‘[I]t is the province of the jury to resolve conflicts in the
       evidence, to pass upon the credibility of the witnesses, and to decide what weight should be
       given to the witnesses’ testimony.’ ” Velarde, 354 Ill. App. 3d at 537 (quoting Maple v.
       Gustafson, 151 Ill. 2d 445, 452 (1992)). “ ‘A trial court cannot reweigh the evidence and set
       aside a verdict merely because the jury could have drawn different inferences or conclusions,
       or because the court feels that other results are more reasonable.’ ” Velarde, 354 Ill. App. 3d
       at 537 (quoting Maple, 151 Ill. 2d at 452). “ ‘The [trial] court has no right to enter a
       [judgment notwithstanding the verdict] if there is any evidence, together with reasonable
       inferences to be drawn therefrom, demonstrating a substantial factual dispute, or where the
       assessment of credibility of the witnesses or the determination regarding conflicting evidence
       is decisive to the outcome.’ ” Velarde, 354 Ill. App. 3d at 537 (quoting Maple, 151 Ill. 2d at
       454). This court reviews a trial court’s decision to grant or deny a motion for judgment
       notwithstanding the verdict de novo; however, like the trial court, we must be careful not to
       usurp the function of the jury and substitute our own assessment. Velarde, 354 Ill. App. 3d
       at 537.
¶ 47        Plaintiffs’ case was submitted to the jury on a construction negligence theory based on
       section 414 of the Second Restatement of Torts. See Restatement (Second) of Torts § 414
       (1965). Section 414 provides:
                “One who entrusts work to an independent contractor, but who retains the control of
            any part of the work, is subject to liability for physical harm to others for whose safety
            the employer owes a duty to exercise reasonable care, which is caused by his failure to

                                                -13-
            exercise his control with reasonable care.” Restatement (Second) of Torts § 414 (1965).
       Section 414 is an exception to the general rule that “one who employs an independent
       contractor is not liable for the acts or omissions of the independent contractor.” Wilkerson
       v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 493 (2008). If the employer retains
       control over the operative detail of any part of the contractor’s work, the employer is subject
       to liability as master under the principles of agency. Restatement (Second) of Torts § 414,
       cmt. a (1965). If the employer retains only supervisory control, i.e., the power to direct the
       order in which the work shall be done, or to forbid its being done in a manner likely to be
       dangerous to himself or others, then the employer may be liable under section 414 unless he
       exercises his supervisory control with reasonable care so as to prevent the work which he has
       ordered to be done from causing injury to others. Id.
¶ 48        When a principal contractor entrusts a part of the work to subcontractors but superintends
       the entire job through a foreman, the principal contractor is subject to liability if he (1) fails
       to prevent the subcontractors from doing even the details of the work in a way unreasonably
       dangerous to others, (2) knows or should know the work was being so done, and (3) has the
       opportunity to prevent it by exercising his retained power of control. Id. cmt. b; see also
       Wilkerson, 379 Ill. App. 3d at 494 (stating the rule that when a general contractor entrusts
       work to a subcontractor but superintends the job himself or through a foreman, “the general
       contractor is subject to liability if he knows or reasonably should know that the subcontractor
       work is being performed in a dangerous manner and fails to exercise his power of control to
       stop the work” (citing Restatement (Second) of Torts § 414, cmt. b, at 387-88 (1965))).
¶ 49        However, the employer is not liable where:
            “he has merely a general right to order the work stopped or resumed, to inspect its
            progress or to receive reports, to make suggestions or recommendations which need not
            necessarily be followed, or to prescribe alterations and deviations. Such a general right
            is usually reserved to employers, but it does not mean that the contractor is controlled as
            to his methods of work, or as to operative detail. There must be such a retention of a right
            of supervision that the contractor is not entirely free to do the work in his own way.” Id.
            cmt. c.
¶ 50        In a negligence action, the plaintiff must establish the existence of a duty owed by the
       defendant to the plaintiff, a breach of that duty, and an injury to the plaintiff proximately
       caused by the breach. Sameer v. Butt, 343 Ill. App. 3d 78, 85 (2003). Whether a duty exists
       under section 414 turns on whether the defendant entrusted work to an independent
       contractor and yet retained control of any part of the independent contractor’s work. Oshana
       v. FCL Builders, Inc., 2012 IL App (1st) 101628, ¶ 23; O’Connell v. Turner Construction
       Co., 409 Ill. App. 3d 819, 822 (2011) (stating that only if the construction manager entrusted
       work to an independent contractor does the court reach the question of whether the
       construction manager retained control over any part of the independent contractor’s work).
¶ 51        Bovis first argues that it did not entrust work to Hamilton. Bovis claims that it was only
       the construction manager and in that capacity it did not hire or enter into a contract with
       Hamilton.
¶ 52        Bovis’s contention is based upon the recent decision in O’Connell. In that case, a school

                                                 -14-
       district hired the defendant, Turner, as the construction manager to build a new high school
       campus. O’Connell, 409 Ill. App. 3d at 820. Turner and the school district entered into a
       contract which provided, among other things, that the construction manager “ ‘shall receive
       bids, prepare bid analyses and make recommendations to the Owner for Owner’s award of
       Contracts.’ ” Id. The contract also provided that the construction manager “ ‘shall assist the
       Owner in preparing Construction Contracts and advise the Owner in the acceptability of
       Subcontractors and material suppliers proposed by Contractors.’ ” Id. Waukegan Steel, a
       trade contractor hired by the school district, subcontracted its work to Linden Erectors,
       plaintiff’s employer. Id. at 821. Plaintiff was injured while working at the construction site
       and brought a lawsuit against Turner, claiming negligence under section 414. Id. Plaintiff
       alleged that Turner was liable for his injuries because it exercised significant control over the
       trade contractors, particularly with regard to safety. Id. The trial court granted summary
       judgment in favor of Turner and plaintiff appealed.
¶ 53       On appeal, the parties argued whether the scope of Turner’s control over the construction
       site was an issue of material fact. The appellate court noted, however, that the prerequisite
       for applying section 414 was entrustment of work to an independent contractor by Turner and
       that absent such entrustment section 414 was inapplicable. Id. at 822. The court noted that
       the school district entered into a contract with Turner, that Turner drafted the contracts and
       handled the bidding process for hiring subcontractors but that the actual signatories on the
       contracts were the school district and the contractors and subcontractors. Id. at 823. On these
       facts, the court held that Turner did not entrust work to the contractors or subcontractors and
       that plaintiff’s 414 claim failed as a matter of law. Id. The court reasoned:
           “While Turner may have aided the School District in drafting contracts or handling
           construction bids, unless Turner actually selected the contractors or subcontractors,
           something plaintiff does not claim, it cannot be said that Turner entrusted them with the
           work, absent which section 414 is inapplicable. It is therefore irrelevant for purposes of
           count I what control, if any, Turner exercised at the construction site, for control alone
           does not trigger liability under section 414.” (Emphasis omitted.) Id.
¶ 54       The entrustment requirement in section 414, as well as the decision in O’Connell, has
       been discussed in recent federal court decisions. In Henderson v. Bovis Lend Lease, Inc., 848
       F. Supp. 2d 847 (N.D. Ill. 2012), the plaintiff was injured while working as an employee of
       USA Hoist, a subcontractor on the Trump Tower construction project. Plaintiff filed suit
       against Bovis, which was hired as the construction manager by 401 North Wabash (401), the
       owner of the Trump Tower, alleging that Bovis breached its duties under section 414. Id. at
       848. Bovis moved for summary judgment, arguing that it was not liable under section 414
       because it did not entrust work to USA Hoist.
¶ 55       The district court reviewed the relevant provisions of the contract between Bovis and
       401. Bovis and 401 entered into a “Construction Management Agreement” which provided
       that Bovis would act as 401’s agent and at 401’s direction would execute all trade contracts.
       Id. at 849. The agreement made Bovis responsible for soliciting bids and assisting 401 in its
       analysis of the bids. The agreement provided that the “ ‘[a]ward of each trade contract shall
       be made by [401], with the consultation and cooperation of [Bovis]’ ” and that, consistent
       with the Agreement, 401 “ ‘made all final decisions as to which trade contractors were

                                                 -15-
       ultimately hired to do the construction work at the project.’ ” Id. Pursuant to the agreement,
       401 decided to hire USA Hoist and Bovis signed the contract with USA Hoist in its capacity
       as 401’s agent. Id. Relying upon O’Connell, Bovis argued that it did not entrust work to USA
       Hoist because it did not actually select USA Hoist and that the agreement did not give it final
       authority over USA Hoist’s selection.
¶ 56        The court began by stating that Bovis’s “narrow view of entrustment is open to serious
       question” and reasoning:
            “If the lack of formal contractual hiring authority, standing alone, precluded a finding of
            entrustment, then a general contractor could evade § 414 liability by ensuring that its
            agreement with the project owner left such authority with the project owner. And if the
            project owner ensured that the agreement left final authority to control the work site with
            the general contractor, then § 414 would be negated in large part, if not entirely–the
            entrustment requirement would be satisfied with respect to the project owner but not the
            general contractor, while the control requirement would be satisfied with respect to the
            general contractor but not the project owner. It is doubtful that the Illinois courts would
            countenance such a facile evasion of the protections provided and policies implemented
            by § 414.” Id. at 851.
¶ 57        The court also stated that “[a]llowing general contractors to skirt the entrustment
       requirement in this manner, moreover, would be inconsistent with the Illinois courts’
       understanding of the control requirement [of section 414].” Id. The court noted that under
       Illinois law, whether control has been shown depends on whether the evidence shows that
       the principal actually engaged in detailed supervision or control of the subcontractor’s means
       and methods of work. Id. The court observed that, applying this principle, “evidence of a
       general contractor’s actual control over the work satisfies the control requirement even if the
       trade contract formally assigns complete control to the subcontractor.” Id. The court reasoned
       that “there is no apparent reason why Illinois would adopt a different, more formalistic
       approach to the entrustment requirement.” Id. at 851-52.
¶ 58        The court ultimately found that plaintiff had failed to show entrustment “even if Bovis’s
       narrow view were rejected.” Id. at 852. While Bovis assisted in the selection of
       subcontractors, the ultimate authority over subcontractor hiring resided with the project
       owner. Id. According to the court, evidence that the subcontractor was responsible for
       soliciting bids and assisting the project owner in analyzing those bids, without more, was
       insufficient to survive a motion for summary judgment. Id.
¶ 59        Finally, in Sojka v. Bovis Lend Lease, Inc., 686 F.3d 394 (7th Cir. 2012), the plaintiff was
       injured while working on the Trump Tower construction project and brought suit against the
       construction manager, Bovis, asserting a theory of negligence. Bovis moved for summary
       judgment on the ground that it did not owe a duty of care to the plaintiff. Id. at 395. The
       district court granted that motion. On appeal, the Seventh Circuit Court of Appeals
       considered whether Bovis entrusted work to the independent contractor that employed the
       plaintiff. Bovis argued that like the construction manager in O’Connell, it did not entrust
       work to the independent contractor because it never entered directly into a contract with the
       independent contractor. Id. at 400. Instead, the owner of the tower contracted with the


                                                 -16-
       independent contractor and Bovis signed the contract as the owner’s agent. The court of
       appeals rejected Bovis’s argument as being an “overread[ing of] O’Connell” and reasoned
       that Bovis selected the independent contractor and that it did not matter that it was
       technically acting as the owner’s agent when it did so. Id. Thus, the court found that Bovis
       entrusted work to the independent contractor and reversed summary judgment. Id.
¶ 60        We recognize that none of these decisions are binding on this court. See O’Casek v.
       Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) (under the doctrine
       of stare decisis, “the opinion of one district, division, or panel of the appellate court is not
       binding on other districts, divisions, or panels”); People v. Criss, 307 Ill. App. 3d 888, 900
       (1999) (even though decisions of the United States District Court and the Court of Appeals
       are not binding on state courts, they can be persuasive authority and can offer guidance to
       state courts).
¶ 61        Nevertheless, we agree with the reasoning expressed in cases such as Henderson that the
       issue of entrustment, like that of control, should be decided based upon whether the
       circumstances of each case show that the construction manager actually entrusted work to
       a subcontractor and not based upon a bright-line test such as whether the construction
       manager actually signed the contract with the subcontractor. As noted, the control
       requirement can be met with respect to a construction manager where evidence of the
       construction manager’s actions demonstrates that it retained a sufficient level of control, even
       where the contractual language formally assigns control to the independent contractor. We
       see no reason why entrustment should be evaluated any differently. Thus, we find that the
       entrustment requirement can be satisfied when the totality of the circumstances demonstrate
       that the construction manager actually entrusted work to a subcontractor, even where the
       construction manager did not actually sign the contract with the subcontractor. Bovis’s
       interpretation that entrustment can be satisfied only if it signed the contract with Hamilton
       is overly narrow and formalistic and we decline to adopt it. To do so would allow project
       owners, construction managers and general contractors to easily avoid the reach of section
       414. For the reasons that follow, we find that there was sufficient evidence in the record,
       together with the reasonable inferences to be drawn therefrom, to create a question of fact
       for the jury as to whether Bovis entrusted work to Hamilton.
¶ 62        The contract between Bovis and the District was a “Standard Form of Agreement
       Between Owner and Construction Manager where the Construction Manager is NOT a
       Constructor.” Bovis and the District added a provision to the contract by which the District
       delegated to Bovis the authority to represent it on the project by acting as its agent. Section
       1.1.3 of the contract specifically provides that Bovis “shall act as Owner’s agent in
       connection with the services provided by the Construction Manager as determined by the
       Owner under this Agreement.” Sojka teaches that an act taken by a construction manager in
       its capacity as the owner’s agent can be deemed an act of entrustment by the construction
       manager. Although Bovis did not sign the contract with Hamilton as the District’s agent, as
       was the case in Sojka, this provision lends support to the notion that Bovis can be found to
       have entrusted work to a subcontractor based upon acts that it took as the District’s agent.
¶ 63        Consistent with this general provision is a section of the contract that the District and
       Bovis added to the standard form contract entitled the “Competitive Bidding and Contract

                                                -17-
       Award.” This section was not mentioned as having been included in the contract in
       O’Connell or in any of the federal decisions discussed above. It provides:
            “Upon completion of the Drawings and Specifications, the Construction Manager, acting
            as the Owner’s agent, shall competitively bid all construction in accordance with 105
            ILCS 5/10-20.21. Construction manager shall recommend the lowest responsive and
            responsible bidder in each contract to the Owner and the Owner shall award and
            execute all trade contracts in accordance with the aforementioned statute.” (Emphasis
            added.)
¶ 64        Section 10-20.21 of the School Code requires school boards “[t]o award all contracts for
       purchase of supplies, materials or work *** to the lowest responsible bidder, considering
       conformity with specifications, terms of delivery, quality and serviceability.” 105 ILCS 5/10-
       20.21 (West 2010). The purpose of this portion of the statute is to provide protection for
       taxpayers of a particular school district from financially irresponsible contractors. Best Bus
       Joint Venture v. Board of Education of the City of Chicago, 288 Ill. App. 3d 770, 777 (1997).
       Under this section, a school board has a duty to award a contract to the lowest responsible
       bidder and that bidder has the right to be awarded the contract. Compass Health Care Plans
       v. Board of Education of the City of Chicago, 246 Ill. App. 3d 746, 751-52 (1992). The
       statute does not require the board to simply award the contract based upon the lowest bid.
       Instead, the school board specifies the criteria which bidders must meet in order to be
       considered a responsible bidder and the board has great discretion in determining the
       responsible bidder. Best Bus Joint Venture, 288 Ill. App. 3d at 778.
¶ 65        Through this section of the contract, the District delegated to Bovis the authority to act
       as its agent and to use its judgment to select the lowest responsive and responsible bidder for
       all contracts. Bovis was then required to recommend each bidder that it selected to the
       District. The District, in turn, was required to award the contract to that bidder pursuant to
       section 10-20.21 of the School Code. Based upon this section, the jury could have found that
       Bovis entrusted work to Hamilton because this section essentially gave Bovis the authority
       to select the bidder to whom each contract was awarded.
¶ 66        Other provisions in the contract support the conclusion that there was a question of fact
       as to whether Bovis entrusted work to Hamilton. For example, the District and Bovis
       modified the form contract to establish Bovis’s increased role in selecting contractors and
       subcontractors. The form contract provided that “[t]he Construction Manager shall submit
       the list of prospective bidders for the Architect’s review and the Owner’s Approval.” The
       District and Bovis modified that section to provide that “[t]he Construction Manager shall
       submit the list of prospective bidders for the Architect’s Owner’s [sic] review and comment.”
       (Emphasis added.) By deleting the language “Owner’s Approval,” the parties gave Bovis the
       right to select the bidders for the project and gave the District the reduced role of only
       commenting on those bidders. The contract delegated numerous additional responsibilities
       to Bovis. For example, the contract required Bovis to “develop bidders’ interest in the Project
       *** and conduct prebid conferences with prospective bidders.” Bovis was also required to
       “receive bids, prepare bid analyses and make recommendations to the Owner for the Owner’s
       award of contracts or rejection of Bids.” Bovis further “assist[ed] the Owner in preparing
       Construction Contracts and advise[d] the owner on the acceptability of Subcontractors.”

                                                -18-
¶ 67        Based upon all of this evidence, the jury found that Bovis entrusted work to Hamilton.
       We cannot say the evidence so overwhelmingly supports a conclusion to the contrary such
       that the jury’s finding cannot stand. Therefore, denial of Bovis’s motion for judgment
       notwithstanding the verdict on this issue was proper.
¶ 68        Bovis next claims that its motion for judgment notwithstanding the verdict should have
       been granted because it did not retain control over the safety of Hamilton’s work. Bovis
       asserts that it did not “control or direct Hamilton’s work in any way” and that its contract
       with the District limited its duties to control the safety of the work.
¶ 69        The facts of this case are analogous to those in two other cases in which the court found
       either a duty of care based upon retained control or a question of fact as to whether the
       general contractor retained sufficient control. In Bokodi v. Foster Wheeler Robbins, Inc., 312
       Ill. App. 3d 1051 (2000), the court found the existence of a duty based on the general
       contractor’s extensive oversight of safety on a large-scale construction project. Specifically,
       the general contractor provided 29 safety measures and procedures that subcontractors were
       required to follow, employed safety personnel to monitor the site for compliance with its
       safety guidelines, gave its own employees broad powers to halt any subcontractor work based
       on a perception of an unsafe working environment, required subcontractors to conduct safety
       training meetings that the general contractor’s employees could monitor, and required
       subcontractors to participate in its own safety programs. Id. at 1063.
¶ 70        Similarly, in Wilkerson, 379 Ill. App. 3d at 497, the court found that there was a question
       of fact as to whether the general contractor retained sufficient control over the
       subcontractor’s work and safety. This finding was based on evidence indicating that the
       contractor had the authority to stop the subcontractor’s work in the event of a safety hazard.
       Other evidence of the general contractor’s retained control included the subcontractor’s
       contractual obligation to attend safety meetings and comply with the general contractor’s list
       of 21 safety procedures, the subcontractor’s obligation to submit for the general contractor’s
       approval a site-specific safety plan and minutes of the subcontractor’s own weekly safety
       meetings. Id.
¶ 71        We see no meaningful difference between the facts of this case and those in Wilkerson
       and Bokodi. Even if Bovis’s responsibilities for controlling the safety of the subcontractors’
       work were limited by the contract, this is not dispositive because the control requirement can
       be satisfied by evidence that Bovis retained actual control over the safety of the work.
       Wilkerson v. Paul H. Schwendener, Inc., 379 Ill. App. 3d 491, 497 (2008) (“Although the
       contract between [the subcontractor] and defendant [general contractor] seemingly left to [the
       subcontractor] control of the operative details of its work and the safety of its employees,
       defendant’s actions on the jobsite show defendant retained more than a general right of
       supervision.”).
¶ 72        In this case, regardless of the contractual language, the other evidence presented at trial
       was sufficient to create a question of fact for the jury as to whether Bovis retained sufficient
       control over the safety of the subcontractors’ work. That evidence established that as the
       construction manager, Bovis’s role was to coordinate the day-to-day activities at the site and
       to ensure that all subcontractors and contractors complied with safety requirements. All


                                                -19-
       subcontractors were required to submit a site-specific safety plan to Bovis, which could stop
       a subcontractor’s work if it was not following that plan. Bovis held a safety orientation,
       which included a safety discussion and a video, that all employees who worked on the project
       were required to attend. Bovis also provided a 34-page safety plan for the project that each
       Hamilton employee was required to sign. That plan gave Bovis overall control of site safety
       and appointed Bovis safety officer Brian Gawlik as having overall safety control on the
       project. The safety plan required all subcontractors to hold weekly “Tool Box Safety
       Meetings” and to provide copies of the minutes from those meetings to the Bovis
       superintendent. Bovis’s superintendents were required to ensure that all subcontractors
       followed the safety plan.
¶ 73       Bovis also distributed a project orientation to the employees of all subcontractors,
       including Hamilton. Those employees were required to sign the orientation, which indicated
       that they were aware of the site conditions and would follow the guidelines set forth by Bovis
       and OSHA. The orientation contained safety rules that were required to be followed by
       everyone who worked on the project, including a section on trenching that required the use
       of a trench box or sloping when working in an excavation over five feet deep. According to
       Gromala, Bovis’s project manager, Bovis’s superintendents were required to intervene to
       ensure compliance if a contractor or subcontractor was not following the project orientation
       because contractors and subcontractors were not free to do work in a manner that was
       inconsistent with the project orientation.
¶ 74       Bovis’s superintendents walked the construction site daily to ensure that subcontractors
       complied with the safety plan and all superintendents had daily health and safety
       responsibilities on the project. The superintendents had the authority and responsibility to
       stop any work that they saw being done in an unsafe manner and to direct that the work be
       done in a different manner. Finally, Bovis’s safety personnel Brian Gawlik and John
       Ferguson visited the site to conduct safety inspections.
¶ 75       All of the evidence set forth above, when viewed in the light most favorable to plaintiffs,
       was sufficient to create an issue of fact as whether Bovis retained sufficient control over the
       safety of Hamilton’s work such that it owed plaintiffs a duty of care. The jury found that
       Bovis retained sufficient control over safety so as to impose a duty upon it to exercise that
       control with reasonable care and we have no basis to disturb that determination.
¶ 76       Bovis next claims that its motion for judgment notwithstanding the verdict should have
       been granted because plaintiffs failed to establish proximate cause as a matter of law. Bovis
       claims that plaintiffs proceeded on their own to work in the unprotected trench while fully
       aware of the risks and that, after exiting the trench, they chose to reenter it “unbeknownst to
       Bovis.” In effect, Bovis argues that its conduct did no more than furnish a condition by which
       plaintiffs’ injuries were made possible and that Junior and Senior entering the trench was an
       unforseen intervening event. We disagree.
¶ 77       “[A] proximate cause is one that produces an injury through a natural and continuous
       sequence of events unbroken by any effective intervening cause.” Kleen v. Homak
       Manufacturing Co., 321 Ill. App. 3d 639, 641 (2001). Proximate cause is composed of two
       distinct requirements: legal cause and cause in fact. First Springfield Bank & Trust v.


                                                -20-
       Galman, 188 Ill. 2d 252, 257-58 (1999). “A defendant’s conduct is a cause in fact of the
       plaintiff’s injury only if that conduct is a material element and a substantial factor in bringing
       about the injury.” First Springfield Bank & Trust, 188 Ill. 2d at 258. Legal cause is a question
       of foreseeability, and the inquiry is whether the injury is of a type that a reasonable person
       would see as a likely result of his or her conduct. First Springfield Bank & Trust, 188 Ill. 2d
       at 258. Proximate cause may be established by inferences drawn from circumstantial
       evidence. Housh v. Swanson, 203 Ill. App. 3d 377, 381-82 (1990).
¶ 78       Whether a defendant’s action or omission represented a breach of duty and whether such
       action or omission proximately caused the plaintiff’s injury or death are generally issues of
       fact to be decided by a jury. Thompson v. Gordon, 241 Ill. 2d 428, 438 (2011). “The
       proximate cause of an injury can become a question of law only when the facts are not only
       undisputed but are also such that there can be no difference in the judgment of reasonable
       [people] as to the inferences to be drawn from them.” Zerbenski v. Tagliarino, 67 Ill. App.
       3d 166, 172 (1978). For the reasons that follow, we do not find this to be such a case.
¶ 79       Even if Junior and Senior entered the unprotected trench with knowledge of the risks of
       doing so, as Bovis claims, this does not preclude a finding by the jury that Bovis’s negligence
       was a proximate cause of plaintiffs’ injuries. There can be more than one proximate cause
       of an injury and a defendant can be liable even when its negligence is not the sole proximate
       cause of plaintiffs’ injuries, so long as its conduct contributed in whole or in part to the
       injury. Mack v. Ford Motor Co., 283 Ill. App. 3d 52, 57 (1996). “The negligence of a
       defendant will not constitute a proximate cause of a plaintiff’s injuries if some intervening
       act supersedes the defendant’s negligence, but if the defendant could reasonably foresee the
       intervening act, that act will not relieve the defendant of liability.” Id. A foreseeable
       intervening cause does not break the chain of legal causation and to avoid liability, a
       defendant must show that the intervening event was unforeseeable as a matter of law. Id.
       Where varying inferences are possible, foreseeability is a question of fact for the jury. Id.
¶ 80       In this case, there was evidence presented that prior to the accident Blowers watched
       Junior and Senior reentering the trench and hand-grading the stone before the collapse.
       According to Junior, he and Senior were grading stone in the trench for two to five minutes
       before the collapse and Blowers did not order them out of the trench during this time or stop
       the work. Even Blowers testified that Junior and Senior were in the trench for approximately
       30 seconds before the collapse, that he did not order them out and that his failure to do so
       was a violation of his duties. There is no dispute that Blowers knew of the dangers posed by
       working in such a deep trench without protection. Under these circumstances, it cannot be
       said that Junior’s and Senior’s presence in the trench was unforeseeable or unbeknownst to
       Bovis. Moreover, the jury could have found that plaintiffs’ injuries were a foreseeable result
       of Blowers failing to order Junior and Senior out of the trench and instead allowed them to
       continue to work in a 12- to 13-foot trench without any trench protection. Accordingly,
       Bovis’s motion for judgment notwithstanding the verdict on the element of proximate cause
       was properly denied.
¶ 81       Bovis next contends that it was denied a fair trial when the trial court allowed Andrew
       Staroske’s discovery deposition to be read into evidence at trial. Bovis claims it was
       prejudiced in that during the discovery deposition, its counsel asked few questions of

                                                 -21-
       Staroske and did not rehabilitate him regarding the statements he made after the trench
       collapse. Bovis claims that its counsel would have questioned Staroske differently had it
       known the deposition would ultimately be used as evidence at trial.
¶ 82       “The admission of evidence is within the sound discretion of the trial court and a
       reviewing court will not reverse the trial court unless that discretion was clearly abused.” Gill
       v. Foster, 157 Ill. 2d 304, 312-13 (1993). An abuse of discretion occurs when the court’s
       ruling is arbitrary, fanciful or unreasonable, or where no reasonable person would adopt the
       court’s view. TruServ Corp. v. Ernst & Young, LLP, 376 Ill. App. 3d 218, 227 (2007).
       Additionally, we review de novo the portion of the trial court’s ruling that involved an
       interpretation of the Supreme Court Rules. In re Marriage of Zuberbier, 309 Ill. App. 3d 386,
       388 (1999).
¶ 83       The record shows that almost two years before trial, in early 2009, Junior filed
       disclosures pursuant to Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2007) indicating that
       he intended to call Staroske as an adverse witnesses. Junior also filed Rule 213(f)
       interrogatories asking Bovis to identify all lay witnesses who would testify at trial. In its
       response to Junior’s interrogatories, Bovis identified “Andrew Staroske/Bovis Lend Lease”
       as a witness who would “testify to his employment with Bovis Lend Lease, Inc.” Staroske
       was then deposed, at which time he was a superintendent. Bovis filed nothing thereafter to
       indicate a change in Staroske’s status. Before trial, plaintiff served on Bovis an Illinois
       Supreme Court Rule 237 (eff. July 1, 2005) notice to produce Staroske. Bovis did not object.
       On January 14, 2011, just several days before trial, the parties appeared in court and Junior
       reiterated his intent to call Staroske. Bovis’s counsel stated that he had not heard from
       Staroske and that plaintiffs should “drop the subpoena on him.” Bovis’s counsel then stated
       that Staroske had actually left the company six to eight months earlier, in June or July 2010.
       Junior noted that he made a Rule 213 disclosure in March 2009 indicating his intent to call
       Staroske and that he had adopted Bovis’s Rule 213 disclosures. Bovis responded that it had
       no obligation to supplement discovery until it received the Rule 237 notice on January 4,
       2011, and that it responded on January 7, advising Junior that Staroske was no longer an
       employee.
¶ 84       The trial court stated that the case was not going to be tried by “surprise” and that if
       Bovis knew that Junior relied on Staroske being with the company so that Bovis could
       produce him at trial and if Bovis knew that Staroske had left the company, the burden was
       on Bovis to produce him as a witnesses. Junior argued that his was a pattern of conduct by
       Bovis and that the same issue had arisen with other former Bovis employees he intended to
       call as witnesses.
¶ 85       The following day, Junior told the court that he received a telephone call from Staroske
       the previous night informing him that Staroske was in Abu Dhabi and would not be able to
       attend the trial. Junior asked the court to read Staroske’s discovery deposition at trial in lieu
       of his live testimony pursuant to Illinois Supreme Court Rule 212 (eff. July 1, 2002) because
       Staroske was unavailable. The court stated that Staroske was “gone now” and that it would
       be extremely prejudicial to plaintiffs to deny them the ability to use Staroske’s testimony
       given Bovis’s failure to inform plaintiffs that he had left the company. Accordingly, the court
       allowed Staroske’s deposition to be used and read into evidence pursuant to Supreme Court

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       Rule 212(a)(5).
¶ 86        Plaintiffs claim that the use of Staroske’s discovery deposition was proper under Rule
       212(a)(5) and as a sanction for a discovery violation pursuant to Illinois Supreme Court Rule
       219 (eff. July 1, 2002). We cannot agree. Rule 212(a)(5) provides that discovery depositions
       may be used:
            “upon reasonable notice to all parties, as evidence at trial or hearing against a party who
            appeared at the deposition or was given proper notice thereof, if the court finds that the
            deponent is not a controlled expert witness, the deponent’s evidence deposition has not
            been taken, and the deponent is unable to attend or testify because of death or infirmity,
            and if the court, based on its sound discretion, further finds such evidence at trial or
            hearing will do substantial justice between or among the parties.” Ill. S. Ct. R. 212(a)(5)
            (eff. Jan. 1, 2011).
       The rule specifically states that the deponent must be unable to testify due to death or
       infirmity. Here, Staroske was neither. He was instead out of the country and apparently
       unwilling to make himself available for trial. Rule 212(a)(5) does not support the use of
       Staroske’s deposition.
¶ 87        Rule 219(c) provides that if a party fails to comply with the rules of discovery, the court
       may enter “such orders as are just.” Ill. S. Ct. R. 219 (eff. July 1, 2002). Although Rule
       219(c) gives a trial court authority to sanction a party for violating discovery rules, plaintiffs
       cite no authority for the proposition that use of a discovery deposition as evidence is a
       permissible sanction under Rule 219(c). We also cannot find that it is a permissible sanction
       under the rule when there is another supreme court rule that specifically governs the
       circumstances under which a discovery deposition can be used as evidence.
¶ 88        We do find, however, that the deposition was admissible as an admission by a party
       opponent. See First National Bank of LaGrange v. Lowrey, 375 Ill. App. 3d 181, 204 (2007)
       (appellate court may affirm the trial court’s judgment on any basis appearing in the record,
       regardless of whether the trial court relied on that basis and regardless of whether the trial
       court’s reasoning was correct). Supreme Court Rule 212(a)(2) provides that discovery
       depositions can be used “as an admission made by a party or by an officer or agent of a party
       in the same manner and to the same extent as any other admission made by that person.” Ill.
       S. Ct. R. 212(a)(2). Similarly, Rule 212(a)(3) states that discovery depositions can be used
       “if otherwise admissible as an exception to the hearsay rule.” Ill. S. Ct. R. 212(a)(3). Illinois
       Rule of Evidence 801(d)(2)(D) (eff. Jan. 1, 2011) states that a statement is not hearsay if
       “[t]he statement is offered against a party and is *** a statement by the party’s agent or
       servant concerning a matter within the scope of the agency or employment, made during the
       existence of the relationship.” Ill. R. Evid. 801(d)(2)(D) (eff. Jan. 1, 2011); see also Michael
       H. Graham, Cleary and Graham’s Handbook of Illinois Evidence § 801.21, at 832-34 (10th
       ed. 2010) (“In recognition of the reliability and reasonableness of admitting such statements,
       Ill. R. Evid. 801(d)(2)(D) now declares statements of an agent or servant concerning a matter
       within the scope of his agency or employment to be admissible as ‘not hearsay’ admissions
       of a party opponent if made during the existence of the relationship.”).
¶ 89        Applying this test, we find that Staroske’s deposition was properly admitted. Staroske


                                                 -23-
       made the statements while he was still employed by Bovis as a construction superintendent.
       The statements also concerned matters within the scope of his employment. Staroske was a
       construction superintendent who, like all Bovis superintendents, was responsible for safety
       at the construction site. Therefore, his statements regarding safety observations that he made,
       which were the relevant portions of his discovery deposition, concerned matters within the
       scope of his employment. As such, we find that the statements were properly admitted
       through entry of his deposition into evidence.
¶ 90        Additionally, we find that any error in admitting Staroske’s discovery deposition into
       evidence was harmless. Bovis raised the issue in its posttrial motion and the court reiterated
       that Bovis had failed to seasonally update its discovery and thereby denied plaintiffs the
       ability to take Staroske’s evidence deposition or to secure his presence at trial. The court
       stated that even if Rule 212 was violated, it had “extensively poured over the testimony of
       Mr. Staroske and, in so doing, was able to compare and contrast the testimony with other
       witnesses at trial.” The court continued that, “[t]o that end, virtually all of the relevant
       testimony offered by Mr. Staroske was at one time or another put forth to the jury via another
       witness.” The court then listed approximately 13 portions of what it deemed to be “the most
       salient” statements in Staroske’s deposition and listed portions of what was essentially the
       same testimony provided by other witnesses at trial.
¶ 91        We have also reviewed the relevant statements in Staroske’s deposition and agree with
       the court’s assessment that they were corroborated and testified to by other witnesses at trial.
       Contrary to Bovis’s claim, Junior did not make Staroske’s testimony the “cornerstone” of his
       closing argument. It is true, as Bovis points out, that one of the trial court’s issue instructions
       stated that Blowers and Staroske were Bovis’s agents and that any act or omission by either
       was an act or omission by Bovis. However, the focus of the evidence presented at trial and
       closing arguments was on Blowers’ testimony and his acts and omissions that gave rise to
       Bovis’s liability. We reject Bovis’s claim that the error in admitting Staroske’s deposition
       was compounded when the court allowed plaintiffs to “chop up” the deposition and to use
       only selected portions of it. Bovis provides no specific examples or descriptions of this being
       done or explain how this affected the impact of his testimony. Likewise, Bovis does not
       explain how allowing plaintiffs to “interpose contemporaneous objections at the trial to the
       previously recorded testimony” actually compounded the trial court’s alleged error. For these
       reasons, we find that the admission of Staroske’s discovery deposition into evidence did not
       substantially prejudice Bovis or affect the outcome of the trial and therefore does not require
       reversal of the jury’s verdict. See Cetera v. DiFilippo, 404 Ill. App. 3d 20, 36 (2010) (stating
       that the exclusion or admission of evidence does not require reversal unless one party has
       been prejudiced or the result of the trial has been materially affected).
¶ 92        Bovis next contends that its motion for a new trial should have been granted on the
       ground that the jury’s disparate findings on comparative negligence were against the manifest
       weight of the evidence.
¶ 93        Bovis pled the affirmative defense of contributory negligence against Junior and Senior.
       The jury was thus instructed that if it found Bovis liable, it was to assess the negligence
       attributable to Senior and Junior and reduce their recovery accordingly, or bar recovery if
       their fault is more than 50% of the total proximate cause. The jury found Senior 49%

                                                  -24-
       contributorily negligent and found that Junior was not contributorily negligent. Bovis claims
       that it was against the manifest weight of the evidence and legally inconsistent for the jury
       to assign 49% fault to Senior and no fault to Junior as they had the same level of knowledge
       and engaged in identical conduct.
¶ 94        Contributory negligence is the failure to exercise that care which, under the
       circumstances presented by the evidence, a reasonably prudent person would take to avoid
       injury. Pantaleo v. Our Lady of the Resurrection Medical Center, 297 Ill. App. 3d 266, 283
       (1998). The issue of contributory negligence is ordinarily a question of fact to be determined
       by the trier of fact. Haist v. Wu, 235 Ill. App. 3d 799, 816 (1992).
¶ 95        “If the [same] jury, on the same set of facts and circumstances, reaches two different
       factual conclusions as expressed by their verdicts, such verdicts will not support a valid
       judgment unless they are reconcilable under an applicable rule of law.” Redmond v. Socha,
       216 Ill. 2d 622, 642 (2005). The court will exercise all reasonable presumptions in favor of
       the verdicts, which will not be found legally inconsistent unless absolutely irreconcilable. Id.
       at 643-44. Moreover, the verdicts will not be considered irreconcilably inconsistent if
       supported by any reasonable hypothesis. Id.
¶ 96        The jury’s findings regarding contributory negligence were not against the manifest
       weight of the evidence or legally inconsistent. Senior and Junior had different roles,
       responsibilities and levels of knowledge at the construction site and had different
       relationships with Bovis. Senior was Hamilton’s foreman on the project and was charged
       with the safety of those working under him. Senior was also Hamilton’s “competent” person
       at the site for trenching and it was up to him to select what type of trenching would be used.
       Senior had the authority to stop Hamilton’s work at the project, whereas Junior only had the
       authority to stop his own work. Junior testified that he did not have authority to make
       decisions about the work and that Senior would not let him voice his own opinions or offer
       suggestions about work on a construction project. Junior took directions from Senior and it
       was Senior who was in charge of what they were doing.
¶ 97        Junior 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. He also explained that he
       was “there to do [his] job” that he was “paid to put pipe in” and that he “went back down
       there” to insert the pipe and do his job. According to Fournier, it was Senior who exposed
       Junior to the unsafe condition. Fournier testified that Junior entered the trench at the
       direction of Senior and that it was reasonable to do so under the circumstances. Fournier
       explained that “workers sometimes get exposed to conditions where they *** may know it’s
       unsafe or they may not know its unsafe, but regardless they take direction from their
       supervisor.” Fournier acknowledged that Junior should have known it was unsafe to be in
       the trench without protection but he explained that “workers are often placed in
       environments sometimes where they are exposed to conditions directed by their supervisors
       and they have a choice to either work in an unsafe manner or not work.” According to
       Morales, Hamilton’s owner, Junior would not be paid if he stopped working on a project.
¶ 98        Considering all of these facts and circumstances, the jury could have reasonably found
       that Senior was 49% contributorily negligent but that Junior was not contributorily negligent.


                                                -25-
      Accordingly, the jury’s findings on contributory negligence are not against the manifest
      weight of the evidence. Similarly, as the facts and circumstances relating to Junior’s and
      Senior’s roles and responsibilities were different, we find that the jury’s verdicts can be
      reconciled and are not legally inconsistent.
¶ 99       Bovis next contends that it was denied a fair trial by improper comments during closing
      arguments. Bovis acknowledges that it failed to make a contemporaneous objection to almost
      all of the complained-of remarks. Illinois law is clear that both an objection and a written
      posttrial motion raising an issue are necessary to preserve any error for appellate review.
      Orzel v. Szewczyk, 391 Ill. App. 3d 283, 287 (2009). Bovis’s failure to object when the
      comments were made deprived the trial court of the opportunity to sustain an objection and
      cure any error. See Cooper v. Chicago Transit Authority, 153 Ill. App. 3d 511, 524 (1987)
      (where the jury hears an improper comment by counsel, the trial court’s prompt action in
      sustaining an objection can cure the possible error).
¶ 100      Bovis claims that we should review the issue under the plain error doctrine. The plain
      error doctrine may be applied in civil cases, but it finds greater application in criminal cases.
      Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363, 375 (1990). “As civil trials do not
      implicate sixth amendment concerns, the application of the plain error doctrine to civil cases
      should be exceedingly rare.” (Internal quotation marks omitted.) Palanti v. Dillon
      Enterprises, Ltd., 303 Ill. App. 3d 58, 66 (1999). The doctrine is applied in civil cases “only
      where the act complained of was a prejudicial error so egregious that it deprived the
      complaining party of a fair trial and substantially impaired the integrity of the judicial
      process.” (Internal quotation marks omitted.) In re Marriage of Saheb, 377 Ill. App. 3d 615,
      627 (2007).
¶ 101      We first comment on the insufficient manner by which Bovis presents its argument on
      this issue. In numerous instances, Bovis makes a general statement as to an improper
      argument by counsel and then simply provides a list of citations where the allegedly improper
      remark was made. For example, Bovis claims that counsel for Junior and Senior “accused
      Bovis of shamefully running from responsibility for Plaintiffs’ injuries” and then cites to six
      different pages in the record. Bovis does not set out any of the specific instances where the
      improper argument was made, does not give any context to those instances and does not
      explain why counsels’ remarks were improper. We find that Bovis has waived these specific
      claims for failure to adequately develop them. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008)
      (a point raised but not sufficiently argued is waived). We also note that although Bovis
      claims that the improper comments were “so egregious that the plain error standard applies,”
      Bovis does not attempt to explain why the comments were so egregious that they denied
      Bovis a fair trial or substantially impaired the integrity of the judicial process. With this in
      mind, we will address only those allegedly improper remarks that Bovis has sufficiently
      presented.
¶ 102      Although improper argument and attorney misconduct can be the basis for granting a new
      trial, the determination as to whether allegedly improper remarks were so prejudicial so to
      require a new trial is left to the sound discretion of the trial court and should not be disturbed
      on appeal absent an abuse of discretion. Zuder v. Gibson, 288 Ill. App. 3d 329, 338 (1997).
      “In arguing a case to the jury, counsel is allowed broad latitude in drawing reasonable

                                                 -26-
        inferences and conclusions from the evidence.” Friedland v. Allis Chalmers Co. of Canada,
        159 Ill. App. 3d 1, 5 (1987). Even improper arguments will not warrant reversal without a
        substantial showing of prejudice. Magna Trust Co. v. Illinois Central R.R. Co., 313 Ill. App.
        3d 375, 397 (2000). Parties are entitled to a fair trial, not a perfect trial. Buczyna v. Cuomo
        & Son Cartage Co., 146 Ill. App. 3d 404, 420 (1986).
¶ 103       Bovis first claims that Junior’s counsel improperly accused Bovis of “engaging in a
        corporate conspiracy” with the following line of argument:
                 “At the time Jim Blowers wrote this statement, he didn’t know if Herman Sr. was
            alive or dead. Two days later, when he writes out the second statement we heard about,
            we see the first signs of the Bovis defense being mounted.
                 In the day or so after the collapse, there are meetings of the Bovis corporate people,
            Steve Gromala, the project manager, couple of corporate safety personnel and, or course,
            Mr. Blowers.
                 By now, it’s known that Herman Sr. is dead. So now the story can be crafted to blame
            the dead guy. Now, since Herman Sr. isn’t around to refute the story, we can claim that
            we told him not to go down there and he just disobeyed our instruction. He disobeyed our
            instruction and took his son down with him.
                 That defense is not only implausible, its offensive.”
        Contrary to Bovis’s claim, Junior’s counsel never used the words “corporate conspiracy.”
        Counsel was simply pointing out that Blowers made two statements about the accident and
        that the second statement was greater in detail and placed greater blame on Senior than the
        earlier statement. Counsel was further pointing out that the first statement, made on the day
        of the accident, was more believable as the second statement was made after Blowers knew
        Senior had passed away, and therefore could not defend himself against the statement, and
        after Blowers had met with other Bovis managers. Counsel was therefore properly
        commenting on the evidence and the reasonable inferences to be drawn therefrom. See
        Clarke v. Medley Moving & Storage, Inc., 381 Ill. App. 3d 82, 95 (2008) (counsel may
        comment and argue on the evidence and any reasonable inferences that may be fairly drawn
        from the evidence).
¶ 104       Bovis next claims that counsel for Junior and Senior repeatedly referred to Bovis’s
        corporate status. However, Bovis cites no authority for the proposition that such references
        were improper. We also find that the references to Bovis’s corporate status were not
        prejudicial because they were isolated in nature and were not a central theme of the case. See
        People v. Woods, 2011 IL App (1st) 091959, ¶ 45 (allegedly improper comment was brief
        and isolated and did not deny defendant a fair trial).
¶ 105       Bovis next claims that Senior’s counsel insulted the family of Bovis’s counsel when he
        stated, “[Bovis’s counsel] talked to you about family. I am glad I’m not his family.” Even if
        this comment was improper, it was brief and isolated and did not deny Bovis a fair trial.
¶ 106       Bovis’s final claim is that counsel for Junior and Senior accused Bovis of ordering
        plaintiffs into the trench and thereby “sacrificing them.” Bovis’s counsel actually objected
        to this argument, and the trial court overruled the objection. Viewed in context, counsel was
        simply arguing that plaintiffs had always followed orders and that they had no reason to enter

                                                 -27-
      an unprotected trench if they were not ordered to do so. Counsel was also commenting on
      the evidence showing that shortly before the collapse, Blowers spoke to Senior near the
      trench and pointed in the direction of submerged power lines and that Senior and Junior then
      entered the trench without protection while Blowers stood and watched. While the remark
      that Bovis “sacrificed these two men” was unnecessary, it was also brief and isolated and did
      not deny Bovis a fair trial.
¶ 107      We further note that the trial court instructed the jury before its deliberations that closing
      arguments were a summary of what an attorney contends the evidence has shown and that
      the jury should disregard any statement or argument by an attorney that was not supported
      by the law or evidence. See Atwood v. Chicago Transit Authority, 253 Ill. App. 3d 1, 14
      (1993) (court can cure error from improper remark by instructing the jury that counsel’s
      arguments are not evidence).
¶ 108      Finally, when Bovis raised the issue of improper closing arguments in its posttrial
      motion, the trial court took great care to explain that it had observed the entire trial and that
      it did not find that any of the comments warranted a new trial. The court specifically
      observed:
               “I was in the position as the trial judge to note the attitude and demeanor of counsel
           and the atmosphere of the courtroom. I had an opportunity to observe the method, the
           manner, the cadence, the delivery and the level of professionalism that took place in this
           courtroom during closing arguments.
               There’s no doubt that a certain level of acrimony existed, but at all times counsel
           conducted themselves professionally and with their clients’ best interests in mind and
           well within the law.
               There was nothing in plaintiffs’ counsel’s argument that deprived the defendant of
           a fair trial or impaired the integrity of the judicial process. This trial was a truth-seeking
           mission for all sides and the arguments did not constitute pervasive prejudicial comments
           that would mandate a new trial.”
¶ 109      This court has previously explained that a trial court is in the best position to observe the
      trial and arguments by the attorneys and to determine if any remarks were improper and if
      they denied a party a fair trial. This court stated:
               “The standard of reviewing a claim of improper argument is whether the argument
           was of such a character as to have prevented a fair trial. [Citation.] The trial court is in
           a unique position to gauge the effects of misconduct, having heard all of the testimony
           and arguments and having observed the parties and their effect on the jury. [Citation.]
           The attitude and demeanor of counsel, as well as the atmosphere of the courtroom,
           cannot be reproduced in the record, and the trial court is in a superior position to assess
           and determine the effect of improper conduct on the part of counsel. [Citation.] ***
           Where, as here, the trial court tells the jury that closing arguments are not evidence, the
           scope and character of the arguments are left to the trial court and will not be reversed
           absent an abuse of discretion. [Citation.] In addition, if the trial was fair as a whole and
           the evidence was sufficient to support a jury’s verdict, a case will not be reversed upon
           review. [Citation.]” (Internal quotation marks omitted.) Wilbourn v. Cavalenes, 398 Ill.

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            App. 3d 837, 855 (2010).
¶ 110       We next consider Bovis’s argument that the damages awarded to Junior are excessive and
        contrary to the manifest weight of the evidence. The jury awarded Junior $2,500,000 for loss
        of a normal life and $5 million for pain and suffering. Bovis supports its argument by
        pointing to capabilities that Junior retained after the accident such as walking and doing
        some household chores. Junior responds by emphasizing his past and present suffering as
        well as his physical disabilities that were caused by his injuries.
¶ 111       An award of damages will be deemed excessive if it falls outside the range of fair and
        reasonable compensation or results from passion or prejudice, or if it is so large that it shocks
        the judicial conscience. Richardson v. Chapman, 175 Ill. 2d 98, 113 (1997). When reviewing
        an award of compensatory damages for a nonfatal injury, a court may consider, among other
        things, the permanency of the plaintiff’s condition, the possibility of future deterioration, the
        extent of the plaintiff’s medical expenses, and the restrictions imposed on the plaintiff by the
        injuries. Id. at 114. The measure of damages is a question of fact to be decided by the trier
        of fact, and a reviewing court should not substitute its judgment for that of the trier of fact.
        Marchese v. Vincelette, 261 Ill. App. 3d 520, 529 (1994). “A reviewing court will order a
        new trial on damages only if the amount awarded bears no reasonable relationship to the loss
        suffered by plaintiff or is unsupported by the manifest weight of the evidence and the
        opposite conclusion is clearly evident.” Clarke v. Medley Moving & Storage, Inc., 381 Ill.
        App. 3d 82, 96 (2008).
¶ 112       Junior and his two treating physicians, Dr. Louis and Dr. King, gave testimony at trial
        regarding Junior’s injuries, his physical capabilities, and his past and future pain. Junior
        testified that he was buried by dirt in the trench for an hour while he was unable to move or
        see. He was also conscious during the experience and in excruciating pain due to his injuries.
        Dr. Louis testified that Junior suffered from a fractured pelvis, a ruptured bladder, and
        multiple injuries to the arteries, muscles, and nerves around his pelvis. The nerve injuries
        also caused a foot drop and impotence. Junior was initially wheelchair bound and after
        rehabilitation therapy he still required a cane for balance when walking long distances. Junior
        testified to having sharp pain down his legs and feet on a regular basis. Dr. King testified that
        Junior still requires pain medications to regulate the pain caused by his injuries and that the
        pain would never be cured. Both doctors and Junior testified that Junior was unable to do
        strenuous physical activities for prolonged periods of time. Dr. Louis described Junior as
        “totally disabled from any type of work” and Dr. King stated that Junior was “still pretty
        nonfunctional.” Dr. King also stated that he did not believe Junior would ever be able to
        return to work as a construction worker.
¶ 113       The jury heard all of the above evidence as well as testimony regarding the physical
        capabilities that Junior retained after the accident. The jury was in the best position to
        observe the witnesses, to weigh the evidence and to determine an appropriate award of
        damages. We will not disturb the amount awarded by the jury. As this court has observed:
                 “Reviewing courts rarely disturb jury awards. For good reason. We are in no better
            position to judge the appropriate amount of a verdict than are the 12 people who see and
            hear the arguments and the evidence. They use their combined wisdom and experience


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             to reach fair and reasonable judgments. We are neither trained nor equipped to second-
             guess those judgments about the pain and suffering and familial losses incurred by other
             human beings. To pretend otherwise would be sheer hubris.” Barry v. Owens-Corning
             Fiberglas Corp., 282 Ill. App. 3d 199, 207 (1996).
¶ 114        Bovis next claims that the trial court erred in admitting Junior’s 2009-10 medical bills
        because “[n]othing was disclosed to Bovis prior to trial indicating the amount of these bills,
        or that this medical treatment occurred.” In a similar argument, Bovis claims that the trial
        court erred in denying its motion in limine to bar Junior’s claim for costs related to necessary
        future medical care and allowing Dr. Louis and Dr. King to testify to Junior’s necessary
        future medical care. Bovis argues that the only evidence supporting these future medical
        expenses were the 2009-10 medical bills which were not timely produced.
¶ 115        We find both of these claims waived. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) (a
        point raised but unsupported by argument or citation to the pages of the record relied upon
        is waived); Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838, 847 (2007) (a point
        raised but unsupported by reasoned argument or citation to the record fails to satisfy the
        requirements of Supreme Court Rule 341(h)(7) and is therefore waived). In this case, Bovis
        does not cite to the portion of the record where the disputed bills were admitted, does not
        indicate if it objected to their admission and, if it did object, does not set forth the trial
        court’s basis for admitting the bills. Bovis also does not explain the nature of the bills, the
        testimony surrounding them or the circumstances it claims establish that the bills were not
        timely produced. Similarly, Bovis does not cite to the portion of the record where the trial
        court denied its motion in limine or explain the reason for the court’s denial. Bovis also does
        not indicate if it objected when the disputed testimony was given and it does not even set
        forth the specific portions of the doctors’ testimony it finds objectionable. It is not the duty
        of this court to search the record in order to reverse the circuit court’s judgment. U.S. Bank
        v. Lindsey, 397 Ill. App. 3d 437, 459 (2009). Based upon Bovis’s failure to present a
        cohesive legal argument with citations to the pages of the record it relies upon, we find Bovis
        has waived these claims.
¶ 116        We next examine the damages awarded to the Estate for pecuniary loss. Bovis argues that
        a new trial on damages is warranted because of errors made by the trial court and because the
        damages awarded to the Estate are contrary to the manifest weight of the evidence.
¶ 117        Under the Illinois Wrongful Death Act (the Act), the jury may award damages that it
        deems fair and just compensation with reference to the pecuniary injuries resulting from such
        death, to the survivors of such deceased person. 740 ILCS 180/2 (West 2010). In discussing
        the compensation for “pecuniary injuries” under the Act, our supreme court noted that the
        term is interpreted broadly to include items of damage for deprivation of support as well as
        deprivation of the companionship, guidance, advice, love and affection of the deceased.
        Bullard v. Barnes, 102 Ill. 2d 505 (1984). A presumption of pecuniary loss to the lineal heirs
        is created by the relationship of the parties alone. Hall v. Gillins, 13 Ill. 2d 26, 31 (1958).
        This presumption applies when both the decedent and linear heirs are adults. Cooper, 153
        Ill. App. 3d at 519.
¶ 118        Bovis raises three issues with regard to the damages awarded to the Estate. First, Bovis


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        claims that the trial court erred in precluding cross-examination of the Estate’s beneficiaries
        regarding Senior having two separate families. The court precluded cross-examination on
        this issue on the grounds that the relationship between Senior’s two families was irrelevant
        and highly prejudicial. Second, Bovis claims the court erred in precluding it from cross-
        examining Gwen Brown as to whether, after Senior’s death, she required Tony Franklin,
        Kevin Franklin and Taisha Franklin (children from Senior’s other family) to take a paternity
        test. Bovis argues that the precluded evidence was directly relevant to the relationship
        between the beneficiaries and Senior. We disagree.
¶ 119         The scope and extent of cross-examination is committed to the trial court’s discretion.
        Cetera v. DiFilippo, 404 Ill. App. 3d 20, 46 (2010). To be relevant, evidence must establish
        a fact of consequence to the determination of the action: it must be material and have
        probative value. However, even if the evidence is arguably relevant it may still be excluded
        if it would confuse the issues or tend to mislead the jury. Demos v. Ferris-Shell Oil Co., 317
        Ill. App. 3d 41, 53 (2000).
¶ 120         We consider these two claims together because they both involve the same
        misapprehension as to the relevance of the relationship between Senior’s two families to the
        issue of pecuniary damages. Pecuniary loss in this case pertained to the loss of society and
        companionship that the beneficiaries shared with Senior, not with other beneficiaries, prior
        to his death. The nature of the relationships that Senior’s beneficiaries had with each other
        has no bearing in determining pecuniary loss. Furthermore, allowing the cross-examination
        could have led to confusion of the pecuniary loss issue and potentially misled the jury by
        suggesting that the relationship between the two families was relevant to pecuniary loss. The
        trial court’s instructions with regard to pecuniary loss adequately informed the jury as to the
        relevant considerations for this issue. For these reasons, we find that the trial court did not
        abuse its discretion by precluding cross-examination as to the relationship between Senior’s
        two families.
¶ 121         Bovis next claims that the jury’s award of $2 million to the Estate for loss of society and
        companionship was contrary to the manifest weight of the evidence. Bovis argues that the
        testimony of Senior’s children regarding their relationship with Senior was sparse, that three
        of Senior’s children did not testify to their relationship with Senior and that Senior had a
        strained relationship with his son Henderson. Bovis further argues that there was no
        testimony concerning family outings or memories of time spent together.
¶ 122         As stated above, the law recognizes a rebuttable presumption of pecuniary loss to the
        lineal heirs of the decedent. Hall, 13 Ill. 2d at 31. Defendants can rebut this presumption and
        the jury, in weighing the evidence and issuing a verdict, has the implicit right to not give
        credence to the presumption in light of contradictory evidence. Cooper, 153 Ill. App. 3d at
        519. “A reviewing court will order a new trial on damages only if the amount awarded bears
        no reasonable relationship to the plaintiff’s loss or is unsupported by the manifest weight of
        the evidence and the opposite conclusion is clearly evident.” Clarke, 381 Ill. App. 3d at 96.
¶ 123         The trial court instructed the jury that “where a decedent leaves sons and daughters, the
        law recognizes a presumption that the sons and daughters have sustained some substantial
        pecuniary loss by reason of the death. The weight to be given this presumption is for you to


                                                  -31-
        decide from the evidence in this case.” At trial Bovis attempted to rebut the presumption of
        pecuniary loss by introducing evidence regarding the alleged estranged relationship between
        Senior’s two families and Senior’s alleged estranged relationship with Henderson. Brown
        testified that she did not meet her siblings from Senior’s other family until they were over
        10 years old. Junior and Brown testified that Junior’s relationship with Henderson was
        strained. Henderson also testified that there were periods of time when he did not speak with
        Senior and that he and the Senior “never did talk much.”
¶ 124        The jury heard and considered all of this evidence before it awarded the Estate damages
        for pecuniary loss. The jury also heard evidence presented by the Estate regarding the loss
        of society and companionship that Senior’s heirs suffered after his death. The trial court
        instructed the jury that in determining pecuniary loss, the jury could consider what
        instruction and moral training the decedent would have reasonably been expected to give to
        his children had he lived, his age, his sex, his health, his occupational abilities, and the
        relationship he had with each of his children. Gwen Brown testified that she personally
        witnessed Senior working with his sons around the house “all the time.” Their activities
        included paving the alleyway near the house, laying concrete, roofing, plumbing, and
        working on vehicles. Senior also taught his sons how to do roofing work. All of Senior’s
        children who testified at trial said that they missed and loved their father. Brown testified that
        she spoke to Senior once a week, saw him every other week and that she enjoyed spending
        time with him. Henderson testified that his relationship with Senior was not strained at the
        time of Senior’s death and that he had spoken with Senior multiple times in the months prior
        to the accident. Senior still had full-time employment at the time of his death, working with
        his sons Junior and Kevin on a daily basis. Senior was in good health and did not drink or
        smoke. Based on this evidence, as well as the presumption of pecuniary loss, we cannot say
        that the jury’s award was against the manifest weight of the evidence. See Cooper, 153 Ill.
        App. 3d at 519-20 (in addition to the pecuniary loss presumption, plaintiff established actual
        pecuniary loss of society and companionship by introducing evidence of close relationship
        with mother).
¶ 125        Bovis next claims that the trial court erred by granting Junior’s motion in limine and
        barring Detective Delyne Mangier from testifying that Junior told her, “I don’t know why my
        dad told me to go back down into that hole.” The trial court precluded the testimony on the
        ground that it was inadmissible hearsay, a violation of the Dead-Man’s Act (735 ILCS 5/8-
        201 (West 2010)), and generally unreliable.
¶ 126        A ruling upon a motion in limine rests in the sound discretion of the trial court and will
        not be reversed on appeal absent an abuse of discretion. In re Leona W., 228 Ill. 2d 439, 460
        (2008). A trial court will not be found to have abused its discretion with respect to an
        evidentiary ruling unless it can be said that no reasonable man would take the view adopted
        by the court. Id. If a trial court commits an abuse of discretion, a new trial should be ordered
        only if the exclusion of evidence appears to have affected the outcome of the trial. Id.
¶ 127        We disagree that Junior’s alleged statement that he did not know why his dad told him
        to reenter the trench was hearsay. Instead, it was an admission by a party opponent under
        Illinois Rule of Evidence 801(d)(2). That rule provides that a statement is not hearsay if it
        is offered against a party and is the party’s own statement, in either an individual or a

                                                  -32-
        representative capacity. Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011). Also, the Dead-Man’s Act
        provides that the witness must be an “adverse party or person directly interested in the
        action.” 735 ILCS 5/8-201 (West 2010). The Dead-Man’s Act therefore does not apply
        because Detective Magnier was not an adverse party or a person directly interested in the
        action.
¶ 128        Nevertheless, we find that the refusal by the trial court to allow the evidence was
        harmless. Bovis seeks to utilize the statement to show the circumstances under which Junior
        and Senior reentered the trench and to allow the jury to infer that Junior knew the risks of
        doing so. Bovis claims that Junior was in a position to testify as to whether he made the
        statement and what he meant by it. Contrary to Bovis’s claim, Junior testified that he was on
        morphine and other medication at the hospital and that he did not recall speaking to the
        police. Therefore, Junior could not testify as to whether he made the statement and what he
        meant by it. On the other hand, Detective Mangier testified that when he spoke to Junior at
        the hospital there was no indication that he was under the influence of narcotics or
        medication.
¶ 129        Reliability aside, Junior’s somewhat innocuous statement does not illuminate the
        circumstances under which he and Senior entered the trench. There was also ample evidence
        that Senior was in charge at the construction site and that Junior took directions from him.
        In fact, Detective Magnier testified that Junior told him that his dad asked him to reenter the
        trench to hand-grade the stone. Further, there was abundant testimony provided by Junior,
        Founier and other witnesses that Junior knew that it was dangerous to enter a trench that was
        over five feet deep without trench protection. For these reasons, the trial court’s ruling on the
        motion in limine, which prevented the jury from hearing Junior’s statement, was harmless
        and did not change the outcome of the trial.
¶ 130        Bovis next claims that it was denied a fair trial by several rulings the trial court made
        with regard to jury instructions. The decision to grant or deny a jury instruction is within the
        trial court’s discretion. Hudson v. City of Chicago, 378 Ill. App. 3d 373, 403 (2007). “The
        standard for determining whether the trial court abused its discretion is whether, taken as a
        whole, the instructions fully, fairly and comprehensively informed the jury of the relevant
        legal principles.” Id. “As a general rule, a judgment will not be reversed where the jury
        instructions are faulty unless they mislead the jury and the complaining party suffered
        prejudice.” Id. “A particular jury instruction given by the trial court is proper if it is
        sufficiently clear, fairly and correctly states the law, and is supported by some evidence in
        the record.” Rios v. City of Chicago, 331 Ill. App. 3d 763, 776 (2002). “The question of what
        issues have been raised by the evidence is within the discretion of the trial court. The
        evidence may be slight; a reviewing court may not reweigh it or determine if it should lead
        to a particular conclusion.” Leonardi v. Loyola University of Chicago, 168 Ill. 2d 83, 100
        (1995).
¶ 131        Bovis first claims that the trial court abused its discretion by allowing a specific provision
        into the Estate’s issue instructions. Specifically, the jury was instructed that the Estate had
        to prove that Bovis acted or failed to act in a certain manner. One of the possible acts or
        omissions the jury was instructed on was that Bovis “[d]irected Herman Calloway, Sr. to
        work in the unprotected trench.” Bovis claims that there was no evidence to support the

                                                  -33-
        instruction.
¶ 132       Franklin testified that Senior and the Bovis representative were speaking near the trench
        and that Blowers then pointed to the trench. Senior and Junior then entered the trench
        carrying shovels while being watched by Blowers. Junior and Senior were hand-digging for
        a buried power line. The jury could have concluded based upon this evidence that Blowers
        directed Senior to enter the trench to look for the buried power line. Accordingly, the
        instruction was supported by some evidence and including it was not an abuse of discretion.
¶ 133       Bovis next claims that the court abused its discretion by giving the jury an instruction
        regarding insurance. The trial court gave the jury Illinois Pattern Jury Instructions, Civil, No.
        3.03 (Supp. 2009) (hereinafter IPI Civil (Supp. 2009) No. 3.03), which states:
                 “Whether a party is insured or not insured has no bearing on any issue that you must
            decide. You must refrain from any inference, speculation, or discussion about insurance.
                 If you find for the plaintiff, you shall not speculate about or consider any possible
            sources of benefits the plaintiff may have received or might receive. After you have
            returned your verdict, the court will make whatever adjustments are necessary in this
            regard.”
        The instruction was given over Bovis’s objection. The court stated that its concern was not
        with trial but instead was based on voir dire when several prospective jurors stated that they
        had experiences with relatives who had workmen’s compensation claims. Bovis now claims
        the instruction was improper because the issue of insurance was not otherwise raised at trial.
        Bovis asserts that it was prejudiced because it was the only party to whom the instruction
        could have pertained.
¶ 134       The “Notes on Use” to IPI Civil (Supp. 2009) No. 3.03 state: “The Committee believes
        that this instruction should be given in all cases where insurance could play a role in the
        decision of the jury. With the wide prevalence of liability insurance, medical insurance[,] or
        government benefits such as Medicaid or Medicare, many jurors question the role of
        insurance in contested accident, medical negligence[,] or other cases.” IPI Civil (Supp. 2009)
        No. 3.03, Notes on Use, at 8. Moreover, in Auten v. Franklin, 404 Ill. App. 3d 1130, 1148
        (2010), the plaintiff was injured in a car accident and brought suit against the other driver and
        various surgical associations. Although the word “insurance” was not mentioned during trial,
        the jury was instructed pursuant to IPI Civil (Supp. 2009) No. 3.03. The court found this was
        not an abuse of discretion, reasoning that testimony that plaintiff’s sizeable medical bills had
        been paid and that plaintiff and her husband were of modest means could lead to the
        inference that insurance was used to pay the bills. Id. The court also found that although there
        was no mention of the medical defendants having insurance, those defendants were not
        prejudiced where the instruction accurately reflected Illinois law that it is not relevant to a
        jury’s deliberations whether a party has insurance. Id.
¶ 135       We reach the same result in this case. As the trial court noted, during voir dire several
        prospective jurors mentioned having relatives who had worker’s compensation claims. The
        jury also heard that this was a construction-related accident involving significant medical
        bills that had been paid. The trial court could have reasonably concluded that the jury might
        speculate that insurance was used to pay those medical bills. Bovis was also not prejudiced

                                                  -34-
      by the instruction. Bovis claims that it was prejudiced as it was the only party to whom the
      insurance instruction could pertain. To the contrary, the second part of the instruction
      specifically referenced that the jury should not consider whether plaintiff had insurance.
      Moreover, there was no mention during trial that Bovis was insured and the instruction told
      the jury that it was not relevant to its deliberations whether a party had insurance. The trial
      court therefore did not abuse its discretion by giving the jury IPI Civil (Supp. 2009) No. 3.03.
¶ 136     Bovis also claims that the trial court abused its discretion when it gave the jury the IPI
      Civil (2006) No. 55.00 series instructions. Those instructions are based upon section 414 of
      the Restatement and informed the jury what plaintiffs had to prove in order for Bovis to be
      found liable. These included that Bovis retained some control over the safety of the work and
      that Bovis acted or failed to act in a number of ways, including failing to stop Junior and
      Senior from working in the unprotected trench.
¶ 137     Bovis’s claim that the evidence did not support these instructions is no more than a
      reiteration of its previous argument that its motion for judgment notwithstanding the verdict
      should have been granted. We have already rejected that claim and for the same reasons we
      find that the evidence supported giving the IPI Civil (2006) No. 55.00 series instructions and
      that the court did not abuse its discretion by doing so.
¶ 138     For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 139      Affirmed.




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