                            Illinois Official Reports

                                   Appellate Court



           Dunning v. Dynegy Midwest Generation, Inc., 2015 IL App (5th) 140168



Appellate Court        GERALD DUNNING, Plaintiff-Appellee, v. DYNEGY MIDWEST
Caption                GENERATION, INC., a Corporation, and AVI INTERNATIONAL,
                       INC., Defendants and Third-Party Plaintiffs-Appellants (Power
                       Maintenance Constructors, Inc., Third-Party Defendant-Appellee).



District & No.         Fifth District
                       Docket No. 5-14-0168



Filed                  April 28, 2015
Rehearing denied       June 22, 2015



Decision Under         Appeal from the Circuit Court of St. Clair County, No. 08-L-2; the
Review                 Hon. Andrew J. Gleeson, Judge, presiding.




Judgment               Affirmed.



Counsel on             James L. Hodges, of Hennessy & Roach, P.C., of St. Louis, Missouri,
Appeal                 for appellant Dynegy Midwest Generation, Inc.

                       Loretta M. Griffin and Ana Maria L. Downs, both of Law Offices of
                       Loretta M. Griffin, of Chicago, for appellant AVI International, Inc.

                       Thomas Q. Keefe, Jr., and Thomas Q. Keefe III, both of Keefe &
                       Keefe, P.C., of Belleville, for appellee.
     Panel                     JUSTICE GOLDENHERSH delivered the judgment of the court, with
                               opinion.
                               Justices Stewart and Schwarm concurred in the judgment and opinion.




                                                OPINION

¶1         Plaintiff, Gerald Dunning, was crushed between a steel I-beam support and a portion of a
       28,500-pound water pump being transported on a cart pushed by a forklift. Defendant Dynegy
       Midwest Generation, Inc. (DMG), owned the water pump, and the cart transporting the pump
       was pushed by a forklift owned and operated by DMG. The cart was designed and maintained
       by defendant AVI International, Inc. (AVI). Plaintiff was employed as a pipefitter by
       third-party defendant Power Maintenance Constructors, Inc. (PMC), which was contracted to
       provide the labor services for the project. Plaintiff brought separate claims against defendants
       DMG and AVI for injuries sustained in the incident, and the trial court found in favor of
       plaintiff. Defendants timely appealed. We affirm.

¶2                                          BACKGROUND
¶3         Prior to October 8, 2007, DMG contracted with fellow defendant, AVI, and third-party
       defendant, PMC, to perform tasks at its Baldwin Power Plant. One of the assigned tasks
       involved removing a circulating water pump from its casing and out of the power plant.
¶4         DMG was in charge of the power plant at the time in question. AVI was contracted to
       supervise the removal, transfer, loading, and transportation of circulating water pumps from
       DMG’s power plant to AVI’s facility in Connecticut for repair and maintenance. AVI also
       provided a cart that was designed for the purpose of transporting the water pumps. AVI’s cart
       was designed and manufactured by AVI’s president, Clifford Burrell, and was designed so that
       one person could push the cart across a flat concrete floor with a load of up to 40,000 pounds.
       PMC was contracted to provide the labor for the project, which was performed by plumbers
       and pipefitters. Plaintiff was employed by PMC as a union pipefitter for the project.
¶5         The events surrounding plaintiff’s accident are as follows. On October 8, 2007, plaintiff
       was assisting in the removal of a 28,500-pound water pump at DMG’s Baldwin Power Plant.
       DMG’s water pump was lowered from its position and placed onto AVI’s cart by PMC
       employees. Scott Docimo, AVI’s only employee on-site at the time of the incident, watched as
       PMC employees rigged the pump to AVI’s cart and a forklift owned and operated by DMG.
       Docimo recognized that the PMC employees had improperly rigged the pump and cart to
       DMG’s forklift but did not say anything.
¶6         As the forklift began to slowly push the cart forward across a flat concrete floor, it began to
       veer off its intended path. The wheels on AVI’s cart were going in different directions, and the
       cart was veering from side to side. In an attempt to keep the cart moving straight, PMC
       employees used their hands to guide the cart. As the PMC employees were pushing on the

                                                    -2-
       sides of the cart and pump to keep it moving straight, plaintiff was crushed between a portion
       of the pump and a steel I-beam support, sustaining serious injuries.
¶7          On January 4, 2008, plaintiff brought suit against DMG alleging negligence pursuant to
       section 414 of the Restatement (Second) of Torts (Restatement (Second) of Torts § 414
       (1965)). Plaintiff alleged that while he was in the course of his employment as a pipefitter for
       PMC at DMG’s power plant, he was crushed into a steel post by a forklift owned and operated
       by DMG.
¶8          On October 1, 2008, plaintiff filed a first amended complaint adding AVI as a defendant,
       asserting a single count of negligence against AVI. Plaintiff alleged AVI negligently instructed
       rigging of the pump, failed to provide training and instruction in the safe operation of forklifts,
       and failed to inspect the area to ensure safe forklift operation. AVI filed an answer denying all
       material allegations of negligence and filed a third-party complaint against PMC alleging PMC
       negligently failed to maintain a lookout for dangers posed to plaintiff in the area it instructed
       plaintiff to work, failed to inspect plaintiff’s surroundings, failed to notify or warn plaintiff of
       potential dangers, failed to instruct and train plaintiff in his work, and failed to coordinate
       plaintiff’s work with other trades and entities present.
¶9          Plaintiff filed a second amended complaint on November 4, 2013, adding a strict product
       liability count against AVI alleging AVI’s cart was defective at the time of the accident. On
       November 13, 2013, AVI filed a motion to dismiss under section 2-615 of the Code of Civil
       Procedure (735 ILCS 5/2-615 (West 2012)) contesting the legal and factual sufficiency of
       plaintiff’s complaint, a motion to dismiss under section 2-619 of the Code of Civil Procedure
       (735 ILCS 5/2-619 (West 2012)) asserting statutes of limitation and repose defenses, and a
       motion to continue trial. The trial court denied all three motions, and the matter proceeded to
       trial on November 18, 2013.
¶ 10        Several witnesses testified for plaintiff and defendants at trial. At the close of plaintiff’s
       evidence, DMG moved for a directed verdict asserting plaintiff failed to show DMG owed a
       duty of care to plaintiff or that it was negligent. The trial court denied DMG’s motion. Also at
       the close of plaintiff’s evidence, the trial court directed a verdict against AVI on the counts of
       negligence and strict product liability. The trial court established that as a matter of law, AVI’s
       cart was defective and a proximate cause of plaintiff’s injuries.
¶ 11        On November 22, 2013, the jury returned a verdict finding plaintiff comparatively
       negligent, finding against DMG and AVI, and finding against PMC on the third-party claims.
       The following percentages of fault were assessed: plaintiff 6%, AVI 37%, DMG 47%, and
       PMC 10%. On December 18, 2013, the trial court entered judgment on the verdict rendered
       against DMG, AVI, and PMC. DMG and AVI timely filed posttrial motions, each moving for a
       judgment notwithstanding the verdict or in the alternative for a new trial, and AVI also moving
       to vacate the order of judgment and set aside the directed verdict entered in favor of plaintiff
       and against AVI. These posttrial motions were denied. Defendants DMG and AVI timely filed
       notices of appeal.

¶ 12                                        ANALYSIS
¶ 13       There are numerous issues raised by defendants on appeal. We first address the issues
       raised by DMG and then address the issues raised by AVI.



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¶ 14                                               I. DMG
¶ 15       DMG alleges the trial court erred in denying its motion for a directed verdict, judgment
       notwithstanding the verdict, and motion for a new trial on the grounds that plaintiff failed to
       show DMG owed plaintiff a duty of care and failed to prove DMG’s alleged negligence
       proximately caused plaintiff’s injuries. DMG contends the evidence at the close of plaintiff’s
       case overwhelmingly favored DMG.
¶ 16       A trial court’s denial of a motion for a directed verdict or a judgment notwithstanding the
       verdict is reviewed de novo. Ford v. Grizzle, 398 Ill. App. 3d 639, 650, 924 N.E.2d 531, 542
       (2010). A directed verdict or judgment notwithstanding the verdict is proper where all the
       evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly
       favors the moving party that no contrary verdict based on that evidence could ever stand. Ford,
       398 Ill. App. 3d at 650, 924 N.E.2d at 542. In ruling for a directed verdict or judgment
       notwithstanding the verdict, the court does not weigh the evidence and is not concerned with
       the credibility of the witnesses. Ford, 398 Ill. App. 3d at 650, 924 N.E.2d at 542. The “court
       may only consider the evidence, and any rational inferences therefrom, in the light most
       favorable to the nonmoving party.” Ford, 398 Ill. App. 3d at 650, 924 N.E.2d at 542.
¶ 17       Further, a judgment notwithstanding the verdict may not be granted merely because the
       court determines a verdict is against the manifest weight of the evidence. Ford, 398 Ill. App. 3d
       at 650, 924 N.E.2d at 542. A trial court has no right to enter a judgment notwithstanding the
       verdict if there is any evidence showing a substantial factual dispute or where the assessment
       of the witnesses’ credibility or the determination regarding conflicting evidence is decisive to
       the outcome of the trial. Ford, 398 Ill. App. 3d at 650, 924 N.E.2d at 542-43.
¶ 18       Alternatively, on a motion for a new trial, the court will weigh the evidence and set aside
       the verdict and order a new trial if the verdict is contrary to the manifest weight of the
       evidence. Ford, 398 Ill. App. 3d at 651, 924 N.E.2d at 543. Hence, the standard to be used in
       determining whether to grant a new trial is whether the jury’s verdict was against the manifest
       weight of the evidence. Kindernay v. Hillsboro Area Hospital, 366 Ill. App. 3d 559, 569, 851
       N.E.2d 866, 875 (2006).
¶ 19       A verdict is against the manifest weight of the evidence where the opposite conclusion is
       clearly evident or the jury’s findings are unreasonable, arbitrary, and not based upon any of the
       evidence. Kindernay, 366 Ill. App. 3d at 569, 851 N.E.2d at 875. A trial court’s ruling on a
       motion for a new trial will not be reversed except in instances where it is affirmatively shown
       that the trial court clearly abused its discretion, as the trial judge had the benefit of observing
       the witnesses firsthand at trial. Maple v. Gustafson, 151 Ill. 2d 445, 455-56, 603 N.E.2d 508,
       513 (1992). In determining whether the trial court abused its discretion, we must consider
       whether the verdict was supported by the evidence and whether the losing party was denied a
       fair trial. Ford, 398 Ill. App. 3d at 651, 924 N.E.2d at 543.
¶ 20       At the close of plaintiff’s case, DMG moved for a directed verdict asserting it was not
       negligent because (1) plaintiff failed to show defendant owed plaintiff a duty and (2) plaintiff
       failed to establish DMG was a proximate cause of plaintiff’s injuries. After the trial court
       denied DMG’s motion for a directed verdict, DMG filed a posttrial motion for a judgment
       notwithstanding the verdict or in the alternative for a new trial, which the trial court denied. For
       the following reasons, we find the trial court did not err in denying DMG’s motion for a
       directed verdict and judgment notwithstanding the verdict or DMG’s motion for a new trial.


                                                    -4-
¶ 21      Before we begin our analysis, it should be noted that the existence of a duty is a question of
       law to be determined by the court, and questions concerning a breach of that duty and
       proximate cause of the injury are questions reserved for the trier of fact. Jones v. Chicago &
       Northwestern Transportation Co., 206 Ill. App. 3d 136, 139, 563 N.E.2d 1120, 1122 (1990).

¶ 22                                            A. Duty of Care
¶ 23        Whether a duty exists is a question of law for the court to decide. Rhodes v. Illinois Central
       Gulf R.R., 172 Ill. 2d 213, 227, 665 N.E.2d 1260, 1267 (1996). In resolving whether a duty
       exists, a court must determine whether there is a relationship between the parties requiring that
       a legal obligation be imposed upon one party for the benefit of the other. Rhodes, 172 Ill. 2d at
       227, 665 N.E.2d at 1267.
¶ 24        The duty inquiry involves four factors: (1) the reasonable foreseeability of the injury, (2)
       the likelihood of the injury, (3) the magnitude of the burden of guarding against the injury, and
       (4) the consequences of placing the burden on the defendant. Krywin v. Chicago Transit
       Authority, 238 Ill. 2d 215, 226, 938 N.E.2d 440, 447 (2010).
¶ 25        As a general rule, one who employs an independent contractor is not liable for the acts or
       omissions of the latter. Rangel v. Brookhaven Constructors, Inc., 307 Ill. App. 3d 835, 838,
       719 N.E.2d 174, 176 (1999). However, section 414 of the Restatement (Second) of Torts
       provides an exception to the general rule:
                    “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 exercise his control with reasonable care.” Restatement (Second) of Torts §
                414 (1965).
       Gregory v. Beazer East, 384 Ill. App. 3d 178, 186, 892 N.E.2d 563, 572-73 (2008).
¶ 26        Thus, whether a duty exists under section 414 turns on whether the defendant controls the
       work in such a manner that he should be held liable. Martens v. MCL Construction Corp., 347
       Ill. App. 3d 303, 315, 807 N.E.2d 480, 489 (2004). The comments accompanying section 414
       discuss a continuum of control which our courts have used to determine the necessary degree
       of control a defendant must exercise to be subject to liability under this section. Comment c
       provides:
                “In order for the rule stated in this Section to apply, the employer must have retained at
                least some degree of control over the manner in which the work is done. It is not
                enough that 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.” Restatement (Second) of Torts § 414 cmt. c (1965).
       Gregory, 384 Ill. App. 3d at 187, 892 N.E.2d at 573.
¶ 27        Moreover, a possessor of land owes its invitees a common law duty of reasonable care in
       maintaining its premises in a reasonably safe condition. Gregory, 384 Ill. App. 3d at 191, 892


                                                    -5-
       N.E.2d at 576. No legal duty arises unless the harm is reasonably foreseeable. Gregory, 384 Ill.
       App. 3d at 191, 892 N.E.2d at 576.
¶ 28       Section 343 of the Restatement (Second) of Torts provides:
                    “A possessor of land is subject to liability for physical harm caused to his invitees
               by a condition on the land if, but only if, he
                    (a) knows or by the exercise of reasonable care would discover the condition, and
               should realize that it involves an unreasonable risk of harm to such invitees, and
                    (b) should expect that they will not discover or realize the danger, or will fail to
               protect themselves against it, and
                    (c) fails to exercise reasonable care to protect them against the danger.”
               Restatement (Second) of Torts § 343 (1965).
       Gregory, 384 Ill. App. 3d at 191, 892 N.E.2d at 576.
¶ 29       In the instant case, a DMG employee was operating a forklift owned by DMG and drove
       the forklift into a steel beam with plaintiff in front of the forklift, thereby crushing plaintiff
       between the forklift and steel beam. This accident occurred on premises owned by DMG. From
       these facts, the jury determined DMG’s conduct was negligent and the proximate cause of
       plaintiff’s injuries.
¶ 30       DMG asserts plaintiff’s injury was not reasonably foreseeable because it was the
       independent contractors AVI and PMC that provided the defective cart and improperly rigged
       the cart to DMG’s forklift, thereby creating a condition DMG could not guard against as the
       owner of the premises. We disagree.
¶ 31       The accident in this case occurred at a facility owned, operated, and maintained by DMG.
       Plaintiff and his fellow PMC laborers worked with one of DMG’s employees in rigging
       DMG’s pump to a forklift owned by DMG. DMG’s operator then pushed the forklift carrying
       the pump down a corridor, completely controlling the load and direction of the forklift.
¶ 32       Plaintiff’s injury was foreseeable, as DMG’s operator should have anticipated that
       plaintiff’s injuries would result from the operator driving the forklift into a steel beam with
       plaintiff in front of the forklift. DMG completely controlled the forklift, owned the pump that
       crushed plaintiff into the steel beam, and owned the premises on which the accident occurred.
       Accordingly, DMG owed plaintiff a duty of reasonable care.

¶ 33                                       B. Proximate Cause
¶ 34       DMG also alleges its operator of the forklift and the forklift itself were not the proximate
       cause of plaintiff’s accident. DMG argues the proximate cause of the accident was AVI’s
       defective cart and PMC’s failure to properly rig the pump to AVI’s cart and DMG’s forklift.
¶ 35       Proximate cause is defined as “ ‘any cause which, in natural or probable sequence,
       produced the injury complained of. It need not be the only cause, nor the last or nearest cause.
       It is sufficient if it concurs with some other cause acting at the same time, which in
       combination with it, causes the injury.’ ” Holton v. Memorial Hospital, 176 Ill. 2d 95, 133, 679
       N.E.2d 1202, 1219 (1997) (quoting Illinois Pattern Jury Instructions, Civil, No. 15.01 (1995)
       (hereinafter, IPI Civil (1995))).
¶ 36       Two tests are generally applied in determining the issue of proximate cause. Kindernay,
       366 Ill. App. 3d at 570, 851 N.E.2d at 876. The first is the substantial-factor test, under which


                                                   -6-
       the defendant’s conduct is a cause of an event if it was a material element and a substantial
       factor in bringing it about. Kindernay, 366 Ill. App. 3d at 570, 851 N.E.2d at 876. Under the
       second test, commonly referred to as the “but for” rule, the defendant’s conduct is not a cause
       of an event if the event would have occurred without it. Kindernay, 366 Ill. App. 3d at 570, 851
       N.E.2d at 876. The plaintiff bears the burden of establishing proximate cause by a
       preponderance of the evidence. Kindernay, 366 Ill. App. 3d at 570, 851 N.E.2d at 876.
¶ 37       If a jury finds that the defendant’s negligence was a proximate cause of the plaintiff’s
       injury, it is no defense that something else may also have been a cause of the injury. Holton,
       176 Ill. 2d at 133, 679 N.E.2d at 1219. The “verdict should be for defendant if the jury decides
       ‘that the sole proximate cause of injury to the plaintiff was something other than the conduct of
       the defendant.’ ” (Emphases in original.) Holton, 176 Ill. 2d at 133, 679 N.E.2d at 1219
       (quoting IPI Civil (1995) No. 12.05).
¶ 38       DMG indicates there can be more than one negligent act that creates the proximate cause of
       an injury. Long v. Friesland, 178 Ill. App. 3d 42, 55, 532 N.E.2d 914, 922 (1988). When an
       injury is caused by the concurrent negligence of two parties and the accident would not have
       occurred without the negligence of both, each party is a proximate cause of the injury. Long,
       178 Ill. App. 3d at 55, 532 N.E.2d at 922.
¶ 39       However, as DMG points out, if the “alleged negligent act did nothing more than furnish a
       condition making the injury possible through the subsequent independent negligent act of a
       third party, the two acts are not concurrent and the existence of the condition is not the
       proximate cause of the injury.” Long, 178 Ill. App. 3d at 55, 532 N.E.2d at 922. The test used to
       determine whether both acts constitute concurrent proximate cause is whether the first
       wrongdoer may have reasonably anticipated or foreseen the intervening cause as a natural and
       probable result of the first wrongdoer’s negligence. Long, 178 Ill. App. 3d at 55, 532 N.E.2d at
       922.
¶ 40       Here, DMG’s operator drove a forklift owned by DMG into a steel beam, crushing
       plaintiff. The jury determined the operator’s negligent conduct in controlling the forklift was a
       proximate cause of the accident. Based on the evidence presented at trial, a reasonable jury
       could find that the operator’s conduct of controlling the forklift met the foreseeability,
       substantial-factor, and but-for tests for the proximate cause of plaintiff’s injuries. It is no
       defense to DMG that AVI and PMC were also a cause of plaintiff’s injuries, as the jury still
       found DMG’s own negligent conduct was a proximate cause of the accident. Accordingly,
       DMG’s assertion that its forklift and operator were not a proximate cause of plaintiff’s
       accident is mistaken.
¶ 41       DMG lastly alleges the trial court erred in denying its motion for a new trial, as the jury’s
       verdict was unreasonable, arbitrary, and not based upon any evidence. DMG asserts it should
       be granted a new trial because each witness provided testimony that the accident occurred
       because the cart was not properly rigged, and no single witness testified that DMG’s forklift
       malfunctioned or that the operator of the forklift drove it erratically.
¶ 42       DMG’s argument is misguided. While it may be true that the forklift did not malfunction
       and was not driven erratically, the record clearly indicates DMG’s employee was operating the
       forklift that crushed plaintiff into a steel beam. Furthermore, the 28,500-pound water pump
       being transported on defendant’s forklift that crushed plaintiff into the steel beam was owned
       by DMG, and the accident occurred on DMG’s premises.


                                                   -7-
¶ 43       After careful review of the evidence presented at trial, we cannot say the jury’s findings
       were unreasonable, arbitrary, or against the manifest weight of the evidence. The trial court did
       not err in denying DMG’s motion for a directed verdict or judgment notwithstanding the
       verdict, nor did it abuse its discretion in denying DMG’s motion for a new trial on the grounds
       that plaintiff failed to show DMG owed plaintiff a duty of care and failed to prove DMG’s
       negligence proximately caused plaintiff’s injuries.

¶ 44                                                 II. AVI
¶ 45                         A. Motion for Directed Verdict and Posttrial Relief
¶ 46       AVI alleges the trial court erred in granting a directed verdict in favor of plaintiff at the
       close of plaintiff’s evidence and erred in denying AVI’s posttrial relief. AVI contends it was
       error for the trial court to instruct the jury that it had directed a verdict against AVI before the
       defense offered any evidence, as this limited AVI’s ability to present evidence and argue its
       case. Further, AVI asserts the trial court never instructed the jury as to the reason it directed a
       verdict against AVI, and it alleges the trial court’s rulings were clearly erroneous, contrary to
       logic and law, and should be reversed.
¶ 47       In the instant case the trial court directed negligence liability and product liability against
       AVI based on certain statements made by AVI employees during trial. The dispositive issue in
       this case is whether these statements constituted judicial admissions to which the trial court
       directed a verdict in favor of plaintiff and against AVI.
¶ 48       A judicial admission is a (1) deliberate, (2) clear, (3) unequivocal, (4) statement of a party,
       (5) about a concrete fact, (6) within that party’s peculiar knowledge. Brummet v. Farel, 217 Ill.
       App. 3d 264, 266, 576 N.E.2d 1232, 1234 (1991). A judicial admission is conclusive upon the
       party making it and may not be controverted at trial or on appeal. Brummet, 217 Ill. App. 3d at
       267, 576 N.E.2d at 1234.
¶ 49       A judicial admission is not evidence at all but rather has the effect of withdrawing a fact
       from contention. Brummet, 217 Ill. App. 3d at 267, 576 N.E.2d at 1234. Judicial admissions
       include “admissions made in pleadings, formal admissions made in open court, stipulations,
       and admissions pursuant to requests to admit.” Brummet, 217 Ill. App. 3d at 267, 576 N.E.2d at
       1234.
¶ 50       The doctrine of judicial admissions requires thoughtful consideration to ensure that
       “justice not be done on the strength of a chance statement made by a nervous party.” Thomas v.
       Northington, 134 Ill. App. 3d 141, 147, 479 N.E.2d 976, 981 (1985). The general rule is
       qualified. Judicial admissions only apply when a party’s testimony, taken as a whole, is
       unequivocal. Brummet, 217 Ill. App. 3d at 267, 576 N.E.2d at 1234. The rule is inapplicable
       when the party’s testimony is inadvertent, uncertain, or amounts to an estimate rather than a
       statement of concrete fact. Brummet, 217 Ill. App. 3d at 267, 576 N.E.2d at 1234. Further, the
       rule is inapplicable when the facts relate to a matter about which the party could have been
       mistaken, such as swiftly moving events preceding a collision in which the party was injured.
       Brummet, 217 Ill. App. 3d at 267, 576 N.E.2d at 1234.
¶ 51       The trial court’s ruling on an issue of judicial admission is a matter for the trial court’s
       sound discretion, and we are to affirm the trial court unless it abused that discretion. Smith v.
       Pavlovich, 394 Ill. App. 3d 458, 468, 914 N.E.2d 1258, 1268 (2009). An abuse of discretion is



                                                    -8-
       found only where no reasonable person would take the view adopted by the trial court. Smith,
       394 Ill. App. 3d at 468, 914 N.E.2d at 1268.
¶ 52       A party may, by his own testimony, “conclusively bar his claim or his defense,” but
       whether a party’s testimony defeats his own claim depends upon an evaluation of all of his
       testimony, and not just a portion of it. McCormack v. Haan, 20 Ill. 2d 75, 78, 169 N.E.2d 239,
       240-41 (1960). The abuse of discretion standard focuses on the context of the purported
       admission:
                    “What constitutes a judicial admission must be decided under the circumstances in
                each case, and before a statement can be held to be such an admission, it must be given
                a meaning consistent with the context in which it was found. [Citation.] It must also be
                considered in relation to the other testimony and evidence presented.” Smith, 394 Ill.
                App. 3d at 468, 914 N.E.2d at 1268.
¶ 53       In the instant case, several witnesses testified concerning AVI’s involvement in plaintiff’s
       accident. One such witness was Scott Docimo, an AVI employee who was the only AVI
       representative on-site at the power plant at the time of plaintiff’s accident. Docimo was at the
       power plant to provide technical supervision and inspection concerning the removal of
       equipment at the plant. During trial Docimo admitted he saw workers rigging the load onto the
       forklift improperly, knew it was unsafe, and said nothing despite his superior knowledge.
                    “Q. [Attorney for plaintiff:] You knew that they were pushing it in a way–you were
                the expert, and you let them push it, and you let the play develop right in front of you.
                And part of the reason that the cart was going squiggly, was because of how it was
                rigged, am I right?
                    A. Correct.
                    Q. And I want you to go to Page 133, Line 17. I said, ‘What ***’ The question was
                asked, ‘Would anything have prevented you from telling them that?’ Telling them that,
                warning them, doing your job. What did you say on Line 17? What would have
                prevented you? Read the answer.
                    A. ‘Yes. Sorry. Yes, it would because of liability. For me to tell them how to rig
                something, automatically puts liability onto me, which I’m not there for.’
                    Q. You never told anyone before this accident that they should not rig it that way,
                did you?
                    A. No.”
¶ 54       Clifford Burrell, the president of AVI, also testified during trial and admitted Docimo
       should have said something when he saw the men improperly rigging the load onto the forklift.
                    “Q. [Attorney for plaintiff:] He did not say anything. So that there’s no
                misunderstanding then, sir, you’re here to tell me, as the head of this company, that Mr.
                Docimo, who admitted that he saw something unsafe and didn’t say anything, he
                should have said something, am I correct?
                    A. Yes.
                    Q. Yes. And so that we can have no further disagreement between you and I, is
                that–there’s no misunderstanding. You would then agree that the reason–if this cart
                didn’t go straight, it was because it was unsafely affixed, and Docimo should have said
                something about it, am I right?
                    A. Yes.”

                                                   -9-
¶ 55       Burrell then admitted that AVI’s cart was intended to roll straight but failed to do so at the
       time of plaintiff’s accident. Burrell indicated AVI’s cart possessed caster locks and was
       capable of locking its wheels for the purpose of keeping the wheels straight, but admitted he
       had not informed Docimo or anyone from DMG or PMC about the feature:
                    “Q. [Attorney for plaintiff:] Did you ever tell the guy who you sent to be your
                representative on this job, did you ever tell him that that cart could be locked?
                    A. No.
                    Q. You never told him. Did you tell anybody from AVI that the cart could be
                locked? Or strike that. From DMG, did you tell anybody from DMG that when you
                want to take this cart and start going north and south with it, you can lock it so the
                wheels won’t wobble? Did you tell anybody from [DMG] that?
                    A. I was not there.
                    Q. Did you tell them before you sent it?
                    A. No.
                    Q. Did you tell anybody from PMC that this cart that you had designed,
                manufactured, specified, did you tell them that the wheels could be locked?
                    A. No.
                    Q. Did anybody know?
                    A. No.”
¶ 56       Based on these admissions made by Docimo and Burrell, the trial court directed negligence
       and product liability against AVI. After careful review of the record before us, we cannot say
       the trial court abused its discretion in finding AVI’s testimony contained judicial admissions
       that it was negligent in supervising the transportation of the water pump from the power plant
       and strictly liable for the defective cart that contributed to plaintiff’s injuries. The trial court
       never suggested how much fault the jury should attribute to AVI, only that it could not be
       completely free of fault. AVI retained the right to argue for a low percentage of fault, which it
       in fact did. Directing a verdict against AVI for negligence and product liability was well within
       the trial court’s discretion.
¶ 57       AVI asserts that Docimo, an AVI employee not in the control group of AVI, was not a
       party to the proceeding and, therefore, legally could not have made a judicial admission on
       behalf of AVI. While AVI accurately indicates Docimo was not a party to the action, AVI fails
       to recognize that Burrell, as president of AVI, also testified and admitted fault concerning
       AVI’s negligence and product liability. As president of AVI, Burrell was certainly within the
       control group of AVI and had the ability to make judicial admissions on behalf of AVI, which
       he did.
¶ 58       AVI next asserts the trial court improperly directed the issue of proximate cause against
       AVI at the close of plaintiff’s case. AVI indicates the issue of proximate cause is ordinarily a
       question of fact to be determined by a jury from a consideration of all the evidence. Sabo v.
       T.W. Moore Feed & Grain Co., 97 Ill. App. 2d 7, 9, 239 N.E.2d 459, 463 (1968). AVI argues
       the trial court directed the issue of proximate cause against AVI with no legal or factual
       support. We disagree.
¶ 59       AVI ignores that where facts are undisputed and reasonable men could not differ as to the
       inferences to be drawn from those facts, proximate cause may be determined as a matter of
       law. Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 476,

                                                    - 10 -
       758 N.E.2d 848, 854 (2001) (Harrison, C.J., specially concurring, joined by Kilbride, J.). Here,
       the undisputed facts indicate AVI cannot be free of responsibility for plaintiff’s injuries, as
       AVI owned and maintained the cart that contributed to plaintiff’s injuries.
¶ 60       Moreover, Scott Docimo, the AVI employee who was at the power plant to provide
       technical supervision and inspection for the removal of the pump, witnessed workers
       improperly rig the pump to AVI’s cart and DMG’s forklift and said nothing. Docimo could
       have prevented the accident from occurring by warning the workers that they improperly
       rigged the pump to the cart and forklift but did not. Further, Burrell testified he did not inform
       anyone of the caster-lock feature on the cart which would have positioned the wheels to move
       straight rather than side to side.
¶ 61       It is unreasonable for AVI to allege it was not in any way a proximate cause of plaintiff’s
       injuries. Accordingly, the trial court properly directed the issue of proximate cause against
       AVI.
¶ 62       AVI then alleges the record does not support a finding of negligence or product liability
       against AVI. We disagree. We find that Docimo and Burrell’s testimony supports a finding of
       AVI’s negligence and strict product liability.
¶ 63       In pleading negligence, the plaintiff must allege facts showing the defendant (1) owed him
       or her a duty of care and (2) breached that duty, and (3) this breach was the proximate cause of
       his or her injuries. Rahic v. Satellite Air-Land Motor Service, Inc., 2014 IL App (1st) 132899,
       ¶ 19, 24 N.E.3d 315.
¶ 64       Here, Docimo admitted he did not say anything to the PMC employees or DMG operator
       when he saw them improperly rig the pump to the cart and forklift, and Docimo’s boss and
       president of AVI, Burrell, condemned this silence as inexcusable. The trial court directed
       negligence liability on this basis. As the sole AVI employee on-site to provide supervision for
       the removal of the pump, Docimo owed a duty of care to plaintiff that was breached when
       Docimo did not inform the workers they had improperly rigged the pump to the cart and
       forklift, and this improper rigging was the cause of plaintiff’s accident. Thus, the elements of
       AVI’s negligence have been satisfied and AVI’s argument that the record does not support a
       finding of negligence is mistaken.
¶ 65       AVI also argues the record does not support a finding on the product liability claim. To
       prevail on a product liability claim alleging defective design, the plaintiff must establish that
       the allegedly defective condition of the product is a proximate cause of his injury. Barr v.
       Rivinius, Inc., 58 Ill. App. 3d 121, 127, 373 N.E.2d 1063, 1067 (1978). The standards for
       proving proximate causation are the same whether the case concerns negligence or strict
       liability in tort. Barr, 58 Ill. App. 3d at 127, 373 N.E.2d at 1067. “Proximate cause exists if the
       injury is the natural and probable result of the negligent act or omission and is of such a
       character that an ordinarily prudent person would have foreseen it as a result of such
       negligence.” Niffenegger v. Lakeland Construction Co., 95 Ill. App. 3d 420, 425, 420 N.E.2d
       262, 267 (1981).
¶ 66       The intervention of independent, concurrent, or intervening forces will not disrupt the
       causal connection if such intervention was foreseeable. Niffenegger, 95 Ill. App. 3d at 426, 420
       N.E.2d at 267. “[A] plaintiff may demonstrate that a product is unreasonably dangerous
       because of a design defect by presenting evidence of an alternative design that would have
       prevented the injury and was feasible in terms of cost, practicality and technological


                                                   - 11 -
       possibility.” Hansen v. Baxter Healthcare Corp., 198 Ill. 2d 420, 436, 764 N.E.2d 35, 45
       (2002).
¶ 67        In the instant case, Burrell admitted that as president of AVI, he designed the cart in
       question so that it moves straight when pushed. Burrell then admitted the cart did not move
       straight at the time of plaintiff’s accident, and Docimo also acknowledged the cart was wobbly.
       Burrell then admitted he did not tell anyone that the AVI cart had caster locks built into the cart
       before it was used at DMG’s power plant. The caster locks would have enabled the wheels to
       move straight, and it is reasonable to conclude plaintiff’s accident would not have occurred if
       the workers had known about the caster-lock feature. We find AVI’s failure to inform the
       workers on-site of the caster-lock feature and AVI’s acknowledgement that the cart was not
       moving straight as intended during the accident amounts to a defective condition that supports
       a finding of product liability.
¶ 68        AVI argues the trial court’s failure to define the conduct of AVI on which it directed the
       verdict of negligence as a matter of law was tantamount to failing to instruct the jury on an
       issue, which was an abuse of discretion that prejudiced AVI. However, AVI fails to indicate
       how it was prejudiced. AVI also indicates that for the negligent design theory, plaintiff was
       required to produce evidence of the standard of care in the industry at the time of design and a
       deviation from that standard. AVI asserts this proof required expert opinion testimony, but
       plaintiff disclosed no expert and offered no expert testimony concerning its cart’s design.
¶ 69        For the reasons stated above, we find that Docimo’s and Burrell’s testimony satisfied the
       proof necessary for the trial court to direct a verdict of negligence against AVI, and this matter
       need not be addressed further.
¶ 70        In its reply brief, AVI argues there is no legal precedent for entering a directed verdict
       against a party who has had no opportunity to present any evidence in the case unless that party
       was defaulted. AVI contends plaintiff’s argument that the trial court was well within its
       discretionary powers to order a directed verdict against AVI at the close of plaintiff’s case in
       chief is legally wrong. We disagree.
¶ 71        The fact that the trial court directed a verdict against AVI before AVI offered evidence
       contrary to the overwhelming evidence against it does not necessitate a jury determination on
       the question of AVI’s negligence or product liability. “As the light from a lighted candle in a
       dark room seems substantial but disappears when the lights are turned on, so may weak
       evidence fade when the proof is viewed as a whole.” Pedrick v. Peoria & Eastern R.R. Co., 37
       Ill. 2d 494, 504-05, 229 N.E.2d 504, 510 (1967).
¶ 72        Constitutional guarantees are not impaired by a directed verdict despite the presence of
       some slight evidence to the contrary, for the right to a jury trial includes the right to a jury
       verdict only if there are factual disputes of some substance. Pedrick, 37 Ill. 2d at 505, 229
       N.E.2d at 510. Further, once a party makes a judicial admission adverse to his or her claim, that
       party cannot contradict the admission by adopting inconsistent evidence produced by other
       witnesses. Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc., 71 Ill.
       App. 3d 562, 568, 390 N.E.2d 60, 64 (1979).
¶ 73        As noted above, we find no factual dispute that AVI was at least partially responsible for
       plaintiff’s injuries. The fact the trial court directed a verdict against AVI before AVI presented
       any evidence is irrelevant, as the only matter foreclosed by the trial court’s directed verdict was
       that AVI was 0% at fault for plaintiff’s accident. AVI retained the right to argue a low
       percentage of fault to the jury, which AVI did.

                                                   - 12 -
¶ 74        AVI also requests that this court enter a judgment notwithstanding the verdict in its favor.
       As discussed above, a judgment notwithstanding the verdict is properly entered where all the
       evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly
       favors the moving party that no contrary verdict based on that evidence could stand. Ford, 398
       Ill. App. 3d at 650, 924 N.E.2d at 542.
¶ 75        Considering all the evidence in the light most favorable to AVI, the evidence so
       overwhelmingly favors plaintiff in this case that no contrary verdict can stand on the issue of
       AVI’s negligence and product liability. Accordingly, the trial court did not abuse its discretion
       in directing verdicts of negligence and product liability against AVI, the trial court’s verdicts
       were not against the manifest weight of the evidence, and the trial court did not err in denying
       AVI’s motion for a judgment notwithstanding the verdict.

¶ 76                                       B. Motion for New Trial
¶ 77        AVI alleges it was deprived of a fair trial as a result of multiple and cumulative errors in the
       trial court’s rulings, and asserts it should be granted a new trial.
¶ 78        A court’s ruling on a motion for a new trial will not be reversed except in those instances
       where it is affirmatively shown that the court clearly abused its discretion. Reidelberger v.
       Highland Body Shop, Inc., 83 Ill. 2d 545, 548, 416 N.E.2d 268, 270 (1981). An abuse of
       discretion is found only where no reasonable person would take the view adopted by the trial
       court. Smith, 394 Ill. App. 3d at 468, 914 N.E.2d at 1268. For the following reasons, we find
       AVI’s arguments lack merit.
¶ 79        AVI first alleges the trial court erred in allowing testimony from June Hight, Dr. Kirby, and
       Jason Reynolds. AVI indicates June Hight was not disclosed as a trial witness until two weeks
       before trial without reason, but she was allowed to testify over objection. AVI indicates Dr.
       Kirby was allowed to testify concerning opinions not in his records on permanency and
       prognosis, and all of AVI’s objections to Dr. Kirby’s testimony were overruled without
       hearing. AVI also alleges Jason Reynolds of DMG was not disclosed to give any opinion
       testimony, but the trial court allowed plaintiff to ask leading questions adverse only to AVI
       based on what Reynolds had seen and heard in the courtroom. AVI asserts the trial court’s
       rulings violated Illinois Supreme Court Rules 213(f) (eff. Jan. 1, 2007) and 218 (eff. Oct. 4,
       2002).
¶ 80        AVI also alleges the trial court allowed improper impeachment of its witnesses. AVI
       asserts Mr. O’Leary was impeached by the absence of content in his statements and deposition
       rather than contrary statements. AVI also alleges plaintiff’s counsel impeached Docimo by the
       absence of content in his statements and deposition and not by contrary statements, and
       contends the law regarding impeachment was ignored. We disagree with AVI’s arguments.
¶ 81        AVI offers no explanation as to why these witnesses’ testimony violated Supreme Court
       Rules 213(f) and 218, and it cites no supporting authority in its brief based on these claims.
       AVI also offers no explanation for how it was prejudiced or what was improper about the
       impeachment. “[I]t is well settled that *** bare contentions that fail to cite any authority do not
       merit consideration on appeal.” (Internal quotation marks omitted.) People v. Fredericks, 2014
       IL App (1st) 122122, ¶ 64, 14 N.E.3d 576. AVI has failed to raise these issues adequately. In
       light of the foregoing circumstances, we find it unnecessary to address these matters further.



                                                    - 13 -
¶ 82       AVI then alleges plaintiff’s counsel used improper lines of inquiry. AVI points to specific
       instances of questioning regarding Docimo and Burrell that were allegedly improper, but
       offers no supporting authority or explanation. For this reason, we need not address this
       argument.
¶ 83       AVI next alleges the trial court improperly tendered Illinois Pattern Jury Instructions,
       Civil, No. 5.01 (2011) (hereinafter, IPI Civil (2011)) against AVI for its failure to bring its cart
       to trial which resulted in prejudice to AVI. As a result, AVI contends it should be granted a
       new trial.
¶ 84       The decision whether to tender IPI Civil (2011) No. 5.01 to the jury is within the sound
       discretion of the trial court, and that decision will not be reversed absent a clear abuse of
       discretion. Kersey v. Rush Trucking, Inc., 344 Ill. App. 3d 690, 696, 800 N.E.2d 847, 853
       (2003). IPI Civil (2011) No. 5.01, also known as the “missing-evidence instruction,” allows a
       jury to draw an adverse inference from a party’s failure to offer evidence. Kersey, 344 Ill. App.
       3d at 696, 800 N.E.2d at 852.
¶ 85       IPI Civil (2011) No. 5.01 may be properly given where some foundation is presented on
       each of the following: (1) the evidence was under the control of the party and could have been
       produced through the exercise of reasonable diligence, (2) the evidence was not equally
       available to the adverse party, (3) a reasonably prudent person under the same or similar
       circumstances would have offered the evidence if he believed the evidence to be in his favor,
       and (4) no reasonable excuse for the failure has been shown. Jenkins v. Dominick’s Finer
       Foods, Inc., 288 Ill. App. 3d 827, 831, 681 N.E.2d 129, 132 (1997). However, IPI Civil (2011)
       No. 5.01 is not warranted where the missing evidence is merely cumulative of the facts already
       established. Jenkins, 288 Ill. App. 3d at 831, 681 N.E.2d at 132.
¶ 86       Here, the trial court tendered IPI Civil (2011) No. 5.01 after Burrell’s testimony
       concerning the caster-lock feature on the cart and Burrell’s assertion that the cart could push
       52,000 pounds across a flat concrete surface. The trial court indicated that because AVI’s cart
       was not equally available to the parties and was under AVI’s sole control, the cart should have
       been produced at trial as there were still issues concerning the cart to be decided by the jury.
       We do not find the trial court abused its discretion in tendering IPI Civil (2011) No. 5.01. We
       agree that the cart was not equally available to the parties and was in the sole control of AVI
       and, therefore, should have been produced at trial.
¶ 87       AVI argues the adverse presumption of not producing the cart at trial was irrelevant
       because the trial court had already decided liability. We disagree. While the trial court had
       already directed a verdict when it tendered IPI Civil (2011) No. 5.01, each party’s degree of
       fault was still an issue to be decided by the jury, and production of the cart as evidence at trial
       would have helped the jury in that determination.
¶ 88       AVI also contends it was improper for the trial court to tender IPI Civil (2011) No. 5.01
       immediately before releasing the jury to consider defendant’s fault. We disagree. The jury
       found AVI 37% at fault for plaintiff’s accident and DMG 47% at fault. After careful review of
       the record, we find this apportionment of fault reasonable. Reversal is not warranted if it is
       unlikely the error influenced the jury. People v. Hall, 194 Ill. 2d 305, 339, 743 N.E.2d 521, 541
       (2000). Because AVI’s proportion of fault was reasonable, we find that even if it was error for
       the trial court to tender IPI Civil (2011) No. 5.01, it was not an error that influenced the jury
       warranting a new trial.


                                                    - 14 -
¶ 89        AVI next asserts the trial court improperly barred AVI in limine and during trial from
       presenting testimony regarding the specific cart in question, precluding AVI from eliciting
       testimony that DMG utilized the same AVI cart at its facility subsequent to the date of loss on
       other jobs, and that DMG designed and built its own cart using the same exact design as the
       AVI cart. This argument is irrelevant to the trial court’s finding of negligence and product
       liability against AVI.
¶ 90        AVI then alleges the trial court erred in allowing plaintiff’s counsel to submit a closing and
       rebuttal argument that was attacking and personal to opposing counsel, inflammatory,
       prejudicial and punitive in nature, engaging in argument with opposing counsel rather than an
       argument to the jury concerning the evidence, and unfounded by the evidentiary record. We
       disagree.
¶ 91        AVI indicates plaintiff’s counsel argued the credibility of defense counsel, pointed a finger
       at AVI’s counsel, and addressed AVI’s counsel personally during the proceedings. We find
       plaintiff counsel’s conduct was trial strategy that did not rise to the level of prejudice meriting
       reversal of the trial court’s denial of AVI’s motion for a new trial.
¶ 92        Finally, AVI alleges the trial court erred in numerous submissions and rejections of jury
       instructions. AVI asserts the trial court erred in submitting plaintiff’s instruction No. 11/IPI
       Civil (2011) No. 20.01 to the jury and rejecting AVI’s proposed instruction No. 1 and AVI’s
       instruction No. 7/IPI Civil (2011) No. B21.07. AVI asserts the trial court erred in submitting
       plaintiff’s instruction No. 15/IPI Civil (2011) Nos. 30.01, 30.04, 30.05, 30.06, and 30.07.
¶ 93        AVI also alleges the trial court erred in submitting plaintiff’s instruction No. 18/verdict
       form IPI Civil (2011) No. 600.14 modified and rejecting AVI’s alternative instruction No.
       2/IPI Civil (2011) Nos. 600.14, 30.04, 30.05, 30.06, and 30.07 modified. Furthermore, AVI
       alleges the trial court erred in rejecting AVI’s instruction No. 4/IPI Civil (2011) No. 5.01 as to
       DMG employee William Harms, and alleges the trial court erred in rejecting AVI’s instruction
       No. 9/IPI Civil (2011) No. 41.05, instruction No. 11/IPI Civil (2011) No. 600.02, and
       instruction No. 12/IPI Civil (2011) No. 600.04.
¶ 94        The trial court has discretion to determine which instructions to give the jury, and that
       determination will not be disturbed without an abuse of that discretion. Schultz v. Northeast
       Illinois Regional Commuter R.R. Corp., 201 Ill. 2d 260, 273, 775 N.E.2d 964, 972 (2002). The
       standard for deciding whether a trial court abused its discretion is whether, taken as a whole,
       the instructions fairly, fully, and comprehensively apprised the jury of the relevant legal
       principles. Schultz, 201 Ill. 2d at 273-74, 775 N.E.2d at 972-73. Moreover, “[a] reviewing
       court ordinarily will not reverse a trial court for giving faulty instructions unless [the
       instructions] clearly misled the jury and resulted in prejudice to the appellant.” Schultz, 201 Ill.
       2d at 274, 775 N.E.2d at 973.
¶ 95        As discussed above, we find the jury’s apportionment of 37% fault to AVI reasonable after
       careful review of the record. AVI has failed to establish it was prejudiced by the
       abovementioned jury instructions or that the jury was misled.

¶ 96                            C. Plaintiff’s Second Amended Complaint
¶ 97       AVI alleges plaintiff’s second amended complaint was factually and legally deficient on its
       face warranting its dismissal. AVI asserts the record on appeal indicates plaintiff’s second
       amended complaint was never filed and, therefore, the trial court’s corresponding entry of


                                                    - 15 -
        directed verdict, judgment, and other rulings against AVI premised on that complaint were
        improper. We disagree.
¶ 98        After careful review of the record, we find the record indicates plaintiff’s second amended
        complaint was file-stamped by the circuit clerk on November 4, 2013. Moreover, AVI filed a
        motion to dismiss plaintiff’s second amended complaint on November 12, 2013, and filed its
        answer and affirmative defenses to plaintiff’s second amended complaint on November 18,
        2013. For these reasons, AVI’s argument that plaintiff failed to file his second amended
        complaint lacks merit.
¶ 99        AVI next asserts that if plaintiff’s second amended complaint is deemed to have been filed,
        it nevertheless fails to satisfy Illinois pleading requirements.
¶ 100       A complaint only needs to contain a “plain and concise statement of plaintiff’s cause of
        action; it is unnecessary for the complaint to set forth evidence that plaintiff intends to
        introduce at trial.” Lozman v. Putnam, 328 Ill. App. 3d 761, 769, 767 N.E.2d 805, 812 (2002).
        Pleadings in the complaint are liberally construed “ ‘with a view to doing substantial justice
        between the parties.’ ” Lozman, 328 Ill. App. 3d at 769, 767 N.E.2d at 812 (quoting 735 ILCS
        5/2-603(c) (West 2000)). A cause of action should not be dismissed on the pleadings unless it
        is apparent that no set of facts can be proved under the pleadings which would entitle plaintiff
        to recover. Lozman, 328 Ill. App. 3d at 769, 767 N.E.2d at 812-13.
¶ 101       AVI alleges plaintiff pled no facts giving rise to any duty owed by AVI to inspect and
        control the forklift, the forklift’s operation, and the premises, and alleges plaintiff’s complaint
        was void of factual support for plaintiff’s product liability allegations. AVI’s argument is
        misguided.
¶ 102       In his complaint plaintiff alleged he was crushed into a steel beam by a forklift pushing a
        cart owned and maintained by AVI. In his negligence count, plaintiff alleged AVI designed,
        manufactured, and supplied the cart giving rise to plaintiff’s injuries, and supervised the
        incident in which plaintiff was injured. Plaintiff also alleged AVI furnished a defective,
        unsafely designed, and unsafely maintained cart and failed to warn plaintiff of impending peril.
        In his product liability count, plaintiff alleged the cart was in a defective and unreasonably
        dangerous condition at the time it left the possession and control of AVI.
¶ 103       These alleged facts are enough to state a cause of action. Accepting the factual allegations
        in plaintiff’s complaint as true and considering them in a light most favorable to plaintiff,
        sufficient facts have been pled to demonstrate AVI’s negligence and product liability. Plaintiff
        has pled a connection between plaintiff’s injuries and AVI’s potential negligence and product
        liability. Accordingly, plaintiff’s second amended complaint alleges sufficient facts to satisfy
        the Illinois pleading standard.

¶ 104                        D. Timeliness of Plaintiff’s Product Liability Claim
¶ 105       AVI alleges plaintiff’s untimely submission of the product liability claim violated the
        statutes of limitation and repose. AVI asserts there is no dispute that plaintiff’s product liability
        claim was governed by Illinois’s two-year statute of limitations period, and, therefore,
        plaintiff’s claim had to be filed on or before October 8, 2009, two years from the date of
        plaintiff’s accident. 735 ILCS 5/13-202 (West 2012). Since plaintiff’s product liability claim
        was filed on November 4, 2013, more than six years after plaintiff’s accident and four years



                                                     - 16 -
        after the statute of limitations period expired, AVI contends plaintiff’s submission was
        untimely. AVI also asserts the relation-back doctrine does not apply.
¶ 106       Section 2-616(b) of the Code of Civil Procedure provides that a cause of action alleged in
        an amended complaint, filed after the expiration of the statute of limitations period, will relate
        back to the filing of the original complaint if two requirements are met: (1) the original
        pleading was timely filed, and (2) the original and amended pleadings indicate the cause of
        action asserted in the amended complaint grew out of the same transaction or occurrence set
        forth in the original proceeding. 735 ILCS 5/2-616(b) (West 2012); Bryson v. News America
        Publications, Inc., 174 Ill. 2d 77, 106, 672 N.E.2d 1207, 1222-23 (1996). This rule is
        “remedial in nature and should be liberally construed in favor of hearing the plaintiff’s claim.”
        Bryson, 174 Ill. 2d at 106, 672 N.E.2d at 1223.
¶ 107       In the instant case, plaintiff’s product liability count relates back to the filing of plaintiff’s
        negligence count against AVI. Plaintiff filed a first amended complaint on October 1, 2008,
        alleging a single count of negligence against AVI arising from plaintiff’s accident at the power
        plant. Plaintiff’s first amended complaint was timely, as it was filed within two years of his
        accident. Accordingly, the first requirement of the relation-back doctrine has been met. The
        second requirement of the relation-back doctrine is also satisfied here, as plaintiff’s product
        liability count arises from the same accident as the negligence count. Hence, plaintiff’s product
        liability count against AVI properly relates back to the timely filing of plaintiff’s negligence
        count against AVI, and the statute of limitations has not been violated.
¶ 108       AVI argues plaintiff’s product liability count asserted new causes of action premised on
        facts distinct in scope and time from plaintiff’s negligence count against AVI. We disagree.
        Plaintiff’s negligence and product liability counts both arose from the same accident at the
        same power plant that occurred at the same time in question. Plaintiff’s product liability count
        was not premised on facts distinct in scope and time from plaintiff’s negligence count.
¶ 109       AVI also asserts plaintiff’s untimely filing of the product liability count against AVI
        violated the Illinois statute of repose. No strict product liability action shall be commenced
        except within the applicable limitations period and within 12 years from the date of the first
        sale, lease, or delivery by a seller, or 10 years from the date of the first sale, lease, or delivery to
        its initial user, consumer, or other nonseller, whichever period expires earlier. Mitsias v.
        I-Flow Corp., 2011 IL App (1st) 101126, ¶ 30, 959 N.E.2d 94. AVI indicates its cart was
        manufactured and released in 1999, and, therefore, the 12-year repose period expired at the
        latest in 2011. AVI contends plaintiff’s strict product liability claim filed in 2013 was outside
        the 12-year repose period and violated the statute. We disagree.
¶ 110       The record indicates AVI was a lessor of its cart, as AVI repeatedly placed its cart in the
        stream of commerce for over a decade and obtained profits each time the cart was leased.
        “Anyone who is in the business of placing a defective product into the stream of commerce by
        leasing it, rather than selling it, may be strictly liable for any injuries which proximately result
        therefrom.” Timm v. Indian Springs Recreation Ass’n, 187 Ill. App. 3d 508, 511, 543 N.E.2d
        538, 541 (1989).
¶ 111       The accident in the instant case occurred in 2007, and plaintiff filed a strict product liability
        claim against AVI in 2013. Hence, plaintiff brought his product liability claim six years after
        AVI leased its cart, well within the statute of repose. AVI’s argument that its cart was
        manufactured more than 12 years from the time plaintiff brought his product liability claim is


                                                      - 17 -
        of no avail, as AVI fails to recognize it was a lessor of the cart rather than a seller at the time of
        plaintiff’s accident.

¶ 112                                         E. Eleventh-Hour Filing
¶ 113        In its final issue raised on appeal, AVI alleges the trial court’s consent to plaintiff’s
        eleventh-hour filing of new causes of action and the trial court’s denial of AVI’s motion for a
        trial continuance were contrary to law, prejudicial to AVI, and an abuse of discretion.
¶ 114        Section 2-616(c) of the Code of Civil Procedure provides:
                 “A pleading may be amended at any time, before or after judgment, to conform the
                 pleadings to the proofs, upon terms as to costs and continuance that may be just.” 735
                 ILCS 5/2-616(c) (West 2012).
¶ 115        The four relevant factors to be considered in determining whether to allow pleading
        amendments are:
                 “(1) whether the proposed amendments would cure the defective pleading; (2) whether
                 other parties would sustain prejudice or surprise by virtue of the proposed amendment;
                 (3) the timeliness of the proposed amendment; and (4) whether previous opportunities
                 to amend the pleadings could be identified.” Arroyo v. Chicago Transit Authority, 268
                 Ill. App. 3d 317, 322, 643 N.E.2d 1322, 1326 (1994).
¶ 116        Whether to allow an amendment to pleadings is within the sound discretion of the trial
        court, whose determination will not be disturbed on appeal in the absence of an abuse of
        discretion. Lewandowski v. Jelenski, 401 Ill. App. 3d 893, 897, 929 N.E.2d 114, 119 (2010). A
        trial court abuses its discretion if no reasonable person would take the view adopted by the trial
        court. Lewandowski, 401 Ill. App. 3d at 897, 929 N.E.2d at 119. The trial court should exercise
        its discretion liberally in favor of allowing amendment if allowing it will further the ends of
        justice. Arroyo, 268 Ill. App. 3d at 322, 643 N.E.2d at 1326.
¶ 117        AVI alleges plaintiff’s amendment resulted in prejudice and hardship to AVI, as it was left
        with no time to disclose experts on plaintiff’s product liability claim. AVI claims the
        amendment changed the nature of the action it faced at trial, including the nature and quality of
        proof required to defend, and the trial court abused its discretion in allowing the amendment.
        AVI also claims it was prejudiced by the trial court’s refusal of a continuance. We disagree.
¶ 118        In the instant case, plaintiff’s motion to amend the pleadings came two weeks prior to trial.
        While AVI claims it was prejudiced by plaintiff’s eleventh-hour filing adding a product
        liability claim, it fails to indicate how it was prejudiced. AVI does not explain why it was
        prejudiced by the trial court’s refusal of a trial continuance and does not indicate what experts
        it wanted to testify concerning plaintiff’s product liability claim. Moreover, AVI was alerted to
        the issues concerning its defective cart in 2009 through its own discovery questions. AVI was
        already on notice of its defective cart, and to claim it was prejudicial for plaintiff to bring a
        product liability claim against AVI is unreasonable. We therefore conclude the trial court was
        within its discretion to allow plaintiff’s eleventh-hour request to amend his complaint two
        weeks prior to trial.
¶ 119        AVI indicates that amendments brought at the start of trial are inappropriate when they
        could have been brought earlier, as they alter the evidence required to defend and foreclose the
        time a party has to engage in discovery and procure requisite witnesses to defend the amended


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        allegations. Arroyo, 268 Ill. App. 3d at 322-23, 643 N.E.2d at 1326. Arroyo is distinguishable
        from the case at bar.
¶ 120       In Arroyo, the court denied the plaintiff’s motion to amend complaint that was brought 1
        day before the scheduled trial date and 11 years and 7 months after the initial filing of the
        complaint. The time frame in the instant case is not comparable. Here, plaintiff’s motion to
        amend was filed 2 weeks prior to the scheduled trial date rather than 1 day, and was filed
        approximately 5 years after the original complaint was filed rather than 11-plus years.
        Accordingly, we find the trial court was well within its discretion to allow plaintiff to amend
        his complaint.

¶ 121                                      CONCLUSION
¶ 122      For the reasons stated herein, we affirm the judgment of the circuit court of St. Clair
        County.

¶ 123      Affirmed.




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