First District upholds nearly $10 million jury award against construction company

By Jonathan Bilyk | Aug 29, 2013

The First District Appellate Court has upheld a jury’s decision ordering a construction company to pay nearly $10 million to a family after a 74-year-old man died and his then 51-year-old son was severely injured on a construction site at a suburban high school.

In a 66-page opinion issued Aug. 16, the appeals panel affirmed the lower court’s ruling in the 2011 civil trial, saying the jury acted reasonably and within the law when it rendered its verdict and awarded damages.

The panel also determined that Cook County Circuit Judge Clare McWilliams did not deprive the construction company of a fair trial during the proceedings.

Justice Stuart Palmer delivered the court’s opinion. Justices Margaret Stanton McBride and Nathaniel Howse Jr. concurred.

The ruling stems from a 2005 accident at Wheaton Warrenville South High School in which construction worker Herman Calloway Sr. died and his adult son, Herman Calloway Jr., suffered multiple injuries, including a crushed pelvis and ruptured bladder, and was left confined for a time to a wheelchair.

According to the appellate court opinion, the Calloway men were laying sewer pipes at the high school as employees of Hamilton Construction, a subcontractor working at the direction of lead contractor, Bovis Lend Lease.

Bovis, an Australian construction management company with offices in Chicago and New York, has since changed its name to Lend Lease.

On June 6, 2005, the father, who served as Hamilton’s foreman on the site, and his son were working inside a 12-foot-deep trench, manually digging to uncover a buried power line, when the trench collapsed, burying the two men.

Calloway Jr. was rescued, but Calloway Sr. could not be rescued before he perished. The trench in which the men had been working was not properly reinforced prior to the collapse, the opinion states.

Representing the estate of their deceased father, Calloway Jr. and his sister, Gwen Brown, filed a lawsuit in 2005 that accused Lend Lease of being negligent in the incident.

Following trial, the jury found Lend Lease liable in the incident and awarded more than $8.5 million to Calloway Jr. and $1.02 million to Brown and othe­­­r members of the Calloway family through the estate of Calloway Sr.

On appeal, Lend Leaseargued that the appellate court should either reduce the jury award or order a new trial for several reasons.

Among others, Lend Lease asserted that it did not directly hire the Calloways’ employer, Hamilton Construction, as a subcontractor on the job, that it did not have sufficient control over how safely Hamilton employees worked on the site and that its actions were not the immediate cause of Calloway Sr.’s death and Calloway Jr.’s injuries.

It also claimed McWilliams deprived it of a fair trial by allowing the Calloway lawyers to admit certain items into evidence and to make statements in their closing arguments that Lend Lease believed were improper and prejudicial.

Lend Lease particularly noted that the judge allowed the Calloway lawyers to read from the deposition of man who had worked for Lend Lease as an assistant superintendent at the high school construction site on June 6, 2005, and had since left the company and was unable to testify during the trial.

Lend Lease also argued that the Calloways were partially liable for the incident, and that the damages awarded were excessive.

The appellate court, however, dismissed all of those claims.

The justices found that Lend Lease acted as an agent of Community Unit School District 200, and essentially had been given authority through its contract with the district to select the lowest  responsible bidder for work on the high school construction project.

On behalf of the panel, Palmer wrote in the opinion the court also determined that Lend Lease’s site 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.”

As such, the justices agreed with the jury decision that Lend Lease did not do enough to prevent the accident.

The panel also determined that the trial judge’s various decisions regarding admissibility of evidence and closing argument statements were either essentially harmless or that McWilliams acted appropriately and within her discretion.

In addition, the justices disagreed with Lend Lease’s assertions that the jury’s damage awards were “against the manifest weight of the evidence,” noting that the jury found Calloway Sr. 49 percent liable in the incident, and had reduced his damages accordingly.

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