Diaz v. Legat Architects, Inc., et al.
Following the filing of post-trial motions, the trial court ordered a remittitur of the jury award based on improper admission into evidence of future medical costs, reducing the personal injury recovery to $1,076,770.06. Further, the trial court granted Larmco’s Motion to Dismiss Boller’s contribution action (presumably based on Briseno, however, it is not specifically stated in the opinion). On appeal, Boller contended that it was entitled to a directed verdict or a judgment n.o.v. because plaintiffs had failed to show evidence of its liability pursuant to Section 414 of the Restatement (Second) of Torts. The jury had found Boller to be directly liable stemming from its failure to exercise supervisory control. The First District found that plaintiffs had established a prima facie case that Boller had retained sufficient control over project safety to incur legal responsibility for Mr. Diaz’s injuries. Specifically, the First District focused on the contract between Boller and the owner (which made Boller responsible for all construction means and methods), the testimony of Boller’s own retained safety expert to the effect that Boller was responsible for preventing injuries on the project and was required to maintain and supervise all of the safety precautions and programs in performance of its contract and the conduct of Boller’s superintendent in asserting his authority on site, having stopped excavation work on two prior occasions. Boller argued further that it could not be found directly liable because it had no notice of the dangerous condition, a precondition to direct liability under Section 414. Boller’s argument was that its superintendent was not familiar with the scaffolding utilized by Larmco and, therefore, could not be found to have actual or constructive knowledge of any safety hazard associated with the scaffolding. The First District disagreed, citing the contract requirement that Boller provide a competent superintendent. Further, it ruled that Boller was entitled to pursue its contribution action against Larmco for the amount of Boller’s liability not covered by the insurance provided to Boller by Larmco and that the trial court’s granting of remittitur was in error as to Mr. Diaz’s future medical expenses. The Court did not address Boller’s liability under Section 343 of the Restatement (Second) of Torts or plaintiff’s argument that the trial court erred in denying their motion to adjudicate the workers’ compensation lien. While this case appears to be another arrow in the plaintiff bar’s quiver against general contractors and construction managers, it should be pointed out that Boller’s contract with the owner in this case made it responsible not only for safety, but for all construction means and methods. .jpg)
In Diaz v. Legat Architects, et al., Nos. 1-08-3622 & 1-08-3635 consolidated, the plaintiffs, Jose Diaz and Maria Diaz, filed a complaint against defendant Boller Construction Company, Inc. (Boller), for personal injuries and loss of consortium. Mr. Diaz was injured when scaffolding he was working on collapsed. Boller filed a third-party complaint against Mr. Diaz’s employer, Larmco Construction Company (Larmco), seeking contribution pursuant to the Joint Tortfeasor Contribution Act. The jury returned a verdict for the plaintiffs and against Boller. The jury also returned a verdict for Boller and against Larmco. After reducing the award by the percentage of Mr. Diaz’s negligence, the jury awarded Mr. Diaz $1,246,875 on his negligence claim and Mrs. Diaz $50,000 on her loss of consortium action.
