Ironworker – $81 Million Verdict

Jury Instructions-IL > Construction > Ironworker – $81 Million Verdict

Ronald L. Bayer vs. Panduit Corporation 07 L 9877

Ironworker – Quadriplegia – $81 Million Verdict – OSHA – Special Interrogatories

The plaintiff was an ironworker who fell 16 feet while he was “walking the beam” in order to connect and position I-Beams. In violation of OSHA, industry safety standards, and other safety provisions, he fell while walking upon a pre-studded beam without being tied-off to a lanyard. As a result of his fall, he became a quadriplegic. At the time of his fall, the he was employed by a subcontractor which in turn was hired by other subcontractors and the owner/general contractor of a warehouse facility under construction. All were made defendants, but some of them settled prior to trial. Four week trial ended in an $80 million verdict, reduced by 20% comparative negligence to $64 million.( See IPI 60.01 and Special Interrogatories)

IPI 1.01 – Modified by the court to be read at end of case, and updated by IPI Committee in 2009 to include old IPI 3.01 language)

Now that the evidence has concluded, I will further instruct you as to the law and your duties. The law regarding this case is contained in the instructions I will give to you. You must consider the Court’s instructions as a whole, not picking out some instructions and disregarding others.

It is your duty to resolve this case by determining the facts and following the law given in the instructions. Your verdict must not be based upon speculation, prejudice, or sympathy. Each party, whether a corporation or an individual, should receive your same fair consideration.

I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

You will decide what facts have been proven. Facts may be proven by evidence or reasonable inferences drawn from the evidence. Evidence consists of the testimony of witnesses and of exhibits admitted by the court. You should consider all the evidence without regard to which party produced it. You may use common sense gained from your experiences in life in evaluating what you see and hear during trial.

You are the only judges of the credibility of the witnesses. You will decide the weight to be given to the testimony of each of them. In evaluating the credibility of a witness you may consider that witness’ ability and opportunity to observe, memory, manner, interest, bias, qualifications, experience, and any previous inconsistent statement or act by the witness concerning an issue important to the case.

The use of cell phones, text messaging, Internet postings and Internet access devices in connection with your deliberations violates the rules of evidence and you are prohibited from using them.

You must make your decision based on what you recall of the evidence. You will not receive a written transcript of the testimony when you retire to the jury room.

An opening statement is what an attorney expects the evidence will be. A closing argument is given at the conclusion of the case and is a summary of what an attorney contends the evidence has shown. If any statement or argument of an attorney is not supported by the law or the evidence you should disregard that statement.

IPI 2.01 – Evidence Deposition

The testimony of certain witnesses was presented by reading or videotape of their testimony. You should give the testimony of each of them the same consideration you would give it had the witnesses personally appeared in court.

IPI 3.02 Witness Who Has Been Interviewed by Attorney (2006)

An attorney may, if a witness agrees, interview a witness to learn what testimony will be given. Such an interview, by itself, does not affect the credibility of the witness.

IPI 3.03 Insurance – Updated in 2009

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 you verdict, the court will make whatever adjustments are necessary in this regard.

Whether a party is insured has no bearing whatever on any issue that you must decide. You must refrain from any inference, speculation, or discussion about insurance.

IPI 3.04 Circumstantial Evidence

A fact or a group of facts, may, based on logic and common sense, lead you to a conclusion as to other facts. This is known as circumstantial evidence. A fact may be proved by circumstantial evidence. For example, if you are in a building and a person enters who is wet and is holding an umbrella, you might conclude that it was raining outside. Circumstantial evidence is entitled to the same consideration as any other type of evidence.

IPI 3.08 – Opinion Testimony [New – 08]

You have heard witnesses give opinions about matters requiring knowledge and skill. You should judge this testimony in the same way you judge the testimony from any other witness. The fact that such person has given an opinion does not mean that you are required to accept it. Give the testimony whatever weight you think it deserves, considering the reasons given for the opinion, the witness’ qualifications, and all of the other evidence in the case

IPI 10.01 Negligence—Adult—Definition

When I use the word “negligence” in these instructions, I mean the failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not do, under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

IPI 10.02 Ordinary Care—Adult—Definition

When I use the words “ordinary care,” I mean the care a reasonably careful person would use under circumstances similar to those shown by the evidence. The law does not say how a reasonably careful person would act under those circumstances. That is for you to decide.

IPI B10.03 Duty of Care Adult Plaintiff—Contributory Negligence

It was the duty of the plaintiff, Ronald Bayer before and at the time of the occurrence, to use ordinary care for his own safety and the safety of his own property. The Plaintiff is contributorily negligent if (1) he failed to use ordinary care for his own safety, and (2) such failure to use such ordinary care is a proximate cause of his own injury.

The plaintiff’s contributory negligence, if any, which is 50% or less of the total proximate cause of damages for which recovery is sought, does not bar recovery. However, the total amount of damages to which the plaintiff would otherwise be entitled is reduced in proportion to the amount of his negligence. This is known as comparative negligence.

If the plaintiff’s contributory negligence is more than 50% of the total proximate cause of damages for which recovery is sought, the defendant shall be found not liable.

IPI 10.04 Duty to Use Ordinary Care—Adult—Defendant

The Plaintiff in this case is: Ronald Bayer

The Defendant in this case is: Panduit Corporation

It was the duty of the defendant, Panduit Corporation, before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff, Ronald Bayer. That means it was the duty of the defendant to be free from negligence.

IPI 12.04 Concurrent Negligence Other Than Defendant’s

More than one person may be to blame for causing an injury. If you decide that the defendant, Panduit Corporation was negligent and that its negligence was a proximate cause of injury to the plaintiff, Ronald Bayer, it is not a defense that some third person who is not a party to the suit may also have been to blame.

However, if you decide that the sole proximate cause of injury to Ronald Bayer was the conduct of some persons or entities, other than the defendant, then your verdict should be for the defendant, Panduit Corporation.

IPI 15.01 Proximate Cause—Definition [Updated Sept. 2009]

When I use the expression “proximate cause,” I mean a cause that, in the natural or ordinary course of events, produced Ronald Bayer’s injury. It need not be the only cause, nor the last or nearest cause. It is sufficient if it combines with another cause resulting in the injury.

IPI 21.01 – BURDEN OF PROOF

When I say that a party has the burden of proof on any proposition, or use the expression “if you find,” or “if you decide,” I mean you must be persuaded, considering all the evidence in the case, that the proposition on which a party has the burden of proof is more probably true than not true.

IPI 30.01 Measure of Damages

If you decide for the plaintiff, Ronald Bayer, on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate Mr. Bayer for any of the following elements of damages proved by the evidence to have resulted from the negligence of the defendant, Panduit Corporation, taking into consideration the nature, extent and duration of the injury.

The disfigurement resulting from the injury;

The reasonable expense of necessary medical care, treatment and services received, and the present cash value of reasonable expense of medical care, treatment and services reasonably certain to be received in the future as a result of the injuries.

The value of earnings and benefits, lost and the present cash value of the earnings and benefits reasonably certain to be lost in the future as a result of the injuries.

The pain and suffering experienced and reasonably certain to be experienced in the future as a result of the injuries;

Loss of a normal life experienced and reasonably certain to be experienced in the future;

IPI 30.04.02

When I use the expression “loss of normal life”, I mean the temporary or permanent diminished ability to enjoy life. This includes a person’s inability to pursue the pleasurable aspects of life.

Whether any of these elements of damages has been proved by the evidence is for you to determine.

IPI 34.01 Damages Arising in the Future—Extent and Amount

If you find that the plaintiff, Ronald Bayer, is entitled to damages arising in the future because of injuries or because of future medical expenses or because of loss of earnings and benefits, you must determine the amount of these damages which will arise in the future.

If these damages are of a continuing nature, you may consider how long they will continue. If these damages are permanent in nature, then in computing these damages you may consider how long Ronald Bayer is likely to live.

With respect to a loss of future earnings and benefits, you may consider that some persons work all their lives and others do not; that a person’s earnings and benefits may remain the same or may increase or decrease in the future.

IPI 34.02 Damages Arising in the Future—Discount to Present Cash Value

In computing the damages arising in the future because of future medical expenses or because of the loss of future earnings and benefits you must not simply multiply the expenses, earnings and benefits by the length of time you have found they will continue or by the number of years you have found that the plaintiff is likely to live. Instead, you must determine their present cash value. “Present cash value” means the sum of money needed now, which, when added to what that sum may reasonably be expected to earn in the future, will equal the amount of the expenses, earnings and benefits at the time in the future when the expenses must be paid or the earnings and benefits would have been received.

Damages for pain and suffering, and loss of normal life are not reduced to present cash value.

IPI 34.04 Damages Arising in the Future—Mortality Tables as Evidence of Damages—Injury Case

According to the table of mortality in evidence, the life expectancy of a person aged 41 years is 39.3 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 41. It may be considered by you in connection with other evidence relating to the probable life expectancy of the plaintiff in this case, including evidence of his occupation, health, habits, and other activities, bearing in mind that some persons live longer and some persons less than the average.

IPI 36.01 In Absence of Liability—No Occasion to Consider Damages

If you decide for a defendant, Panduit Corporation, on the question of liability, you will have no occasion to consider the question of damages.

IPI 50.11 Corporation Acts Through Its Employees

The defendant Panduit Corporation is a corporation and can act only through its officers and employees. Therefore, any act or omission of an officer or employee of Panduit Corporation, within the scope of his or her employment, is the action or omission of Panduit Corporation.

IPI 55.01 Construction Negligence—Work Entrusted to Another

A contractor who entrusts work to a subcontractor can be liable for injuries resulting from the work if the contractor retained some control over the safety of the work and the injuries were proximately caused by the contractor’s failure to exercise that control with ordinary care.

IPI 55.02 Construction Negligence—Duty

A party who retained some control over the safety of the work has a duty to exercise that control with ordinary care.

IPI 55.04 Construction Negligence—More Than One Person Having Control

One or more persons may have some control over the safety of the work. Which person or persons had some control over the safety of the work under the particular facts of this case is for you to decide.

IPI 55.03 & B21.02 Combined/Modified – Burdens/Issues/Construction Negligence—Issues made by the Pleadings/Burden of Proof

Plaintiff, Ronald Bayer seeks to recover damages from defendant, Panduit Corporation. In order to recover damages, the plaintiff has the burden of proving:

First, that Panduit retained some control over the safety of the work;

Second, that Panduit was negligent in that it had acted or failed to act in one of the following ways:

Permitted studs and/or bent plates to be placed on the walking/working surface of the ironworkers;
Failed to enforce Panduit’s Jobsite Safety Rules;
Failed to enforce the Site Specific Safety Plan;
Permitted ironworkers to exit the baskets without adequate and proper fall protection;
Did not adequately supervise or inspect the job;
Operated a jobsite that violated OSHA safety rules and/or manufacturer’s instructions regarding fall protection;
Did not provide stanchions and lifelines;
Did not properly pre-plan safety;
Failed to provide OSHA approved anchor points requiring a minimum of 5000 lbs anchor limit; or
Failed to place a properly trained superintendant on the job site.

Third, that Ronald Bayer was injured; and

Fourth, that the Panduit Corporation’s negligence was a proximate cause of Ronald Bayer’s injuries.

Panduit Corporation denies that any claimed act or omission on its part was a proximate cause of Ronald Bayer’s claimed injuries.

If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the defendant, Panduit Corporation.

On the other hand, if you find from your consideration of all the evidence that each of these propositions has been proved, then you must consider Panduit Corporation’s claim that Ronald Bayer was contributorily negligent. As to that claim, Panduit Corporation has the burden of proving both of the following propositions:

First, that Ronald Bayer acted or failed to act in one of the following ways and that in so acting, or failing to act, Mr. Bayer was negligent:

a. Failed to utilize proper fall protection in that he failed to tie off to the man lift basket;

b. Subjected himself to a visible hazard of the Nelson studs;

c. Failed to keep a proper lookout for his own safety;

d. Failed to use the man lift as instructed;

e. Failed to properly secure himself at the time of the alleged occurrence;

f. Failed to request assistance in connecting the beam;

g. Failed to advise his foreman that he was climbing out of the man lift while he was untied to the anchor point;

h. Failed to adhere to and follow Area’s Site Specific Safety Plan requiring him to be tied off above 6 feet; or

g. Positioned himself on a beam so as to create a fall hazard;

Second, that Ronald Bayer’s negligence was a proximate cause of Ronald Bayer’s own injuries.

Ronald Bayer denies that he did any of the things claimed by Panduit Corporation and denies any claimed act or omission on his part was a proximate cause of his claimed injuries.

Panduit Corporation further denies that Ronald Bayer was injured to the extent claimed.

If you find from your consideration of all the evidence that the plaintiff, Ronald Bayer, has proved all the propositions required of the plaintiff, and that the defendant, Panduit Corporation, has proved both of the propositions required of the defendant, and if you find that Ronald Bayer’s contributory negligence was 50% or less of the total proximate cause of the damage for which recovery is sought, then your verdict should be for the plaintiff, Ronald Bayer, and you will reduce the Mr. Bayer’s damages in the manner stated to you in these instructions.

If you find from your consideration of all the evidence that the Defendant, Panduit Corporation, has proved both the propositions required of the Defendant, and if you find that Ronald Bayer’s contributory negligence was more than 50% of the total proximate cause of damage for which recovery is sought, then your verdict should be for the defendant, Panduit Corporation.

IPI 60.01 Violation of Statute, Ordinance, or Administrative Regulation

There was in force under The Occupational Safety and Health Administration (OSHA) at the time of the occurrence in question regulation which provided that:

OSHA Subpart R – 1926.754 Structural Steel Assembly.

(c) Walking/working surfaces – (1) Shear connectors and other similar devices – (i) Tripping hazards. Shear connectors (such as headed steel studs, steel bars or steel lugs), reinforcing bars, deformed anchors or threaded studs shall not be attached to the top flanges of beams, joists or beam attachments so that they project vertically from or horizontally across the top flange of the member until after the metal decking, or other walking/working surface has been installed.

If you decide that Panduit violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether and to what extent, if any, Panduit was negligent before and at the time of the incident.

IPI B45.01 – FORMS OF VERDICT – COMPARATIVE

When you retire to the jury room you will first select a foreperson. He or she will preside during your deliberations.

Your verdict must be unanimous.

Forms of verdicts are supplied with these instructions. After you have reached your verdict, fill in and sign the appropriate form of verdict and return it to the court. Your verdict must be signed by each of you. You should not write or mark upon this or any of the other instructions given to you y the court.

The Plaintiff in this case is: Ronald Bayer

The Defendant in this case is: Panduit Corporation

If you find for Ronald Bayer and against Panduit Corporation and if you further find that Ronald Bayer was not contributorily negligent, then you should use Verdict Form A.

If you find for Ronald Bayer and against Panduit Corporation, and if you further find that Ronald Bayer’s injuries were proximately caused the combined negligence of Panduit and/or other entities or persons, and Ronald Bayer’s contributory negligence, and that Ronald Bayer’s contributory negligence was 50% or less of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form B.

If you find for Panduit Corporation and against Ronald Bayer, or if you find that Bayer’s contributory negligence was more than 50% of the total proximate cause of damages for which recovery is sought, then you should use Verdict Form C.

Two “Special Interrogatories” are supplied with these instructions. After you have reached a verdict, fill in and sign the Special Interrogatories and return it to the court along with the forms of verdict. The Special Interrogatory must be signed by each of you.

IPI B45.01.A – VERDICT FORM A

VERDICT FORM A

We, the jury, find for the Plaintiff, Ronald Bayer, and against the Defendant, Panduit Corporation.

We assess the damages in the sum of $_______________________________________, itemized as

follows:

The disfigurement resulting from the injury. $_________________________

The reasonable expense of necessary medical care, treatment,

and services received. $_________________________

The present cash value of the reasonable expenses of medical care,

treatment & services reasonably certain to be received in the future.$_________________________

The value of earnings and benefits lost. $_________________________

The present cash value of the earnings and benefits

reasonably certain to be lost in the future. $_________________________

Loss of a normal life experienced. $_________________________

Loss of a normal life reasonably certain to be

experienced in the future. $_________________________

The pain and suffering experienced. $_________________________

The pain and suffering reasonably certain to be experienced

in the future as a result of the injuries. $_________________________

[Signature Lines ]

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(Foreperson)

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B45.01.B Verdict Form B- COMPARATIVE

VERDICT FORM B

We, the jury, find for the Plaintiff, Ronald Bayer, and against the Defendant, Panduit Corporation.

We assess the damages in the sum of $_______________________________________, itemized as

follows:

The disfigurement resulting from the injury. $_________________________

The reasonable expense of necessary medical care, treatment,

and services received. $_________________________

The present cash value of the reasonable expenses of medical care,

treatment & services reasonably certain to be received in the future.$_________________________

The value of earnings and benefits lost. $_________________________

The present cash value of the earnings and benefits

reasonably certain to be lost in the future. $_________________________

Loss of a normal life experienced. $_________________________

Loss of a normal life reasonably certain to be

experienced in the future. $_________________________

The pain and suffering experienced. $_________________________

The pain and suffering reasonably certain to be experienced

in the future as a result of the injuries. $_________________________

We further find the following:

First: Without taking into consideration the question of

reduction of damages due to the negligence of Ronald Bayer,

we find that the total amount of damages suffered by Ronald

Bayer as a proximate result of the occurrence in question is $________________________

Second: Assuming that 100% represents the total combined

negligence of all entities or persons whose negligence proximately

contributed to Plaintiff Ronald Bayer’s damages, we find

the percentage of negligence attributable solely to Ronald Bayer is: _______________ percent %

Third: After reducing the total damages sustained by Ronald

Bayer by the percentage of negligence attributable solely to

Mr. Bayer, we assess Bayer’s recoverable damages in the sum of $__________________________.

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IPI4501.C

VERDICT FORM C

We, the jury, find for the Defendant, Panduit Corporation, and against the Plaintiff,

Ronald Bayer.

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(Foreperson)

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SPECIAL INTERROGATORY #1

Did Panduit Corporation’s conduct constitute a proximate cause that produced Ronald Bayer’s injury?

____________ ___________

Yes No

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(Foreperson)

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SPECIAL INTERROGATORY #2

Was the sole proximate cause that produced Ronald Bayer’s injury the conduct of some persons or entities other than Panduit Corporation?

____________ ___________

Yes No

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(Foreperson)

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