Spoliation CC v $1.8 Const Injury

Jury Instructions-IL > Construction > Construction scaffold fall > Spoliation CC v $1.8 Const Injury

Grillo v Yeager Construction (affd. 387 Ill. App. 3d 577)

A stone mason was injured in a fall from his own scaffold. Consequently, he suffered lifelong, chronic back pain which was regulated by daily doses of morphine. The scaffold was photographed, but later discarded by the plaintiff. When these instructions were drafted the spoliation counterclaim count was active. Later, it was directed out after the close of evidence. (Verdict of $1.8 million)

IPI 1.01 Preliminary Cautionary Instructions

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.

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.

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 Dr. Victoria Santucci and EMT Eric Pelot was presented by the reading 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 3.01 Rulings and Remarks of the Court

Now that the evidence has concluded, I will further instruct you as to the law and your duties. I have not meant to indicate any opinion as to the facts of this case by any of my rulings, remarks, or instructions.

IPI 3.03 Liability Insurance

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 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, Anthony Grillo, 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: Anthony Grillo

The Defendant in this case is: Y.C.Company, Inc. d/b/a Yeager Construction

The Counter-Plaintiff in this case is: Y.C.Company, Inc. d/b/a Yeager Construction

The Counter-Defendant in this case is: Anthony Grillo

It was the duty of the defendant before and at the time of the occurrence, to use ordinary care for the safety of the plaintiff. 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 was negligent and that its negligence was a proximate cause of injury to the plaintiff, it is not a defense that some third person who is not a party to the suit may also have been to blame.

IPI 15.01 Proximate Cause

When I use the expression “proximate cause,” I mean any cause which, in natural or probable sequence, produced the damages 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 damages.

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 55.03 Construction Negligence—Issues made by the Pleadings/Burden of Proof

The Plaintiff, Anthony Grillo, seeks to recover damages from the defendant, Y.C.Company, Inc. d/b/a Yeager Construction. In order to recover damages, the plaintiff has the burden of proving:

First, That the Defendant retained some control over the safety of the work;

Second, That the Defendant acted or failed to act in one or more of the following ways:

Failed to provide a safe place to work;

Failed to adequately inspect the scaffold and the area in question;

Failed to adequately backfill the perimeter of the home or where the plaintiff was required to work.

Allowed an unprotected excavation to exist near a scaffold;

Allowed a scaffold to be built or used without adequate guard rails; or

Allowed a scaffold to be built or used without adequate foundational material.

and that, in so failing to act, the defendant was negligent in the manner in which it exercised or failed to exercise its control.

Third, That the Plaintiff was injured; and

Fourth, That the defendant’s negligence was a proximate cause of plaintiff’s 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.

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 the defendant’s claim that the plaintiff was contributorily negligent.

As to that claim, the defendant, Y.C.Company, Inc. d/b/a Yeager Construction, has the burden of proving both of the following propositions:

First, That the Plaintiff, Anthony Grillo, acted or failed to act in one or more of the following ways:

Failed to select a safe place to work;

Failed to adequately inspect the scaffold and area in question;

Erected or used a scaffold in area that was inadequately backfilled;

Erected and used a scaffold near an unprotected excavation;

Erected or used a scaffold without adequate guard rails; or

Erected or used a scaffold without adequate foundational material.

Second, That the Plaintiff’s negligence was a proximate cause of his injury.

If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff, and that the defendant has not proved both of the propositions required of the defendant, then your verdict should be for the Plaintiff and you will not reduce plaintiff’s damages.

If you find from your consideration of all the evidence that the plaintiff has proved all the propositions required of the plaintiff, and that the defendant has proved both of the propositions required of the defendant, and if you find that the plaintiff’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, and you will reduce the plaintiff’s damages in the manner stated to you in these instructions.

If you find from your consideration of all the evidence that the Defendant has proved both the propositions required of the Defendant and if you find that the plaintiff’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.

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ANTHONY GRILLO’S COMPLAINT

[IPI 20.02/55.03 Modified]

The Plaintiff, Anthony Grillo, seeks to recover damages from defendant, Y.C. Company, Inc. d/b/a Yeager Construction. In order to recover damages, the Anthony Grillo has the burden of proving:

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

Second, that the Defendant, Y.C. Company, Inc., d/b/a Yeager Construction, failed to act in one or more of the following ways,

a. Failed to provide the Plaintiff with a safe place to work; or

b. Allowed an unprotected excavation to exist in proximity of a scaffold;

c. Failed to adequately inspect the scaffold and area in question; or

d. Failed to adequately backfill around the perimeter of the home

being constructed or in the area they required the Plaintiff to work.

and in so failing to act, was negligent in the manner in which it exercised or failed to exercise its control.

Third, that the Plaintiff was injured; and

Fourth, that the defendant’s negligence was a proximate cause of plaintiff’s 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.

As to that claim, the defendant, Y.C.Company, Inc. d/b/a Yeager Construction, has the burden of proving both of the following propositions:

First, that the Plaintiff, Anthony Grillo, acted or failed to act in one or more of the following ways:

a. Failed to select a safe location to erect the scaffold; or

b. Failed to properly erect the scaffold; or

c. Failed to properly supervise the erection of the scaffold.

Second, that the Plaintiff’s negligence was a proximate cause of his own injury.

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II.

Y.C. COMPANY, INC. d/b/a YEAGER CONSTRUCTION’S COUNTER-COMPLAINT

[IPI 20.02/55.03/ Modified: Boyd v. Travelers, 166 Ill. 2d 188 (1995) (see 5.01) ISSUES/Negligence/Counterclaims/Spoliation of Evidence]

If you should find that Y.C. Company, Inc. d/b/a Yeager Construction is liable to Anthony Grillo,

then it must consider Y.C. Company, Inc. d/b/a Yeager Construction’s counter-claim against Anthony Grillo.

In its counter-complaint Y.C. Company, Inc., d/b/a Yeager Construction’s claims that the counter- defendant, Anthony Grillo, had voluntarily undertook a duty to remove and store the scaffold after the accident, but that Grillo failed to preserve it as an exhibit for inspection in this matter.

Anthony Grillo admits that he removed the scaffold from the job site on October 29, 2001, that he filed the law suit on October 30, 2002, that the scaffold was in storage as of August 27, 2003, and that on October 26, 2005 it was disclosed that the scaffold was no longer in existence.

In order to recover damages, Y.C. Company, Inc. d/b/a Yeager Construction has the burden of proving:

1. That the evidence was under the control of Grillo;

2. That a reasonably prudent person under the same or similar circumstances would have preserved the evidence;

3. That Anthony Grillo, after the time of the occurrence, failed to use ordinary care to preserve evidence pertaining to the occurrence

5. That the loss of the evidence denied Y.C. Company d/b/a Yeager Construction a reasonable probability of success defending this claim through an inspection that could have revealed direct evidence that the injury might have been caused by the defective condition or composition of the scaffold.

If you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict for Anthony Grillo should stand.

On the other hand, if you find from your consideration of all the evidence that the counter-plaintiff, Y.C. Company, Inc. d/b/a Yeager Construction has proved all the propositions required it, and that, but for the absence of this evidence (the scaffold), Y.C. Company Inc., would have had a reasonable probability of succeeding in the defense of this lawsuit, then your verdict should be for Y.C. Company, Inc. d/b/a Yeager Construction.

NON-IPI: Spoliation Instruction: Boyd v. Travelers, 166 Ill. 2d 188 (1995) (see also IPI 5.01)

It was the duty of Anthony Grillo, after the time of the occurrence, to use ordinary care to preserve evidence pertaining to the occurrence, if the loss of the evidence would deny other persons or entities a reasonable probability of success defending claims arising out of the occurrence.

IPI 30.01 Measure of Damages

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

Disability experienced and reasonably expected to be experienced in the future as a result of the injuries.

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

The reasonable expense of necessary medical care, treatment and services received.

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

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

According to a table of mortality in evidence, the life expectancy of a person aged 52 years is 27.9 years. This figure is not conclusive. It is the average life expectancy of persons who have reached the age of 52. 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 the defendant on the question of liability, you will have no occasion to consider the question of damages.

IPI 41.05 Counterclaim

In this action a counterclaim has been filed. As to the issues raised by the counterclaim and the answer to it, the parties therein named stand in the same relation to one another as do a plaintiff and a defendant. Therefore, the instructions given to you which apply to the plaintiff, Anthony Grillo, and the defendant, Y.C.Company, Inc. d/b/a Yeager Construction, apply with the same effect to the counter-plaintiff, Y.C.Company, Inc. d/b/a Yeager Construction, and counter-defendant, Anthony Grillo respectively.

IPI 50.05 Agent—Definition

An agent is a person who, by agreement with another called the principal, represents the principal in dealings with third persons or transacts business, manages some affair or does some service for the principal, with or without compensation. The agreement may be oral or written, express or implied.

IPI 50.10 Agent or Independent Contractor

The question has been raised whether at the time of the occurrence David Yeager was the agent of the defendant, Y.C. Company, Inc. d/b/a Yeager Construction, or was an independent contractor.

An agent is a person who by agreement with another, called the principal, represents the principal in dealings with third persons or transacts some other business, manages some affair, or does some service for the principal, with or without compensation. The agreement may be oral or written, express or implied. The term “agent” is broader than either “servant” or “employee.” A servant or employee is an agent, but one may be an agent although he is neither servant nor employee.

If you find that one person has the right to control the actions of another at a given time, you may find that the relation of principal and agent exists, even though the right to control may not have been exercised.

An independent contractor is one who undertakes a specific job where the person who engages him does not have the right to discharge him or to direct and control the method and manner of doing the work.

In determining whether at the time of the occurrence David Yeager was the agent of the defendant, Y.C. Company, Inc. d/b/a Yeager Construction, or was an independent contractor, you may also consider the method of payment; the right to discharge; who provides tools, materials or equipment; whether the worker’s occupation is related to that of the employer; and whether the employer issued W-2 forms.

The principal is liable to third persons for the negligence of his agent in the transaction of the business of the principal, if the agent himself is liable. But one who engages an independent contractor is not liable to others for the negligence of the contractor.

IPI 50.11 A Corporation Acts Through Its Employees

The defendant is a corporation and can act only through its officers and employees. Any act or omission of an officer or employee within the scope of his employment is the action or omission of the defendant 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 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 by the court.

The Plaintiff in this case is: Anthony Grillo

The Defendant in this case is: Y.C.Company, Inc. d/b/a Yeager Construction

The Counter-Plaintiff in this case is: Y.C.Company, Inc. d/b/a Yeager Construction

The Counter-Defendant in this case is: Anthony Grillo

If you find for Anthony Grillo and against the Y.C. Company, Inc. d/b/a Yeager Construction

and if you further find that Anthony Grillo was not contributorily negligent, then you should use Verdict Form A.

If you find for Anthony Grillo and against the Y.C. Company, Inc. d/b/a Yeager Construction and if you further find that Anthony Grillo’s injuries were proximately caused by a combination of Y.C. Company, Inc. d/b/a Yeager Construction’s negligence and Anthony Grillo’s contributory negligence, and that Anthony Grillo’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 Y.C. Company, Inc. d/b/a Yeager Construction and against Anthony Grillo, or if you find that Anthony Grillo’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.

Also, if you find that Anthony Grillo, after the time of the occurrence, failed to use ordinary care to preserve evidence pertaining to the occurrence and the loss of the evidence denied Y.C. Company, Inc., d/b/a/ Yeager Construction a reasonable probability of success defending this claim arising out of this occurrence, then you should use Verdict Form C.

IPI B45.01.A – VERDICT FORM A

VERDICT FORM A

We, the jury, find for the Plaintiff and against the Defendant. We assess the damages in the sum of

$___________________________________, itemized as follows:

Disability experienced $_________________

Disability reasonably expected to be experienced in the future $_________________

Pain & Suffering experienced $_________________

Pain & Suffering reasonably expected to be experienced in the future $_________________

Reasonable expense of necessary medical care $_________________

[Signature Lines ]

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(Foreperson)

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VERDICT FORM B

We, the jury, find for the Plaintiff and against the Defendant. We assess the damages in the sum of

$___________________________________, itemized as follows:

Disability experienced $_________________

Disability reasonably expected to be experienced in the future $_________________

Pain & Suffering experienced $_________________

Pain & Suffering reasonably expected to be experienced in the future $_________________

Reasonable expense of necessary medical care $_________________

We further find the following:

First: Without taking into consideration the question of

reduction of damages due to the negligence of the Plaintiff, we

find that the total amount of damages suffered by Plaintiff as

a proximate result of the occurrence in question is $_________________

Second: Assuming that 100% represents the total combined

negligence of all persons whose negligence proximately contributed

to the plaintiff’s damages, including the Plaintiff and the Defendant, we

find that the percentage of such negligence attributable solely to Plaintiff is _________ percent(%)

Third: After reducing the total damages sustained by Plaintiff

by the percentage of negligence attributable solely to Plaintiff, we assess

Plaintiff’s recoverable damages in the sum of $________________.

[Signature Lines ]

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(Foreperson)

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*IPI4501.C

VERDICT FORM C

We, the jury, find for the Defendant and against the Plaintiff.

[Signature Lines ]

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(Foreperson)

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