{ "id": 1352881, "name": "JOSEF SOBCZAK et al., Plaintiffs-Appellees, v. JOSEPH FLASKA, Defendant-Appellant", "name_abbreviation": "Sobczak v. Flaska", "decision_date": "1998-12-28", "docket_number": "No. 1\u201497\u20140599", "first_page": "916", "last_page": "930", "citations": [ { "type": "official", "cite": "302 Ill. App. 3d 916" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "396 N.E.2d 534", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "77 Ill. 2d 434", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490713 ], "year": 1979, "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/77/0434-01" ] }, { "cite": "502 N.E.2d 315", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 1052", "category": "reporters:state", "reporter": "Ill. 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App. 3d 432", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5370041 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/ill-app-3d/263/0432-01" ] }, { "cite": "555 N.E.2d 993", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 322", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2473368 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "328" }, { "page": "326" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0322-01" ] }, { "cite": "520 N.E.2d 827", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 802", "category": "reporters:state", "reporter": "Ill. 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JOSEPH FLASKA, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE ZWICK\ndelivered the opinion of the court:\nPlaintiff Josef Sobczak, a construction worker, was injured when the bulldozer he was operating slid off its flat-bed trailer and rolled 90 degrees, landing on top of his leg. Sobczak and his wife, Anna, brought suit against various defendants including defendant Joseph Flaska, alleging violations of the Structural Work Act (740 ILCS 150/1 et seq. (West 1992)) and common law negligence. Anna\u2019s claims were based on her loss of consortium. Following trial, a jury returned a verdict in favor of both plaintiffs on the negligence claims. Flaska now appeals.\nOn the day of his injury, July 19, 1990, Sobczak was employed as a laborer by Harbor Properties, Inc. (Harbor Properties). Harbor Properties renovates, owns and manages commercial property in the Bed-ford Park area of Chicago. Sobczak was not working in Bedford Park on the day of his injury, however, but at defendant Flaska\u2019s home, in Palos Park. Earlier in the day, Sobczak had been directed to go to Flaska\u2019s home by one of Harbor Properties\u2019 managers. Flaska was Sobczak\u2019s immediate boss at Harbor Properties, one of its three shareholders, as well as a Harbor Properties\u2019 full-time employee. Harbor Properties owned the bulldozer Sobczak was operating when he was injured, a Case Model 350 crawler tractor. The vehicle was about 30 years old and had recently been purchased in a disassembled condition. Flaska had supervised Sobczak in its assembly a few weeks prior to the accident.\nInitially, Flaska argues that the trial court improperly denied his motion for judgment non obstante veredicto because he is immune from suit under the terms of the Worker\u2019s Compensation Act (Act) (820 ILCS 305/1 et seq. (West 1996)). Section 5(a) (820 ILCS 305/5(a) (West 1996)) provides that an employee\u2019s remedy under the Act is exclusive and in lieu of all possible common law actions against an employer, its agents, or employees for any injury occurring during the course of the employment. In addition to barring common law actions for damages by an employee against an employer, section 5(a) precludes actions by an employee\u2019s spouse, such as Anna Sobczak, for loss of consortium. Fregeau v. Gillespie, 96 Ill. 2d 479, 451 N.E.2d 870 (1983).\nSobczak argues waiver in responding to Flaska\u2019s immunity claim, noting that Flaska failed to raise immunity prior to trial. The exclusivity provision of section 5(a) of the Act is an affirmative defense and is waived if not timely raised. As our supreme court has stated:\n\u201cThe Worker\u2019s Compensation Act provides employers [as well as their agents and employees] with a defense against any action that may be asserted against them in tort, but that defense is an affirmative defense whose elements \u2014 the employment relationship and the nexus between the employment and the injury \u2014 must be established by the [defendant], and which is waived if not asserted by him in the trial court.\u201d Doyle v. Rhodes, 101 Ill. 2d 1, 10, 461 N.E.2d 382 (1984).\nFlaska responds that it was unnecessary for him to plead immunity because Sobczak readily conceded Flaska\u2019s immunity in pretrial proceedings.\nAfter carefully reviewing the record, we reject Sobczak\u2019s waiver claim. We note that Sobczak admitted in his complaint that he was an employee of Harbor Properties at the time of his injury and that there was a nexus between his injuries and his duties as a Harbor Properties\u2019 employee. Sobczak concedes that he brought a successful worker\u2019s compensation claim against Harbor Properties following his injury. Although we recognize that Flaska failed to plead immunity as an affirmative defense, he did file a detailed summary judgment motion setting out such a claim. Sobczak answered the motion on the merits.\nIt is well established that the waiver doctrine is a limitation on the parties and not the court. Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 11, 672 N.E.2d 1178 (1996); People v. Hoskins, 101 Ill. 2d 209, 219, 461 N.E.2d 941 (1984). Any waiver in the present case was technical only and certainly did not prejudice Sobczak. Accordingly, although we find that section 5(a) immunity should have been affirmatively pled by Flaska in order to properly join the issue at trial, we decline to apply waiver.\nTurning to the merits, Sobczak argues that even if Flaska has section 5(a) immunity as an agent of Harbor Properties, he does not have that immunity as a \u201chomeowner/general contractor.\u201d Illinois law recognizes that general contractors and landowners may owe a duty in tort to employees of third parties. Fris v. Personal Products Co., 255 Ill. App. 3d 916, 924, 627 N.E.2d 1265 (1994); Haberer v. Village of Sauget, 158 Ill. App. 3d 313, 318-19, 511 N.E.2d 805 (1987); Gentile v. Kehe, 165 Ill. App. 3d 802, 805, 520 N.E.2d 827 (1987). The controlling issue is whether the landowner or general contractor has retained such control over the particular aspects of the plaintiffs work so as to be reasonably held liable for injuries caused due to the failure to exercise that control with sufficient care. Sauget, 158 Ill. App. 3d at 319.\nIn McConnell v. Freeman United Coal Co., 198 Ill. App. 3d 322, 555 N.E.2d 993 (1990), for example, a plaintiff who was employed by a subcontractor to operate an earth mover brought a negligence claim against the general contractor of the project. The trial court found no duty between the general contractor and the plaintiff and entered summary judgment. On appeal, the appellate court reversed, noting that where the record indicated the existence of a factual issue as to whether the general contractor had retained so much control over the plaintiffs activities as to expose the general contractor to potential liability, summary judgment was improper. McConnell, 198 Ill. App. 3d at 328. The court stated the rule as follows:\n\u201c[T]he courts of Illinois now recognize that an employee hired by an independent contractor to do construction work may obtain recovery for injuries sustained in the course of that work from the owner of the premises when the owner has retained the requisite control over the work and has failed to exercise that control properly.\u201d McConnell, 198 Ill. App. 3d at 326, citing Restatement (Second) of Torts \u00a7 414 (1965).\nBecause the evidence showed that defendant\u2019s employees visited the site on a regular basis, directed plaintiffs work there, tested the quality of plaintiffs work and had the authority to stop work if necessary, the court determined that a factual issue existed as to whether the general contractor had undertaken such control over plaintiffs activities as to subject him to liability. The case was remanded for trial.\nMoreover, Sobezak points out that an exception to section 5(a) immunity exists if there is a significant legal relationship between the plaintiff and defendant separate and apart from the employer/ employee relationship. See Reynolds v. Clarkson, 263 Ill. App. 3d 432, 636 N.E.2d 91 (1994). In denying Flaska\u2019s summary judgment motion, the trial court found that a factual question existed as to whether Flaska was acting in a \u201cdual capacity\u201d at the time of the accident\u2014 both as an agent of Harbor Properties and as a landowner/general contractor \u2014 so that section 5(a) immunity would not preclude recovery.\nIn Smith v. Metropolitan Sanitary District, 77 Ill. 2d 313, 396 N.E.2d 524 (1979), our supreme court explained the dual capacity doctrine as follows:\n\u201c \u2018[A]n employer normally shielded from tort liability by the exclusive remedy principle may become liable in tort to his own employee if he occupies, in addition to his capacity as employer, a second capacity that confers on him obligations independent of those imposed on him as employer.\u2019 \u201d 77 Ill. 2d at 318, quoting 2A A. Larson, Workmen\u2019s Compensation \u00a7 72.80, at 14\u2014112 (1976), and citing Kelly, Workmen\u2019s Compensation and Employer Suability: The Dual-Capacity Doctrine, 5 St. Mary\u2019s L.J. 818 (1974).\nThe decisive test in determining whether dual capacity exists is not how separate or different the second function of the employer is from the first but, rather, whether the second function generates \u201cunrelated legal obligations\u201d between the defendant and plaintiff. Smith, 77 Ill. 2d at 319, citing 2A A. Larson, Workmen\u2019s Compensation \u00a7 72.80, at 14\u2014117 (1976). Thus, \u201c[a] mere separate theory of liability against the same legal person as the employer is not a true basis for use of the dual capacity doctrine; the doctrine, instead, requires a distinct separate legal persona.\u201d (Emphasis added.) Smith, 77 Ill. 2d at 319, citing 2A A. Larson, Workmen\u2019s Compensation \u00a7 72.80 (Supp. 1979).\nIn arguing against application of the dual capacity doctrine, Flaska asserts that the evidence was uncontradicted that Sobczak was injured in preparing to level soil which, at least in part, had been delivered to the Flaska property by Harbor Properties. He testified that the dirt was there only because Harbor Properties, which had excavated the dirt from another site and considered the dirt to be a liability, agreed to deliver and level it in return for Flaska\u2019s promise to use it as landfill. Flaska asserts, therefore, that Sobczak was injured only in connection with his employment for Harbor Properties and that he took on no additional legal \u201cpersona\u201d in directing Sobczak\u2019s work other than that as agent for Harbor Properties.\nIn addition, while Flaska concedes that the determination of whether a defendant had charge of the work at a construction site has generally been held to be for the trier of fact (McGovern v. Standish, 65 Ill. 2d 54, 357 N.E.2d 1134 (1976); Gannon v. Chicago, Milwaukee, St. Paul & Pacific Ry. Co., 22 Ill. 2d 305, 175 N.E.2d 785 (1961)), he also notes that whether control has triggered potential liability may be decided as a matter of law where the evidence presented is insufficient to create a factual question (Norton v. Wilbur Waggoner Equipment Rental & Excavating Co., 76 Ill. 2d 481, 394 N.E.2d 403 (1979); Fruzyna v. Walter C. Carlson Associates, Inc., 78 Ill. App. 3d 1050, 398 N.E.2d 60 (1979)). He emphasizes that the mere ownership of land is insufficient to impose liability. Gannon, 22 Ill. 2d at 319-20.\nOur courts have identified a number of factors to be considered in determining whether the totality of the circumstances establishes that a party had charge of work at a construction site, including supervision and control of the work being performed or retention of the right to supervise and control it; constant participation in ongoing activities at the construction site; supervision and coordination of the subcontractors; responsibility for safety precautions at the jobsite; authority to issue change orders; authority to stop the work; ownership of equipment used at the jobsite; familiarity with construction practices; and the ability to correct unsafe or improper work habits and equipment deficiencies. Lyle v. Sester, 103 Ill. App. 3d 208, 430 N.E.2d 699 (1981); Hausam v. Victor Gruen & Associates, 86 Ill. App. 3d 1145, 408 N.E.2d 1051 (1980); Bishop v. Crowther, 92 Ill. App. 3d 1, 415 N.E.2d 599 (1980); Westerfield v. Arjack Co., 78 Ill. App. 3d 137, 397 N.E.2d 451 (1979).\nHere, as the trial court found in its pretrial rulings, a factual question existed as to whether Flaska had personally undertaken so much personal control over Sobczak\u2019s work at his residence as to subject Flaska to potential liability in negligence, either as an owner of the land on which the accident occurred or as a general contractor for the work Sobczak did there. When reviewing the trial court\u2019s determinations on such disputed questions of fact after trial, we utilize the Pedrick standard, i.e., whether all the evidence, when considered in a light most favorable to the plaintiff, so overwhelmingly favors the defendant that no contrary verdict could ever stand. Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967).\nEvidence at trial was that Flaska routinely used Harbor Properties\u2019 workers at his home to do jobs unrelated to Harbor Properties\u2019 business. With regard to renovations that were occurring on the property at the time of Sobczak\u2019s injury, Flaska admitted that he personally took out a building permit from the local village for much of the work occurring on the property, including work done by Harbor Properties\u2019 employees. He Usted himself, and not Harbor Properties, as the general contractor for the renovations. Although Flaska insisted that Sobczak\u2019s work was unrelated to the permit work, there was testimony indicating that the dirt generated by the permit work was comingled with the dirt delivered to the site by Harbor Properties. Moreover, Sobczak testified Flaska and other Harbor Properties\u2019 employees routinely worked at the Flaska residence under Flaska\u2019s personal supervision. On these occasions, Flaska either told Sobczak what to do and how to do it or passed such information through others.\nEvidence at trial also showed that, unlike a typical homeowner, Flaska had extensive experience with heavy equipment like the bulldozer that injured Sobczak. On at least two prior occasions, Flaska observed earth movers roll from their upright positions, causing severe injury to their operators. Flaska had participated in the purchase of the bulldozer that injured Sobczak and, indeed, had directed Sobczak in its assembly. He was familiar with its proper operation. Flaska also testified that he was familiar with the roll-protection systems, consisting of a canopy and seat belt, which modern bulldozers have to protect the operator from roll-over injury. He admitted that he knew such systems were commercially available.\nIn light of the trial court\u2019s finding of Uability and the deferential Pedrick standard of review, we find the evidence supports the trial court\u2019s determination that Flaska exercised sufficient personal supervision over Sobczak\u2019s activities on the day of the injury so as to create a legal duty of care and subject Flaska to liability in negligence. We also find Flaska\u2019s activities in supervising Harbor Properties workers at his home as a general contractor created a distinct \u201cpersona,\u201d separate and apart from his role as an agent of Harbor Properties, that was sufficient for Sobczak to avoid a section 5(a) immunity defense pursuant to the dual capacity doctrine. In addition, we find the record sufficient to support a finding that Flaska knew that the vehicle at the time of the accident did not provide rollover protection to its operator, knew that a rollover was possible during the times the vehicle was being loaded and unloaded from its trailer, knew that vehicles with rollover protection systems were commercially available, and knew that a rollover accident without a protection system had the potential to severely injure Sobczak. Despite this knowledge, Flaska directed Sobczak, through others, to use this vehicle to do work on his property. In doing so, Flaska failed to warn Sobczak of the dangers associated with unloading the bulldozer or provide Sobczak with appropriate equipment to do the job safely. Finally, we find the evidence sufficient to support the jury\u2019s finding that the lack of either a warning or a rollover protection system on the vehicle used by Sobczak was a proximate cause of Sobczak\u2019s injuries. Accordingly, we find no error in the trial court\u2019s denial of judgment non obstante veredicto.\nIn addition to his immunity claim, Flaska argues that the trial court committed reversible error in failing to bar Gerald Whitehouse, one of Sobczak\u2019s witnesses, from testifying at trial. Whitehouse was an engineer originally retained by another defendant, Case Corporation, the original manufacturer of the bulldozer. When Case was dismissed from the suit, Sobczak decided to use Whitehouse as one of his own expert witnesses. However, although Case disclosed in its pretrial discovery that Whitehouse would testify, Sobczak failed to inform Flaska once Case was dismissed that he also planned to call White-house. Sobczak concedes such a disclosure should have been made under the terms of Supreme Court Rule 213(g). 166 Ill. 2d R. 213(g).\nWhen Flaska discovered that Sobczak planned on calling White-house, he brought a motion in limine to exclude him. Flaska argued that because Sobczak failed to answer the Supreme Court Rule 213(g) interrogatories, and because Whitehouse had not offered any opinion testimony against Flaska in prior depositions, it would be improper to allow Whitehouse to testify. The court denied the motion.\nAt trial, Whitehouse was questioned about federal safety standards governing material handling equipment such as the bulldozer that injured Sobczak. As part of this testimony, Whitehouse read to the jury federal regulations governing rollover protection structures. Specifically, Whitehouse read the Occupational Safety and Health Administration (OSHA) regulation section 1926.602, which requires that employers at construction sites fit all bulldozers with a rollover protective canopy and seat belt. A second provision, section 1926.1000, requires that older machines, such as the one that fell on top of Sobczak, be retrofitted with a canopy structure by the beginning of 1974.\nAfter referencing the OSHA regulations, Whitehouse was asked to assume that a worker was directed by a homeowner to unload a crawler from a trailer and that the crawler did not have a canopy and that the crawler slipped off the trailer during the unloading process. He was also asked to assume this occurred at a construction site which was a residence, that the homeowner was experienced in construction and was exercising a high degree of supervisory care, and was also acting as his own general contractor. Flaska promptly objected to the hypothetical, arguing that it was speculative and contradictory to the evidence. The trial court overruled the objection. Whitehouse then stated that, under such a hypothetical set of facts, it was his opinion that the homeowner would be required by OSHA to provide a crawler that included a safety canopy and belt. He also stated that such a canopy would prevent injury such as the loss of the operator\u2019s leg following a roll because the safety belt would confine the operator inside the protective \u201cenvelope\u201d created by the rollover structure.\nOn appeal, Flaska argues that the trial court committed reversible error in allowing Whitehouse to testify, in allowing Whitehouse to introduce the OSHA provisions, as well as in allowing him to give his opinion as to OSHA\u2019s applicability. Sobczak responds by arguing Whitehouse\u2019s testimony was properly admitted and, in any event, Flaska suffered no significant prejudice from Whitehouse\u2019s testimony.\nSobczak points to several factors that he claims support the trial court\u2019s decision to admit Whitehouse\u2019s testimony. First, Whitehouse had been deposed prior to trial, albeit by Case, in the presence of Flaska\u2019s counsel. Flaska thus had the opportunity to question Whitehouse regarding his potential testimony. Second, Sobczak indicated in prior answers to Rule 213 interrogatories, although again in interrogatories propounded by Case, that Whitehouse might be called to testify about the availability of rollover guards and about whether a different outcome would have occurred if a guard had been installed on the vehicle. A copy of this answer had been sent to Flaska\u2019s counsel. Third, Flaska\u2019s counsel admitted that he expected Whitehouse to be called to discuss the OSHA standards at trial, even though he had not received formal notice from Sobczak. In light of these factors, Sobczak argues that barring Whitehouse from testifying would have been unduly harsh.\nThe law with regard to claims of discovery violations made on appeal is well settled. The imposition of a sanction for a violation of discovery rules is a matter falling within the sound discretion of the trial court, whose decision will not be disturbed absent a clear showing of an abuse of that discretion. The purpose of discovery sanctions is not to punish but, rather, to insure fair discovery and a trial on the merits. Flanagan v. Redondo, 231 Ill. App. 3d 956, 963, 595 N.E.2d 1077 (1991). Barring a witness\u2019 testimony is only one of many sanctions available to the court. Kurrack, 252 Ill. App. 3d at 903; see Sohaey v. Van Cura, 158 Ill. 2d 375, 381, 634 N.E.2d 707 (1994). Each case presents a unique factual situation which is to be considered in determining whether a sanction is to be imposed. Boatmen\u2019s National Bank v. Martin, 155 Ill. 2d 305, 314, 614 N.E.2d 1194 (1993).\nFactors the trial court must use in determining whether exclusion of a witness is an appropriate sanction are (1) surprise to the adverse party; (2) the prejudicial effect of the witness\u2019 testimony; (3) the nature of the witness\u2019 testimony; (4) the diligence of the adverse party; (5) whether objection to the witness\u2019 testimony was timely; and (6) the good faith of the party calling the witness. Boatmen\u2019s National Bank of Belleville, 155 Ill. 2d at 314. Relevant considerations in assessing prejudice on appeal are the strength of the undisclosed evidence, the likelihood that prior notice could have helped the defense discredit the evidence, the feasibility of continuance rather than a more drastic sanction, and the willfulness of the plaintiff in failing to disclose the witness. People v. King, 248 Ill. App. 3d 180, 186, 618 N.E.2d 1051 (1993).\nAfter considering the issue, we find no error in the trial court\u2019s decision not to strike Whitehouse\u2019s testimony. First, as Sobczak claims, it is doubtful that Whitehouse\u2019s testimony affected the ultimate outcome of the trial. A party is not entitled to a reversal based on ruling on evidence unless the error was substantially prejudicial and affected the outcome of trial. Jackson v. Pellerano, 210 Ill. App. 3d 464, 471, 569 N.E.2d 167 (1991). The burden rests with the party seeking reversal to establish prejudice. Jackson, 210 Ill. App. 3d at 471.\nHere, the OSHA sections, which had been brought to the attention of all of the defendants at a much earlier date in pretrial proceedings, were given to the jury to establish the standard of care pursuant to Illinois Pattern Jury Instructions, Civil, No. 60.01 (3d ed. 1995), not because Whitehouse testified as to their existence. The jury would thus have been exposed to the OSHA provisions even if Whitehouse had not testified.\nSecond, another witness, Max North, who was identified in Sobczak\u2019s pretrial discovery responses, discussed the OSHA regulations in his deposition. Whitehouse\u2019s testimony was used, in part, because of conflicts in scheduling North at trial. Thus, even if White-house\u2019s testimony had been stricken, Sobczak may well have prevailed upon the trial court to allow similar testimony into evidence by rescheduling North.\nThird, Flaska\u2019s claims that the hypothetical was speculative or against the evidence were properly rejected. In our view, the hypothetical was sufficiently close to the evidence presented as to make the question relevant to the proceedings. This is because the regulations assist in establishing the relevant standard of care.\nLastly, Flaska argues that the OSHA regulations were inadmissible because they applied by their own terms only to \u201cemployers,\u201d and it was uncontroverted that Harbor Properties, and not Flaska, was Sobczak\u2019s employer. We find this argument was properly rejected by the trial court, however, as a plaintiff is permitted to use OSHA regulations to establish the standard of care against a defendant in charge of the work, regardless of whether he is the employer or not. LePage v. Walsh Construction Co., 126 Ill. App. 3d 1075, 486 N.E.2d 509 (1984).\nAgain, in light of the deference given to the trial court in determining such issues, we find no error in the trial court\u2019s ruling. Moreover, even if we were to find error in this regard, we would not find it to be so egregious as to require reversal. It is well settled that the parties are entitled to a fair trial, not a perfect one. Duffy v. Midlothian Country Club, 135 Ill. App. 3d 429, 481 N.E.2d 1037 (1985); Fedt v. Oak Lawn Lodge, Inc., 132 Ill. App. 3d 1061, 478 N.E.2d 469 (1985). What Whitehouse did in testifying with regard to the OSHA regulations was set out the relevant safety standards, which the jury would have considered in any event. With regard to the hypothetical, the substance of Whitehouse\u2019s opinion would have been argued in closing to the jury by Sobczak\u2019s counsel, even if Whitehouse had not testified. Flaska\u2019s contention that Whitehouse\u2019s testimony was crucial to the judgment is belied both by the brevity of Sobczak\u2019s direct examination and Flaska\u2019s response to it in cross-examination.\nFlaska next argues that the jury was improperly instructed regarding his duty to \u201cretrofit\u201d the used bulldozer with a roll-protection system, both because there is no duty in Illinois to retrofit used equipment and because it was established that he had no legal authority to modify the bulldozer which he did not own. Our review of the record demonstrates, however, that the jury was not instructed regarding any such duty. Rather, Flaska\u2019s legal duty was to provide Sobczak, who was alleged to be under his control, with a safe workplace, a duty that necessarily includes protecting Sobczak from dangerous equipment. Sobczak argued that Flaska failed to provide equipment having a roll-protection system or safety belts, failed to provide a safe ramp and failed to warn Sobczak of the danger of a vehicle roll. Sobczak did not argue at trial that he was entitled to judgment because Sobczak failed to \u201cretrofit\u201d the bulldozer. Thus, product liability cases that deal with the sale of used equipment are immaterial. See, e.g., Peterson v. Lou Bachrodt Chevrolet Co., 61 Ill. 2d 17, 329 N.E.2d 785 (1975); Rahn v. Gerdts, 119 Ill. App. 3d 781, 455 N.E.2d 807 (1983).\nFlaska also argues that he could not have a duty to warn Sobczak about a potential roll of the bulldozer because such a danger is open and obvious. The argument is apparently that the jury should not have been instructed on Flaska\u2019s duty to warn Sobczak. However, the only objection made during the instruction conference regarding the warning issue was that there was no evidence presented that a rollover was likely to occur. The alleged error is therefore waived. Burnham v. Lewis, 217 Ill. App. 3d 752, 577 N.E.2d 922 (1991).\nIn any event, evidence at trial was not that the bulldozer fell off the trailer because of its predictable tendency to respond to the force of gravity but, rather, that a sudden change in the slope of the trailer\u2019s ramp created a place on the trailer bed where the rigid bulldozer necessarily balanced precariously and that it was at this precise place on the trailer that one of the machine\u2019s treads came into contact with mud, which caused the vehicle to slide sideways. Evidence also was presented that the trailer was sitting on a slight incline at the time Sobczak was unloading it and that the ramp was slippery because both the trailer ramp and the bulldozer\u2019s treads were made of metal.\nAll that is necessary for the giving of a jury instruction is that there be some evidence to support it. Yates v. Chicago National League Ball Club, Inc., 230 Ill. App. 3d 472, 487, 595 N.E.2d 570 (1992). Under such facts, the court could have concluded that Flaska owed Sobczak a duty to warn him regarding the safety of the trailer. Moreover, even if an instruction on the duty to warn had been given improperly, we would not reverse the verdict when there is sufficient evidence to support the verdict on Sobczak\u2019s other theories of liability. Cf. Amp-Rite Electric Co. v. Wheaton Sanitary District, 220 Ill. App. 3d 130, 156, 580 N.E.2d 622 (1991).\nFlaska also argues that the jury was improperly instructed on federal OSHA safety standards in that OSHA expressly provides that it is not intended to enlarge a defendant\u2019s common law duties. 29 U.S.C. \u00a7 653(b)(4) (1988). As Sobczak argues, however, the court gave the OSHA instruction, not because OSHA created a novel legal duty but, rather, to establish the standard of care owed by anyone who takes charge of work at an Illinois construction site. The OSHA regulations thus merely served to inform the jury that vehicles such as the one Sobczak was operating are included in the class of vehicles for which rollover accidents are a significant danger and that this danger had been widely recognized many years before the occurrence. There was sufficient evidence to support use of the instruction for this purpose. See Villa v. Crown Cork & Seal Co., 202 Ill. App. 3d 1082, 1087, 560 N.E.2d 969 (1990) (court has discretion to determine which issues are sufficiently raised by the evidence to warrant jury instruction).\nFlaska next argues that irrelevant and prejudicial evidence was improperly introduced against him and that the trial court committed error in failing to strike such evidence. First, he claims that the court improperly allowed Sobczak to introduce evidence of other rollover accidents that Flaska had witnessed more than 20 years before Sobczak\u2019s accident. Second, that a paramedic, Arthur Adams, who arrived at the scene shortly after the accident, was improperly allowed to give his opinion as to how Sobczak\u2019s injuries were incurred, despite the fact that Adams did not witness the accident. In addition, Adams, who testified he had construction experience, was allowed to testify that he had witnessed two rollover accidents involving crawler tractors on prior occasions. Third, that Sobczak was allowed to question both Flaska and Allen Ackre, a former employee of an equipment supply dealer, about the commercial availability of roll guards.\nIt is well settled that evidence is relevant under Illinois law when it has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Lundquist v. Nickels, 238 Ill. App. 3d 410, 427, 605 N.E.2d 1373 (1992). The trial court\u2019s determination with respect to the admissibility of evidence is a matter within its sound discretion and will be disturbed on appeal only where the court has manifestly abused its discretionary powers. Lundquist, 238 Ill. App. 3d at 427.\nHere, the trial court weighed the arguments of the parties and held that the disputed evidence would be admitted. We do not believe the trial court\u2019s decision in this regard was \u201carbitrary, fanciful or unreasonable.\u201d See People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991).\nWith regard to the admission of prior occurrences, the law is that evidence of prior similar occurrences may be admissible for any number of purposes; the determination of whether occurrences are sufficiently similar to the one at issue rests within the sound discretion of the trial court. Yassin v. Certified Grocers of Illinois, Inc., 150 Ill. App. 3d 1052, 1065, 502 N.E.2d 315 (1986). We note that the other incidents need only be substantially similar; they need not be identical. Rucker v. Norfolk & Western Ry. Co., 77 Ill. 2d 434, 441, 396 N.E.2d 534 (1979). At some point, the similarity of circumstances will go only to the weight of the evidence, rather than its admissibility. Yassin, 150 Ill. App. 3d at 1065. Once again, in light of the deferential standard of review, we find no abuse of discretion.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAMPBELL, EJ, and QUINN, J., concur.", "type": "majority", "author": "JUSTICE ZWICK" } ], "attorneys": [ "Bullaro, Carton & Stone, of Chicago (Raymond R. Pesavento, of counsel), for appellant.", "Michael W. Rathsack, of Chicago (Christopher Patrick Ford and Michael W. Rathsack, of counsel), for appellees." ], "corrections": "", "head_matter": "JOSEF SOBCZAK et al., Plaintiffs-Appellees, v. JOSEPH FLASKA, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201497\u20140599\nOpinion filed December 28, 1998.\n\u2014 Rehearing denied February 1, 1999.\nBullaro, Carton & Stone, of Chicago (Raymond R. Pesavento, of counsel), for appellant.\nMichael W. Rathsack, of Chicago (Christopher Patrick Ford and Michael W. Rathsack, of counsel), for appellees." }, "file_name": "0916-01", "first_page_order": 934, "last_page_order": 948 }