{ "id": 3628041, "name": "WILLIAM OLDENSTEDT, Plaintiff-Appellee, v. MARSHALL ERDMAN AND ASSOCIATES, INC., Defendant-Appellant (Brongiel Plumbing, Third-Party Defendant-Appellee)", "name_abbreviation": "Oldenstedt v. Marshall Erdman & Associates, Inc.", "decision_date": "2008-03-03", "docket_number": "No. 1\u201405\u20141700", "first_page": "1", "last_page": "18", "citations": [ { "type": "official", "cite": "381 Ill. App. 3d 1" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "416 N.E.2d 328", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "parenthetical": "\"No liability can exist unless the defendant's alleged negligence is the legal cause of the plaintiff's injury\"" } ], "opinion_index": 0 }, { "cite": "92 Ill. App. 3d 813", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5535640 ], "year": 1981, "pin_cites": [ { "page": "817", "parenthetical": "\"No liability can exist unless the defendant's alleged negligence is the legal cause of the plaintiff's injury\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0813-01" ] }, { "cite": "22 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "pin_cites": [ { "parenthetical": "\" ' \"It cannot be said one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty\" ' \"" } ], "opinion_index": 0 }, { "cite": "301 Ill. App. 244", "category": "reporters:state", "reporter": "Ill. App.", "year": 1939, "pin_cites": [ { "page": "227", "parenthetical": "\" ' \"It cannot be said one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty\" ' \"" } ], "opinion_index": 0 }, { "cite": "235 N.E.2d 266", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "93 Ill. App. 2d 294", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2645139 ], "year": 1968, "pin_cites": [ { "page": "298" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/93/0294-01" ] }, { "cite": "243 N.E.2d 657", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "102 Ill. App. 2d 39", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2533707 ], "weight": 3, "year": 1968, "pin_cites": [ { "page": "53" }, { "page": "48", "parenthetical": "plaintiff's burden to show \"affirmatively and positively\" that claimed negligence was proximate cause of injury" }, { "page": "48", "parenthetical": "negligence involved in the violation of a duty imposed by an ordinance does not impose liability unless it proximately causes the injury" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/102/0039-01" ] }, { "cite": "66 N.E.2d 728", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1946, "opinion_index": 0 }, { "cite": "329 Ill. App. 28", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5653832 ], "year": 1946, "pin_cites": [ { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/ill-app/329/0028-01" ] }, { "cite": "695 N.E.2d 532", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "opinion_index": 0 }, { "cite": "296 Ill. App. 3d 886", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 222618 ], "year": 1998, "pin_cites": [ { "page": "896" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/296/0886-01" ] }, { "cite": "796 N.E.2d 1074", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "343 Ill. App. 3d 25", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719097 ], "weight": 3, "year": 2003, "pin_cites": [ { "page": "29" }, { "page": "29" }, { "page": "29-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/0025-01" ] }, { "cite": "654 N.E.2d 1365", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "166 Ill. 2d 337", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198922 ], "year": 1995, "pin_cites": [ { "page": "351" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0337-01" ] }, { "cite": "854 N.E.2d 635", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "222 Ill. 2d 147", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3602061 ], "year": 2006, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/222/0147-01" ] }, { "cite": "229 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "37 Ill. 2d 494", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2866138 ], "year": 1967, "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/37/0494-01" ] }, { "cite": "832 N.E.2d 205", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "358 Ill. App. 3d 706", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5731419 ], "year": 2005, "pin_cites": [ { "page": "712" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/358/0706-01" ] }, { "cite": "852 N.E.2d 804", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2006, "opinion_index": 0 }, { "cite": "221 Ill. 2d 613", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704169 ], "year": 2006, "pin_cites": [ { "page": "622" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/221/0613-01" ] }, { "cite": "801 N.E.2d 90", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "344 Ill. App. 3d 1026", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3777050 ], "year": 2003, "pin_cites": [ { "page": "1033" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/1026-01" ] }, { "cite": "821 N.E.2d 283", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "opinion_index": 0 }, { "cite": "213 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448524 ], "year": 2004, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0210-01" ] }, { "cite": "475 N.E.2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "105 Ill. 2d 537", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3142403 ], "year": 1984, "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0537-01" ] }, { "cite": "771 N.E.2d 357", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "199 Ill. 2d 483", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58949 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "505" }, { "page": "505" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0483-01" ] }, { "cite": "254 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "parenthetical": "statements made in closing were improper, but did not rise to level of prejudice contemplated in Belfield" } ], "opinion_index": 0 }, { "cite": "44 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2891442 ], "year": 1969, "pin_cites": [ { "page": "137", "parenthetical": "statements made in closing were improper, but did not rise to level of prejudice contemplated in Belfield" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/44/0132-01" ] }, { "cite": "657 N.E.2d 680", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "\"hometown\" doctor theme in opening, examination of witness, and closing argument did not meet stringent standard of plain error to warrant reversal" } ], "opinion_index": 0 }, { "cite": "275 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906770 ], "year": 1995, "pin_cites": [ { "parenthetical": "\"hometown\" doctor theme in opening, examination of witness, and closing argument did not meet stringent standard of plain error to warrant reversal" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0950-01" ] }, { "cite": "634 N.E.2d 1102", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "parenthetical": "\"Although two improper arguments do not a make a right result [citation], a party may not claim error based on invited remarks\"" } ], "opinion_index": 0 }, { "cite": "158 Ill. 2d 543", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 780283 ], "year": 1994, "pin_cites": [ { "parenthetical": "\"Although two improper arguments do not a make a right result [citation], a party may not claim error based on invited remarks\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/158/0543-01" ] }, { "cite": "616 N.E.2d 1321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "246 Ill. App. 3d 579", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5387922 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "590" }, { "page": "590", "parenthetical": "new trial motion claiming plain error is within trial court's discretion, as it is in the best position to assess prejudice" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/246/0579-01" ] }, { "cite": "576 N.E.2d 918", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "217 Ill. App. 3d 94", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5284773 ], "year": 1991, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/217/0094-01" ] }, { "cite": "190 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "pin_cites": [ { "parenthetical": "\"we do not believe that our juries should be regarded as a class of persons easily deceived or misled\"" } ], "opinion_index": 0 }, { "cite": "41 Ill. App. 2d 307", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2453182 ], "year": 1963, "pin_cites": [ { "page": "316", "parenthetical": "\"we do not believe that our juries should be regarded as a class of persons easily deceived or misled\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0307-01" ] }, { "cite": "871 N.E.2d 728", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2007, "opinion_index": 0 }, { "cite": "226 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610581 ], "year": 2007, "pin_cites": [ { "page": "122" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0092-01" ] }, { "cite": "357 N.E.2d 632", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "no abuse of discretion found in trial court granting new trial because trial court is in a better position to determine the prejudicial effect of defense counsel's remarks on the jury" }, { "parenthetical": "trial court in a superior position to gauge prejudicial effect of an improper closing argument" } ], "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2721986 ], "weight": 2, "year": 1976, "pin_cites": [ { "parenthetical": "no abuse of discretion found in trial court granting new trial because trial court is in a better position to determine the prejudicial effect of defense counsel's remarks on the jury" }, { "page": "783", "parenthetical": "trial court in a superior position to gauge prejudicial effect of an improper closing argument" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0779-01" ] }, { "cite": "553 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "135 Ill. 2d 363", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256870 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "375-76" }, { "page": "377" }, { "page": "377" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0363-01" ] }, { "cite": "134 N.E.2d 249", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "8 Ill. 2d 293", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716524 ], "year": 1956, "pin_cites": [ { "page": "313" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0293-01" ] }, { "cite": "529 N.E.2d 525", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "124 Ill. 2d 226", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3217866 ], "year": 1988, "pin_cites": [ { "page": "246" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0226-01" ] }, { "cite": "642 N.E.2d 107", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "162 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477541 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "12" }, { "page": "12" }, { "page": "12-13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/162/0001-01" ] }, { "cite": "190 N.E.2d 476", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1963, "pin_cites": [ { "parenthetical": "finding it improper for counsel to argue to the jury facts in his own knowledge, not testified to by any witness" } ], "opinion_index": 0 }, { "cite": "41 Ill. App. 2d 95", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2452556 ], "year": 1963, "pin_cites": [ { "page": "104", "parenthetical": "finding it improper for counsel to argue to the jury facts in his own knowledge, not testified to by any witness" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/41/0095-01" ] }, { "cite": "00 L 1933", "category": "reporters:state", "reporter": "Lans. Ch.", "opinion_index": 0 }, { "cite": "99 L 4642", "category": "reporters:state", "reporter": "Lans. Ch.", "opinion_index": 0 } ], "analysis": { "cardinality": 1564, "char_count": 41743, "ocr_confidence": 0.837, "pagerank": { "raw": 5.232840265502546e-08, "percentile": 0.32983776274215215 }, "sha256": "414c4fc1dddb15fbe01da2d5c90fe9638a9534646b830997b931ce9d4cc8c47f", "simhash": "1:f2a57cc6fdec7d26", "word_count": 6723 }, "last_updated": "2023-07-14T18:23:38.608554+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM OLDENSTEDT, Plaintiff-Appellee, v. MARSHALL ERDMAN AND ASSOCIATES, INC., Defendant-Appellant (Brongiel Plumbing, Third-Party Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE GARCIA\ndelivered the opinion of the court:\nThe plaintiff, William Oldenstedt, sued the defendant, Marshall Erdman & Associates, Inc. (Erdman), after he injured his back at a construction site. At the time of the injury, Oldenstedt was employed by third-party defendant Brongiel Plumbing (Brongiel), with which Erdman had subcontracted. The trial court granted Brongiel\u2019s motion for a directed verdict and the jury subsequently returned a verdict in Oldenstedt\u2019s favor. On appeal, Erdman contends it is entitled to a new trial because Oldenstedt\u2019s rebuttal closing argument was \u201cslanderous and grossly prejudicial,\u201d the trial court erroneously instructed the jury, and the trial court erroneously refused Erdman\u2019s special interrogatories. Erdman also contends the trial court erred in granting Brongiel\u2019s motion for a direct verdict.\nBACKGROUND\nErdman is a construction company specializing in the designing and building of medical facilities. In 1996, Erdman was hired as the general contractor in a small construction project underway at Little Company of Mary Affiliated Services, Inc. (Little Company), in Evergreen Park. The design/build contract drafted by Erdman and entered into by Erdman and Little Company (the Erdman-Little Company contract) contained the following provisions.\n\u2018 ARTICLE 20\nSubcontractors\n*** [Erdman] shall be responsible to [Little Company] for all acts and omissions of subcontractors of all tiers and their employees. [Erdman] shall also be responsible for the construction of [Erdman\u2019s] work and the work of all subcontractors including, but not limited to, all suppliers and materialmen.\nARTICLE 21\nCovenants of Designer/Builder\n21.1 [Erdman] shall supervise and direct the Work, using his best skill and attention. [Erdman] shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract Documents. ***\n* * *\n21.7 [Erdman] shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Project.\n21.9 [Erdman] shall erect and maintain, as required by existing conditions and performance of the Contract Documents, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating, safety regulations and notifying owners and users of adjacent utilities.\u201d\nErdman subcontracted with Brongiel to provide plumbing services on the Little Company project. The subcontract between Erdman and Brongiel provided as follows.\n\u201c1. [Brongiel] agrees to furnish and provide all work, labor, materials, supervision and whatsoever else may be required to fully do, perform and complete, and will complete without any exceptions (unless specifically noted in this Subcontract), in a neat, first-class, good and workmanlike manner, the following described work:\nFurnish and install a complete plumbing system ***.\n$ ^ $\n18. Safety: [Brongiel] agrees to observe and comply with all provisions and requirements of the Occupational Safety and Health Act of 1970 in performance of the work under this Subcontract, to assume all responsibilities of [Erdman] with respect to the work under this Subcontract and to indemnify and hold harmless [Erdman] from all penalties, damages or other loss resulting from failure of [Brongiel] in performance of this Subcontract to comply with the Occupational Safety and Health Act of 1970 and the responsibilities with respect to such performance.\u201d\nWilliam Oldenstedt was a plumbing foreman for Brongiel at the Little Company project. On July 22, 1996, Oldenstedt injured his back unloading a toilet from a rolling Dumpster. Oldenstedt, a smoker who was overweight and suffered from other health conditions, was eventually referred to a neurosurgeon.\nOldenstedt presented with preexisting degenerative disc disease and was diagnosed with L4-L5 disc herniation with intractable right L5 radiculopathy. On March 17, 1997, Oldenstedt underwent surgery at the L4-L5 site. The surgery, however, only temporarily relieved his pain.\nOn June 24, 1999, Oldenstedt and his wife filed case number 99 L 4642, a 12-count complaint against Erdman and Little Company alleging negligence and loss of consortium. That suit was dismissed, and, on February 17, 2000, Oldenstedt and his wife filed case number 00 L 1933 against Erdman and Little Company. Mrs. Oldenstedt later dropped her loss of consortium claims, and Oldenstedt and Little Company settled. Erdman filed a third-party complaint for contribution against Brongiel.\nOn November 22, 2004, Oldenstedt filed a two-count second-amended complaint. He subsequently filed a one-count third-amended complaint alleging construction negligence against Erdman.\nA jury trial commenced on December 1, 2004. William Oldenstedt testified that shortly after he arrived at the Little Company project on July 22, 1996, a Brongiel truck arrived with plumbing fixtures, including sinks and toilets. The driver of the truck helped Oldenstedt unload the fixtures onto the parking lot.\nEdward \u201cButch\u201d Colbert, Erdman\u2019s superintendent at the project, told Oldenstedt to move the fixtures to a second-floor storage room. Oldenstedt asked the Brongiel driver whether he had a platform or device Oldenstedt could use to transport the fixtures. The driver did not. Oldenstedt then asked Colbert whether he had an appropriate device. Colbert told Oldenstedt to use one of the rolling Dumpsters at the site that belonged to Little Company. Unbeknownst to Oldenstedt, there were at least two dollies at the site.\nOldenstedt did as Colbert instructed. While he was unloading a 50-pound handicap-accessible toilet from the Dumpster, he felt his feet slipping. Oldenstedt fell headfirst into the Dumpster and felt pain in his back and leg. When he was able to pull himself out of the Dumpster, Oldenstedt noticed a substance on the floor that looked like sand or grit.\nIt was the job of Steven Bunge, an Erdman project manager, to ensure quality and safety at the jobsite. Bunge was questioned about the Erdman-Little Company contract, including those portions stated above. Erdman also had its own safety rules in effect in 1996, and each subcontractor was required to have in place its own safety policies and procedures. Bunge also testified that in his education, training, and experience, each subcontractor was primarily responsible for the safety of its employees. Erdman, however, had a responsibility to keep the jobsite clean and free of debris.\nAccording to Bunge, Butch Colbert, as superintendent, was responsible for supervising, directing, and otherwise controlling the subcontractors\u2019 work. Colbert did not dictate the \u201cmeans or methods\u201d of that work, but had the right to stop the work if an unsafe practice was occurring. Colbert was also required to conduct daily safety inspections at the site and document the inspection by filling out a form.\nJohn Hetland, an Erdman senior project manager, also testified. According to Hetland, a subcontractor foreman was responsible for ensuring his or her own safety, as well as the safety of his or her crew, and was responsible for providing safe tools. Hetland was familiar with the Erdman safety rules and was aware that Erdman, through its superintendent, was to conduct regular safety meetings with subcontractors on its jobsites. Hetland additionally testified it was Colbert\u2019s duty as project superintendent to keep a record of all safety meetings and to document all safety inspections. Hetland, however, did not know whether any such meetings or inspections took place at the Little Company project and did not know where any such documentation was or why it was not tendered to Oldenstedt\u2019s attorney. According to Hetland, it would be contrary to Erdman\u2019s policies to discard documents that might be relevant to a lawsuit.\nOldenstedt\u2019s attorney also questioned Ronald Wanke, Erdman\u2019s safety director, about the missing safety documentation. Wanke testified he did not know when any forms related to the Little Company project were disposed of, including whether they were disposed of before or after Oldenstedt filed suit. Wanke also explained Erdman adhered to a three-year document retention policy. Although Wanke did not know when Oldenstedt\u2019s suit was filed, he did not dispute the representation made by Erdman\u2019s attorney that suit was filed in 2000.\nButch Colbert testified that two dollies were on site at the Little Company project and that it was common practice in the construction industry for the employee of a subcontractor to use tools belonging to the general contractor. Colbert also testified he had no recollection of telling a Brongiel employee to use a Dumpster to move a toilet.\nPeter Cucuz, a liability expert retained by Oldenstedt, testified that in his opinion, to a reasonable degree of certainty within the field of construction, the Erdman-Little Company contract indicated Erdman was in control of the project. Timothy Galarnyk, a liability expert retained by the defendant, opined it was Oldenstedt\u2019s responsibility as Brongiel\u2019s foreman to provide the devices to transport the plumbing fixtures and that Oldenstedt and Oldenstedt alone was responsible for his injuries.\nRegarding Brongiel\u2019s liability on Erdman\u2019s counterclaim, Ronald Wanke testified he did not see any documentation indicating Brongiel did anything wrong. Peter Cucuz additionally opined that, based on all the documents he reviewed in the case, Brongiel \u201cdid absolutely nothing wrong.\u201d Timothy Galarnyk, like Cucuz, testified Brongiel \u201cdid absolutely nothing wrong.\u201d\nAfter the completion of the evidence, the trial court addressed Brongiel\u2019s motion for a directed verdict on Erdman\u2019s counterclaim. The court asked any party to \u201cpoint to some evidence, because [it did not] see any [supporting the counterclaim].\u201d While counsel for Erdman objected to the granting of a directed verdict for Brongiel, she did not argue that sufficient evidence had been presented. Rather, she argued that, \u201cif there\u2019s no negligence on behalf of Brongiel Plumbing ***, we also would have no negligence in this matter.\u201d The trial court granted the motion.\nThe jury instruction conference next took place, and the parties gave their closing arguments. After deliberating, the jury returned a verdict in favor of Oldenstedt in the amount of $1,202,093.60, but reduced the award by 35% to $781,360.84 due to Oldenstedt\u2019s negligence. The trial court entered judgment on the verdict, but subsequently reduced the award by $10,000, the amount of the settlement between Oldenstedt and Little Company. Erdman\u2019s motion for a new trial was denied, and this timely appeal followed.\nANALYSIS\nI. Rebuttal Closing Argument\nErdman contends Oldenstedt\u2019s rebuttal closing argument amounted to a \u201cdiatribe\u201d that denied it a fair trial.\nIn his opening closing argument, counsel for Oldenstedt argued that Oldenstedt was a hard-working man who was asking for a \u201cfair shake.\u201d Counsel argued the evidence demonstrated Erdman had contractual control of the work and that Butch Colbert instructed Oldenstedt to move the plumbing fixtures with the Dumpster. Counsel also argued that Oldenstedt was credible and Erdman\u2019s evidence was not.\nIn her closing argument, counsel for Erdman went beyond merely arguing that Oldenstedt was not credible; she repeatedly urged that Oldenstedt \u201clied,\u201d including about how the accident occurred. Counsel also argued that Oldenstedt was more than 50% at fault. Counsel also sought to explain Erdman\u2019s lack of safety documentation for the date of claimed accident:\n\u201cNow, why don\u2019t they have the document? Because this happened in 1996. And, first of all, they were never notified of the incident. Second of all, there was no lawsuit filed until 1999, which was more than three years after they would have been notified; and it was their policy to get rid of documents.\u201d\nIn rebuttal, Oldenstedt\u2019s attorney turned the claim of \u201cliar\u201d on Erdman.\n\u201cWho\u2019s lying? Let me tell you who\u2019s lying. Remember she just told you that this lawsuit was filed more than three years after this happened? That\u2019s a lie. Here it is: June 24th, 1999, less than three years. And why does that matter? Because they were supposed to keep their records three years.\nSo you know what happened? They got sued. Picture this: Marshall Erdman & Associates, Incorporated. Picture the boardroom at this corporation, the CEO, the CFO, the CPO, the CEA, whatever the heck they are. And somebody says, \u2018What\u2019s on the agenda?\u2019\n\u2018I\u2019ve got something on the agenda.\n\u2018What is it?\n\u2018We got sued by this [man] in Chicago.\n\u2018What happened?\n\u2018Well, back in \u201996, this guy got hurt and we were hoping it would go away and it didn\u2019t. He sued us.\n\u2018Well, what do we do? What do we know about it?\n\u2018Well, we\u2019ve got the incident report that Butch filled out at the time. But you know what we don\u2019t have? We don\u2019t have any of the forms, the safety forms we\u2019re supposed to have. What are we going to do?\n\u2018Well, we\u2019ve got two choices. One, we can step up and do the right thing. Or two, we can try to crush this guy.\u2019\nSo what does the corporation decide to do? Crush him. Step one, throw out all the documents. Throw them out because then they wouldn\u2019t be able to show \u2014 And then we\u2019ll attack him and say, We don\u2019t have any record it happened.\nNumber two, let\u2019s hire \u2014 you know, the law firm this guy hired is just this one guy, Wadington. Let\u2019s hire a firm in Chicago with about nine names and destroy this guy because that\u2019s what corporations try to do. And that\u2019s what happened here. Okay? Let\u2019s hire a 10,000-dollar expert, God know[s] how many other thousand-dollar experts. And you know what they forgot? Here\u2019s what they forgot: They underestimated the intelligence of a Cook County jury. Okay?\nI\u2019m not attacking Ms. Goggin-Ward [Erdman\u2019s counsel] personally. She\u2019s just the messenger. But the message is insidious: A corporation trying to crush that guy, and it only happens if you let them. Okay. If they didn\u2019t know it happened, do you think they would have spent 10,000 bucks on Kanter and God knows how many thousand bucks on Zelby because if it didn\u2019t happen, you never get to damages. Make sense?\nijc ij{ sfc\nSomebody is lying here. Here\u2019s the document that shows who\u2019s lying. They got sued within the time they\u2019re supposed to have the documents: June 24th, 1999. Not what she told you but less than three years. And so what do corporations do? They attack him. They try to crush him. They try to make him a liar. It didn\u2019t work. He didn\u2019t lie once.\nsj< ijt\nWho\u2019s lying? You want to call my guy a liar, I\u2019m coming after you. You, Corporation, in Cook County want to call a working man a liar, I\u2019m coming after them because Chicago is a working man\u2019s town. And corporations can\u2019t be allowed to get by with this. And only, only if your verdict is fully just will corporations like this learn that you can\u2019t do that in Chicago. You can\u2019t do that to guys like this. They live their whole life, they ask nothing of the system. And the one time they do, the corporate boardroom decides to smash them.\nPlease hear the truth and don\u2019t let them do that. Here\u2019s the truth. Here\u2019s the lie (indicating).\nThank you.\u201d\nBecause Erdman\u2019s claim of error regarding the rebuttal argument is based on the absence of supporting record evidence and the prejudicial nature of the argument itself, we address its claim of error in two parts.\nA. No Evidentiary Support\nFirst, Erdman argues that Oldenstedt\u2019s counsel improperly argued in rebuttal that the lawsuit had been filed on June 24, 1999, thus placing Erdman on notice within its three-year document retention period for safety forms based on the date of the claimed accident of July 22, 1996. In its main brief, Erdman states, \u201cHowever, it is the date of service *** that establishes Erdman\u2019s knowledge of this lawsuit, and there is no record evidence regarding *** when *** Erdman was served.\u201d (Emphasis in original.)\nTo preserve its claim of error that there is no record evidence to establish the date Erdman became aware of the lawsuit to trigger the retention of its safety documents, trial counsel for Erdman should have objected. See Bulleri v. Chicago Transit Authority, 41 Ill. App. 2d 95, 104, 190 N.E.2d 476 (1963) (finding it improper for counsel to argue to the jury facts in his own knowledge, not testified to by any witness). Because no objection was made, the claim is waived. Simmons v. University of Chicago Hospitals & Clinics, 162 Ill. 2d 1, 12, 642 N.E.2d 107 (1994).\nHowever, our resolution of this claim of error is not based solely on waiver. We note that it was Erdman\u2019s trial counsel that first mentioned the date of 1999 during its closing argument: \u201c[TJhere was no lawsuit filed until 1999, which was more than three years after they would have been notified; and it was [Erdman\u2019s] policy to get rid of documents.\u201d To rebut Erdman\u2019s claim that the filing of the lawsuit was more than three years after Oldenstedt\u2019s injury, Oldenstedt\u2019s counsel argued that the accident happened on July 22, 1996, and that a complaint was filed against Erdman on June 24, 1999. (The only one in the record that was filed in 1999.)\nEven in the absence of waiver, we would find no reversible error. To the extent Erdman argued that the filing of the 1999 lawsuit was more than three years after the accident, we reject any claim of error based on an Oldenstedt\u2019s argument in rebuttal that directly challenged the argument advanced by Erdman. \u201cOur decisions have repeatedly held that a defense attorney cannot provoke a reply to his own improper argument and then claim error.\u201d Tzystuck v. Chicago Transit Authority, 124 Ill. 2d 226, 246, 529 N.E.2d 525 (1988).\nB. Prejudicial Nature\nThe second part of Erdman\u2019s claim of error is based on the prejudicial nature of the rebuttal argument. We find this more substantial.\nErdman complains that Oldenstedt\u2019s counsel \u201cexplicitly accus[ed] Erdman of deliberately discarding the safety documentation in order to \u2018crush\u2019 and \u2018smash\u2019 plaintiff. Plaintiff did this by describing an illusory \u2018meeting\u2019 of Erdman\u2019s directors where they chose to throw out the safety documentation and attack plaintiff for even filing suit.\u201d Erdman further contends that Oldenstedt\u2019s argument, that a Cook County jury would not be so easily swayed by the destruction of documents that would have supported Oldenstedt\u2019s claim that he was injured on the job, amounted to an effort \u201cto whip the jury into a frenzy, to incite the jury into a blind rage, all so that the jury, in an act of vengeance, would convict Erdman.\u201d According to Erdman, the incitement to a frenzy also was the product of Oldenstedt\u2019s argument that Erdman \u201cunderestimated the intelligence of a Cook County jury,\u201d that \u201cChicago is a working man\u2019s town,\u201d that \u201ccorporations can\u2019t be allowed to get by with this. And only, only if your verdict is fully just will corporations like this learn that you can\u2019t do that in Chicago,\u201d and \u201c[y]ou can\u2019t do that to guys like this.\u201d\nBecause Erdman\u2019s trial counsel did not object, Erdman asserts the plain error exception to the waiver rule.\nOldenstedt, in addition to waiver, contends his rebuttal argument \u201cmerely responded to Erdman\u2019s counsel\u2019s slanderous attack, making fair comment upon the actual evidence and testimony to make it clear that the only party that was not being forthcoming with the jury was Erdman.\u201d Oldenstedt contends in his brief that on \u201cno less than nine separate occasions\u201d Erdman either directly or indirectly called Oldenstedt a liar. Some examples include:\n\u201c[T]he plaintiff, William 01denst[e]dt, has not told the truth about what he did or did not do on July 22 of 1996 at Little Company of Mary Hospital. Nor has he told the truth about any back condition or conditions he may or may not have sustained on, before, during, or after that date.\u201d\n\u201c[T]he plaintiff, William 01denst[e]dt, is not to be believed.\u201d\n\u201c[W]e know the plaintiff lied about how he testified this accident happened. We just know that.\u201d\n\u201c[T]he accident plaintiff describes was physically and scientifically impossible to have happened that way.\u201d\n\u201c[P]laintiff lied. Pure and simple, he faked it.\u201d\nA counsel\u2019s failure to object to claimed prejudicial comments during closing argument will generally waive the issue for review. Simmons, 162 Ill. 2d at 12. However, in some cases, a reviewing court may find plain error sufficient to overcome the waiver bar. In the context of closing arguments, our supreme court has explained:\n\u201cIf prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon.\u201d Belfield v. Coop, 8 Ill. 2d 293, 313, 134 N.E.2d 249 (1956).\nThe supreme court has instructed reviewing courts, when applying the Belfield test, to \u201cstrictly apply the waiver doctrine unless the prejudicial error involves flagrant misconduct or behavior so inflammatory that the jury verdict is a product of biased passion, rather than an impartial consideration of the evidence.\u201d Gillespie v. Chrysler Motors Corp., 135 Ill. 2d 363, 375-76, 553 N.E.2d 291 (1990).\nOn the record before us, we need not decide whether Oldenstedt\u2019s rebuttal argument was within the proper bounds of a response to the closing argument made by Erdman. It is clear on the record that this was a contentious trial, with each party challenging the veracity of the other. Such matters, where neither party is blameless for the escalating nature of the attacks, are best left to the trial judge to address. See Torrez v. Raag, 43 Ill. App. 3d 779, 357 N.E.2d 632 (1976) (no abuse of discretion found in trial court granting new trial because trial court is in a better position to determine the prejudicial effect of defense counsel\u2019s remarks on the jury).\nOf course, the trial judge, except in the most rare of cases, must be presented with an objection in order to intercede. As Erdman did not object, we need only decide whether Oldenstedt\u2019s rebuttal argument involved such flagrant misconduct or inflammatory behavior that the waiver bar is overcome. In order to so find, we must conclude that the complained-of portions of Oldenstedt\u2019s rebuttal argument resulted in such prejudice to Erdman that it was denied \u201ca fair trial and substantially impaired the integrity of the judicial process itself.\u201d (Emphasis in original.) Gillespie, 135 Ill. 2d at 377.\nThus, to invoke plain error, it is not enough for Erdman to claim that Oldenstedt\u2019s story of an Erdman board meeting where Erdman executives opted to \u201ccrush\u201d Oldenstedt by \u201cthrow[ing] out all the documents\u201d was not based on the evidence at trial, or that the rebuttal argument \u201ccreated evidence out of whole cloth.\u201d Rather, we must determine whether the rebuttal argument undermined the judicial process itself. We must examine the rebuttal argument in context, keeping in mind the nature of the argument put forth by Erdman. See People v. Wheeler, 226 Ill. 2d 92, 122, 871 N.E.2d 728 (2007).\nThe record suggests that Oldenstedt\u2019s reference to a mock board meeting at Erdman was made in response to Erdman\u2019s own contentions that Oldenstedt was a liar and Erdman\u2019s representation that it had no knowledge of the accident until after the safety documents were disposed of. While Erdman maintains that the jury might have been misled by the rebuttal argument into believing that such a board meeting actually took place, we do not agree. As Erdman rightly contends, the record is barren of any evidence that such a corporate meeting took place; the absence of any such evidence persuades us that the jury was not so easily swayed to believe that Oldenstedt\u2019s rebuttal argument was meant to suggest that such a meeting actually occurred. See Pomrenke v. Betzelberger, 41 Ill. App. 2d 307, 316, 190 N.E.2d 522 (1963) (\u201cwe do not believe that our juries should be regarded as a class of persons easily deceived or misled\u201d).\nIn addition, Oldenstedt\u2019s argument regarding the mock meeting was prefaced with \u201cPicture this,\u201d making clear that what followed was a response to Erdman\u2019s contention that no accident took place, that Oldenstedt\u2019s claim of injury was false, that he lied. It was Oldenstedt\u2019s contention that the safety records, no longer in existence, would have supported his claim. It is apparent that Oldenstedt\u2019s argument regarding the mock Erdman meeting where the destruction of the safety records was discussed was the flip side of Erdman\u2019s argument that Oldenstedt lied about the accident itself. See Lewis v. Cotton Belt Route\u2014St. Louis Southwestern Ry. Co., 217 Ill. App. 3d 94, 122, 576 N.E.2d 918 (1991) (argument \u201cthat the jury should \u2018stand up and be counted\u2019 and \u2018not to let the [defendant and its expert] get away with things that have been happening\u2019 [was found] to be fair response on rebuttal to defendant\u2019s argument in support of its defense of physical impossibility and of plaintiffs credibility with regard to his alleged injury. Therefore, these comments were also based on the evidence\nWe are aware of no authority that compels Oldenstedt, before responding to Erdman\u2019s claim that Oldenstedt was a liar, to limit himself to the record of \u201csupporting evidence [of such] a \u2018meeting\u2019 of Erdman\u2019s board of directors in which plaintiffs lawsuit was discussed\u201d (emphasis omitted) before he is permitted to respond in kind. While two improper arguments may not make a right result, we cannot say that Oldenstedt\u2019s argument would have been made had Erdman not challenged Oldenstedt\u2019s testimony in the manner in which it did. See Moore v. Centreville Township Hospital, 246 Ill. App. 3d 579, 590, 616 N.E.2d 1321 (1993), rev\u2019d on other grounds, 158 Ill. 2d 543, 634 N.E.2d 1102 (1994) (\u201cAlthough two improper arguments do not a make a right result [citation], a party may not claim error based on invited remarks\u201d).\nWe do not suggest, however, that had Oldenstedt\u2019s rebuttal argument been challenged by a timely objection, such an objection should have been overruled. See, e.g., Simmons, 162 Ill. 2d at 12-13. The trial judge was in a better position to determine that question. See Torrez v. Raag, 43 Ill. App. 3d 779, 783, 357 N.E.2d 632 (1976) (trial court in a superior position to gauge prejudicial effect of an improper closing argument); Moore, 246 Ill. App. 3d at 590 (new trial motion claiming plain error is within trial court\u2019s discretion, as it is in the best position to assess prejudice).\nWe only decide that, on the record before us, Erdman\u2019s claim of error based on Oldenstedt\u2019s rebuttal argument does not rise to plain error. See Holder v. Caselton, 275 Ill. App. 3d 950, 657 N.E.2d 680 (1995) (\u201chometown\u201d doctor theme in opening, examination of witness, and closing argument did not meet stringent standard of plain error to warrant reversal); Bruske v. Arnold, 44 Ill. 2d 132, 137, 254 N.E.2d 453 (1969) (statements made in closing were improper, but did not rise to level of prejudice contemplated in Belfield). As our supreme court made clear in Gillespie, the cases in which it applied the Belfield standard and granted a new trial \u201cinvolved blatant mischaracterizations of fact, character assassination or base appeals to emotion and prejudice,\u201d resulting in a deterioration of the judicial process. Gillespie, 135 Ill. 2d at 377. This is not such a case.\nII. Jury Instructions/Special Interrogatories\nErdman next contends the trial court improperly instructed the jury and improperly refused two special interrogatories.\nA. Jury Instructions\nWhether to give or deny a particular jury instruction is within the discretion of the trial court. Dillon v. Evanston Hospital, 199 Ill. 2d 483, 505, 771 N.E.2d 357 (2002). We review the trial court\u2019s exercise of discretion to determine \u201cwhether, taken as a whole, the instructions are sufficiently clear so as not to mislead and whether they fairly and correctly state the law.\u201d Dillon, 199 Ill. 2d at 505.\nAt the jury instruction conference, the parties disputed the applicability of the so-called \u201cconstruction negligence instructions\u201d (Illinois Pattern Jury Instructions, Civil, Nos. 55.01, 55.02, 55.03 (2006) (hereinafter IPI Civil (2006)). Oldenstedt\u2019s attorney advocated their use, while Erdman\u2019s counsel argued the general premises liability instruction (IPI Civil (2006) No. 120.09) was applicable. Erdman\u2019s attorney eventually informed the court that she was objecting \u201cto any of the 55 instructions being used,\u201d but because the trial court had ruled against her, the parties had \u201creached [an] agreement *** to [the] language,\u201d which slightly modified the IPI language.\nAccordingly, the court instructed the jury as follows:\n\u201cA contractor who entrusts work to a subcontractor can be liable for injuries resulting from the work if the contractor retained control over the methods and/or means of the work and the injuries were proximately caused by the contractor\u2019s failure to exercise that control with ordinary care to ensure workers\u2019 safety.\u201d\nSee IPI Civil (2006) No. 55.01.\n\u201cA party who has retained control over the methods and/or means of the work has a duty to exercise that control with ordinary care to ensure workers\u2019 safety.\u201d\nSee IPI Civil (2006) No. 55.02.\n\u201cPlaintiff William Oldenstedt seeks to recover damages from defendant Marshall Erdman & Associates. In order to recover damages, the plaintiff has the burden of proving (1), the defendant retained control over the methods and/or means of the work; (2), the defendant acted or failed to act in one or more of the following ways: [(A)] Failed to provide Bill 01denst[e]dt with a two-wheeled cart/dolly to move the plumbing fixtures. (B), provided Bill Olden-st[e]dt with a [D]umpster to move the plumbing fixtures. (C), failed to inspect the storage room before directing Bill 01denst[e]dt to place the fixtures there. (D), failed to inform Bill 01denst[e]dt [that] there were two-wheeled cart/dollies on the job site. (E), failed to remove the waste or debris from the storage room floor. (F), failed to provide the proper lighting in the storage room. (G), failed to provide an Erdman carpenter or laborer to assist Bill Oldenst[e]dt in moving the fixtures and, in so acting or failing to act, was negligent in the manner which it exercised or failed to exercise its control to ensure workers\u2019 safety. (3), plaintiff Bill 01denst[e]dt was injured. (4), the defendant\u2019s negligence was a proximate cause of plaintiffs injuries.\u201d\nSee IPI Civil (2006) No. 55.03.\nErdman argues the language of the Erdman-Little Company contract was insufficient as a matter of law to support a finding that Erdman retained control over the method and means of the work of the project. Erdman argues the jury should have been instructed about the contract\u2019s insufficiency.\nThis contention fails. First, Erdman, by failing to tender alternative instructions, has waived this issue for review. Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 549, 475 N.E.2d 817 (1984).\nSecond, any error that may have occurred was invited by Erdman. After the trial court determined the IPI Civil 55 series (IPI Civil (2006) No. 55.00 et seq.) were applicable in this case, Erdman\u2019s attorney informed the court she \u201creached agreement\u201d with Oldenstedt\u2019s attorney regarding the language to be used. Because Erdman\u2019s attorney acquiesced to the language of the instructions, Erdman cannot complain of it on appeal. \u201cSimply stated,\u201d the doctrine of invited error prohibits a party from complaining of an error on appeal \u201cwhich that party induced the court to make or to which that party consented.\u201d In re Detention of Swope, 213 Ill. 2d 210, 217, 821 N.E.2d 283 (2004).\nFinally, it bears noting that one of the complained-of instructions, IPI Civil (2006) No. 55.03, was submitted to the jury in a manner that undoubtably favored Erdman\u2019s defense. The instruction given omitted the word \u201cor\u201d between the allegations contained in subparagraphs (A) through (G). Thus, the jury was instructed that it was required to find that Oldenstedt met his burden of proof as to all of the allegations contained in those subparagraphs, rather than to only one of them.\nIn sum, we find no reversible error occurred where trial counsel not only failed to proffer alternative instructions at trial, but where a given instruction, presumably in accordance with the agreement reached by counsel, substantially favored the defense.\nB. Special Interrogatories\nErdman next contends the trial court erred in rejecting two of its special interrogatories regarding Erdman\u2019s retention of control. The interrogatories, initially offered, stated:\n\u201c[1.] Do you find that Marshall Erdman & Associates retained control over the means, methods, and safety of Brongiel Plumbing\u2019s work?\n[2.] Do you find that William Oldenstedt\u2019s injuries were proximately caused by Marshall Erdman & Associates\u2019 failure to exercise control over the means, methods[,] and safety of Brongiel Plumbing\u2019s work with ordinary care?\u201d\nThe trial court refused the interrogatories because it found the wording of the interrogatories created confusion because the interrogatories used the word \u201csafety\u201d while the IPI Civil 55 series instructions to be given omitted that word and where the interrogatories referred to Brongiel rather than Oldenstedt. The following morning, Erdman\u2019s attorney again submitted special interrogatories. Oldenstedt\u2019s attorney objected to the interrogatories again because of their wording. Counsel for Erdman stated, \u201cI understand the concern from the plaintiff\u2019s counsel. I think this could, in fact, be reworded, however.\u201d The court explained:\n\u201cYou know, I need a case on this. I warned you about special interrogatories. *** And, you know, if you\u2019re going to ask to reamend, I don\u2019t know how many times I can keep reamending. You just reamended last night. You gave them to me late. Go ahead and make your record. I mean, there\u2019s some point where I\u2019ve got to say, \u2018You\u2019ve had a couple bites out of the apple; you\u2019re done. You\u2019re late.\u2019 But go ahead. I may let you do it, okay?\u201d\nThe revised special interrogatories were submitted and were again rejected by the court.\nAs Erdman points out, \u201ca trial court has no discretion to reject a special interrogatory that is proper in form.\u201d Thomas v. Johnson Controls, Inc., 344 Ill. App. 3d 1026, 1033, 801 N.E.2d 90 (2003), citing 735 ILCS 5/2 \u2014 1108 (West 2002). The trial court does, however, retain a traditional right of discretionary control over its own docket. See, e.g., People ex rel. Devine v. Sharkey, 221 Ill. 2d 613, 622, 852 N.E.2d 804 (2006). Despite being given numerous opportunities to do so, counsel admittedly failed, on numerous occasions, to present interrogatories that were, according to the trial court, in proper form. Furthermore, absent a showing on the record before us that the interrogatories were in proper form, we can find no reversible error occurred.\nIII. Directed Verdict for Brongiel\nErdman\u2019s final contention is that the trial court erred by directing a verdict in Brongiel\u2019s favor on its counterclaim.\nA directed verdict should be granted only where all of the evidence, when viewed in the light most favorable to the nonmoving party, so overwhelmingly favors the moving party that no contrary verdict can stand. Mulloy v. American Eagle Airlines, Inc., 358 Ill. App. 3d 706, 712, 832 N.E.2d 205 (2005), citing Pedrick v. Peoria & Eastern R.R. Co., 37 Ill. 2d 494, 510, 229 N.E.2d 504 (1967). A directed verdict should not be granted where \u201c \u2018reasonable minds might differ as to inferences or conclusions to be drawn from the facts presented.\u2019 \u201d York v. Rush-Presbyterian-St. Luke\u2019s Medical Center, 222 Ill. 2d 147, 178, 854 N.E.2d 635 (2006), quoting Pasquale v. Speed Products Engineering, 166 Ill. 2d 337, 351, 654 N.E.2d 1365 (1995).\nOur standard of review is de novo. Bermudez v. Martinez Trucking, 343 Ill. App. 3d 25, 29, 796 N.E.2d 1074 (2003).\nIn support of its counterclaim, Erdman points to Oldenstedt\u2019s testimony indicating the Brongiel truck driver delivered the plumbing fixtures, but did not supply any kind of device to transport them. Erdman contends this testimony combined with Brongiel\u2019s contractual duty to furnish and provide all work, labor, materials, and supervision \u201cconstitutes sufficient evidence of Brongiel\u2019s negligence to have survived a motion for a directed verdict.\u201d Erdman, however, did not raise this argument at trial when the court specifically asked Erdman\u2019s attorney to \u201cpoint to some evidence\u201d to support its contribution claim.\nMore to the point, while this argument addresses duty and breach, to avoid a directed verdict, the element of proximate cause must also be established in a prima facie case. Bermudez, 343 Ill. App. 3d at 29. \u201cWhile proximate cause is generally a question of fact, it becomes a question of law when the facts alleged indicate that a party would never be entitled to recover. [Citations.] Accordingly, if the plaintiff fails to establish the element of proximate cause, he has not sustained his burden of making a prima facie case and a directed verdict is proper.\u201d Bermudez, 343 Ill. App. 3d at 29-30.\nWhile Erdman does not specifically address the issue of proximate cause in its brief, Erdman\u2019s claim of \u201csufficient evidence\u201d is founded on Oldenstedt\u2019s testimony that Brongiel did not provide a moving device when it dropped off the plumbing fixtures. That testimony is, at best, circumstantial evidence from which negligence may be inferred. \u201c[Circumstantial evidence is sufficient to establish proximate cause *** as long as the inference in question may reasonably be drawn from the evidence.\u201d Nowak v. Coghill, 296 Ill. App. 3d 886, 896, 695 N.E.2d 532 (1998).\nErdman\u2019s contention, that the failure to provide a \u201cdolly for [Oldenstedt] to use to move the toilets from the parking lot into the building\u201d supports an inference of negligence that the jury may draw to hold Brongiel liable on the counterclaim, fails to consider that before a trier of fact may be allowed to draw an inference of negligence based upon circumstantial evidence, \u201cthe circumstances [must be] of a nature and so related to each other that it is the only conclusion that can be drawn therefrom, and mere conjecture, guess, or suspicion is insufficient.\u201d Coulson v. Discerns, 329 Ill. App. 28, 32, 66 N.E.2d 728 (1946).\nWe do not find an inference of negligence to be the only conclusion that can be drawn from Oldenstedt\u2019s testimony regarding Brongiel\u2019s failure to leave a dolly to allow the jury to render a verdict on Erdman\u2019s counterclaim. Erdman does not persuade us that it was more probable that Brongiel\u2019s failure to leave a dolly was a proximate cause of Oldenstedt\u2019s injuries than that it was not a proximate cause. See McInturff v. Chicago Title & Trust Co., 102 Ill. App. 2d 39, 53, 243 N.E.2d 657 (1968), quoting Vance v. Picken, 93 Ill. App. 2d 294, 298, 235 N.E.2d 266 (1968), quoting Celner v. Prather, 301 Ill. App. 244, 227, 22 N.E.2d 347 (1939) (\u201c \u2018 \u201cIt cannot be said one fact can be inferred, when the existence of another inconsistent fact can be drawn with equal certainty\u201d \u2019 \u201d). We do not agree that an inference of negligence may reasonably be drawn from Oldenstedt\u2019s testimony, even in the face of Brongiel\u2019s contractual duty. We do not agree that Oldenstedt\u2019s testimony is the sort of affirmative and positive evidence that would justify a jury to conclude that Brongiel was negligent in that regard. See McInturff, 102 Ill. App. 2d at 48 (plaintiff\u2019s burden to show \u201caffirmatively and positively\u201d that claimed negligence was proximate cause of injury).\nIn fact, the evidence established that a dolly was present at the shipping area when the plumbing fixtures were delivered. Uncontradicted testimony, however, was presented that Erdman\u2019s project superintendent, Colbert, directed Oldenstedt to use the Dumpster to transport the fixtures. In the face of this evidence, no reasonable certainty exists that Brongiel\u2019s failure to provide a dolly was a legal cause of Oldenstedt\u2019s injury. See Kimbrough v. Jewel Cos., 92 Ill. App. 3d 813, 817, 416 N.E.2d 328 (1981) (\u201cNo liability can exist unless the defendant\u2019s alleged negligence is the legal cause of the plaintiff\u2019s injury\u201d); McInturff, 102 Ill. App. 2d at 48 (negligence involved in the violation of a duty imposed by an ordinance does not impose liability unless it proximately causes the injury). In fact, the only affirmative and positive evidence on the issue presented by the counterclaim came from Ronald Wanke, Peter Cucuz, and Timothy Galarnyk and that evidence was that Brongiel did nothing wrong.\nThe circuit court did not err in entering a directed verdict in favor of Brongiel on Erdman\u2019s counterclaim.\nCONCLUSION\nThe judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nWOLFSON and R. GORDON, JJ., concur.\nWe also note that the jury found Oldenstedt 35% negligent for his injuries, supporting that the jury decided this case on the evidence, contrary to Erdman\u2019s claim that the jury was incited into a \u201cblind rage\u201d to seek \u201cvengeance\u201d by Oldenstedt\u2019s rebuttal argument.\nIt is unclear how the special interrogatories read when resubmitted.", "type": "majority", "author": "JUSTICE GARCIA" } ], "attorneys": [ "Brian A. Schroeder, of Cassiday Schade LLIJ of Chicago, for appellant.", "Robert N. Wadington, of Robert N. Wadington & Associates, of Chicago, for appellee William Oldenstedt.", "J. Michael West, of Maisel & Associates, of Chicago, for appellee Brongiel Plumbing." ], "corrections": "", "head_matter": "WILLIAM OLDENSTEDT, Plaintiff-Appellee, v. MARSHALL ERDMAN AND ASSOCIATES, INC., Defendant-Appellant (Brongiel Plumbing, Third-Party Defendant-Appellee).\nFirst District (1st Division)\nNo. 1\u201405\u20141700\nOpinion filed March 3, 2008.\nBrian A. Schroeder, of Cassiday Schade LLIJ of Chicago, for appellant.\nRobert N. Wadington, of Robert N. Wadington & Associates, of Chicago, for appellee William Oldenstedt.\nJ. Michael West, of Maisel & Associates, of Chicago, for appellee Brongiel Plumbing." }, "file_name": "0001-01", "first_page_order": 17, "last_page_order": 34 }