Bethany Krajelis Jan. 14, 2013, 6:57am
The Fifth District Appellate Court has reversed a St. Clair County ruling that favored the plaintiff in a personal injury suit.
In an 11-page opinion filed Thursday, a split panel of the appellate court relied on the statue of repose to side with Mark Halloran and his company, Halloran Construction Co. Inc., and against Lawrence and Rochella Schott.
Justice Thomas Welch delivered the court's opinion. Justice Stephen L. Spomer concurred and Justice Melissa Chapman dissented, saying she would have affirmed the ruling of St. Clair County Circuit Judge Robert LeChien.
The Schotts in 2010 brought a complaint against the defendants that sought damages for injuries Lawrence Schott sustained when he fell off a retaining wall in the course of his job as a Swansea police officer.
They claimed that the defendants were negligent in failing to build a guardrail or barrier to prevent people from falling off the wall when it was built in 1990 and repaired in 1994.
Following trial, a jury returned a verdict against Halloran Construction and in favor of the plaintiffs, as well as Halloran as an individual. The jury, however, did find Lawrence Schott 50 percent contributorily negligent.
The court entered a judgment on the jury’s verdict, after a second jury trial took place on the amount of damages, the appellate court opinion states.
On appeal, the defendants argued that the suit was barred by the statute of repose set out in section 13-214 (b) of the Illinois Code of Civil Procedure, which states that:
“No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission."
Although they acknowledged that a portion of the wall needed to be rebuilt since then, they asserted that the repair did not constitute “construction of an improvement to real property" under the statute of repose.
Halloran testified at trial that the wall fell over after heavy rains in 1994 and that he had sold the property before then to the Southwest Visiting Nurses Association, which had the wall repaired.
Halloran Construction sued the subcontractor who first built the wall in order to get back some of the money spent by the association to repair it, according to the opinion.
In the court's opinion, the majority sided with the defendant, finding that the 1994 repair did not constitute a “construction of an improvement to real property" and therefore was not barred by the statute of repose.
Pointing to the St. Louis v. Rockwell Graphic Systems, Inc. (1992), Welch wrote that “it is clear that an improvement to real property is an addition to real property amounting to more than a mere repair or replacement and which substantially enhances the value of the property.”
While it is clear that when the retaining wall was built in 1990 it was “an improvement to real property,” Welch wrote that it is “just as clear that the work done on the wall after it was washed out by rain in 1994 was not an improvement to real property but was mere repair of an existing structure.”
In her dissent, Chapman wrote that she believes “the evidence supported a finding that the reconstruction to the retaining wall constituted an ‘improvement to real property’ under the statute of repose.”
Pointing to the lawsuit Halloran filed in 1995, Chapman wrote that Halloran alleged the repair cost at about $7,800, a figure that “stands in stark contrast to the original cost of $6,174 for building all three retaining walls.”
She added, “Far from being undisputed as defendant argues, the evidence at trial based on defendant's own admissions and plaintiffs' expert testimony, when viewed most favorably to plaintiffs, did not so overwhelmingly favor the defendant that no contrary verdict could ever stand.”
St. Louis attorneys James Leritz and Kelly Kirkbride represented the defendants.
Belleville attorneys Kenneth Burke and Tom Keefe, Jr. represented the Schotts.
Court documents also list Illinois Municipal League Risk Management Association as an intervener in the case and Belleville attorney Charles Pierce as the group’s attorney.