Construction company denies liability in lawsuit over collapsing deck

By Heather Isringhausen Gvillo | Nov 29, 2014

A construction company accused of building a deck that is in danger of collapsing argues that the home owners caused the alleged damage by hiring third parties to fix the deck and then refused to sell the house to the construction company for a full refund.

Defendant Kevin M. Kahrig said he built the home for the plaintiffs, who he thought were his friends, for no profit. Now they just want an easy way to get money at his expense, he believes.

He explained that he sold the home to plaintiffs Norman and Valerie Adkins for $495,000. The cost of the lot was $95,000 and the 5200 square foot home coast $400,000 to build.

Furthermore, he said the entire deck cost less than $20,000 to construct. However, the plaintiffs seek $150,000 for the alleged damages.

“A deck is definitely not more than one third the cost of a 5200 square foot home,” Kahrig said.

Kahrig added that the deck is structurally sound, regardless of the alleged cracks in the concrete.

“Cracks in concrete don’t mean it’s falling down. Concrete cracks. That’s a fact. Bridges are loaded with cracks and 50 semi-trucks can be on them at one time,” Kahrig said.

Kahrig also said the plaintiffs never attempted to contact him about any alleged damages.

Kahrig and the Adkins even did more business together in November 2012 when Kahrig purchased cabinetry from them. If the deck was an issue at the time, he doubts they would have done business with him.

In the plaintiffs’ Dec. 13 lawsuit, they claim they purchased their home at 3359 Drysdale Ct. in Edwardsville on March 24, 2010, from the Kahrig and defendant Customary Construction.

In October 2010, the Adkins moved into their new home and noticed that the perimeter of the deck on the back of their house was not caulked and cracks had become noticeable.

The plaintiffs claim Kahrig, who owns Customary Construction, came back to the house and allegedly promised to have someone caulk the deck. They say he admitted that the deck had started to crack and should have had another expansion seam included in its construction, the suit states.

The Adkins claim the defendants returned to caulk the deck, but used caulking material provided by the plaintiffs. However, the plaintiffs hired another company to complete the work.

Then in May 2011, a masonry contractor allegedly noticed structural issues with the arches and brick columns supporting the deck at the back of their home The Adkins allege they had previously noticed stalactites forming from the arches supporting the deck, the complaint states.

The plaintiffs claim they hired a contractor to create weep holes in the brick columns supporting the deck in May 2011. The holes were supposed to release water tension in the columns.

“Upon doing so, water streamed out of the columns, as they were filled with water,” the suit states.

On July 20, 2012, a professional engineer inspected the deck and reported that it had been improperly constructed and needed to be removed and replaced, the complaint states.

“The current condition of the deck is a safety hazard, as there is a risk of collapse and loose bricks or other masonry materials falling and striking a person within the proximity of the deck,” the plaintiffs claim.

The defendants filed a motion to dismiss Counts I, II and III of the complaint on March 6, 2014, arguing the claims are insufficient in law and fail to plead sufficient facts to support a claim.

Regarding Count I, they claim the plaintiffs are precluded from stating a claim of negligence for the damages alleged in their complaint.

“Plaintiffs are attempting to recover purely economic losses for the diminution in value and/or replacement costs of property that was covered in the parties’ original contract. This is a loss for which contract damages can, and should, provide the exclusive remedy, if any,” the motion states.

Count II addresses a claim for a breach of implied warranty of habitability, but the defendants argue that because the plaintiffs failed to “provide any facts that the alleged construction defect in an exterior deck interferes with the essential habitability of their property,” County II must be dismissed.

As for Count III, the defendants argue the claim failed to plead sufficient facts for a breach of implied warranty of good workmanship.

“In Count III, plaintiffs simply make the conclusory allegation that the ‘defendants breached the implied warranty of good workmanship and materials during the faulty construction of the deck and improper installation,” the motion states.

“Such a bare conclusion is insufficient to state a claim for a breach of the implied warranty of good workmanship, which necessarily requires sufficient facts and allegations relating to the reasonableness of defendants’ contractual performance,” it continued.

The defendants then filed an amended motion to dismiss on March 18, 2014, seeking to also dismiss Count IV of the complaint – which alleges the defendants deceived the plaintiffs by failing to inform the Adkins that their own work was not performed in accordance with the contract.

“It is readily apparent that instead of alleging any actual deceptive conduct on the part of the defendants, plaintiffs are simply attempting to recast their breach of contract claim as a purported ICFA violation,” the motion states.

Circuit Judge Dennis Ruth granted dismissal for Count I on July 11, 2014, but denied dismissal for Counts II, III and IV.

Therefore, the defendants answered the Counts II, III and IV of the complaint on Aug. 12 denying the allegations.

Instead, it alleged a number of affirmative defenses against the plaintiffs for mitigation of damages, estoppel, third party fault and statute of frauds. The affirmative defenses specifically allege:

-          Plaintiffs rejected the defendants’ timely offer to purchase the subject property in its current condition for the amount paid by plaintiffs in June 2010;

-          Plaintiffs failed to timely notify defendants of the claimed damage to the premises;

-          Plaintiffs failed to timely repair any alleged damages which, by plaintiff’s complaint allegations, have increased the alleged damage to the premises;

-          Plaintiffs installed or directed a third party to install caulking on and/or around the rear deck of the premises;

-          Defendants did not install and/or advice plaintiffs to install caulking material on and/or around the rear deck of the premises;

-          Installing caulking on and/or around the rear deck which was otherwise not designated for such material proximately caused the claimed damages;

-          Plaintiffs’ own acts or omissions are the sole proximate cause of any alleged water damage attributable to the rear deck as alleged in plaintiffs’ complaint;

-          Plaintiffs made modifications in and around the property, including the installation of a swimming pool, and such modifications changed the grading of the land supporting the rear deck; and

-          Plaintiffs’ causes of action based on the construction and sale of property fail to satisfy the writing requirement imposed by the Illinois Statute of Frauds, barring their claims.

Ruth scheduled a case management conference for March 25.

He also scheduled a pre-trial hearing for July 22 at 10:30 a.m. and a jury trial to begin Aug. 10 at 9 a.m.

The Adkins seek a judgment of more than $150,000, plus costs and attorney’s fees.

Jason D. Johnson of HeplerBroom in Edwardsville represents the plaintiffs.

Russell Scott, Dayna Johnson and Alexander Cornwell of Greensfelder, Hemker & Gale, P.C., in Belleville represents the defendants. They request a jury trial.

Madison County Circuit Court case number 13-L-2103

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