Tag Archives: Construction – Statute of Repose

Schott v. Halloran Construction Co. – Fifth District Reverses Verdict for Plaintiff on Basis that Action Should Have Been Barred by 10-year Statute of Repose for Construction Negligence Claims

Schott v. Halloran Construction Co., 2013 IL App (5th) 110428 (Welch)

Facts:  Plaintiff was injured in 2001 when he fell off of an unguarded retaining wall while on patrol as a police officer.  The retaining wall was originally built in 1990 and a portion of the wall was re-built in 1994 after it washed out and collapsed from water damage.  The defendant maintained from its answer and through 2 trials that the lawsuit was barred by the 10 year statue of repose for construction negligence claims because the original wall, and the portion of the wall where plaintiff fell, was built in 1990, over 10 years prior to the fall, and also that the 1994 repair to the wall was not an “improvement to real property” sufficient to re-set the 10 year clock on the statute of repose.

Holding:  The claim was barred by the 10- year statute of repose because (1) the 1994 construction work on the retaining wall was merely a repair to an existing structure and not an “improvement to real property” and (2) the portion of the wall where plaintiff fell had been built in 1990, over 10 years before the incident.

Filed in Trial Book Under:  Construction – Statute of Repose; 735 ILCS 5/13-214(b)

Commentary:  The opinion points out that the Illinois Supreme Court has held that “the relevant criteria for determining what constitutes ‘an improvement to real property’ include: whether the addition was meant to be permanent or temporary, whether it became an integral component of the overall system, whether the value of the property was increased, and whether the use of the property was enhanced,” see St. Louis v. Rockwell Graphic Systems, 153 Ill. 2d 1, 4-5, and that work done on the structure “must amount to more than a mere repair or replacement and which substantially enhances the value of the property.” See Adcock v. Montgomery Elevator Co., 274 Ill. App. 3d 519, 522 (1995).  In this case, the evidence revealed that the 1994 construction work on the wall was merely a repair of the existing structure and did not add anything to the property, but merely returned it to its prior condition.  However, there seemed to be some interesting twists to the case that are not fully revealed by the facts set forth in the opinion.  The original wall was built by a subcontractor of the defendant in 1990 when it owned the land and developed into an office park.  When 1994 work was completed, the property was no longer owned by the defendant but instead was owned and occupied by a non-for-profit organization.  However, the owner of the defendant construction company was the president of the board of the not-for-profit.  The evidence revealed that the 1994 work was completed and paid for by the non-for-profit, but not who rebuilt the wall or was paid by the not-for-profit, and the defendant denied that it was involved but was unable to identify who did the work.  However, in 1995 the defendant had filed suit against the subcontractor who originally built the wall in order to recoup some of the money spent by the not-for-profit to repair and rebuild the wall. Moreover, the suit specifically alleged that “the cost to have the retaining wall replaced and rebuilt, and to repair the structural integrity of the surrounding building and the landscaping on the property would amount to $7,800.”  This is intriguing to me, and clearly the jury felt that it was the defendant that completed the work, so why the difference between the original price to build the retaining wall and the price alleged in the defendant’s lawsuit against the sub-contractor?  Isn’s a logical inference that the increase in cost was that the new wall was an improvement?  This question was equally intriguing to the dissenting justice who felt that the evidence of the defendants involvement in the lawsuit when coupled with the other evidence and viewed in the light most favorable to the plaintiff was sufficient to uphold the verdict.

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Filed under Construction, Statute of Limitations