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Nurnberger v. Warren & Van Praag

MARCH 10, 1971.

HARRY NURNBERGER ET AL., PLAINTIFFS-APPELLEES,

v.

WARREN AND VAN PRAAG, INC. ET AL., DEFENDANTS-APPELLANTS — (REESE CONSTRUCTION CO., CROSS-CLAIMANT,

v.

VINCENT KOSAREK ET AL., CROSS-DEFENDANTS.)



APPEAL from the Circuit Court of Randolph County; the Hon. CARL H. BECKER, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

AMENDED OPINION UPON DENIAL OF PETITIONS OF PLAINTIFFS AND REESE CONSTRUCTION COMPANY FOR REHEARING.

Plaintiffs in this action were the Nurnbergers who owned a home in Sparta, Illinois. This home was constructed in 1960 and stood on the northeast corner of the intersection of Broadway (an east-west street) and Miller (a north-south street) in the City of Sparta.

In the year 1962, the City of Sparta hired defendant Warren and Van Praag, to conduct a survey in regard to street and sewer projects for the City of Sparta. Defendant Warren and Van Praag conducted the survey, and as a part of the over-all planning, prepared plans and specifications for the resurfacing of Miller Street in the City of Sparta from its intersection with Broadway Street, running north for several blocks. The plans and specifications included resurfacing Miller Street; plans for drainage; plans for installing of underground storm sewers; curb and gutter; with necessary manholes. The agreement with the City of Sparta was to include the preparation of the plans and specifications, and supervision of construction of the project, which project was built with the aid of federal money, and which plans and specifications, and completion of the work, were to be approved by the City of Sparta and the Federal Government.

After the plans and specifications of the defendant Warren and Van Praag had been approved by the Federal Government and the City of Sparta, the City of Sparta hired the defendant Reese Construction Co. as the prime contractor to complete the Miller Street project. Defendant Reese Construction Co. employed and entered into a signed contract with the cross-defendant Vincent Kosarek as the sub-contractor to do certain building and construction on said project. There was evidence in the record that Warren and Van Praag were in general charge of the construction of the project.

In the spring of 1964, the contractor and sub-contractor began the construction of the Miller Street project which included street grading, underground culverts to carry surface water, and curb and gutter on the east and west sides of Miller Street. The plaintiff Harry Nurnberger during construction of the project had consulted the City of Sparta and the representatives of defendant Warren and Van Praag in regard to an outlet from his property into the underground sewer in order to eliminate the collection of suface water on his property, as this property was lower than the grade level of Broadway Street and also the grade level of Miller Street. The City of Sparta and defendant Warren and Van Praag agreed and an outlet was placed from the Nurnberger property to the underground sewer.

In the month of June, 1964, the defendant Reese Construction Co. and the cross-defendant Vincent Kosarek were constructing the storm sewer, curb and gutter and outlet from the Nurnberger property into the storm sewer and while concrete was being installed on the project, plywood retainers were placed at the head of the intersection of the storm sewer and inlet from the Nurnberger property into the storm sewer, which plywood sections were necessary for construction but which also blocked the flow of water into the storm sewer.

In the early evening of the 16th and morning of the 17th day of June, 1964, while the plywood sections were blocking the storm sewer, there was a heavy rain in Sparta. The rain water and surface water from Miller Street, at the intersection of Miller Street and Broadway backed over the curb and onto the Nurnberger property causing damage to the home and various items of personal property located in the home, and in a storage building.

During the course of the rain and immediately thereafter, employees of Warren and Van Praag and cross-defendant Vincent Kosarek were summoned to the Nurnberger home and, with the help of others, removed the plywood that was blocking the storm sewer and removed the construction at a point where the storm sewer on the east side of Miller Street went into a catch basin that was located at the intersection of Miller and Broadway. When these acts were completed, the water receded from the house and property of the Nurnbergers.

The construction of the Miller Street project was completed in the fall of 1964. The construction was approved by defendant Warren and Van Praag; was accepted by the City of Sparta; and was accepted and approved by the Federal Government.

On December 21, 1967, over three years after completion of construction, a heavy rain occurred in the early morning hours. 5.35 inches of rain fell in a period of approximately twelve hours; with most of its occurring between the hours of 2:00 A.M. and 5:30 A.M. Surface water came onto the Nurnberger property, flooding the lower level of the house and again causing damage to the house and personal property.

Plaintiffs brought suit against the City of Sparta, Warren and Van Praag, Inc., Reese Construction Co., Vincent Kosarek and New Amsterdam Casualty Co. for damages to real and personal property arising out of the two occurrences of flooding.

Cross claims were filed by defendant Reese Construction Co. against defendant Warren and Van Praag and against defendant Vincent Kosarek. Defendants City of Sparta, New Amsterdam Casualty Co. and Vincent Kosarek were dismissed from the original complaint. The cross claim of defendant Reese against defendant Warren and Van Praag was dismissed on motion of Warren and Van Praag.

Trial was had and the jury returned a verdict in favor of plaintiffs and against defendants Reese and Warren and Van Praag in the amount of $18,000.00. The jury also returned a verdict in favor of Reese on its cross claim against Kosarek in the amount of $4,500.00. Judgment was entered for plaintiffs against defendants Reese and Warren and Van Praag for $18,000.00 less $2,500.00 being the amount paid by ...


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