Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Auster v. Keck

AUGUST 13, 1975.

MICHAEL AUSTER, JR., ET AL., PLAINTIFFS-APPELLANTS,

v.

GEORGE FRED KECK ET AL., INDIVIDUALLY AND D/B/A GEORGE FRED AND WILLIAM KECK, ET AL., DEFENDANTS. — (GEORGE FRED KECK ET AL., INDIVIDUALLY AND D/B/A GEORGE FRED AND WILLIAM KECK, DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Lake County; the Hon. HARRY D. STROUSE, JR., Judge, presiding.

MR. JUSTICE HALLETT DELIVERED THE OPINION OF THE COURT:

According to the complaint as amended, in 1960, a home in Highland Park, designed by defendant architects Keck and Keck, was built for defendants Isaacsons. In 1969, although they then knew that the ceilings were defective, the Isaacsons sold the home to the plaintiffs without disclosing that fact to them. Beginning in January of 1971 and continuing through March of 1972, the ceilings of various rooms collapsed, and in May of 1972, the plaintiffs sued (1) the Isaacsons for failure so to disclose and (2) the Kecks for architectural malpractice in that the design of the home was faulty for lack of an intervening vapor barrier. The complaint, as amended, also alleged damages and that the "plaintiffs had no knowledge of said latent defect and no means of learning of said defect, nor any reason to know of said defect until after the purchase of said premises, when the ceiling collapsed."

The Kecks moved to dismiss on the sole ground that the plans and specifications were prepared in August of 1960 and the house constructed shortly thereafter and that therefore the action was barred by a statute (Ill. Rev. Stat. 1959, ch. 83, § 16) providing that such actions must be commenced within 5 years next after the cause of action accrued. The trial court granted that motion, thus taking the Kecks out of the case but leaving the plaintiffs' Count I against the Isaacsons. The court found no just reason to delay enforcement or appeal and the plaintiffs appeal.

The real question before us is — when did said statute begin to run — when the alleged architectural malpractice occurred or when the victims discovered it as the ceiling collapsed? We conclude that the latter version is correct and therefore reverse and remand.

The question so posed is not an easy one to answer and has long troubled and still troubles legislators, lawyers and the courts.

The statute involved (Ill. Rev. Stat. 1959, ch. 83, § 16), in pertinent part, provided as follows:

"Actions * * * to recover damages for an injury done to property, real or personal, * * * and all civil actions not otherwise provided for, shall be commenced within five years next after the cause of action accrued."

Unless the Illinois cases on this issue are read in strict chronological sequence and with proper deference to supreme court rather than appellate court decisions, they appear to be in hopeless confusion.

In Mosby v. Michael Reese Hospital (1964), 49 Ill. App.2d 336, 199 N.E.2d 633, a doctor left a needle in the patient and it was only discovered during another operation more than 2 years later. The First District Appellate Court held that the statute started to run when the incident itself occurred and had, therefore, run before the discovery, but, at page 342, admitted that it "was not pleased with this result."

In Simoniz Co. v. J. Emil Anderson & Sons, Inc. (1967), 81 Ill. App.2d 428, 225 N.E.2d 161, a roof collapsed more than 5 years after the defendant built it and the Third District Appellate Court, citing Mosby, refused to apply a "know or ought to know" rule and held the action barred.

In Sabath v. Morris Handler Co. (1968), 102 Ill. App.2d 218, 243 N.E.2d 723, the First District Appellate Court (but composed of judges of the Second District), indicated at pages 228-29 that they were not about to apply the "know or ought to know" rule but this is really dicta because the trial court's dismissal on the basis of the statute was reversed.

In Board of Education v. Joseph J. Duffy Co. (1968), 97 Ill. App.2d 158, 240 N.E.2d 5, Perkins and Will, an architectural firm, designed a high school and Duffy built it, using those plans. More than 5 years later, the School District sued Duffy, who filed a third-party complaint against Perkins. This (Second District) court, citing Simoniz and Mosby, held the action barred.

The supreme court's first venture into this area came in 1969 in Rozny v. Marnul (1969), 43 Ill.2d 54, 250 N.E.2d 656. There a land surveyor made an error in a survey in 1953, in which year a house was built on the lot described. In 1962, a purchaser from the original owner discovered the error and had to move his house 2 feet and his garage 6 feet, at a cost of some $13,000. In holding that the statute did not bar the action, the court, at pages 72-73, said:

"We accordingly hold, in keeping with the more recent authorities and the legislative policy manifested by our General Assembly, that the Statute of Limitations does not bar plaintiffs' recovery, because their cause of action `accrued' when they knew or should have known of the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.