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Hannon v. Counihan

OPINION FILED NOVEMBER 15, 1977.

THOMAS F. HANNON ET AL., PLAINTIFFS-APPELLANTS,

v.

TIMOTHY C. COUNIHAN ET AL., DEFENDANTS. — (THE VILLAGE OF BARRINGTON ET AL., DEFENDANTS-APPELLEES.)



APPEAL from the Circuit Court of Lake County; the Hon. JOHN L. HUGHES, Judge, presiding.

MR. JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 16, 1977.

Plaintiffs, Thomas F. Hannon and Barbara A. Hannon, appeal from the order of the trial court dismissing their complaint as to defendants Village of Deer Park and Village of Barrington in Lake County.

This is an action for the recovery of damages alleged to have been sustained by plaintiffs in the construction of a house for them in Deer Park. Other defendants in separate counts of the complaint brought for these same damages are Boise Cascade Corporation, the manufacturer of the prefabricated home, Tau Builders, a partnership which was the general contractor for the construction of the home on plaintiff's lot and Swan Brothers Construction, Incorporated, the concrete subcontractor which performed the footing and foundation work for the house. We are not concerned with these defendants on this appeal and the case apparently is still pending against them in the trial court. After dismissal of the complaint as to the defendant villages, the court found no just reason to delay appeal as to them. Ill. Rev. Stat. 1975, ch. 110A, par. 304(a).

The defendant villages were joined in a single count of the complaint which alleged that plaintiffs were the owners of land in Deer Park, had entered into a contract with Tau Builders in January 1975 to construct a home thereon and had paid out approximately $32,000 towards the cost of construction. It was further alleged that the Village of Deer Park had adopted a building code and had contracted with the Village of Barrington for it to provide inspectors to enforce compliance with the code within Deer Park, that a building permit application was submitted to Deer Park by Tau Builders and was approved April 1, 1975, and that Tau Builders commenced construction and continued until the issuance of a "stop work" order by Deer Park and Barrington on September 10, 1975, for lack of a foundation inspection of the building. It was alleged that the roof was on and the house substantially completed when work was stopped and nothing further has been done to complete it.

Plaintiffs alleged they were free from any conduct causing this condition and these defendants are guilty of the following careless or negligent acts or omissions:

"(a) Failed to exercise adequate supervision and control over properties under construction within their jurisdiction;

(b) Failed to make frequent inspections of homes under construction within their jurisdiction;

(c) Allowed Plaintiffs' home to be substantially completed before discovering non-compliance with the applicable building code;

(d) Failed to use competent persons as building inspectors;

(e) Were otherwise careless and negligent."

Plaintiffs concluded by alleging damage and depreciation to their property as a consequence of defendants' acts and asking for a judgment of $85,000 against these defendants.

Defendants each filed motions to dismiss this count of the complaint alleging, first, that it fails to state a cause of action against them and, second, that each village defendant is immune from this action pursuant to the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1975, ch. 85, pars. 1-101 through 10-101, hereinafter referred to as the Tort Immunity Act). After considering briefs and arguments the trial court granted defendants' motion to dismiss, predicating its decision on the issue of immunity and noted it found the villages' immunity was not waived by their possession of public liability insurance.

It is apparent, however, that the questions raised, and extensively argued by the parties, regarding governmental immunities and their waiver by the possession of public liability insurance by the villages (see Ill. Rev. Stat. 1975, ch. 85, pars. 2-105, 2-201, 2-207, 9-103(b)) would not be reached by this court if we should determine no cause of action against these defendants has been alleged in the complaint. (Corcoran v. Village of Libertyville ...


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