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Montefusco v. Cecon Construction Co.





APPEAL from the Circuit Court of Peoria County; the Hon. ROBERT E. HUNT, Judge, presiding.


Rehearing denied August 30, 1979.

This is an appeal from a judgment of the Circuit Court of Peoria County, entered after a jury verdict finding in favor of the plaintiff. The plaintiff has filed a cross-appeal on the issue of damages.

During the fall of 1973 Anthony Montefusco contracted with several contractors to build a combined office-warehouse facility on North University Avenue, Peoria, Illinois, in an area commonly known as Pioneer Park. The defendant, Cecon Construction Company (hereinafter known as Cecon), agreed to provide foundation work, footings, and anchors pursuant to a prime contract.

During July 1974, still during construction, Montefusco and Cecon agreed to a change order whereby Cecon agreed to provide materials and manpower to attach 1,200 lineal feet of two-inch by six-inch by 16-foot wood strips to the perimeter of the roof decking. These strips were to be attached to the metal roof decking edges.

Prior to the attachment of the 2 x 6's, Inland Ryerson Company, supplier of the building materials used on the facility, gave Cecon's job supervisor specifications showing how the 2 x 6's were to be attached. Cecon attached the 2 x 6's in a manner which varied from the specifications. This variance was questioned by Montefusco, but Cecon's job supervisor assured Montefusco that the 2 x 6's were adequately secured to the roof.

On January 11, 1975, a portion of the roof blew off. Montefusco's proof showed that 32 man hours of labor were used to weld the metal deck after that incident. Cecon's president testified that more decking could be welded in an hour than could be bolted and that 3,200 square feet of decking could be bolted in 32 hours. A larger amount could be welded. Montefusco followed the specifications provided by Inland Ryerson and he testified that he had more bolts added to secure the roof. Nothing was done to the undamaged portion of the roof.

On May 19, 1975, a portion of the roof which was undamaged in the first incident was damaged by wind. Again there were 32 man hours used to reweld the decking.

Montefusco filed a breach of contract action for the damage to the facility. Trial was held in early May 1978.

There was testimony by Roger Gear of the National Weather Service that the highest wind speed recorded at the Greater Peoria Airport on January 11, 1975, was 32 with highest gusts of 55. On May 19, 1975, the highest speed was 27 with gusts of 47. The readings were taken only at the airport. They indicated a sudden storm. Since wind speeds may vary depending upon whether the recording device is in the path of the storm or at its edge, a higher or lower wind speed may have occurred in Pioneer Park.

Phillip Borrowman, a registered engineer with experience in structural engineering, testified. He did not personally inspect the building. He said that the 2 x 6's could withstand the wind if applied according to the Inland Ryerson specifications. He used calculations and test results supplied by Inland Ryerson. He performed additional calculations using information from letters and conversations from Inland Ryerson. Borrowman further testified that he made reference to a book published by the American National Standards Institute. This book is widely used and recognized as authoritative among engineers. The purpose of the book is to keep structural engineers informed on wind research and designing for wind resistance. Borrowman admitted that he did not know why the roof failed.

Montefusco offered damage exhibits totaling $90,304.89, with $47,586 as damages for the first incident and $42,718.89 as damages for the second. The jury verdict was $47,060.

Cecon raised three issues on appeal: (1) were certain opinions of Montefusco's expert inadmissible as founded on hearsay; (2) was certain evidence pertaining to a lack of damage to other buildings improperly admitted; (3) did Montefusco offer sufficient evidence in relation to causation to support a verdict.

Cecon first argues that the trial court committed reversible error in allowing Montefusco's expert, Phillip Borrowman, to offer conclusions which were based upon calculations and test results given to him orally by an ...

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