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Society of Mt. Carmel v. Fox

OPINION FILED NOVEMBER 26, 1980.

SOCIETY OF MOUNT CARMEL ET AL., PLAINTIFFS-APPELLEES AND CROSS-APPELLANTS,

v.

JOHN J. FOX, JR., D/B/A FOX & FOX, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



APPEAL from the Circuit Court of Lake County; the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.

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

Plaintiffs, the Society of Mount Carmel, an Illinois corporation, and Sisters of Charity of the Blessed Virgin Mary of Dubuque, Iowa, an Iowa corporation (Mount Carmel), filed a complaint for damages in 1970, alleging the negligence of defendant, John J. Fox, Jr., an architect, in designing Carmel High School in Mundelein in 1962. In Society of Mount Carmel v. Fox (1975), 31 Ill. App.3d 1060, we reversed a summary judgment for the defendant which had been granted on statute of limitations grounds. Upon remand and after a lengthy bench trial, the trial judge entered judgment for Mt. Carmel in the amount of $687,879, from which defendant appeals. *fn1

The defendant contends that the limitations period began to run from the time the defects were discovered in the building in 1963 and not from the time plaintiffs discovered the alleged cause of the defects in 1969, and that the suit is therefore barred by the applicable statute of limitations. (Ill. Rev. Stat. 1969, ch. 83, par. 16.) Alternatively he contends that the finding that the building was negligently designed was against the manifest weight of the evidence; that the plaintiffs were guilty of contributory negligence barring recovery; that various trial errors prejudiced defendant to the extent of depriving him of a fair trial; and that the damage award is not supported by the evidence.

• 1 Preliminarily, we conclude that Mount Carmel's suit was not barred by the statute of limitations. Defendant notes that the evidence shows that plaintiffs knew of the cracks and defects in the building more than five years prior to the filing of the complaint. Essentially defendant argues that the statute began to run at the time the plaintiffs knew of cracks and defects in the building, not when they "learned of the alleged cause of the defects," presumably in 1969 when they received a report from the Lake County Contractors Association. (This report concluded that the failure to include expansion joints was the design defect.) However, in our previous decision, we established the law of the case contrary to this position, stating:

"[T]he ends of justice would be best served by allowing plaintiff to sue within the statutory period computed from the time it knew or should have known of the existence of the alleged defective design." (Emphasis added.) 31 Ill. App.3d 1060, 1063.

No evidence was presented that Mount Carmel knew or should have known of the defective design prior to receiving the Lake County Contractors Association report in 1969. Defendant himself told the plaintiffs that the defects were "maintenance problems"; and there is evidence in the record that the plaintiffs treated them as such until the receipt of the report in 1969.

It is true that on the first day of trial the court improperly placed the burden of proof as to the statute of limitations issue on the defendant. The plaintiff has the burden of pleading and proving the date of discovery when seeking to come within the "discovery rule" exception to the statute of limitations. (See Auster v. Keck (1976), 63 Ill.2d 485, 487-88. See also Licka v. William A. Sales, Ltd. (1979), 70 Ill. App.3d 929, 936.) However, the error did not affect the result since the record clearly supports the conclusion that plaintiffs met their burden. Although the issue was thoroughly explored on both sides of the case, the testimony of the plaintiffs that they neither knew nor had any way of reasonably knowing the fact that the defects were allegedly the result of defective design until they received the contractors' report was not controverted. The record shows that while plaintiffs knew of various defects, including plaster and masonry cracks and bulging of walls, the defendant had assured the plaintiffs that these were merely maintenance problems. There is no evidence in the record which would show that plaintiffs knew of the alleged defective design of the building as the cause of the defects prior to 1969.

• 2 Reaching the merits of the case, we conclude that the trial court's finding of negligent design was not against the manifest weight of the evidence.

The building was completed in 1963. The defendant, called by the plaintiffs under section 60, corroborated receipt of complaints within the first year that the building was completed. Some of these early complaints concerned leaks, particularly around the skylight. Father Jordan testified that he arrived as treasurer and business manager of Carmel in 1966 and was there until 1973. When he arrived in 1966 he said he noticed cracks and openings in the exterior and interior walls, leaks around the skylights and breaks in various places in the building. He said that defendant came out to look at the building at his request and stated that the defects were "maintenance problems." Thereafter he hired people to repair the building "as best we could." He said that some of the school maintenance people did continuous plastering and patching of various areas and that after various talks with defendant in the period he asked the Lake County Contractors Association to inspect the building and make a report in 1969.

One of the contractors who had made the inspection and report for the contractors association testified that in his opinion the cracks and other defects in the building were caused by a lack of expansion joints to accommodate the expansion and contraction of the walls. He stated that he was not an architect or structural engineer but that he knew from experience the difference between an expansion or contraction crack and other kinds.

Eugene Korbel, a registered architect and structural engineer, John Sbarounis, a structural engineer, and John Nunemaker, an architectural engineer, all testified with reference to a study done by the architectural firm of Perkins & Will in 1976. Each testified in substance that the cracks and other defects in the building were caused by a lack of expansion joints to accommodate the expansion and contraction of the walls. Each also gave his opinion that the defendant did not exercise the skill ordinarily used by reasonably well qualified architects in the area in 1962. William Paxton, a roofing specialist for Celotex Corporation, a leading manufacturer of expansion joints and gypsum roofs, testified that he examined the roof of Carmel High School in 1971. He stated his opinion that the condition of the roof was caused by the shrinkage of the gypsum deck and the lack of structural expansion joints in the roof. He stated that the standards in 1961 and 1962 required that structural expansion joints in gypsum roofs should be installed in any structure that exceeded 200 feet in length as this one did. On cross-examination he admitted, however, that some of the problems in the roof may have been caused by poor construction or maintenance failures. On redirect he stated that he could not tell whether the defects were caused by poor construction or failure to provide for expansion in the roof.

Clayford Grimm, a consulting architectural engineer who was associated with the Structural Clay Products Institute from 1950 to 1960, testified. He said that based upon his experience in the field and his inspection of Carmel on March 5, 1979, he is of the opinion that the cause of the structural failure in Carmel is the expansion of brick masonry and that the failure should be corrected by placing expansion joints in some 65 locations in the building. He stated that the existing cracks could not be used as natural expansion joints because they cannot be adequately sealed.

Various architects and engineers also testified for the defendant. Edo Belli, a licensed architect and engineer, said he first toured Carmel High School on July 2, 1969, and observed cracks in certain areas and one "bad spot" on the east wall of the cafeteria. The next time he saw the building was in 1978, and he noticed that the cracks had opened up more due to freezing. He said the cracks appeared to have been poorly sealed and looked like the work had been done by an amateur. He examined the Perkins & Will drawings and recommendations and concluded that the expansion joints proposed would have no benefit to the building. In his opinion architects in the Mundelein area in 1961 and 1962 following reasonable standards of practice would not have included expansion joints in the design of Carmel High School.

Michael Johns, a structural engineer, who has a master's degree in building engineering, testified that he examined Mount Carmel High School on three occasions between 1977 and 1979. He noticed various maintenance deficiencies in the structure. After examining the Perkins & Will report he concluded that the many building control joints and masonry expansion joints recommended in the report would serve no beneficial purpose. He also concluded that the roof had served most of its useful life. He said the cracking he observed in the building was not an uncommon type of malperformance in that type of building. He testified as to why he believed the building was not a monolithic structure which would need expansion joints; that due to the configuration ...


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