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Rosos Litho Supply Corp. v. Hansen

OPINION FILED MARCH 13, 1984.

ROSOS LITHO SUPPLY CORPORATION, PLAINTIFF-APPELLEE AND CROSS-APPELLANT,

v.

RICHARD T. HANSEN, DEFENDANT-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Cook County; the Hon. Louis A. Wexler, Judge, presiding.

PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

A jury found defendant Richard T. Hansen (Hansen), a licensed architect, and two other defendants guilty of negligence in the construction of a building addition commissioned by its owner, plaintiff Rosos Litho Supply Corporation (Rosos). The jury also found that Hansen had not breached his contract with Rosos. Judgment was entered on the verdict and alternative post-trial motions for judgment notwithstanding the verdict, for a remittitur, or for a new trial, were denied. Of defendants, only Hansen appeals. Rosos cross-appeals.

The issues raised on appeal and cross-appeal are whether: (1) recovery of economic loss is prohibited in a negligence action against an architect; (2) the standard of care for an architect was sufficiently established and the breach of this standard proven; (3) the jury considered the proper measures of damages; and (4) the jury was authorized to apportion defendants' liability.

On July 2, 1973, Rosos entered into a written contract with Hansen, who agreed to design and supervise construction of a storage building addition to Rosos' existing structure in Lake Bluff, Illinois. The addition was to have a concrete floor of 33,000 square feet, divided into 40 feet by 40 feet bays, to match similar bays in the existing structure. Hansen recommended to Rosos that the 40 feet by 40 feet slabs be saw cut to reduce cracking and keep the water in the concrete to a minimum. Rosos chose not to do so.

Rosos acted as its own general contractor. Hansen wrote separate specifications for each of the trades involved in the construction. Rosos contracted with Herky Trucking, Inc. (Herky), on May 28, 1974, for excavating the foundation, and layering and compacting the fill in preparation for laying the concrete floor. On August 7, 1974, Rosos contracted with Drake Construction Company (Drake) to construct the concrete floor, among other things. Herky completed its foundation work in October 1974. The fill was then ready for the concrete; however, the roof had to be completed first, and Drake did not begin pouring concrete until January 28, 1975. The prepared fill was exposed for about three months. During that time, in December 1974, snow cleared from the roof under construction was shoveled through open skylights onto the exposed fill, where it remained piled for a time before being cleared by Drake.

After the addition was built, numerous cracks developed in the concrete floor. Slab displacement resulted in height disparities of as much as three-quarters of an inch at slab junctures, making it difficult to maneuver forklift trucks and other equipment over the floor. On November 19, 1976, Rosos filed a complaint against Hansen, Herky, and Drake, with counts sounding in contract and warranty breaches, and in negligence. On March 11, 1977, Hansen filed a counterclaim for the balance due on his fee. Summary judgment was awarded to Hansen on Rosos' warranty count on November 10, 1977.

At trial, beginning on May 19, 1982, Hansen described the terms of his standard American Institute of Architects contract with Rosos. Under specifications written by Hansen, the excavator was to hire a soil engineer, to be paid by the owner if necessary, to test each layer of fill as it was put in and to make daily reports to Hansen. A soil test was made between the middle of September and early October 1974, when excavator Herky had put in only three-quarters of the fill. A preliminary field test revealed compliance with the 95% minimum compaction required by the specifications; however, a follow-up laboratory report showed that three of five soil samples fell below the requisite figure. By letter, Hansen advised Herky of the low compaction. Herky assured him the problem would be remedied. No further tests were made by a soil engineer, nor did Hansen order any, although Hansen had become aware in December 1974 that there was frost in the fill. The project specifications required Hansen to approve the soil before any concrete was laid, but Drake already was pouring concrete when Hansen arrived on the job on January 28, 1975. Drake told Hansen the soil had been tested and no frost found in those holes that had been dug. Drake's test of the fill in January was not made by a soil engineer.

Herky's president, Jack Herchenbach, testified that his contract with Rosos called for Herky to employ a soil engineer. No tests were ordered between October 1974 and January 1975, however. Edward Paramsky, co-owner of Drake, testified that Hansen asked him to check for frost in the fill, which Paramsky observed on January 6, 1975. He later dug some holes and determined the fill to be frost free.

A series of experts, including structural engineers, architects, and a petrographer-geologist, testified on behalf of Rosos and various defendants. They attributed the defects in the concrete to various causes: settlement of the subgrade at different levels due to "frost in the fill," caused by excess moisture in the soil which, in turn, may have resulted from snow being piled onto the fill; insufficient soil compaction; concrete shrinkage due to either excess water in the concrete mixture or failure to apply a curing compound to the drying concrete; and differential shrinkage of the top and bottom surfaces of the slabs. These experts recommended remedial measures, most commonly "cement grouting," whereby material is inserted into the voids beneath the slabs through holes drilled into the concrete, cracks are filled with epoxy, and slab edges are ground level. A structural engineer testified for Rosos that because the success of such repair could not be assured, tearing out all the slabs and replacing them entirely was an alternative.

In its findings, the jury awarded Rosos $115,000 on its negligence claim and found for defendants and against Rosos on the contract claim. Although construction was completed in 1975, over defendants' objection the jury was given verdict forms based upon contribution among defendants. The relative fault assigned to defendants was 10% to Hansen, 60% to Drake and 30% to Herky. Hansen was awarded $1,709.84 on his counterclaim against Rosos, and Hansen was found not entitled to indemnification from the other defendants. Judgment was entered on the verdicts on June 14, 1982.

I

• 1 Hansen contends the economic damages assessed against him are not recoverable in a negligence action under Illinois law. Rosos responds that Hansen waived this argument because he failed to raise it until his post-trial motion. Rosos' tort action seeking economic damages from Hansen was contained in count III of its complaint. Although Hansen had not previously moved to strike count III, his post-trial motion challenged Rosos' right to pursue this action in light of the recent supreme court decision in Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 435 N.E.2d 443 (Moorman). Defects in a complaint such as an insufficient statement of an otherwise cognizable cause of action may be waived; however, the question of whether a legal foundation for a complaint exists may be raised at any time. (Wagner v. Kepler (1951), 411 Ill. 368, 371, 104 N.E.2d 231; Dunlap v. Marshall Field & Co. (1975), 27 Ill. App.3d 628, 633, 327 N.E.2d 16; Watson v. Chicago Transit Authority (1973), 12 Ill. App.3d 684, 688, 299 N.E.2d 58.) Under the foregoing authorities, no waiver is applicable to the instant circumstances. Although thus properly before this court, Hansen's contention nevertheless must be rejected on its merits as inapplicable to professional services involved here.

When defects in a product are "of a qualitative nature and the harm relates to the consumer's expectation that a product is of a particular quality * * * contract, rather than tort [whether sounding in strict liability or negligence], law provides the appropriate set of rules for recovery." (Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 88.) Damages are denominated "economic" where they involve defects in the product itself, requiring repair or replacement. (91 Ill.2d 69, 82.) Excluded from such damages are personal injury or damage to other property, and defects caused by a sudden and dangerous occurrence rather than deterioration. Foxcroft Townhome Owners Association v. Hoffman Rosner Corp. (1983), 96 Ill.2d 150, 156, 449 N.E.2d 125; Moorman Manufacturing Co. v. National Tank Co. (1982), 91 Ill.2d 69, 82-83; Vaughn v. General Motors Corp. (1983), 118 Ill. App.3d 201, 203-04, 454 N.E.2d 740. *fn1

Hansen principally relies on Moorman to support his argument that economic loss is not recoverable in a case such as this. There, plaintiff sought recovery for economic loss under tort theories of strict liability, negligence, and misrepresentation as the result of defects in a grain storage tank manufactured and sold by defendant. The supreme court held that these tort theories could not support plaintiff's claim for mere economic loss, premised on the availability to plaintiff of a warranty remedy, primarily by invoking the Uniform Commercial Code (UCC). (Ill. Rev. Stat. 1981, ch. 26, par. 1-101 et seq.) The court repeatedly emphasized that permitting recovery for economic loss would usurp the remedial scheme of the UCC. (Moorman Manufacturing Co. v. ...


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