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Perschall v. Raney

OPINION FILED OCTOBER 28, 1985.

WILLIAM E. PERSCHALL ET AL., PLAINTIFFS-APPELLEES,

v.

LORRAINE

v.

RANEY, D/B/A RANEY TERMITE CONTROL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McLean County; the Hon. Joseph H. Kelley, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Plaintiff sued defendant in the circuit court of McLean County for the tort of negligent misrepresentation. The trial was held at bench, and at its conclusion the court awarded plaintiffs judgment in the amount of $4,223.97 and costs. Defendant appeals.

The issues raised are: (1) the manifest weight of the evidence, (2) lack of foundation for the admission of certain photographs, and (3) lack of sufficient evidence to support the award of damages. At the time of oral argument, we requested supplemental briefs on the application of our recent opinion in Grass v. Homann (1984), 130 Ill. App.3d 874, 474 N.E.2d 711. We have concluded that Grass is distinguishable from the instant case and affirm the judgment.

The operative facts as developed at trial are contained in a bystander's report prepared in accordance with Supreme Court Rule 323(c) (87 Ill.2d R. 323(c)). That report reveals the following.

Plaintiffs contracted to purchase a residential property in Bloomington. The contract provided for a termite inspection showing that there was no active infestation of termites or other wood-destroying insects and that there was no structural damage due to past or present infestations. The real estate broker representing the seller of the property engaged defendant to make the inspection and prepare the report. The defendant, through her employee who made the inspection and report, knew that it would be presented to and relied upon by the purchasers.

Defendant's employee, Finck, went upon the premises. In the basement a partition divided that area into two spaces, an east room and a west room. The sill plate, floor joists, and structural members in the east room were visible and accessible except where obscured by furnace ductwork. In the west room the floor joists and structural members were not visible and accessible because they were covered with a metal ceiling. There was a detached garage on the premises, but it was locked at the time of Finck's inspection.

The inspection covered the exterior of the house and the basement. The garage was not inspected. Finck stated that if he cannot gain access to the interior of a structure, he does not inspect either the exterior or the interior. The exterior inspection of the house revealed that it had previously been treated for termites; a previous infestation was noted in the basement in the sill areas; however, the report found "no new or active infestation."

The termite inspection report contained Finck's opinion that there was no structural damage to the property. Finck testified that although he was unqualified to give an opinion regarding structural damage, he based his opinion that no structural damage existed upon his inspection of accessible areas. The termite inspection report provided:

"NOTICE: THIS IS NOT A STRUCTURAL DAMAGE REPORT. It is a report of the visual evidence of infestation and damage caused by termites or other wood destroying organisms based upon a careful visual inspection of all accessible areas by a qualified inspector. The inspector's findings reflect visible conditions on the date of inspection which are summarized in this report. This report is not a guarantee that infestation or damage does or does not exist, nor is it a guarantee that future infestation or damage will not occur. This company and its employees are not experts in the construction or building trades. This report does not and cannot state the extent of any structural damage caused by termite infestation. If any past or present infestation or damage is noted on this report, it is recommended that the owner, or other interested parties, contact a qualified engineer, architect or other qualified expert in the construction or building trades to determine the existence, nature and extent of structural damage to the inspected property."

The report also provided that treatment of the property was not recommended.

Prior to closing, plaintiffs inspected the property. Because the power was off, there were no lights in the basement. From their observation in the dark, plaintiffs observed no problems. Also prior to closing, plaintiffs were given a copy of the termite inspection report prepared by Finck. No questions were asked of the seller concerning the report or damage to the property.

Approximately three days after the closing, plaintiffs visited the property. By this time the power had been turned on and lights were available in the basement. Plaintiff William Perschall stated that a portion of a floor joist in the area above the furnace "looked funny." He touched the joist and a portion of it broke off in his hand. Further investigation revealed that other wood structural members in the basement were likewise afflicted. Plaintiffs then called another termite and pest control service.

An employee of the second service, Vandeveer, made an inspection. At the time he was not a certified technician under the provisions of the Structural Pest Control Act (Ill. Rev. Stat. 1983, ch. 111 1/2, par. 2203.06), but he had been certified in the past. Vandeveer's report indicated a previous termite infestation and treatment of the house and an active termite infestation in both the interior and exterior of the garage. Additionally, the report stated that there was an active infestation of powder post beetles in most joists and sills in the basement, together with extensive structural damage in both the east and west rooms in the basement, and that all of this would have been apparent upon a careful inspection.

After Vandeveer's inspection, plaintiff William Perschall removed all the metal ceiling in the basement. Extensive structural damage was observed in the sills and joists. Plaintiff Tresea then called defendant and complained about Finck's report. Finck returned to the premises and conducted a further inspection in the presence of Tresea Perschall. He again found no active infestation. He observed the structural damage but ...


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